Omar Bennett
The distinction between positive and negative constitutions is integral to understanding the nature and bounds of the constitution and the federal government's role. A negative constitution restrains the government by limiting its actions towards the right holder. It outlines what the government cannot do and puts certain activities off-limits. On the other hand, a positive constitution requires the government to act in specific ways to ensure that rights-holders can access their guaranteed rights. Libertarians argue that positive rights do not exist until they are created by a contract, whereas negative rights are inherent and do not require enforcement.
Characteristics of the difference between a positive and negative constitution
| Characteristics | Values |
|---|---|
| Positive rights | Provide the right holder with a claim against another person or the state for some good, service, or treatment |
| Require the government to act in certain ways | |
| Place a heavy burden on the government by requiring that resources be allocated in specific ways, with limited flexibility | |
| Are often guaranteed by other laws | |
| Are not reliably prima facie and must always be agreed to through contract | |
| Negative rights | Restrain other persons or governments by limiting their actions toward or against the right holder |
| Require the government to refrain from acting in certain ways | |
| Put certain activities off-limits for the government | |
| Are guaranteed by the constitutions of most liberal democracies |
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What You'll Learn
Libertarians believe positive rights are created by contract
The distinction between positive and negative rights is a concept that is generally emphasised by libertarians. Libertarians believe that positive rights, such as the right to be protected, do not exist until they are created by a contract. This view does not imply that police, for instance, are exempt from protecting citizens' rights. On the contrary, they have a contract with their employers to defend citizens from harm, thus creating an obligation to their employer.
Libertarians are often sceptical of political authority and state legitimacy, questioning the state's right to lay down and enforce laws. They argue that individuals have rights against forcible interference and that liberty, or non-interference, is the only thing that can be legitimately demanded as a legal or political right. This belief in individual liberty extends to economic liberty, with libertarians typically endorsing a free-market economy based on private property rights, freedom of contract, and voluntary cooperation. They argue that individuals should be free to trade without governmental restriction and oppose laws that prohibit certain types of exchanges or impose high transaction costs.
In the context of distributive justice, libertarians generally oppose the state's redistribution of wealth, viewing it as an unjustified use of coercion that violates individual rights. They believe that property rights are independent of the government, positive law, or the consent of others, and that unilateral appropriation can be established without reference to the state or law. This view is challenged by neo-Kantian philosophers who argue that the acquisition of property rights in a state of nature is incoherent and unjust.
While some libertarians are atheists, others are theists who believe that libertarian principles arise from a God-made natural law. Libertarians represent a diverse array of positions, with some embracing philosophical anarchism and scepticism towards social contract theory. They argue that laws should be obeyed because they are just, not simply because they are imposed by the state. Ultimately, libertarians advocate for minimal state intervention, believing that the proper use of coercion is defensive or to rectify an error.
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Negative rights are guaranteed in most liberal democracies
The distinction between positive and negative rights is a crucial concept in political philosophy, and it is central to the functioning of liberal democracies. Negative rights are guaranteed in most liberal democracies, and for good reason.
Negative rights are fundamentally about restraint. They limit what the government can do and impose a duty of non-interference. In other words, negative rights require the government to refrain from acting in certain ways. This means that governments can respect negative rights by simply doing nothing at all. For example, a negative right to free speech means the government cannot censor or punish individuals for their speech, unless it incites violence. Similarly, negative rights protect citizens from unfair discrimination by the state based on certain characteristics.
Libertarians argue that negative rights are more fundamental than positive rights because they believe that positive rights, such as the right to protection, only come into existence when they are created by a contract. On the other hand, negative rights, in their view, are natural monopolies or public goods that arise naturally in any human society. This distinction is important because it affects how rights are understood and enforced.
While negative rights are guaranteed in most liberal democracies, this does not mean that positive rights are completely absent. Many liberal democracies provide their citizens with publicly funded education, healthcare, social security, and unemployment benefits. These are examples of positive rights, as they require the government to take positive action to ensure that these rights are accessible to all. However, the provision of these positive rights may vary depending on the political and ideological leanings of a particular country or government.
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Positive rights are often ensured by other laws
The distinction between positive and negative constitutions is integral to understanding the nature and bounds of the constitution. While negative rights restrain others' actions by limiting what they can do to or against the right holder, positive rights provide the right holder with a claim against another person or the state for some good, service, or treatment. Libertarians believe that positive rights do not exist until they are created by a contract. For example, the right to be protected is a positive right that is created by a contract with police employers to defend citizens from violence.
