Tag Archives: human rights

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?

transgenderstudentlife:

knowhomo:

LGBTQ* Terms and Definitions

Transgender V. Transsexual – As defined by different organizations, dictionaries and websites



(Graph from Northwestern University’s Medical Department)

it’s almost painful to see some of this wording. i actually cringed at the way some of these definitions are phrased.

Link

tooyoungforthelivingdead:

lolz

Israel said on Monday it has severed contacts with the U.N. Human Rights Council after its launch last week of an international investigation into Jewish settlements in the occupied West Bank.

The decision, announced by a Foreign Ministry spokesman, meant that the fact-finding team the council planned to send to the West Bank will not be allowed to enter the territory or Israel, said the spokesman, Yigal Palmor.

“We are not working with them any more,” Palmor said about the Geneva-based forum. “We had been participating in meetings, discussions, arranging visits to Israel. All that is over.”

ONLY DEMOCRACY IN THE MIDDLE EAST

Israel cuts contact with U.N. rights body over probe

Link

Human and civil rights do not exist outside of a system with the capacity to enforce them.  The UN is the body able to enforce human rights precisely because it supersedes state authority and has the legal system to hold  breaches to account*.  It exists as a check to defend the well being of citizens against the state.  The same is true of civil rights; while they may be on the law books they only exist as long as the judiciary has sufficient strength to hold the other organs of the state to account.  If the judiciary is cuckold to a totalitarian regime then the rights aren’t worth the paper they’re written on.

But that is the crux.

Rights only exist when created through a medium able to build consensus on them, with a jurisprudence system that can codify them and sufficient strength to enforce them.  Natural rights argue that these stem from a higher power (be it a divine being or something intrinsic to being human), human rights function through human action.

Without the UN there is no authority on human rights except for the potential of benevolent states.  In a rigidly anarchist society** human rights do not exist and must instead be treated as a code of ethics rather than a right.  Otherwise you must create a body of consensus and a jurisprudence system to develop and enforce these rights.  You cannot determine human rights on an individual basis because they cease to be universal rights.

I am not adverse to criticism of the UN, far from it.  And I am not adverse to criticism of human rights; it is something that I do often engage in.  But at least understand how human rights function instead of using them as a tool of rhetoric without grounding what is actually meant by them.

Internet access as a human right relates to the prevention of state censorship and the creation of points for being to be able to access the internet by the state.  They do not intrinsically apply to requiring businesses to provide internet access to everybody free of charge.

*Whether or not the UN functionally does this is another question.

**Because I’m vaguely aware that there are arguments for alternative jurisprudence systems under anarchism, however these aren’t being brought up.

In relation to this ask on rights which deleted the actual content of my response.

w/r/t the post of mine that you reblogged: I’m not into the non-aggression principle either, soo…

Ok, so what structures/mores/ethos/creeds/morals/philosophical conceptualisations are there, or should be, that establishes a minimum standard of living/potential for self-determination/code for functional conduct within society for person-to-person, person-to-business and person-to-state interactions?

For the healthy function of society within the current situation of living in the statist situation that we do, human rights are necessary because they establish a morally defined balance of power between the citizenry and the state, in the situation where the citizens have surrendered sovereignty to the state and allowed the state to hold a monopoly on violence.

I will be the first to argue that human rights are a social construct and don’t tangibly exist as something you can touch and feel.  However considering that governments can be held legally accountable for denying human rights; people fight, kill and die for human rights; and societies function using human rights they very much do exist whether or not you’re willing to believe in them.  Their reality comes from their realisation in the functioning of societies, not in whether or not you want to dispute their validity. (Which I’m perfectly happy to see as disputable, but that doesn’t mean they don’t exist.)

But, other than childish whining, what purpose does it serve to walk around demanding that they don’t exist if you aren’t going to posit something functional that works in it’s place?

Do you genuinely think a realisation of correct political conduct through egoism and selfishness will ensure a decent standard of living and a conflict free society?  Or is it just a legitimisation of your own subjective experience of privilege within society; coupled with sticking your fingers in your ears and shutting your eyes until it all goes away?  Because arguing that your point of view is right because it’s your experience, rather than arguing towards any attempt at a broader validity exists towards your position, is just really shitty philosophy.

Link

akagoldfish:

spacebaw:

akagoldfish:

spacebaw:

No nation has the right to exist.

Rights are things given by nations anyway, so applying rights to nations is laughable.

image

Rights aran’t “given”, that’s why they’re called “rights”

Yes, but I was referring to the concept of rights within a social contract, no matter how incorrect that is.

