Positive and Negative Rights

This writer would like to begin this assessment firstly by defining the main key terms in this question, starting with positive rights and negative rights. Firstly a right is defined as a moral or legal entitlement to have or obtain something or to act in a certain way. Positive rights are rights that require and involve a positive duty and action, and are classified as second generation rights. Social, cultural and economic rights are considered to be positive rights and are also known as distributive rights, because someone (usually a government) has to facilitate these rights by doing such things as building hospitals, schools and churches, generate employment, and provide food and other such necessities of life. Examples of these rights include the right to housing, education, health, right to social security, right to participate in the cultural life of a community etc.

Negative rights on the other hand mostly require inaction, i.e. in order to be facilitated they require non-interference. The best example of this would be the right to privacy, which in order to be maintained and respected requires the non interference of others. Negative rights are mostly civil and political rights which include the right to vote, right to hold office, the right to free speech, right to assembly etc. However there seems to be a certain exception as not all civil rights are negative rights. In order to fulfill certain civil rights a positive action is required. An example of this would be the right to social security, which would require the government to provide law enforcement tasks such as a police force to uphold law and order in the country. This involves a positive duty and action by the government towards the people, and therefore certain civil rights such as these cannot be classified as ‘negative rights.’ However certain philosophers such as Henry Shue believe that such a classification of negative rights and positive rights are unnecessary, as both types confer a duty, one being a positive duty to act and the other conferring a negative duty not to act.

An inherent clash however exists between negative and positive rights. This is due to the fact that these rights are polar opposites and cannot coexist together, as certain negative rights are foregone in order to facilitate certain positive rights. This is done on the basis of importance and priority where the lesser right is trumped by a right of greater importance and significance. A fine example of this would be where the right to privacy is violated in order to uphold the right to safety and security of another in places such as airports etc. This clash came to the fore especially during the years of the Cold War, where the two ideological camps, namely the communists and capitalists, campaigned for the importance of one set of rights over the other, with the USSR and its emphasis on the importance of the collective over the individual for positive rights, and the west with its emphasis on a liberal democracy placed significance on the protection of negative rights. Therefore the main problem that exists in the matter of human rights today is whether certain rights can or should be violated in order to uphold the greater right.  

Currently this battle of supremacy between negative and positive rights has manifested itself in the United States of America with the introduction of President Barack Obama’s health reform package, ‘Obamacare’.  Accordingly the US government places a greater emphasis on the protection of positive rights, such as the provision of healthcare which would require higher taxation in order for this health service to be funded adequately and redistributed evenly. However every human being has the negative right of not having their money taken away from them, and should the government insist on upping the health sector, this negative right is taken away on the premise that the provision of such service is greater than the protection of this negative right. However Libertarians and individualists claim that this negative right is greater and that this positive claim on the resources of others should not be upheld at the expense of other. Therefore they opine that the government should not increase taxes in order to fund the health reform package.

It seems apparent that many governments place a greater emphasis on positive rights, as it is with these rights that human beings are enabled to lead a prosperous life. However the violation of negative rights can lead to serious ramifications as these are the rights associated with one’s liberties and freedoms. Unfortunately as pointed out earlier, both these rights cannot exist in their entirety concurrently as it is necessary that certain rights are forgone for the utilitarian principle of the “greater good”. In accepting this reality it is now understood that in this case, any government’s responsibility would be to maximize the availability and to facilitate the maximum amount of rights possible. 

Unfortunately this is more of a utopian concept than reality, and this deficiency has led to serious consequences, the finest example being the Arab spring where the violation of certain rights led to massive uprisings, which in most cases led to the overthrow of governments and regimes such as Egypt, Tunisia, and Libya etc. In this instance amongst a myriad of other factors which led to the revolution, deprivation of the population of a stable and corruption free government, the freedom of religion, freedom of expression, a stable economy, the lack of political freedom etc. created a conducive environment for unrest and dissatisfaction.   This problem has now become a long term one, with Syria still in much chaos and turmoil and with the international community conflicted and unsure of how to tackle it without a further violation of rights. This goes to show that one cannot simply violate a right with impunity, there are far reaching consequences for such actions and retribution is bound to be unforgiving. The fate of Muammar Gaddafi of Libya, who violated many rights such the freedom of speech, protests, right to life and fair trial etc. of his citizens, is a testament to this.

                      

To analyze this matter in the local context it must be noted that during the thirty year long civil war of Sri Lanka, several negative right violations occurred on the part of both parties to the war, i.e the LTTE and the government. Such rights included the right to life, freedom from arbitrary arrest, right to due process of law, freedom of association etc. etc. However since then the government has attempted to foster reconciliation and amend the bonds broken through the violation of these rights through the LLRC. 

Currently the government also seems to be making significant and genuine attempts in the facilitating of positive rights through the ‘Divineguma bill’, which aims to uplift the poor through the provision of micro financing schemes and other such financial assistance. This attempt on part of the government should be commended as the facilitating of such rights have a high probability of leading to elevated living standards of the country, and involve low income earners in the economy and development process as well.

In conclusion human rights whether negative or positive should be enhanced, facilitated and protected in any given situation. Classifications are irrelevant as no set of rights is above the other; both are equal in priority and therefore should be given the same prominence. A government is deemed responsible and legitimate based on its human rights track record and therefore it should not override rights with impunity, but must act in a way that affords citizens their maximum rights. While this is easier said than done in most instances, it is a necessary effort that should be taken by the government not only to protect its people, but now to protect themselves as well. 

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