My take on negative vs. positive rights

The Stanford Encyclopedia of Philosophy explains a division in rights thus: “The holder of a negative right is entitled to non-interference, while the holder of a positive right is entitled to provision of some good or service.” Most libertarians are not comfortable with positive rights, because they imply that someone else has to provide or pay for the provision of that good or service for the positive right holder. You respect my right to free speech by simply not silencing me or punishing me for my speech. However, it is not the case that you respect my right to health care by simply not impeding me from getting it; you respect my right to health care by paying for my health care if I am unable to.

There are many sophisticated arguments for each position, and it should be no surprise that I favor the negative rights-only side. One of the things that has always struck me as flawed in the assumptions of positive rights is a question of time, which to my (meager) knowledge has never been fleshed out.

Let us assume that A has a right to, say, health care, meaning a positive right that others must pay to provide A with. We can also (safely) assume that A has a right to free speech, meaning a negative right that other people do not have to actively do anything to respect. Others may not respect his rights, but we are assuming that he indeed still has them.

Further information: A lives in 1000 C.E.

Rights don’t disappear: if Thomas Paine had the right to free speech in 1776, I currently have the right to free speech in 2012. But do they emerge? I’ve always thought that rights were conceived of as timeless. (This leaves aside the difficult question of when humans became persons, but afterwards I think of rights as being set.)

It seems absurd to think that A has a positive right to health care in 1000 C.E. Maybe it is not absurd, and it’s just a sad fact that it was only relatively recently in human history when we could realistically respect certain rights. If that’s the case, what other rights do we have that we haven’t yet discovered?

How exactly would rights emerge? Do they depend on material progress? Will there be genuine positive rights in 2112 that do not exist now? If so, we could easily imagine a Luddite war removing our capacity for respecting some positive rights and thus making the right disappear.

One response to this is to hold that “the right to health care” is really just shorthand for one facet of “the right to [realistically] maximized welfare”. My concern with that is that this broad right is, well, far too broad. It has no end in sight. I accept that as there was no recognizable line separating proto-human non-persons from persons, there may not have been an exact moment we could identify to say that rights began then. But taking a long enough view one could identify two categories, even if the boundaries blur. With this right to maximized welfare, technological capacity is constantly changing, forcing us to estimate a constantly changing boundary that cannot be approximated in hindsight.

And like a lot of discussions of positive rights, it makes economists groan. Intentions aside, many things are not realistic or even possible, but only specialists might know this.

There’s the technical issue that the right to maximized welfare might best be served by respecting only negative rights. Sure, in the short run we could theoretically increase utility by providing everybody under the median income with food stamps, but in the long run this would be counterproductive, in which case we’ve respected the rights of people right now and failed to respect the rights of anybody after right now.

Put differently: what maximizes the short run is not what maximizes the long run. There is a tradeoff to be made, and one end of the spectrum will necessarily not be the preferred side. This is a technical question in the realm of economics and not philosophy, but it bears directly on philosophical investigation and cannot be ignored.


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