Are All Rights Positive?

Gewirth, Alan.
Philosophy & Public Affairs, Volume 30, Number 3, Summer 2001, pp. 321-333 (Article)
Published by Princeton University Press

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ALAN GEWIRTH

Are All Rights Positive?

In Hohfelds classical typology of rights, he says that all rights are legal advantages in that they serve in various ways to protect the interests of the right-holder. It has not gone unnoticed that Hohfelds claimrights entail correlative duties, and that these are usually burdens to the duty-bearer because they require that he control his conduct with a view to beneting not himself but rather the right-holder. But the overwhelming rights-emphasis has been on the benets to the rightholder, to the extent that many theorists have complained that rightstalk involves a complete neglect of duties or responsibilities. The Cost of Rights seeks to redress this imbalance in an empirically cogent way. The authors point out that the legal establishment of rights inevitably carries costs or burdens to the society and its members costs of specication and implementationand these costs must be factored in whenever rights are broached or extended. Far from doing away with governmental authority or responsibility, the invocation of rights opens the door to increased governmental participation in seeing to it that the rights are implemented and paid for and taxes therefore imposed. Rights to police protection, to social security, to health care and many others are traced by the authors with a literal elucidation of the dollar expenses that are incurred by them. The Cost of Rights succeeds brilliantly in bringing rights-talk from the conceptual heaven in which it is usually carried on down to the empirical earth in which it impinges on the money and government of its participants, including the rights-holders themselves.
A critical discussion of The Cost of Rights: Why Liberty Depends on Taxes by Stephen Holmes and Cass R. Sunstein (New York: W.W. Norton & Co., 1999). Page references in my text are to this book. 2002 by Princeton University Press. Philosophy & Public Affairs 30, no. 3

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Stephen Holmes and Cass R. Sunstein have, then, provided a valuable empirical description of how legal rights actually function in modern society, including the responsibilities they impose on their beneciaries. While admiring their achievement, I want to devote the bulk of this review to a critical discussion of a feature of their thesis that goes much too far in an illiberal direction, by attributing to government a set of responsibilities that tend to swallow up the rights and duties of their individual members. We may begin by noting that the rst chapter of their book has the challenging title: All Rights Are Positive. This is challenging because it contravenes the widely accepted view that there are two different kinds of rights, negative as well as positive. According to this view, the distinction between the rights turns primarily on what is required by their correlative duties. Negative rights entail negative duties, i.e., duties to forbear or refrain from interfering with persons having the objects of their rights. The right to life, for example, requires that one refrain from interfering with persons continuing to live; the right to free speech requires that one refrain from preventing persons speaking. Positive rights, on the other hand, entail positive duties, i.e., duties to help persons to have the objects of their rights. The right to education requires that one help persons to get an education; the right to health care requires that persons be given health care in appropriate circumstances, and so forth. Holmes and Sunstein reject this distinction, as least as it applies to government. They do indeed accept the distinction between forbearances and performances (p. 50). But they hold that, whichever of these is required by rights, there is an overriding positive role for governmental responsibility: it legally enforces rights by protecting the human interests that are the objects of rights and, in many cases, by bringing remedies to bear to redress the wrongs that are violative of rights. Without such remedies, rights are toothless (p. 17). So all legally enforced rights are necessarily positive rights (p. 43).1
1. With this thesis should be compared the more complex thesis of Henry Shue, Basic Rights, Subsistence, Afuence, and U.S. Foreign Policy, 2nd ed. (Princeton, N.J.: Princeton University Press, 1996), who holds that every basic right entails three kinds of duties: to avoid depriving, to protect from deprivation, and to aid the deprived (p. 52). Unlike Holmes and Sunstein, Shue does not try to show that any one of these duties, or the correlative right, is more fundamental or more encompassing than the others. While skeptical of the distinction between negative and positive rights as often interpreted, he

