Negative and Positive Rights - When Positive and Negative Rights Conflict

When Positive and Negative Rights Conflict

Rights are often spoken of as inalienable and sometimes even absolute. However, in practice this is often taken as graded absolutism; rights are ranked by degree of importance, and violations of lesser ones are accepted in the course of preventing violations of greater ones. Thus, even if the right not to be killed is inalienable, the corresponding obligation on others to refrain from killing is generally understood to have at least one exception: self-defense. Certain widely accepted negative obligations (such as the obligations to refrain from theft, murder, etc.) are often considered prima facie, meaning that the legitimacy of the obligation is accepted "on its face"; but even if not questioned, such obligations may still be ranked for ethical analysis.

Thus a thief may have a negative obligation not to steal, and a police officer may have a negative obligation not to tackle people—but a police officer tackling the thief easily meets the burden of proof that he acted justifiably, since his was a breach of a lesser obligation and negated the breach of a greater obligation. Likewise a shopkeeper or other passerby may also meet this burden of proof when tackling the thief. But if any of those individuals pulled a gun and shot the thief for stealing, most modern societies would not accept that the burden of proof had been met. The obligation not to kill—being universally regarded as one of the highest, if not the highest obligation—is so much greater than the obligation not to steal that a breach of the latter does not justify a breach of the former. Most modern societies insist that other, very serious ethical questions need come into play before stealing could justify killing.

Positive obligations confer duty. But as we see with the police officer, exercising a duty may violate negative obligations (e.g. not to overreact and kill). For this reason, in ethics positive obligations are almost never considered prima facie. The greatest negative obligation may have just one exception—one higher obligation of self-defense—but even the greatest positive obligations generally require more complex ethical analysis. For example, one could easily justify failing to help, not just one, but a great many injured children quite ethically in the case of triage after a disaster. This consideration has led ethicists to agree in a general way that positive obligations are usually junior to negative obligations because they are not reliably prima facie. Critics of positive rights implicitly suggest that because positive obligations are not reliably prima facie they must always be agreed to through contract.

Nineteenth century philosopher Frederic Bastiat summarized the conflict between these negative and positive rights by saying:

According to Jan Narveson, the view of some that there is no distinction between negative and positive rights on the ground that negative rights require police and courts for their enforcement is "mistaken." He says that the question between what one has a right to do and who if anybody enforces it are separate issues. If rights are only negative then it simply means no one has a duty to enforce them, although individuals have a right to use any non-forcible means to gain the cooperation of others in protecting those rights. Therefore, he says "the distinction between negative and positive is quite robust." Libertarians hold that positive rights, which would include a right to be protected, do not exist until they are created by contract. However, those who hold this view do not mean that police, for example, are not obligated to protect the rights of citizens. Since they contract with their employers to defend citizens from violence, then they have created that obligation to their employer. A negative right to life allows an individual to defend his life from others trying to kill him, or obtain voluntary assistance from others to defend his life—but he may not force others to defend him, because he has no natural right to be provided with defense. To force a person to defend one's own negative rights, or the negative rights of a third party, would be to violate that person's negative rights.

Other advocates of the view that there is a distinction between negative and positive rights argue that the presence of a police force or army is not due to any positive right to these services that citizens claim, but rather because they are natural monopolies or public goods—features of any human society that arise naturally, even while adhering to the concept of negative rights only. Robert Nozick discusses this idea at length in his book Anarchy, State, and Utopia.