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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

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

Environmental Protection: Positive Constitutional Rights in the Late Twentieth Century

Emily Zackin

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

This chapter examines the campaigns for constitutional rights to environmental protection. In the 1960s and 1970s, when Congress was passing landmark environmental regulations and an entire executive ... More

This chapter examines the campaigns for constitutional rights to environmental protection. In the 1960s and 1970s, when Congress was passing landmark environmental regulations and an entire executive agency had been developed to address the subject, environmental activists continued to lobby for the insertion of positive rights to environmental protection into their state constitutions. As a result, state constitutions came to include broad rights to environmental health and protection. The chapter first provides an overview of environmental activism during the 1960s and 1970s before explaining why environmental activists targeted state constitutions despite so much environmental action at the national level. It argues that environmentalists did not choose to pursue constitutional rights to environmental protection only at the federal level. Instead, states' constitutional conventions, environmental organizations, and even legislatures continued to alter state constitutions by adding mandates for protective and interventionist government.Less

Looking for Rights in All the Wrong Places

Emily Zackin

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

This book examines the nature and political origins of America's positive constitutional rights. It is widely assumed that constitutional rights in the United States protect people from government ... More

This book examines the nature and political origins of America's positive constitutional rights. It is widely assumed that constitutional rights in the United States protect people from government alone, not to mandate that government to protect them from other sorts of dangers. In other words, America is often believed to be exceptional in its lack of positive rights and its exclusive devotion to negative ones. The book challenges this conventional wisdom about the nature of America's constitutional rights by focusing on three political movements: the campaign for education rights, the movement for positive labor rights, and the push for constitutional rights to environmental protection during the 1960s and 1970s. Together, these cases demonstrate that rights movements in the United States have used state constitutions for reasons that have been largely overlooked by theories of constitutional politics.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

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

New States in Decolonization After 1945

Mikulas Fabry

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

Chapter 5 shows that despite the problematic character of self‐determination as a positive claim against international society, the Wilsonian conception was the basis of post‐1945 decolonization. ... More

Chapter 5 shows that despite the problematic character of self‐determination as a positive claim against international society, the Wilsonian conception was the basis of post‐1945 decolonization. Reflecting the new normative consensus that colonialism was no longer tolerable, international society defined, for the first time, specific peoples entitled to sovereignty: the populations of colonial jurisdictions. The key to their foreign recognition was not their attainment of de facto statehood but rather prior international acceptance of their asserted right to independence. This right required colonial powers to withdraw and third parties to facilitate the emergence of a new state in their place as soon as colonial peoples voiced their desire for independence. While in its most important documents decolonization was explicitly premised on the tenet that all peoples had a right to self‐determination, it was evident, just as in 1919, that self‐determination could not be a universal positive right. Post‐decolonization recognition practice restricted the legitimate candidates for statehood to colonial territories, to constituent units of dissolved states, and to seceding entities that received the consent of their parent states. Unilateral secession, which gave rise to recognition of de facto statehood, became illegitimate.Less

Education: America

Emily Zackin

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

This chapter examines the campaigns to add education rights to state constitutions, with particular emphasis on how the common school movement was able to establish the states' constitutional duty to ... More

This chapter examines the campaigns to add education rights to state constitutions, with particular emphasis on how the common school movement was able to establish the states' constitutional duty to provide education. The leaders of the common school movement insisted that government had a moral duty to expand opportunities for children whose parents could not otherwise afford to educate them, and that state legislatures should be legally obligated to fulfill it. This movement's central claim was that the value of constitutional rights lay in their potential to promote policy changes by forcing legislatures to pass the kinds of redistributive policies they tended to avoid. The chapter considers the evidence for an American positive-rights tradition that exists primarily at the state level and discusses Congress's motive for the creation of constitutional rights as a case of entrenchment. It argues that education provisions found in state constitutions are positive rights.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

Workers’ Rights: Constitutional Protections Where (and When) We Would Least Expect Them

Emily Zackin

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

This chapter examines the campaigns to add labor rights to state constitutions. The quintessential arguments about America's exceptional liberalism and its uniquely negative-rights culture have ... More

This chapter examines the campaigns to add labor rights to state constitutions. The quintessential arguments about America's exceptional liberalism and its uniquely negative-rights culture have focused on the labor movement, which Louis Hartz has argued was a participant in—rather than a rival of—the dominant economic and ideological regime. The chapter first considers the labor provisions of state constitutions before discussing the ways that labor leaders and organizations influenced the drafting of new constitutions and amendments to existing constitutions. It then explains how labor rights were created not only to overturn particular court decisions, but also to preempt possible litigation. It also shows how labor organizations used constitutional rights to dictate state legislatures what they had to do while simultaneously telling courts what they could not do. The chapter demonstrates that, even in the area of labor regulation, Americans have successfully pursued the creation of positive rights.Less

New States in the Post‐Cold War Period

Mikulas Fabry

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

Chapter 6 reveals how developments of the last twenty years have expanded norms of state recognition beyond the ex‐colonial world, as evidenced in the dissolutions of the Soviet Union and Yugoslavia. ... More