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This thesis is a refreshing departure from the widespread idea that positive rights, in contrast to negative rights, are problematic not only because of their costs but also because of their diffuse contents and the difculty of allocating their correlative duties to appropriate respondents.2 But the authors thesis, as they develop it, raises important questions for rights in general and constitutional rights in particular. If the authors are correct, then some of the most traditional views of rights as negative, as debarring governmental interference and oppression, are cast into grave doubt. So strong is the authors emphasis on the positive responsibility of government in relation to rights that, as they develop their thesis, it eventuates in a kind of statism or governmentism whereby not only is government the essential protector of rights but it even denes and creates whatever rights persons have. If their book may be regarded as a valiant attempt to steer a middle course between individualist libertarianism and governmental authoritarianism, its success is questionable because, in rejecting negative rights against government, they fall too closely into the latter pole. In view of the seriousness of these issues, as well as the obvious cogency of many of the authors arguments and the sincerity of their liberal commitments, I have thought it worthwhile to subject their main ideas to careful examination. To come to closer grips with the authors thesis that all rights are positive and the inferences they draw from it, we must consider two questions. One concerns the meaning and justication of the thesis, the other its bearings for the authors liberalism. The word positive is used in two different senses by the authors. In
in effect accepts both kinds of rights. The cost of rights is also discussed in James W. Nickel, Making Sense of Human Rights (Berkeley and Los Angeles: University of California Press, 1987), chap. 7. 2. Cass Sunstein has previously urged that positive rights (which he seems to equate with social and economic rights) be excluded from the constitutions of East European countries because, among other reasons, the difculties of implementing them may render the constitutions vacuous and their interference with free markets may have counterproductive results. See Sunstein, Against Positive Rights, East European Constitutional Review 2 (Winter 1993): 3538. The United States government has adduced similar grounds for unqualiedly rejecting social and economic rights from the sphere of recognized human rights. See Frank Newman and David Weissbrodt, eds., International Human Rights: Law, Policy, and Process, 2nd ed. (Cincinnati, Ohio: Anderson Publishing Co., 1996), pp. 6061. In The Cost of Rights, however, Sunstein takes a more general view of positive rights.

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one sense, positive is opposed to moral. Thus they distinguish between moral and positive accounts of rights (p. 18), and they equate the latter with legal protections whereby an interest qualies as a right when an effective legal system treats it as such by using collective resources to defend it (p. 17). Now when positive is interpreted in this legally effective sense, the authors thesis that all legally enforced rights are necessarily positive rights becomes a tautology. For what positive rights means in this sense is rights that are legally enforced, so that they are saying that all legally enforced rights are rights that are legally enforced. As the authors emphasize, Individuals enjoy rights, in a legal as opposed to a moral sense, only if the wrongs they suffer are fairly and predictably redressed by their government (p. 43). So, insofar as positive rights are equivalent to legal rights, it is no wonder that necessarily all legally enforced rights are positive rights. In accordance with their legal positivism, the authors refuse to call any interest a right, no matter how essential it may be for human well-being, unless that interest is backed by legal enforcement. To this extent, then, the authors have not yet proved their thesis. They have, however, directed our attention to the great importance of legal enforcement, with its accompanying costs. This result has no direct bearing on the distinction between negative and positive rights, since the sense of positive here is one that is opposed not to negative rights but to moral rights. We must now note, however, that the authors also use positive in a second sense, as bearing not on the foundations of rights but on their correlative duties. In this second sense, positive is opposed to negative. But although it is to this second distinction that the authors devote most of their attention, their references to it are almost always disparaging: Upon inspection, the contrast between two fundamental sorts of rights [i.e., negative and positive] is more elusive than we might have expected. . . . In fact, it turns out to be based on fundamental confusions, both theoretical and empirical (p. 43). The main confusion seems to be this: whereas the negativepositive rights dichotomy assumes that some rights are negative in that they require that governments and others refrain from interfering with persons having the objects of their rights, it is instead the case that all rights to be effective require afrmative intervention and protection

