What Are Human Rights? (45): Negative or Positive Rights? Ctd.

I realize now that this previous post wasn’t any good. I need to do a lot more to clarify the difference between negative and positive rights, and to argue that there are indeed two types. Most people assume that there’s only one type and that human rights are always and only negative rights:

  • the right to free speech is a right not to be silenced, not a right to be given the ability to speak (e.g. to have my vocal cords healed)
  • my right not to suffer arbitrary arrest is not a right to be rescued from a cave (in the words of Jonathan Bennett)
  • my freedom of movement is a right not to be hindered, not a right to roads
  • etc.

These examples are meant to make two points, both of which I want to contest:

  1. many so-called rights violations are really not rights violations because there is no violator
  2. rights require only the removal of constraints, more specifically of human imposed constraints.

It does seem to be the case that there can only be a right when someone can violate it (see here), and in the examples above there is no one violating a right: my vocal cords gave up without anyone’s help, and I got stuck in the cave because of my own stupidity or because of a natural calamity. And indeed, the conventional wisdom is that there are numerous types of inabilities which render rights meaningless but which are nonetheless not rights violations because there is no one who caused the violation. In other words, not all inabilities or harms are rights violations, not even if they render rights meaningless.

However, this conventional wisdom is wrong for several reasons. Often there is a violator lurking in the shadows and his or her presence is not clear at first sight. For example, many believe that poverty isn’t a rights violation because no one causes poverty; poverty is just the unfortunate outcome of economic circumstances, like my falling into a cave is the unfortunate outcome of my own stupidity. But that’s not necessarily true: poverty is often the direct result of purposeful and conscious actions by dictators, by the designers of international trade or migration policy etc. So one should be careful when arguing that something is not a right or not a rights violation because there’s no violator. Often there is one but you just fail to notice it.

The second claim implicit in the examples above is that rights require the removal of constraints, not the provision of abilities: free speech requires the removal of censorship, not the provision of the ability to speak; freedom of movement requires the absence of government imposed restrictions on movement, not the provision by the state of roads (even if the absence of roads makes freedom of movement meaningless); etc. However, even the removal of censorship requires the provision of judicial systems, of a police force etc. Hence, it requires the provision of abilities: the ability to sue censors, to send the police to them etc. I see no reason why these abilities should be limited to the ability to remove constraints, and why they should exclude abilities such as education. If rights are important, then people should have the abilities to make their rights real; sometimes this means removing constraints, but often it means providing abilities. Why should it be a big thing when someone is censored, but not when someone is denied the education necessary to make speech possible and meaningful in the first place?

The conventional wisdom – quoted above – that not all inabilities or harms are rights violations, not even if they render rights meaningless, is only partly true. Not all inabilities or harms are rights violations: my broken heart is not a rights violation. But there are many inabilities and harms – even some for which we can’t identify a human agent causing the inability or harm – which are still rights violations because they render rights meaningless. Rights violations don’t always require the presence of a violator and require more than the removal of constraints.

More posts in this series here.

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.