Types of Human Rights Violations (8): Active and Passive Violations

You can violate someone’s rights, or you can let violations occur. You can kill, or you can let someone die. Someone’s rights are violated either because you did something, or because you didn’t do something; either because of what you did, or because you refrained from doing something; either because you acted, or because you omitted certain actions; either because you caused this violation, or because you allowed this violation to happen.

All these phrases say the same thing: you either actively or passively violate someone’s rights. I agree that these are two distinct types of rights violations. The distinction is similar to the distinction between negative and positive duties. Active rights violations imply a negative duty to forbear or refrain from doing what would otherwise cause a rights violation; passive rights violations imply a positive duty to do something so that a rights violation does not occur.

The distinction is often understood as entailing different levels of moral blameworthiness, but I think this can be misleading. In criminal law, for example, the punishment for killing is often more severe than the punishment for letting someone die. However, the difference in blameworthiness is hard to see in many cases. Take the following example: one man A poisons his wife B, and another man C fails to take his wife D, who has taken poison by accident, to the hospital. (I’m stealing this example from Jonathan Bennett). If this is all the information we have, I guess many of us would not say that C is less blameworthy than A. Letting die is equivalent to killing, at least in this case.

When people argue for a moral difference between committing and omitting, it’s not the difference between types of actions – positive/negative, causing/allowing etc. – that counts, but intention. A probably had the intention of killing, while C may simply have been confused or in panic. If we attribute the same intention to both A and C – A gives the poison to B because he hates her, and C fails to take D to the hospital because he hates her and profits from the occasion – then the difference between the cases disappears, as does the difference in blameworthiness – and the difference between active and passive violations.

Arguments for a difference between committing and omitting can be based on intention, but then it’s intention that makes the difference, not the types of actions. After all, A may have poisoned B unintentionally, while C may have intentionally refrained from assisting D. The distinction between types of actions – positive and negative – doesn’t therefore seem to carry much weight.

Perhaps it can be rescued by looking at the cost element. Active violations are often judged more immoral than passive violations because it’s generally easier and less costly to refrain from acting than it is to help. Hence, failure to refrain – i.e. actively doing something – is more blameworthy than failure to help – i.e. remaining passive. And yet, this is not always true. Let’s take the same example and modify it a bit. If A poisons B and wants to do this, and C involuntarily fails to help D who’s taken poison accidentally, then it’s true that A is more blameworthy than C: A could have easily refrained from giving B the poison, whereas C would have had to overcome his panic, carry D down the stairs, drag her into his car etc. C may even be forgiven altogether for his failure to help. However, what if A killed B because B had threatened to kill his mother, and C let D die because he hated her? The cost to A of refraining would have been very high, higher than the cost to C of not letting D die.

Again, like in the case of intention, cost can be used to differentiate blame, but it’s cost and not type of action that differentiates.

To conclude: the distinction between active and passive types of rights violations is real, but one should be careful when attaching different levels of blameworthiness to these types.

More posts in this series are here.

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