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Negative and Positive Rights

Cécile Fabre

in Social Rights Under the Constitution: Government and the Decent Life

I complete the argument for social rights undertaken in Ch. 1, by looking at differences between negative rights that our autonomy and well‐being be respected, and positive rights, of which social ... More

I complete the argument for social rights undertaken in Ch. 1, by looking at differences between negative rights that our autonomy and well‐being be respected, and positive rights, of which social rights are a subset, that they be promoted. In doing so, I argue for what I call negative social rights, to wit, rights that the government does not deprive us of the four types of resources under study if we have come to reply upon them and if by so depriving us it would bring us below the threshold of a minimally decent life.Less

Environmental Rights as Democratic Rights

Tim Hayward

in Constitutional Environmental Rights

Constitutionalising a right makes it immune to the possibility of (routine) democratic revision. So, constitutional rights that set certain substantive values beyond the reach of routine political ... More

Constitutionalising a right makes it immune to the possibility of (routine) democratic revision. So, constitutional rights that set certain substantive values beyond the reach of routine political revision have the effect of pre-empting decisions that might otherwise be arrived at through democratic procedures. To the extent that environmental rights can be taken to embody substantive value commitments, they would appear to be vulnerable to the criticism that the constitutional entrenchment of them is undemocratic. Certain procedural rights, however, are necessary for the very functioning of democracy as such. Can procedural environmental rights be justified on this ground? And what about the substantive right to an adequate environment? Argues that both kinds of environmental rights, in common with some existing and far less controversial rights, can in fact be justified on the very grounds that democracy itself is justified.Less

Conflicts of Rights: A Typology

F. M. Kamm

in Intricate Ethics: Rights, Responsibilities, and Permissible Harm

Previous chapters have considered what ought to be done (and which theory explains what ought to be done) when there is a conflict for an agent between his respecting the negative right of one person ... More

Previous chapters have considered what ought to be done (and which theory explains what ought to be done) when there is a conflict for an agent between his respecting the negative right of one person and his respecting the same negative right of others. The book has also explored what ought to be done when there is a conflict between an agent respecting a negative right and his preventing the violation of the same negative right in many others by other agents. This chapter discusses the ways in which rights may conflict (or at least seem to conflict) and examines whether it is possible to minimize transgression of positive or negative rights by transgressing fewer positive rights of other people. It analyzes whether negative rights can conflict with negative rights covering the same interest, giving a particular agent conflicting duties. Finally, the chapter considers the conflicts of positive rights versus positive rights.Less

Defining Positive Rights

Emily Zackin

in Looking for Rights in All the Wrong Places: Why State Constitutions Contain America's Positive Rights

This chapter provides a definition of rights and describes the distinction between the categories of positive and negative rights. It first examines the rights movements' campaigns to add education, ... More

This chapter provides a definition of rights and describes the distinction between the categories of positive and negative rights. It first examines the rights movements' campaigns to add education, labor, and environmental rights to state constitutions before discussing the controversy surrounding the positive–negative distinction. It defines positive rights as those that require government intervention in order to protect people from threats that are not directly or solely governmental. In contrast, negative rights are those that require government to restrain itself in order to protect people from threats that stem directly from an overbearing and intrusive state. The chapter suggests that state constitutions and the politics that have surrounded them demonstrate the importance of positive rights as an enduring feature of the U.S. constitutional tradition.Less

Basic Human Rights: The Moral Minimum

Charles Jones

in Global Justice: Defending Cosmopolitanism

This chapter provides the rationale for a defensible account of global justice. The view that the chapter has in mind is perhaps the most popular form of cosmopolitanism in both academic and ... More

This chapter provides the rationale for a defensible account of global justice. The view that the chapter has in mind is perhaps the most popular form of cosmopolitanism in both academic and non-academic discourse, which is called the rights approach. Rights-based theories require social, political, and economic arrangements to be consistent with the recognition of a set of rights held by persons. A central feature of rights is their functioning in arguments concerning such arrangements as reasons of insufficient strength to effect a general shift of the burden of proof to those who would ignore or override them. Hence, any violation of a right will need to be accompanied by a justification that appeals to relatively powerful moral reasons, if not other rights.Less

New States Between 1918 and 1945

Mikulas Fabry

in Recognizing States: International Society and the Establishment of New States Since 1776

Chapter 4 begins by considering Woodrow Wilson's intellectual revolution of 1916–18 which turned on the positive right of self‐determination. In marked contrast to the earlier conception of ... More

