Simone Lawson
The Indian Constitution is the lengthiest written constitution in the world, establishing a federal system of government with a parliamentary system at the Centre and in the States. It contains all the usual features of a federation, such as two governments, division of powers, written constitution, the supremacy of the constitution, the rigidity of the constitution, independent judiciary, and bicameralism. The Constitution also embodies the positive concept of secularism, giving equal respect to all religions and protecting them equally. It establishes political equality in India through universal adult franchise, ensuring that every citizen of India who is 18 years or older can vote in elections irrespective of caste, sex, race, religion, or status. However, the Indian Constitution also contains a large number of unitary or non-federal features, such as a strong Centre, a single Constitution, and the appointment of state governors by the Centre. The Constitution's impact on India's political, social, and legal landscape remains significant, reflecting its dynamic and evolving nature.
| Characteristics | Values |
|---|---|
| Positive rights | Outline the activities that the government must do |
| Negative rights | Outline the activities that the government must refrain from doing |
| Secular state | Does not uphold any particular religion as the official religion of the Indian State |
| Federal | Envisages a dual polity (centre and state) but provides for only a single citizenship |
| Parliamentary system | Establishes a parliamentary system at the Centre and in the states |
| Judicial system | Establishes an integrated and independent judicial system |
| Equality | Articulates the idea of fundamental human equality |
| Freedom | Offers the promise of freedom |
| Exclusion | Excludes marginalized groups |
| Slavery | Preserves and props up slavery |
| Amendments | Can be amended and improved over time |
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What You'll Learn
- Positive rights: rights that oblige action, such as the right to counsel and police protection
- Negative rights: rights that oblige inaction, such as freedom of speech and protection of life
- Libertarians: believe positive rights are created by contract, while negative rights are natural
- Universal Declaration of Human Rights: lists both positive and negative rights without identifying them as such
- Medical context: positive rights of patients may conflict with negative rights of physicians
Positive rights: rights that oblige action, such as the right to counsel and police protection
The constitution is a document that outlines the fundamental principles and laws of a nation, and it can have both positive and negative features. Positive rights are those that oblige action and ensure individuals receive certain entitlements. For example, the right to counsel and police protection are positive rights. This means that if an individual has a right to counsel, someone else is obligated to provide them with legal representation. Similarly, the right to police protection means that law enforcement has a duty to protect citizens from harm.
The right to counsel is an essential component of a fair and just legal system. It ensures that individuals have access to legal advice and representation, particularly during criminal proceedings. This right is often guaranteed by constitutions or other laws, such as the Fourteenth Amendment in the United States Constitution, which ensures due process of law, including the right to counsel. The presence of legal counsel helps uphold other rights, such as the right to a fair trial, by ensuring that individuals are able to navigate the legal system effectively and understand their rights and options.
The right to police protection is another important positive right. While the specific obligations may vary across jurisdictions, the general expectation is that law enforcement agencies have a duty to protect citizens from harm. This includes preventing and investigating crimes, as well as taking proactive measures to ensure the safety and security of the community. In some cases, this right may extend beyond protection from physical harm to include protection from other forms of harm, such as fraud or infringement of civil liberties.
It is worth noting that the distinction between negative and positive rights is not always clear-cut. Some critics argue that positive rights, such as the right to protection, are not inherently enforceable and must be agreed upon through contracts or other legal mechanisms. Libertarians, for example, believe that positive rights do not exist until they are created by a contract. However, others argue that certain professions, such as police officers, inherently have an obligation to protect citizens by virtue of their role in society.
Positive rights are often guaranteed by laws and constitutions, and they play a crucial role in ensuring that individuals have access to essential services and protections. While there may be debates about the exact nature and enforcement of these rights, they form an important part of the social contract between a government and its citizens, promoting equality and justice.
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Negative rights: rights that oblige inaction, such as freedom of speech and protection of life
The US Constitution has been described as both "brilliant and highly flawed". While it articulates the fundamental equality of all humans and the notion that a government's power derives from the people, it also excluded women, non-white people, and indigenous peoples from the definition of "the people", and preserved and upheld slavery.
One way to think about the rights and freedoms guaranteed by the Constitution is to distinguish between "positive" and "negative" rights. Negative rights are those that oblige inaction, or in other words, they require the government to refrain from acting in certain ways. These rights can be protected simply by the government doing nothing at all. For example, negative rights include freedom of speech and protection of life. This means that the government cannot take action to limit or discourage free expression, and it cannot unfairly discriminate against people based on certain characteristics. When the government violates these rights, courts can intervene to strike down the offending piece of legislation or government action.
Negative rights are an important part of the Constitution because they put certain activities off-limits for the government, thereby protecting individuals' freedoms. For example, the right to freedom of speech means that the government cannot censor or punish individuals for expressing their views, even if those views are unpopular or controversial. Similarly, the protection of life means that the government cannot arbitrarily deprive individuals of their lives without due process of law.
While negative rights are essential for safeguarding individual liberties, some critics argue that the US Constitution would benefit from a more explicit articulation of certain fundamental economic rights, such as the right to housing and the right to education. These rights, which require positive action from the government, are not explicitly provided for in the US Constitution, although they are recognized in other documents like the International Human Rights system.
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Libertarians: believe positive rights are created by contract, while negative rights are natural
The US Constitution has been described as both "brilliant and highly flawed". On the one hand, it articulates the notion that a government's power comes from the people and that it serves them. On the other hand, it was flawed in its preservation of slavery and exclusion of women, indigenous people, non-white people, and non-property owners from the definition of "the people".
