Positive and Negative Rights

The following blog post is written by Hadil, an LL.M. student from Syria who recently arrived in the United States. Read her introductory blog post here >
One of the most confusing concepts surrounding the protection of human rights is that some of the nations with the greatest constitutions affording the greatest number of rights to its people have committed some of the most egregious human rights violations. Professor Stern’s lecture on positive and negative rights cast some light on why this has occurred.

In order to understand why such vast granting of rights could have resulted in the complete lack of actual rights is centralized around the difference between positive and negative rights. Negative rights are protections from certain acts by a government. They restrict the government from taking specified actions against its people. Positive rights on the other hand are generalized rights that are given to people and can only be fulfilled if the government acts. An example of a positive right is the “right to shelter.” For example, the right to shelter could be violated without a government ever having existed to provide that shelter. Negative rights, however, will always be fulfilled absent government action. Take Double Jeopardy, the right not to be tried for the same offense more than once. If there was no government to prosecute a person for a crime, they could never be convicted twice. Or consider the right to freedom of speech. If there was not government to pass laws restricting free speech, people could say anything they wanted.

One may wonder how this distinction this translates to the failure of governments to act in accordance with constitutions that provide a vast number of rights, both positive and negative. Many of the rights are positive in form, and are therefore very difficult to enforce and define. Say that a person must be given something, e.g., “health care,” or “a clean environment.” Such rights limit the function of the government to act in the best interests of all. For example, the right to shelter would be overly expensive and possibly impractical. As such the courts will “rewrite” the right to simply mean as the “right to seek shelter.” This completely guts and destroys the principle that was meant to be granted by the right to shelter. Such rewriting inevitably leads to a complete disregard for the entire set of laws. As such, not only are positive rights threatened but negative rights are as well.

One may question why then a negating of negative rights does not occur in the same way and lead to the destruction of constitutions that way. The reason negative rights do not establish the same thing is because they simply prevent the government from acting and they can be defined clearly and fulfilled without significant cost. For example, the government may not inhibit one’s ability to obtain shelter. This does not cause the government expense nor does it imply that positive action of the government must be taken at all. As such, the rule is not so overly broad that it either costs or limits the ability to act in a certain way when crisis occurs.
For example governments open up some buildings at times for use during really cold weather to those without shelter. Negative rights do not impede or tie the hands of the government in the same way that positive rights do.

Due to the different ways that rights interact, positive rights granted in constitutions can lead to the destruction of the constitutions, while negative rights lead to more stable governments.

View Professor Stern's talk here:

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