Chapter 4 begins by considering Woodrow Wilson's intellectual revolution of 1916–18 which turned on the positive right of self‐determination. In marked contrast to the earlier conception of self‐determination as a negative right, which prescribed no more than non‐interference in foreign self‐determination endeavors of self‐defined peoples and recognition of their successful conclusions, Wilson argued that a peoples' right to determine their political future imposed an active obligation on international society to bring it about. This progressive doctrine demanded that outsiders identify: (a) the peoples who qualify for the right of self‐determination, (b) the correct procedure for assessing their consent to be independent, and (c) the exact scope of positive international obligations owed to them. These questions presented insurmountable operational difficulties. Participants at the Paris Peace Conference, even Wilson, came to appreciate that if the mere voicing of claims gave groups positive entitlement and if outsiders would be bound to intervene to effect such claims, there would be no limit to state fragmentation and international disorder. In the end, the statesmen were obliged by this situation to recognize only those claimants established de facto.Less

Responsibility and Collaboration

F. M. Kamm

in Intricate Ethics: Rights, Responsibilities, and Permissible Harm

Previous chapters have discussed the form of the constraint on harming other people and how this relates to rights that individuals have. This chapter considers agent-focused concerns that may also ... More

Previous chapters have discussed the form of the constraint on harming other people and how this relates to rights that individuals have. This chapter considers agent-focused concerns that may also have a role in constraining agents from transgressing negative rights and in deciding to let die rather than kill. The doctrine of negative responsibility holds that individuals are just as responsible for things they allow to happen or fail to prevent as they are for things they bring about. In an attempt to criticize this doctrine, which he believes is an important component of consequentialism, Bernard Williams uses a case commonly referred to as Jim and the Indians. This chapter examines the concepts of negative and positive responsibility, moral responsibility, Williams's criticisms of consequentialism, the Integrity Objection to consequentialism, and physician-assisted suicide and euthanasia.Less

Moral Rights

Hillel Steiner

David Copp (ed.)

in The Oxford Handbook of Ethical Theory

This chapter explores the nature of moral rights by examining their formal structure, their status within morality, and rival theories concerning their content. Moral rights are construed as ones ... More

This chapter explores the nature of moral rights by examining their formal structure, their status within morality, and rival theories concerning their content. Moral rights are construed as ones which legal systems ought to embody. As such, it is argued that consideration of the possibility of conflicts between rights and other moral values, and among rights themselves, serves to illuminate issues surrounding their content and moral status.Less

Human Nature and Common-Sense Morality

Ingmar Persson and Julian Savulescu

in Unfit for the Future: The Need for Moral Enhancement

This chapter reviews relevant aspects of human psychology and common-sense morality. The fact that it is easier for us to harm than to benefit is reflected in so-called loss aversion; that our ... More

This chapter reviews relevant aspects of human psychology and common-sense morality. The fact that it is easier for us to harm than to benefit is reflected in so-called loss aversion; that our aversion of losing something is greater than our desire to acquire something similar. It is also reflected in that common-sense morality imposes strict duties not to commit harmful acts of killing etc. — and thereby gives us corresponding negative rights to life etc. — but provides only weaker reasons to benefit. Together with a conception of responsibility as based on causation this makes up the act-omission doctrine. Relevant aspects of our psychology are a bias towards the near future and an altruism that is limited to individuals who are near to us and that is not proportionate to larger numbers. We have a sense of justice or fairness, which primarily manifests in acts of reciprocity, tit-for-tat.Less

Grounding the Right to Health

Jennifer Prah Ruger

in Health and Social Justice

This chapter offers a philosophical justification for the elusive ‘right to health’. It provides a framework for health reform efforts and covers the degree to which the right to health is ... More

This chapter offers a philosophical justification for the elusive ‘right to health’. It provides a framework for health reform efforts and covers the degree to which the right to health is ‘justiciable’ and enforceable as prescribed in international law. The health capability paradigm argues for the right to health as a meaningful and operational right, and recognizes that realizing it requires a commitment to, and internalization of, public moral norms on the part of self and society, in addition to legal instruments for enforcement. This chapter compares positive and negative rights in the Abigail Alliance v. Eschenbach case study of the constitutional right to medical self‐defence. The chapter concludes that a right to health cannot be framed in an absolute libertarian framework of wholly individualistic rights against the state, but requires the more positive conceptualization of freedom as human flourishing.Less

A Minimal Normative Proposal

Paola Cavalieri

in The Animal Question: Why Non-Human Animals Deserve Human Rights

Finally, I argue that we already have at our disposal a theory that settles some of the moral questions of a decent coexistence, namely, human rights doctrine. I suggest that basic human rights have ... More