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by government, so that all rights are positive in this afrmativeintervention sense. When positive is taken in this sense, the authors thesis that all legally enforced rights are necessarily positive rights may still be a tautology, because positive means afrmatively enforced by government. But the issue now is more complicated because the authors do not merely appeal to their positivist (as against moral) denition of rights; they also point out that these rights, to be effective and not merely aspirational, must be legally enforced. It is from its extensive empirical underpinnings in the nature and kinds of enforcement that the authors thesis derives its cogency. And it is on this basis that their emphasis on the costs of enforcement rests. Have the authors, then, made out their case against negative rights? They acknowledge that for very limited purposes, some versions of the negativepositive dichotomy may be usefully applied to the analysis of rights (p. 50). But while they accept that the distinction between forbearance and performance is wholly reasonable, they insist that it lends no credence to the opposition between immunity against government interference and entitlement to government service (p. 51). For the forbearance-performance distinction applies not to government action but only to rights-relations between private individuals. It does not apply to government because, for rights to be made effective, governments must protect them by enforcing the correlative duties. So government has an afrmative role to play even with regard to rights that are negative in relation to individuals forbearance. We may say, then, that while individuals fulll these rights by forbearing or performing, governments implement them by performing, by taking appropriate means to the end that the rights be fullled. The question that arises here is whether the negativepositive distinction applies also to the government itself. It is in this context that the authors ignoring of the negative duties of government, its obligation to refrain from interfering with important interests of individuals, leads them to the kind of illiberal statism I mentioned above. So we must now consider how their thesis bears on their liberal commitments. Although the authors conne their discussions largely to the United States, it will be helpful here if we compare the governments of the United States and China with regard to the freedoms of speech and religion. The authors twice quote the opening words of the American

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Bill of Rights: Congress shall make no law abridging the freedoms of speech or religion (pp. 36, 180). There is, of course, a marked difference here between the American and the Chinese institutions: Americans do, and the Chinese do not, enjoy these freedoms. What this means, in the rst instance, is that Americans do, and the Chinese do not, have the negative rights to free speech and religion. And this directly involves that the American government refrains from interfering with persons practices of speech and religion, while the Chinese government does not refrain: it interferes, often with lethal results. So at this point, despite the authors protestations that the distinction between negative and positive rights is elusive and based on fundamental confusions (p. 43), the distinction, so far as it concerns the applicability of negative rights, is quite meaningful and claricatory. Americans do have these negative rights; the Chinese do not. This difference bears on the vitally important freedoms of speech and religion, freedoms whose great importance underlies the importance of negative rights in this context. The authors immediate response is that it is illegitimate to talk of Americans negative rights here because the rights do not exist in the absence of the governments effectively supporting them by active protective measures. So the emphasis falls again on positive rights because of the positiveness of the governments role. There are at least two reasons why this recurrence to the positive leaves open some pressing doubts. One is that, even if we remain within the positive rights context, what the government protects is individuals immunity from governmental interference with speech and religion, and this immunity is a negative right within the overarching context of positive rights. So here the negativepositive rights distinction has a rm place. The government constitutionally commits itself (positive) to refrain from interfering (negative) with individuals speech and religion, and this is distinct from its committing itself to actively assist them to speak or practice their religion. Hence, even on the authors own restrictive conception of legal rights, what individuals have here are indeed rights because they carry governments pledge of nonintervention, and they are negative ones. So the authors thesis that all rights are positive should be amended to read that all rights are not only positive; they may also be negative in part. The authors may still object that individuals immunity from governmental interference is not a right, because they have denitionally

