Conceptual brief: Negative Rights

In Idealistic thought about what human rights are, the Negative Rights view is the position that a Right is a moral veto on actions by another, a sacred domain of each individual which no other individual can touch. Obviously this would be the reverse of a Positive Right, or a right which is not a veto on another’s action, but a requirement or entitlement. Freedom of Speech is conceived as a Negative Right by those who say that it means that one must not censor or suppress or interfere with the words of others. It would be conceived as a positive right if we said, say, that Freedom of Speech guaranteed everyone the use of a printing press or a megaphone, meaning that we are morally bound to provide these things, where in the Negative Rights scheme we were only restrained from confiscating or breaking them. The Negative Rights position has a huge practical advantage as part of a philosophy, and that is that it entirely avoids the “Ought implies can” problem you almost immediately encounter with the alternative.

If the Rights of my neighbor are negative, I am unconditionally and entirely capable of fulfilling the moral obligations involved in these rights in every case. I will never be without the resources necessary to withhold my hand from violence against his rights, for withholding my hand is a duty I can perform without even having a hand, without even living. So in that sense the burden of respecting Negative Rights is much lighter than that of fulfilling the obligations involved in a proposed Positive Right; one might say that you automatically owe your neighbor neglect under the Negative Rights scheme, and call that a cynical or selfish view of morality. But consider the real meaning of a law founded on Positive Rights, on the belief that there are specific services a man must do for his neighbor else he breaks the law. If we really did say that Freedom of Speech meant that everyone was owed a printing press, where would one get all those printing presses? It would not be very hard to effectively argue that you were excused from the duty of providing the printing press, because you yourself had none. If we proposed to tax to provide printing presses for those who did not have them, it would not be hard to argue that those in poverty should be excused from the tax, because of the repugnance of snatching away their survival for the sake of printing presses. Yet if we called the Positive Right a right at all, we have proposed that to go against it is fundamentally immoral and an abuse of the individual who goes without a printing press; and in so proposing we have immediately entangled ourselves in a series of exceptions. We have perforated the protections of the right by trying to force it to cover more things than it should. In the end it becomes a real policy question which portion of humanity will be forced to bear the full burden of the rights of others; the universal human right is transformed into a highly specific set of obligations, imposed on specific people. And this is exactly what we see in Progressive thought: Rights are believed to be positive, and as a consequence, the Progressive spends a lot of time telling one group they have an obligation to another group who has no obligation to them. The Rights, which we naturally consider an element of our fundamental equality, are thus made into a weapon for inequality before the law. The Positive Rights scheme, like so many other Liberal thoughts, reaches its full maturity in the form of a monstrous contradiction of the original purpose: The equal and universal Rights of human beings are the basis for preferential and unequal treatment of human beings.

So the Negative Right scheme, though it appears to offer far less in terms of free lunch, free healthcare, free phones, etc. offers far more in terms of the justice which it is the true function of the law to defend. Because the Rights are conceived in an intellectually disciplined way, driven not by sympathy but by a conception of what obligations a human being really can have because he really can always keep them. By demanding of men only what they surely can do, the Negative Right is a much stronger voice as to what they must do.

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