Libertarians, in particular, have a unique perspective on the Constitution's positive and negative features. They believe that positive rights are created by contract, while negative rights are natural. This means that they see positive rights as those that require the government to take action and fulfil certain obligations outlined in the contract (the Constitution). For example, the Constitution might outline the right to housing, education, or economic survival. These are rights that require the government to act and provide certain resources.
In contrast, Libertarians view negative rights as natural and inherent. These rights require the government to refrain from acting in certain ways and to respect individuals' freedoms. For instance, the government must not unfairly discriminate against people based on certain characteristics or limit free expression. Libertarians believe that the government can respect negative rights simply by doing nothing and not overstepping its bounds.
The distinction between positive and negative rights is important in understanding the Libertarian perspective on the Constitution. They see the Constitution as a contract that outlines the obligations of the government to its people, with positive rights being those that require government action and negative rights being those that restrict government intervention.
While Libertarians emphasize the importance of negative rights and view them as natural, it is important to recognize that both positive and negative rights are essential for ensuring the protection of individuals' freedoms and well-being. The US Constitution, through its amendments and interpretations, has evolved to encompass a broader range of rights, reflecting the changing societal values and needs over time.
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Universal Declaration of Human Rights: lists both positive and negative rights without identifying them as such
The Universal Declaration of Human Rights (UDHR) is an international document that was adopted by the United Nations General Assembly in 1948. It sets out the rights and freedoms of all human beings, regardless of nationality, place, or background. The UDHR is a foundational text in the history of human and civil rights, consisting of 30 articles that outline "basic rights and fundamental freedoms" and their universal character as inherent, inalienable, and applicable to all human beings.
The UDHR includes both positive and negative rights, though it does not identify them as such. Positive rights outline the actions that a government must take, while negative rights outline the actions that a government must refrain from taking. Negative rights, for instance, put certain activities off-limits for the government, and violations occur when the government oversteps these boundaries. For example, the right to freedom of expression is a negative right, and governments violate this right when they limit or discourage free speech.
The UDHR's drafting committee, chaired by Eleanor Roosevelt, included representatives from a wide range of countries, including the USA, Lebanon, China, Australia, Chile, France, the Soviet Union, and the United Kingdom. The document was adopted as a "common standard of achievement for all peoples and all nations," committing nations to recognize all humans as "born free and equal in dignity and rights."
The UDHR has been translated into over 500 languages and is widely recognized as a milestone in the history of human rights. It has inspired and paved the way for the adoption of more than seventy human rights treaties, which are applied at global and regional levels. The UDHR has been praised by notable activists, jurists, and political leaders, including Lebanese philosopher and diplomat Charles Malik, who called it "an international document of the first order of importance."
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Medical context: positive rights of patients may conflict with negative rights of physicians
The concept of positive and negative rights is integral to understanding the rights of patients and physicians. Positive rights oblige action, while negative rights oblige inaction. In the medical context, patients' positive rights may conflict with physicians' negative rights.
Patients have the positive right to make decisions about their care and have those decisions respected. They can accept or refuse any recommended medical intervention, even if it may lead to their death. This right to self-determination is a fundamental aspect of patient autonomy and is widely recognised in medical ethics codes, including the AMA's Principles of Medical Ethics. Patients also have the right to privacy, confidentiality, and continuity of care.
On the other hand, physicians have negative rights, such as the right to refrain from acting in certain ways. For example, in controversial areas such as abortion and assisted suicide, physicians may choose to refrain from providing certain services due to moral or philosophical objections. This exercise of their negative rights may conflict with patients' positive rights if it becomes difficult for patients to access the services they seek.
The conflict between patients' positive rights and physicians' negative rights can be complex and multifaceted. For instance, while patients have the right to refuse treatment, physicians have an ethical duty of beneficence, which means doing what is in the patient's best interest. In situations where a patient's decision goes against medical advice, physicians must balance respecting the patient's autonomy with their obligation to act in the patient's best interest.
Additionally, the principle of nonmaleficence, which means "not bringing harm," may come into conflict with patients' positive rights. Physicians must weigh the potential benefits of a treatment against the suspected harm and take measures to minimise the chances of harming the patient. This can create a delicate balance between respecting patient autonomy and acting in a way that prevents harm to the patient.
In conclusion, the positive rights of patients and the negative rights of physicians can often be in conflict. Resolving these conflicts requires careful ethical analysis, consideration of specific factors, and a collaborative effort between patients and physicians in a mutually respectful alliance.
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Frequently asked questions
Positive rights are rights that oblige action, while negative rights oblige inaction. Positive rights may include civil and political rights, such as the right to counsel and police protection, as well as economic, social, and cultural rights, such as food, housing, and public education. On the other hand, negative rights may include civil and political rights, such as freedom of speech, life, private property, and freedom from violent crime.
A constitution that upholds positive and negative rights can provide a comprehensive framework for protecting individuals' freedoms and well-being. Negative rights protect individuals from government overreach and interference in key areas such as freedom of speech and non-discrimination. Positive rights, meanwhile, guarantee individuals access to essential services and opportunities, such as education, healthcare, and social security.
One potential criticism of a constitution that upholds positive and negative rights is that it may lead to conflicts between different rights. For example, in the field of medicine, patients' positive rights may clash with physicians' negative rights, as in the case of abortion and assisted suicide. Additionally, the distinction between positive and negative rights may be seen as less clear-cut or absolute, with rights violations sometimes occurring despite constitutional protections.