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restricted rights to the interests that are legally protected by the afrmative acts of government. Nevertheless, insofar as the government is legally committed to protect the important interests of speech and religion from interferences, including interferences by the government itself, the interests in question count as rights on the authors own criterion, and they are negative rights because the government is thereby obligated to refrain from interfering with these interests. The better to grasp this point, let us tie it more directly to the authors central discussion. Even in the course of denying the distinction between negative and positive rights, the authors recognize the distinction between governmental (negative) forbearance and (positive) performances. For example, they say: No right is simply a right to be left alone by public ofcials. All rights are claims to an afrmative governmental response (p. 44). The rst sentence (left alone) signies forbearance (negative behavior) by government; the second (afrmative response) signies performance (positive behavior) by government. Now these two governmental behaviors are obviously closely related, at least in a legal context. Both of them can be thought of as objects of legal requirements with regard to government: the former, that it is to refrain from acting; the second, that it is to act. Such requirements, moreover, conform to the authors criterion for rights, since each is legally enforced. But their objects can also be distinguished as negative and positive rights. For insofar as duties or responsibilities are here correlative with rights, the negative duties of the governments forbearance entail negative rights on the part of the citizens or individuals, while the positive duties of the governments afrmative enforcement entail positive rights on their part. So in this way, while they have it in common to be rights because protected by legal enforcements, they are different kinds of rights because of the differences in just what is enforced: governmental forbearance or negative behavior in the former case, governmental performance or positive behavior in the latter. The commonality of governmental enforcement in both types of case does not remove the distinction between the different kinds of governmental behaviors that are enforced in the respective cases. So, while recognizing the authors unitary emphasis on legal enforcement as denitive of rights, they also can still consistently recognize the distinction between negative and positive rights without holding that it is based on fundamental confusions. The normative implications of this distinction can also be brought

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out by reference to the freedom from governmental interference that is embodied in the negative right. Even if the protection of negative rights requires active performance by the state, there is the prior normative point that the states refraining from interfering with the negative right indicates of itself the states respect for the (negative) freedom of the persons who have the negative right. As we shall see, if this respect by the state is not recognized, if the states positive tutelage is alone emphasized in relation to negative rights, then the way is opened for an illiberal authoritarianism in which the state is assigned a kind of creative, supernumerary role with regard to the rights, in contrast to the normatively prior freedom that moderates and limits that role. A similar respect for freedom is not, as such, betokened by the states active intervention for positive rights. Let us now return to the AmericanChinese contrast discussed above and ask whether the authors thesis can do justice to the contrast. We can agree that there is indeed a signicant difference between a situation where the powers of government are afrmatively used to enforce the legal prohibition on governmental and other interferences with free speech and where the powers of government are not so used. This means that no legal or constitutional duty is imposed on the Chinese government to refrain from interfering with freedom of speech. So the Chinese people have no positive rights to enforcement of legal prohibitions against interference with speech. But underlying this contrast with regard to positive rights is another, prior contrast with regard to negative rights. The Americans have a positive right to governmental protection of their freedom of speech because they have a normatively prior, negative right to the related freedoms, that their speech not be abridged or interfered with. It is this negative right that provides the rationale or justication for the positive right. The ground for referring to it as a right has been discussed above. The Chinese, on the other hand, have no such prior legal negative right. Hence, even if the Chinese government incurs costs of enforcing various of its regulations, these do not amount to a positive legal right to freedom of speech. So what gives value to the governments afrmative enforcement of the prohibition of interfering with speech is the prior negative right against such interference. To overlook this prior right is to elide the basis of the positive right. We may therefore distinguish three levels in the structure of the legal