The constitutions of most liberal democracies guarantee negative rights, but not all include positive rights. Negative rights can be guaranteed simply by the government doing nothing at all, whereas positive rights require the government to act in certain ways, which can be a heavy burden.
In the field of medicine, positive rights of patients often conflict with negative rights of physicians. For example, in controversial areas such as abortion and assisted suicide, medical professionals may not wish to offer certain services due to moral or philosophical reasons.
Some critics of positive rights suggest that because positive obligations are not reliably prima facie, they must always be agreed upon through contract. However, even the greatest positive obligations can be justified ethically. For example, one could justify failing to help injured children in the case of triage after a disaster.
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Negative rights: governments refrain from acting
Negative rights are those that require governments or other persons to refrain from acting in certain ways. In other words, negative rights place limits on the actions of others towards the right-holder. This means that a negative right is respected when no action is taken, and a violation occurs when the government or other persons act in a way that crosses those limits. Libertarians argue that these rights are more fundamental than positive rights, as they believe that positive rights only come into existence when they are created by a contract.
The constitutions of most liberal democracies guarantee negative rights, and these are often considered inalienable. For example, the Canadian Charter of Rights and Freedoms includes negative rights such as the right to be free from unfair discrimination by the government (section 15(1)) and the right to freedom of expression (section 2(b)).
Negative rights can be contrasted with positive rights, which require the government to act in certain ways and provide resources or services to right-holders. For example, section 23(1) of the Canadian Charter of Rights and Freedoms requires provincial governments to ensure that French or English minorities have access to education in their preferred language when communities are sufficiently large.
Some critics argue that the distinction between negative and positive rights is not always clear-cut, as all rights may require both "positive" and "negative" duties. For example, the right to privacy can be seen as a negative right, as it prevents others from intruding, but it may also be seen as a positive right if it requires the government to take action to protect personal information.
Despite this, ethicists generally agree that positive obligations are junior to negative obligations, as they are not always reliably prima facie. This means that it may be more justifiable to fail to fulfil a positive obligation, such as helping injured children in a disaster, than it is to violate a negative right, such as the right to life.
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Positive rights: governments must act in certain ways
Positive rights are those that require governments to act in certain ways. This means that governments must take an active, hands-on approach to ensure that these rights are accessible to their citizens. Positive rights place a significant burden on governments, as they require specific allocation of resources with limited flexibility. For example, in the Canadian Charter of Rights and Freedoms, provincial governments are responsible for ensuring that French or English minorities have access to education in their preferred language when communities are large enough.
Libertarians argue that positive rights, such as the right to protection, only come into existence when they are created by a contract. They believe that while police, for instance, are not inherently obligated to protect citizens, they do have an obligation to their employers (in this case, the state) to defend citizens from violence as per their contract.
The constitutions of most liberal democracies guarantee negative rights, but not all include positive rights. Positive rights are often guaranteed by other laws, and many liberal democracies provide publicly funded education, healthcare, social security, and unemployment benefits.
The distinction between positive and negative rights is integral to understanding how governments interpret and act upon constitutional rights. Negative rights require governments to refrain from certain actions, meaning they can respect these rights by simply doing nothing. Negative rights put certain activities off-limits for the government, and violations occur when the government oversteps these boundaries.
While positive rights mandate government action, they are often junior to negative rights, as they are not always considered prima facie. This means that violations of less important rights may be accepted to prevent violations of more important ones.
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Frequently asked questions
A positive constitution outlines the activities that the government must do. Positive rights require the government to act in certain ways and to take a hands-on approach to ensure that the rights-holders can access their rights. This places a heavy burden on the government, requiring that resources be allocated in specific ways, with limited flexibility.
A negative constitution outlines the activities that the government must refrain from doing. Negative rights require the government to respect individuals' rights by doing nothing at all. Negative rights put certain activities off-limits for the government, meaning that rights violations occur when the government steps too far out of bounds.
Constitutions of most liberal democracies guarantee negative rights, but not all include positive rights. Positive rights are often guaranteed by other laws, and many liberal democracies provide publicly funded education, health care, social security, and unemployment benefits. Libertarians believe that positive rights do not exist until they are created by a contract.