Finally, I argue that we already have at our disposal a theory that settles some of the moral questions of a decent coexistence, namely, human rights doctrine. I suggest that basic human rights have three main features: they are political and institutional in character; they refer to narrow morality and are thus negative rights; they are not justified by reference to rationality, self‐consciousness, or any other ”higher” characteristics, but instead by reference to the mere intentionality of the individual. In the light of the moral irrelevance of species membership, I conclude that consistency demands that we expand human rights doctrine to include all those intentional animals whom we currently treat as little more than mere things, and that we alter our institutions accordingly.Less

Harming, not Aiding, and Positive Rights

F. M. Kamm

in Morality, Mortality Volume II: Rights, Duties, and Status

Considers what would follow if the General Equivalence Thesis (GE) of the moral equivalence of harming and not aiding (in cases in which less than life is at stake) were true. The possible existence ... More

Considers what would follow if the General Equivalence Thesis (GE) of the moral equivalence of harming and not aiding (in cases in which less than life is at stake) were true. The possible existence of positive rights (or duties minus correlative rights) is considered, and an argument against positive rights by Judith Thomson is examined. Arguments are considered that attempt to derive positive rights or duties from the existence of negative rights and a warning given against the failure to consider the role of independent rights or self‐standing claims to things, and the significance of already having had something. An examination is made of how far it is possible to come, consistent with Thesis GE, toward deriving the radical conclusion that we may have a right to something to which we have no independent right or self‐standing claim if it is not permissible to take it from us.Less

Objections and Conceptions of Moral Equivalence

F. M. Kamm

in Morality, Mortality Volume II: Rights, Duties, and Status

The first section of Ch. 3 is concerned with objections and alternatives to the arguments and analyses presented in the first two chapters on the moral equivalence of killing and letting die. Two ... More

The first section of Ch. 3 is concerned with objections and alternatives to the arguments and analyses presented in the first two chapters on the moral equivalence of killing and letting die. Two issues are dealt with first: the issue of self‐ownership and the negative/positive rights distinction, and the issue of per se moral differences only sometimes making a difference in kill and let‐die cases depending on contexts. The relation that there might be between the killing/letting‐die distinction and the intention/foresight distinction (whose moral significance is described by the Doctrine of Double Effect) is considered. Particular attention is paid to the objections Shelly Kagan has made to the author's proposals and to the alternative views on positive and negative agency that Warren Quinn developed. The second section of the chapter returns to examine the stronger and weaker notions of per se moral equivalence, their differential relation to the moral equivalence of cases, and what they reveal about explanation in ethics and aesthetics.Less

Argument by Negative Rights

Arvind Sharma

in Are Human Rights Western?: A Contribution to the Dialogue of Civilizations

This chapter examines the argument by negative rights in light of the claim that human rights are Western. In other words, human rights are Western in the sense that negative rights tend to be ... More

This chapter examines the argument by negative rights in light of the claim that human rights are Western. In other words, human rights are Western in the sense that negative rights tend to be emphasized in human rights discourse in the West as compared to positive rights. The concepts of negative rights and positive rights have corresponding implications for our conceptualizations of the state, society, and family. However, the concept of rights is not identical with that of negative rights, even if the evolution of human rights in history may generate this impression for given historical periods. Human rights may be at times considered Western in this limited sense but it is not a limitation which has not been or cannot be overcome.Less

Transplantation and Rights over Our Bodies

T. M. Wilkinson

in Ethics and the Acquisition of Organs

The purpose of this chapter is to give an account of the body rights that are relevant to transplantation. The chapter first explains the idea of moral rights. It then argues that we have rights of ... More

The purpose of this chapter is to give an account of the body rights that are relevant to transplantation. The chapter first explains the idea of moral rights. It then argues that we have rights of bodily integrity and rights to individual autonomy, which is characterized as ‘personal sovereignty’. The chapter develops a model of personal sovereignty in the light of apparently conflicting practices and of the doctrine of informed consent in medicine. It concludes by replying to some criticisms of a rights approach. In addition to giving its own account of rights, to be used later in the book, the chapter also introduces concepts, such as negative and positive rights, autonomy, informed consent, and ownership, that figure prominently in discussions of transplantation.Less

Subsistence wars

Cécile Fabre

in Cosmopolitan War

Chapter 3 claims that violations of subsistence rights (to the material resources we need to lead a minimally decent life) provide victims with a just cause for war, partly because severe mass ... More

