Negative and Positive Rights

Good afternoon! I came across one of your posts and thought you would be the perfect help. I come to ask for some insight on the basics of what positive and negative freedoms/liberties/rights are and which amendments/articles in the Bill of Rights and UDHR represent the positives and negatives. Thank you for even reading this and thank you in advance if you can help me out!

Right, a number of terms have been thrown out in general so we need to make sure we dealing with each of them correctly.

The positive and negative most simply breaks down into a “to …” and a “from …”. So a positive freedom is one where you have a freedom to (be able to do X) and a negative freedom is one where you have a freedom from (the state or others doing Y that would affect you). This can be further understood as a positive creating an obligation of action in some regard, and a negative creating an obligation of inaction in some regard.

Then there are three further things thrown out: rights, freedoms, and liberties. Before going further it’s necessary to point out that I’m speaking to these ideas in respect to how I understand them to have developed within ‘Western’ political philosophical discourse. It must be recognised that while the Universal Declaration of Human Rights universalises this mode of thinking in many ways, it does so at the same time as also universalising an approach which has developed from African and Asian political cultures, which can be seen through the inclusion of the concept of an inherent human dignity from the very outset. My knowledge on this aspect if the UDHR is much weaker so I’m not claiming to speak to that.

Rights discourse developed from the idea of natural rights, exemplified in Locke’s Two Treatises on Civil Government and were codified in the US Declaration of Independence and the amendments in the constitution which constitute the Bill of Rights, and similarly in the French Declaration of the Rights of Man and of the Citizen. They’d seen earlier stages of recognition such as in the Magna Carta, but it wasn’t until the late 18th century that they really took root as something people fought and died for across Europe and the Americas. Initially rights were recognised as something endowed by God or a Creator. They are inherent to all human beings (initially just men …) and it is treated as such that each person is retains their rights regardless of whether or not they know of them, they have been breached, they live in a state which does not recognise them, and so on. While rights discourse has largely been secularised (the necessity of a God or omnipotent being has declined) the same recognition of function (that rights are inherent and inalienable) remains. Nominally, rights are those which have been codified in constitutions, legal documents, international conventions however the language within which they exist is phrased in such a way to recognise that if those documents did not exist the rights would continue to do so.

Freedom is the ability to make choices and exert agency based upon one’s own choices without coercion. Liberty is the recognition that this happens within the confines of a political/social grouping, such as a state with its judicial system, where your actions affect others. I don’t know a great deal about positive and negative liberties, but positive and negative rights I have a much better grip on, so I’ll go into more depth on those.

Negative rights therefore compel the state to not do something to you, without compelling you or the state towards a specific action. Freedom of speech, conscience, or religion is a perfect example. You do not have to say something, think something, or believe something. But if you choose to do so the state is compelled not to intervene. Amendment 1 of the Bill of Rights states “Congress shall make no law respecting …”.

I would’ve said the other rights in the Bill of Rights (the first 10 amendments) are phrased as negative rights, with the exceptions of 6 and 7 – the right by which the state is compelled to provide a speedy trial, and a trial by jury. They give you the right to something which must be provided for you.

With regards to the Universal Declaration of Human Rights a similar approach can be applied looking at each article to assess the framing used as to whether or not they’d apply as negative or positive. So Articles 4 and 5, freedom from slavery and torture, are clearly negative rights. Article 25 is clearly a positive right:

“(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.”

However, in 1993 the Vienna Declaration and Programme of Action was passed which states that “All human rights are universal, indivisible and interdependent and interrelated.” This recognises that you cannot have one human right without the other. You can’t pick and choose which rights are applicable: if you prefer only the negative rights, they cannot be fully appreciated, enjoyed, or exercised without also involving the positive rights.

There are also arguments that the separation of negative and positive rights is a false separation that exists only within the framing of the document as opposed to something inherent to the nature of the right itself, which is an approach that I prefer. You cannot have freedom from censorship without the freedom to say what you want. It is the unsaid that at the same time must also be true.

That’s without getting into why I reject human rights as natural or universal. I think they’re a tool within the current society, but not something that exist as an abstract.

Hope that helps?

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