I think my point needs to be put in context.

Fair enough, though I didn’t find that clear in context. And even within a social contract, natural rights still exist.

My bad on cutting out all the proceeding text though. I thought I was doing it as a link so people could go see the full thread, but tumblr screwed me again.

Both of you are wrong, in different ways.  Rights don’t exist, and therefore Israel is just as legitimate as any individual in claiming they have a right to something.

akagoldfish: Rights aren’t “given”, but they don’t just exist.  They’re demanded and taken.  They’re an expression of power secured in balance.  As long as the government sufficiently fears their own people or international pressure, rights are respected.  As long as the individuals sufficiently fear their government, rights are respected (if you take a Hobbesian view of human nature).  They exist only in so much as they’re demanded and fought for.

The idea of natural rights and legal rights as being separate is a false dichotomy.  Natural rights are uncodified social mores that people are normalised into expecting to have respected, legal rights are codified social mores that people are normalised into expecting to have respected.  Neither of which exist intrinsically and both of which are predicated on the assumption that in the instances where they’re broken an expression of force will be demonstrated to reclaim them.  The only thing that separates them is a bit of paper to expressly state what one entails, both purely exist through social contract and the threat or reality of force.

spacebaw: rights for the individual therefore exist for the group or nation in exactly the same way.  Israel has the right to exist in so much that it claims it does and is willing and able to fight to prove as much.  Israel isn’t a nation though, it’s a nation-state.  Individuals rights are demanded of other individuals and of the state, the rights of a nation-state are therefore demanded of other nation-states and of organisations of nation-states (such as the U.N.).  The rationalisation and effective function is the same but it’s simply the scale that differs.

Throwing this one out there a little more: nations, like rights, don’t intrinsically exist but are social constructs. The argument for Israel existing as a jewish state (that is to say to define the Israeli nationality on ethnic/religious lines) is akin to any other movement which defines nationality on stringent ethnic or religious lines and is racist and illegitimate for exactly the same reasons those other movements are.  That is where Israel’s legitimacy fails, not in some rabbit hole arguing about whether or not states can have rights.

unpopular opinion

Link

hollyandmax:

we were talking about how theoretically human rights cannot be sold – ie you can not sell your right not to be enslaved (like, you can’t become someones slave in exchange for them to give money to your family or whatever)

Only you could http://en.wikipedia.org/wiki/Indentured_servant

and she was like “BUT SIR, ISNT PROSTITUTION SEXUAL SLAVERY, AND IT’S LEGAL”

It could be argued because the act of selling sex commodifies your body.  You’re not only alienated from your labour but indeed your physicality and sexuality is the labour, so you become alienated from your physical self and your sexuality.  Because the sexuality is the source of the wage you then meet the next problem:

if prostitution is slavery then surely by that logic any job is slavery? SHE IS SUCH A FUCKING KNOB.

Yes, any job is slavery.  http://en.wikipedia.org/wiki/Wage_slavery

Broadly on human rights:

They’re a social construct.  They do not tangibly exist any further than as a codified set of laws we agree not to break or to punish those who do.  A piece of paper cannot enforce human rights and so in reality they exist only so far as people fight to defend them.  Whether or not it would be legally recognised, you can sell yourself into slavery because it’s an agreement made by you and the new master.  Human rights only exist in theory so theoretically you can do what you want with them.

On prostitution:

That wasn’t meant as an attack on sex workers, however the proletariat are all wage slaves alienated by our labour.  That’s no different whether your product is a loaf of bread or your product is your sexuality.

So yeah I’ve got to agree with the “fuckwit” in your class on pretty much all of this …

Holly & Max: Fuckwit in my Human Rights Law class

akagoldfish:

livingispolitical:

socialrupture:

35 Arrested in protest against police shootings; attacks on bank and police station — San Francisco, CA

San Francisco police made approximately 35 arrests Tuesday night during protests over an officer-involved shooting in the Bayview district on Saturday. The protest began in Dolores Park at around 5 p.m. and the march toward the Castro area began around 6 p.m.

The fatal police shooting of 19-year-old Kenneth Harding Jr., who allegedly ran from police and fired shots after officers attempted to detain him while conducting a fare enforcement at a San Francisco Municipal Transportation Agency light-rail stop in the Bayview, occured Saturday and has garnered public reaction.

The crowd, estimated at 150, marched up to the Castro, where protesters vandalized a Bank of America at 18th and Castro streets. The group went on to the Castro Muni station, where protesters vandalized and threw smoke bombs into the underground station.

