Are Positive Human Rights Really a Good Idea?

Human rights are generally divided into two categories: positive rights and negative rights. Negative rights are rights which can be fulfilled without any government action. Indeed, as long as the civil government does not act, a person’s negative rights will be realized. Common examples of negative rights are the right to life, freedom of speech, freedom of religion and conscience, freedom from degrading treatment or punishment, and freedom from arbitrary detention. As may be apparent, the Bill of Rights in the U.S. Constitution is virtually exclusively filled with negative rights. The international equivalent of the Bill of Rights is the International Covenant on Civil and Political Rights, international law’s primary human rights treaty. This Covenant, while containing some positive rights, primarily includes the classic negative rights.

Positive rights, on the other hand, are rights which only can be fulfilled with governmental assistance. Indeed, positive rights by their very nature imply a right to command that the government do something. Without positive government action, positive rights cannot exist. Examples of positive rights include the right to housing, the right to health, the right to a clean environment, the right to education, the right to food, the right to social security, and the right to employment. Many of today’s newer Constitutions, like South Africa’s, contain both positive and negative rights. And beyond domestic constitutions, the International Covenant for Economic, Social and Cultural Rights is filled with positive rights.

Today, the legal and academic community has become obsessed with positive rights. And why shouldn’t they? Positive rights sound wonderful. Who wouldn’t want everybody to have a house, food, a clean environment, and a “living wage”? Peeling back the cover, however, quickly reveals a huge problem with positive rights: they undermine the rule of law. And without the rule of law, no human right, whether positive or negative, can be fulfilled.

Center for Global Justice Executive Director Craig Stern discussed this issue at length in his article, Human Rights or the Rule of Law -- The Choice for East Africa?, _ Mich. St. Int'l L. Rev. _ (forthcoming 2015).

Professor Stern will lecture on this topic in more detail on Tuesday, October 13th, at 12:00 pm in Robertson Hall 106. Lunch will be provided.

by Ernie Walton, Administrative Director for the Center for Global Justice, Human Rights, and the Rule of Law