Chapter 3 claims that violations of subsistence rights (to the material resources we need to lead a minimally decent life) provide victims with a just cause for war, partly because severe mass poverty undermines collective interests in collective self-determination, but also on the deeper grounds that threats to one's life, of which starvation is one, warrant defensive killing. The claim holds not merely when the rights violations take the form of a wrongful action, but also (more controversially) when they take the form of a wrongful omission. Having thus expanded on the account of just causes for war offered in Chapter 2, Chapter 3 makes a first foray into the issue of legitimate authority, and argues that the right to wage a subsistence war is held not merely by states whose populations suffer unjustly from severe poverty and which are not themselves responsible for that predicament, but also (controversially) by responsible states as well as by victims themselves. The chapter ends with an account of the grounds upon which individual affluent members of affluent communities who are derelict in their duty to the very poor are legitimate targets in war. It argues that some of those members are not protected by the principle of non-combatant immunity.Less

Germany: Balancing Rights and Duties

Donald P. Kommers

in Interpreting Constitutions: A Comparative Study

Germany's constitutional charter, adopted in 1949, is entitled the Basic Law. The Basic Law had evolved into one of the world's most admired constitutions, even rivalling that of the United States in ... More

Germany's constitutional charter, adopted in 1949, is entitled the Basic Law. The Basic Law had evolved into one of the world's most admired constitutions, even rivalling that of the United States in influence and prestige around the world. So when the day of unity finally arrived in 1990, East and West Germany merged under the imprint of the Basic Law itself. Today, in both structure and substance, although frequently amended, it remains the constitutional text of reunited Germany. This chapter discusses the constitutive assembly of Germany, constituent power and reunification, general features of the Basic Law, supremacy of the constitution, constitutional structure, amending process, the Federal Constitutional Court, problems of constitutional interpretation, conception of the constitution, negative and positive rights, horizontality of rights, sources of interpretation, approaches to interpretation, the civil law tradition, and style of judicial decision-making.Less

Taxation, Welfare, and Benefits

Jethro K. Lieberman

in Liberalism Undressed

This chapter examines taxation and welfare and other forms of state-provided benefits and concludes that under the harm principle the state may legitimately provide a host of public benefits and ... More

This chapter examines taxation and welfare and other forms of state-provided benefits and concludes that under the harm principle the state may legitimately provide a host of public benefits and engage in many projects and pay for the undertaking with tax revenues.Less

Is a Physician Ever Obligated to Help a Patient Die?

Margaret Pabst Battin

in Ending Life: Ethics and the Way We Die

Is a physician ever obligated to help a patient die? If physician-assisted suicide were to become legal or legally tolerated, would the patient have a right to assistance, a right held against the ... More

Is a physician ever obligated to help a patient die? If physician-assisted suicide were to become legal or legally tolerated, would the patient have a right to assistance, a right held against the physician for performance of this duty? In voter initiatives in Washington, California, and Oregon, in state legislative initiatives, in model statutes such as that of the Boston Working Group, and so on, all proposals have opt-out provisions, or “conscience clauses”, that permit physicians to refuse to participate in a suicide. But the basis of opt-out clauses — the ubiquitous assumption that a physician's scruples provide adequate justification, legally and morally, for excusing him or her from assisting in suicide — is rarely challenged. This chapter reviews the principal arguments for and against physician-assisted suicide in terminal illness. Two kinds of a dying patient's rights to assistance in suicide are considered: the “negative” right and the “positive” right. The moral argument in favor of permitting physician assistance in suicide is grounded in the conjunction of two principles: self-determination (or autonomy) and mercy (or the avoidance of suffering).Less

The Nature of Rights

Ingmar Persson

in From Morality to the End of Reason: An Essay on Rights, Reasons, and Responsibility

This chapter expounds the commonsensical concept of a moral right. It explains the correlation between rights and duties/obligations. It distinguishes between fundamental and derivative rights, and ... More

This chapter expounds the commonsensical concept of a moral right. It explains the correlation between rights and duties/obligations. It distinguishes between fundamental and derivative rights, and contends that the fundamental right is a right to oneself, one’s own body and its psycho-physical capacities. It also distinguishes between general rights which are claimed to be negative and special rights which can be positive. It examines their grounds, taking its departure from John Locke’s account of labour mixing. Following Judith Thomson, it explains the notion of the stringency of a right in terms of how much the subject benefits from the right, and what it is to waive, transfer and forfeit rights. It also discusses the rights of innocent threats and shields.Less