At one point during the protest, a group walked past Mission Police Station and someone threw a hammer at officers. The attempt failed to cause any damage and no officers were struck or injured.

The crowd proceeded down Market Street, distrupting Muni service and on-street traffic. The corridor was blocked by a combination of protesters and police. Cops diverted traffic at Fourth and Market streets, only allowing Muni vehicles through.

The Police Department declared an unlawful assembly at approximately 7:45 pm.

During the course of the protest, a news media camera operator was assaulted and an arrest was made in the incident.

All Muni stations have reopened.

http://www.sfexaminer.com/local/crime/2011/07/san-francisco-police-make-about-35-arrests-protest-over-harding-shooting#ixzz1Scml1bWv

What I’ve always quite liked about America is how unabashed they are in ignoring the tenets of liberalism.  One of the fundamental first generation human rights, the right to freedom of assembly, is not only broken (as you’d expect in any bourgeois state) but America has gone whole hog.  Not only does the law admit and label the right it contravenes, it goes so far as to then paint the people who exercise such a right as criminals (“unlawful assembly”).

It’s sadly not that amazing that this doesn’t cause more of a stir.

Umm…what? No one has a right to break windows or disrupt public transit; that’s why it’s called “civil disobedience”.

The assembly was declared “unlawful” because it’s main purpose was to destroy property and attack police (this is not an establishment media characterization of the goals of the protest, it’s their own description of the protest’s intent). There has been no liberal society, at any time in history, that would view a gathering that’s main purpose was mayhem and destruction as a lawful assembly. In a liberal society, a lawful assembly is synonymous with a peaceful one.

Now let me be clear, pointing out the unlawful nature of this protest does not delegitimize it. “When injustice becomes law rebellion becomes duty” as the saying goes. But to claim that the declaration of this demonstration as “unlawful” reveals some hypocrisy is absurd. It categorically does not, and claiming it does is a distortion and corruption of reason.

My point was more regarding the naming of it as “unlawful assembly”, rather than a comment on this specific demonstration (it was a musing that came from the article rather than specifically being about the article in itself, I just impulsively reblogged the article and rambled absent-mindedly).  In the UK the law is the Public Order Act and riots are terms as “public disorder”.  While this specific protest was out with the intent of causing damage, plenty that get labelled as unlawful assembly will be because a tiny amount of disruption has been caused at a small point of the protest (especially poignant with the prevalence of agent provocateurs, at least in the UK).  The state then uses the legality to delegitimise the entire protest, and thus all who support the purpose of the protest are painted with the same stick by the media as unlawful and violent.

It’s a tool of the state to alienate the wider public from a movement, to manipulate media discourse and to delegitimise the aims, intents and/or purpose of the movement.  The use of the word “assembly” in the legal status, rather than using other nomenclature such as public disorder as we’d use in the UK, creates a connection to the lawful assembly which further dissuades people from connecting to and getting involved in protest action, reinforcing a parochial attitude to political participation.

That is, of course, without getting into the discussion of laws protecting property being to protect bourgeois interests, and the general non-existence of rights.  But hopefully it’s clearer that I wasn’t being specific to this particular event but going off on a tangent and attaching it to what had made me think of it.

I knew that I could vote and that that wasn’t a privilege; it was my right. Every time I tried I was shot, killed or jailed, beaten or economically deprived. – Stokely Carmichael

shamostan:

I love this quote. To eat, to read, to have a place to call home, all of these are rights. We currently live in a world where these simple things are taken away from you and are called privileges.

glynnthomas:

 ”Men should not petition for rights, but take them.”

This, I think, is always the most important aspect in discussion on the matter of rights.  For example quite a big discussion topic is about how we defend the RIGHT to strike, or defend the RIGHT to protest.

The answer is we don’t.  We HAVE the right to strike and we HAVE the right to protest.  They exist because we, the people, demand that they do and declare that they cannot and will not be taken from us.  The questions we should be asking isn’t how we defend the RIGHT to do things, but how we defend the things in themselves.  How we defend strikes from government and corporations, how we defend protests from police.  There’s no matter regarding whether or not we’re allowed to – we are.

Government in theory comes from the consent of the people, and exists only in so much as the people are willing to give it consent to.  This doesn’t mean those who govern will always do what the people want.  It means that when they renege on their pact with society; society is ever ready to have it’s voice truly heard.

You cannot defend a right, if you had to it wouldn’t be a right.  You defend an action from those who would stop you from doing it.  You enforce your rights, you do not request them.