Comment by moomin | Hacker News Reader

Comment by moomin | Hacker News Reader

Parent Full thread

In practice I think the positive negative distinction is somewhat pointless. All rights, regardless of their "nature" require enforcement and consistent interpretation and neither of those things come for free.

Part of the problem for Americans is that they have two definitions of rights. There's the ones in the Bill of Rights, which are phrased in a negative way. And there's those in the Declaration of Independence, which are provided by the creator and that governments must implement. And those rights are extremely broad. Heck, just the right to life could reasonably be argued to ban the death penalty. (Luckily for jurists everywhere, the Declaration of Independence isn't actually on the statute book.)

In practice, I think the distinction (and to be quite honest, pretty much the entire minimalist/constitutionalist approach) is mostly used to justify path dependence. The founding fathers believed that later generations would have enhanced understanding of the world. Fetishising their every decision just makes for a worse America.

I’m not opposed to positive rights, but I’d rather we call them something else so as not to erode the special nature of regular rights.

In Europe/UK, the right to housing is often mentioned. That is a completely different can of worms. A state can try and fail to provide everyone access to housing. This is different to free speech. There is no such thing as well intentioned failure to protect speech.

special nature of regular rights

They aren't special, though. The distinction between "positive" and "negative" rights completely melts away when you ask yourself who has substantive access and who merely has formal access to their rights.

For example, free speech. You can't exercise your right to free speech when you're dead. Everybody may have formal access (access on paper) to free speech but some people have far greater substantive access due to their socioeconomic status. A poor person will suppress their right to free speech in exchange for a job so they can buy food. Their employer, on the other hand, can say whatever they want without the risk of being fired. Same formal access, different substantive access.

This exercise works for any right. Perhaps the most obvious one is the right to a fair trial. It would be laughable if it weren't so horrific. Every day, countless people have their lives ruined by the criminal "justice" system because they cannot afford the best lawyer. Wealthy people simply do not have this problem. A person with a lot of wealth has far greater substantive access to a fair trial than the average person.

For an admittedly artificial example of positive vs negative rights.

If you consider, say, a person living in the middle of a desert.

A right to privacy amounts to just being left alone, and enforcing that would only be required if another party were actively violating that right. <- It's easy to argue for this.

A right to water, on the other hand, might require that some other party be forced to provide water to this person in the desert. <- Here many people might quite reasonably argue; why should others put themselves out to facilitate this persons life choices.

> All rights, regardless of their "nature" require enforcement and consistent interpretation and neither of those things come for free.

You start to hit on the distinction a bit when comparing the Bill of Rights and the Declaration of Independence, but you seem to think the ones in the Declaration are less important.

The Declaration talks of "inalienable rights". These are rights that cannot be legitimately violated. That's not to say they can't be violated (slavery was obviously a thing), but that people and governments who violate them are wrong (tyrants, in the language of the Declaration).

So the lack of an enforced legal framework doesn't mean something isn't a right. It can mean that some organization or person is failing to be decent, though.

To be clear, I don't think they're less important. I think they're unenforced. But in my experience most people don't seem to really believe in the rights in the DoI if it would cost them anything. For instance, just the right to life would _definitely_ include a right to water, which is an example given elsewhere.

There's an inalienable right to water to the extent that a government would be tyrannical because people didn't have water. I can imagine a few different scenarios where that would be the case.

The "right to life" was more broadly talking about who owns a life (the individual, nature's creator, not the government). It wasn't talking about the right to be free of all death.

Reply on news.ycombinator.com