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right to freedom of speech. First, there is the value of or interest in the free expression of ideas. Second, there is the negative right of freedom, that this value not be interfered with by government or others. Third, there is the positive right that government enforce this prohibition of interference. It is the second level that provides the valuable rightscontent that the third level enforces. And it is this second level that differentiates the American from the Chinese situation. Without the second level we would simply have governmental acts of enforcement that, as such, do not distinguish the two situations. Let us now consider a second basis of doubt concerning the governments active, afrmative role. As we have seen, for the authors this role is crucial in the determination of rights. But here again the question arises of its relation to the Chinese governments role. This latter role is also active and afrmative: the Chinese government is as prepared to intervene in support of its preferred interests as the American government is in support of its own. To be sure, the methods or processes of intervention are very different: the American is far more democratic in its appeals to public reason than is the Chinese government. But still, insofar as the emphasis falls, as it does in Holmes and Sunsteins analyses, on the active, afrmative interventions of government, there is, to this extent, no difference between the American and the Chinese governments in relation to the rights they respectively espouse. Rights have objects, and with regard to some of their especially valuable objects, such as speech and religion, a liberal society requires that the government keep hands off and thereby respect the relevant freedoms. To be sure, the maintenance of this hands-off policy may itself require positive governmental enforcement. But if it is only this positive aspect that is taken into consideration, this involves that a vitally important normative distinction is ignored: the distinction between objects or values and the related freedoms with regard to which the government must not intervene, and objects with regard to which it may or should intervene, such as welfare, education, and health care. This is, once again, the distinction between negative and positive rights, and to fail to take account of it is to overlook a central normative basis of rights. What we are left with, then, is this: if the authors valuable emphasis on the cost of rights is to avoid lending legitimacy to the kinds of illiberal regimes that also incur costs by their interventionist policies,

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the authors should give an at least equally central place to the contents or values of freedom that are the objects of liberal rights and that differentiate various kinds of governmentally interventionist policies. Much of the authors animus is soundly directed against conservatives who seek to limit the sphere of government. The authors message is that this cannot be done because the very rights that conservatives hold sacrosanctproperty rightsneed external governmental protection if they are to be legally effective. The authors succeed brilliantly in this debate. But they jeopardize a signicant part of their argument by pushing it to a statist extreme which severely weakens the limits on government authority that liberals have traditionally espoused: limits represented by negative rights against government. The authors seem so fearful of conceding the conservatives advocacy of such limits that they go to the opposite, statist-absolutist extreme, which rejects those limits altogether. They tend to attribute to formal legal positive institutions accomplishments that stem directly from the exertions of private individuals and groups, so that they uphold a kind of governmental authoritarianism that goes counter to their liberal intentions. In this connection, the authors are so concerned with the costs of rights that they tend to confuse these costs with the contents of rights. Even if rights, to be effectively enjoyed, must be implemented or protected by governments, this does not entail that the contents of the rights, their objects, what they are rights to (e.g., life, liberty, property) themselves also stem from governments. If it is replied that they wouldnt be rights unless they were protected by governments, this confuses necessary and sufcient conditions, and justication with authoritative regulation. To be rights, their objects must be certain kinds of goods, must fulll certain kinds of human interests, and this is distinct from their being implemented by governments. The authors are so wrapped up in the positive governmental implementation that they make it seem as if the very contents of the rights stem from the governmenthence a kind of governmental authoritarianism. Consider such statements as the following: rights are creatures of government (p. 30); the rights of Americans are creatures of state action (p. 83); A liberal legal system does not merely protect and defend property. It denes and thus creates property (p. 60); Private property is . . . a creation of state action (p. 66); private wealth, as