Chapter 6 reveals how developments of the last twenty years have expanded norms of state recognition beyond the ex‐colonial world, as evidenced in the dissolutions of the Soviet Union and Yugoslavia. Recent recognition practice reveals two major problems with self‐determination as positive international right. First, since the right cannot be universal for obvious practical reasons, its necessarily selective application is paradoxically bound to result in the denial of popular will. Those peoples who beyond any reasonable doubt have relinquished loyalty to a particular state are nevertheless obliged to remain part of that state, such as the people of Bosnia. At the same time, recent practice has excluded from recognition peoples who have actually managed to form and maintain their own de facto states, such as the peoples of Somaliland. Second, unqualified insistence on the positive right of self‐determination is bound to undermine the basic reason for sovereignty: self‐government. States whose governments are unable to thwart secessions yet do not consent to loss of any of their territory are destined to endure permanently unsettled domestic conflict (e.g., Georgia) or to require coercive intervention and massive, long‐lasting foreign involvement to keep them together (e.g., Bosnia).Less

Conclusion

Emily Zackin

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

This concluding chapter clarifies that the book has refuted the claim that positive rights are outside the American constitutional tradition by investigating the various campaigns to add education ... More

This concluding chapter clarifies that the book has refuted the claim that positive rights are outside the American constitutional tradition by investigating the various campaigns to add education and labor rights as well as rights to environmental protection to state constitutions. By including state constitutions in our view of American constitutionalism, many successful movements for positive constitutional rights become immediately apparent. The campaigns for positive rights have varied across states and over time, but each has worked for a more expansive government, one intended to protect people from threats other than a tyrannical state, and often from the dangers associated with unfettered capitalism. This chapter examines the exclusionary and racist side of the movements that championed positive rights and highlights the many, mutually influential connections between constitutional development at the state and federal levels.Less

Positive Rights and Proportionality Analysis

Matthias Klatt and Moritz Meister

in The Constitutional Structure of Proportionality

The special role of positive rights is widely recognized in constitutional scholarship, but the consequences in detail for both proportionality analysis and balancing are often unclear or neglected. ... More

The special role of positive rights is widely recognized in constitutional scholarship, but the consequences in detail for both proportionality analysis and balancing are often unclear or neglected. This chapter demonstrates in detail how proportionality analysis works if a positive right is at stake. It is explicated that there are certain differences as to proportionality and balancing in negative rights, following the logical difference between a disjunctive and a conjunctive structure. The European Court of Human Rights’ decision in Hatton is used as an example. Different types of margin of appreciation relevant to positive rights are distinguished.Less

The Myth of Rights: Of Aliens, Corporations, and Guns

ASHUTOSH BHAGWAT

in The Myth of Rights: The Purposes and Limits of Constitutional Rights

This chapter begins with a discussion of the focus of the book, which is the provisions and amendments of the Constitution that are generally understood to grant the most important individual rights: ... More

This chapter begins with a discussion of the focus of the book, which is the provisions and amendments of the Constitution that are generally understood to grant the most important individual rights: the First Amendment, which is said to create the rights of free speech, freedom of assembly, free exercise of religion, and separation of church and state (i.e., no establishment of religion); the Second Amendment, which speaks of a right to keep and bear arms; and the Fifth and Fourteenth Amendments, which are said to give rights to due process of law and to the equal protection of the laws. It examines some specific examples of important modern constitutional controversies, which are illuminated by analyzing them in terms of appropriate limits on governmental power, rather than in terms of individual rights.Less

Why Write New Rights?: Understanding Constitutional Development Apart from Entrenchment

Emily Zackin

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

This chapter considers the variety of political calculations that drove activists, organizations, and social movements to pursue the creation of positive rights. It first explains the classic idea of ... More

This chapter considers the variety of political calculations that drove activists, organizations, and social movements to pursue the creation of positive rights. It first explains the classic idea of constitutions as constraints before discussing the main assumptions of entrenchment theories. It then considers the distinctions among the concepts of entrenchment, judicialization, and constitutional development. It also offers additional accounts of constitutional development and highlights several unique features of constitutional law, other than its (widely recognized) capacity to entrench established policies by allowing courts to protect them. The chapter contends that we should view state constitutions' responsiveness to social change as a feature that allows us to expand the existing understanding of constitutional development.Less

Naturalistic Theories

Charles R. Beitz

in The Idea of Human Rights

This chapter discusses naturalistic theory to express the idea of a human right. Naturalistic views conceive human rights as objects that inherit their main features from the natural rights found in ... More

This chapter discusses naturalistic theory to express the idea of a human right. Naturalistic views conceive human rights as objects that inherit their main features from the natural rights found in European political and legal thought in the early modern period. Human rights are rights possessed by all human beings (at all times and in all places), simply in virtue of their humanity. This idea is open to several interpretations which have at least two elements in common. First, human rights are distinct from positive rights — that is, rights actually recognized in a society, or anyway enacted in law. Second, human rights belong to human beings ‘as such’ or ‘simply in virtue of their humanity.’ This means that all human beings are entitled to claim human rights. Naturalistic conceptions regard human rights as having a character and basis that can be fully comprehended without reference to their embodiment and role in any public doctrine or practice.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

Positive Obligations and Criminal Justice: Duties to Protect or Coerce?

Liora Lazarus

in Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth

This chapter explores the relationship between criminal law, criminal process, and human rights from a slightly different perspective. It seeks to demonstrate that while human rights may well be used ... More

This chapter explores the relationship between criminal law, criminal process, and human rights from a slightly different perspective. It seeks to demonstrate that while human rights may well be used to limit the excesses of security and law and order politics, the nature of the relationship between human rights and criminal justice cannot be captured alone by the view of rights as a limit on the coercive reach of the criminal law and criminal justice institutions. The chapter is organized as follows. It starts by outlining key areas where positive rights claims have shaped the criminal law and criminal justice process. It then examines the relationship between positive rights and coercion, and critiques the language used to frame certain positive duties. Finally, the right to security is used as a case study through which to demonstrate the concerns raised by the development of coercive duties.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