Negative and Positive Rights - Criticisms

Criticisms

Presumably, if a person has positive rights it implies that other people have positive duties (to take certain actions); whereas negative rights imply that others have negative duties (to avoid certain other actions). Philosopher Henry Shue is skeptical; he believes that all rights (regardless of whether they seem more "negative" or "positive") requires both kinds of duties at once. In other words, Shue says that honouring a right will requires avoidance (a "negative" duty) but also protective or reparative actions ("positive" duties). The negative positive distinction may be a matter of emphasis; it is therefore unhelpful to describe any right as though it requires only one of the two types of duties.

To Shue, rights can always be understood as confronting "standard threats" against humanity. Dealing with standard threats requires all kinds of duties, which may be divided across time (e.g. "if avoiding the harmful behaviour fails, begin to repair the damages"), but also divided across people. The point is that every right provokes all 3 types of behaviour (avoidance, protection, repair) to some degree. Dealing with a threat like murder, for instance, will require one individual to practice avoidance (e.g. the potential murderer must stay calm), others to protect (e.g. the police officer, who must stop the attack, or the bystander, who may be obligated to call the police), and others to repair (e.g. the doctor who must resuscitate a person who has been attacked). Thus, even the so-called "negative right not to be killed" can only be guaranteed with the help of some positive duties. Shue goes further, and maintains that the negative and positive rights distinction can be harmful, because it may result in the neglect of necessary duties.

James P. Sterba makes similar criticisms. He holds that any right can be made to appear either positive or negative depending on the language used to define it. He writes:

What is at stake is the liberty of the poor not to be interfered with in taking from the surplus possessions of the rich what is necessary to satisfy their basic needs. Needless to say, libertarians would want to deny that the poor have this liberty. But how could they justify such a denial? As this liberty of the poor has been specified, it is not a positive right to receive something, but a negative right of non-interference.(emphasis added)

Sterba has rephrased the traditional "positive right" to provisions, and put it in the form of a sort of "negative right" not to be prevented from taking the resources on their own, albeit creating a conflict with the traditional negative right of private property. Thus, all rights may not only require both "positive" and "negative" duties, but it seems that rights that do not involve forced labor can be phrased positively or negatively at will. The distinction between positive and negative may not be very useful, or justified, as rights requiring the provision of labor can be rephrased from "right to education" or "right to health care" to "right to take surplus money to pay teachers" or "right to take surplus money to pay doctors".