There is a distinction between positive and negative rights, defined in terms of what the corresponding duties require, but it is an open question whether it is an important distinction. Specifically:
- Do a significant set of the rights that are either actually proposed or that might play a meaningful role in social life fall neatly onto one or the other side of this distinction?
- If they do, is there a reason to think that the ones on the negative side are the only genuine rights or that they are more important than the ones on the positive side?
Cranston seems to think that the answer to both questions is “yes.” He thinks that the rights in the UDHR on the civil-political list fall on the negative side and the rights in the UDHR on the social-economic list fall on the positive side. Furthermore, that seems to be his reason for saying that only the rights on the civil-political list are genuine rights. (I’m saying “seems” because he doesn’t use these terms: it’s my speculation about what is driving his argument).
Shue argues that the answer to the first question is “no,” at least as far as subsistence and security rights (what he calls “basic rights”) are concerned.
We spent some time puzzling over a question Toby raised. It concerned a problem that Ken had mentioned when we were discussing Scheffler. What if there aren’t enough resources to guarantee everyone an adequate share?
Scheffler attached a qualification to his account of natural rights that covered this kind of case: there wouldn’t be a natural right to the resources, so everyone would be at liberty.
We were divided in our opinions of what Shue’s definition of rights would imply about these cases. On the one hand, society could guarantee some people’s rights: better to protect some rights than none, no? On the other hand, there was Kate’s point that guaranteeing some people’s enjoyment of security and subsistence would mean holding that others have duties that prevent them from gaining access to what they need. That struck some of us as wrong.
Since the answer to the first question is “no” and basic rights are important, the answer to the second question is also “no.”
I asked whether Cranston might revive his position while accepting Shue’s arguments about basic rights. Could he say that negative duties are more important than positive duties? That is, it’s much worse to take steps to violate someone’s rights than it is to fail to ensure that someone enjoys the full substance of his or her rights.
As Shue defines ‘rights,’ both action and inaction constitute violations of rights. But some of these violations are much more important than others and, one might think, the most important violations are always the ones that violate negative duties.
I said that I didn’t think the correspondence was perfect: Mr. Burns violates his negative duties in trying to give me the thrashing of a lifetime, but he doesn’t do much harm, whereas I would do a lot of harm if I failed to pick up a child drowning in the tub.
But I think that Sam is right to say that it may well still be true that violations of negative duties are generally worse than violations of positive ones. At the very least, nothing about the fact that the duties correspond with basic rights tells us how to prioritize them.
I then suggested that there may even be duties corresponding to basic rights that are less important than other social goals. So showing that certain rights are basic does not itself show that everything a society might do to guarantee the enjoyment of the substances of basic rights against standard threats should take priority over other decisions.