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we know it, exists only because of governmental institutions (p. 29); Private property as we know it exists only because legislation and adjudication has specied the respective ownership rights of rival claimants (pp. 6768). Statements like these can be applied to the Chinese regime as well as to the American. Yet, while the authors surely want to differentiate them, their ofcial thesis tends to assimilate them. The statements betoken a kind of fetishism of positive legal regulatory institutions that tend to reify them without regard to the human activities and values that provide their ground. One wonders whether the phrase only because in the last two statements quoted above refers to necessary conditions or sufcient conditions. The statements may be granted if they are interpreted as referring to necessary conditions of property and other rights. But the statements as presented are sweeping and unqualied. One wonders also how the governmental creation of property ts with the authors humane appreciation of the rights of workers (pp. 46, 47), the rights of employees and job seekers (p. 47), the welfare of employees and their dependents (p. 222). Government does not do everything in the creation of property; it provides its protective and denitional services on the basis, in part, of prior labor by those whose welfare is to be protected. There are other examples of where the authors overarching ofcial concern for governmental intervention and control leads them to overlook values that are the objects of negative rights. Thus they make the paradoxical statement that rights have nothing to do with autonomy from public authority (p. 47). This overlooks that rights may prohibit certain kinds of governmental acts, so that a person is autonomous with regard to those acts. This kind of autonomy is indeed not absolute; the authors are on sound ground in emphasizing that the prohibitions against such governmental acts themselves require other governmental acts that enforce these prohibitions. But what these latter acts enforce is the nite, prior autonomy of persons with regard to the prior prohibited governmental acts. It is this autonomy that provides the normative importance of the distinction between negative and positive rights. A signicant source of the difculties I have found in Holmes and Sunsteins discussions is the sharp contrast they draw between moral and legal rights. Although they subsequently soften this contrast (pp.

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147 ff.), they still interpret moral rights as such as being completely ineffectual, because they do not have any legal enforcement. But a broader view would show that moral rights are dynamic; they do not rest with being mere aspirations unconnected with any legal implementation. On the contrary, upholders of the major moral rights, especially those classed as human rights, seek both moral justication and incorporation into legal implementation. The authors should have carried their opposition to the lure of dichotomy (p. 39) over to the fundamental area where the morallegal contrast is overcome. The authors recognize the importance of the moral grounding of rights (p. 163), but they fail to pursue it to the point where the moral is implemented by the legal. The abolitionists of the nineteenth century and the nineteenth- and twentieth-century womens suffragists are examples of this continuum of moral and legal rights, past and present. The authors own bitter criticisms of the inequalities and hardships imposed by some aspects of capitalism testify to their own deeply felt moral concerns. To paraphrase Kant, moral rights without legal rights may be ineffectual, but legal rights without moral rights are blind. But both the ineffectualness and the blindness can be, and historically have been, overcome by growing awareness of the ends or purposes for which the legal rights are implemented. It is here that the vitally important interests that are the objects of constitutional rights are seen, despite the negativity of their fulllments, to be undeniably kinds of rights. In contrast to their emphasis on the legal-governmental enforcement of rights, the authors recognize, somewhat more obliquely, that rights have independent justications. It is not enough to say that rights-enforcement incurs costs; there is the prior question of what there is about rights that makes them worth the cost. The authors show their appreciation of this point: An empirically oriented theory of rights must consider how individual liberties create and sustain cooperative relations both among groups of citizens and between citizens and their government. Why should citizens willingly defray the costs of rights enforcement? They may disburse from fear, of course, or from habit, without asking why. But they may also perceive these rights to be worth the price. This is what it means to call rights and especially basic rights

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the cornerstone of the liberal social contract, the source of the legitimacy of liberal political authority (p. 177). Here, it will be noted, rights are the source of legitimate government, whereas before it was the government that creates rights. The two relations are, of course, different: the rst is justicatory, the second regulative. But the justicatory relation does not, as such, incorporate the regulative; the former has its own independent contribution to the understanding of rights. A similar justicatory focus is found in the authors statements that the aim of rights is improving the quality of reective and individual life (p. 217) and that Some rights are even a precondition for individual agency (p. 165). Such justicatory or normative statements could readily be specied to include the negative freedoms that are among the objects of negative rights. Holmes and Sunstein have not made their case that all rights are positive. But they deserve credit for bringing to the fore the important issues of the costs of implementing rights and the governments essential role therein. I have tried to show that the dichotomy between negative and positive rights makes sense where noninterference with important interests by the government or by others is itself enforced by acts of government. Here the freedom that such noninterference makes possible provides an important part of the normative grounding of the distinction between negative and positive rights. In this way the objects of negative constitutional rights can be given due recognition on the basis of the vital importance of policies and institutions of noninterference with them.