All Rights Are Positive Rights

If you’re not familiar with rights theory, two classifications of rights are said to exist, positive and negative. Negative claim rights came first, and they are called negative claim rights because they are considered to exist in absentia of other people. These include the right to life, liberty, and property mentioned in the Declaration of Independence, and the Bill of Rights in the Constitution of the United States. These are considered negative claim rights because they do not require other people in order for them to exist. Positive claim rights, on the other hand, do require other people to be involved. These include, but are not limited to the right to healthcare, education, social security, and any other promised free handout a government wants to sell you. I cannot get healthcare without a doctor to treat me, and I cannot get educated (in theory) without an educator to teach me. This is why they are positive claim rights. In this article, I am going to argue that all rights are inherently positive claim rights. They are all derived from a positivist approach to legal theory.

There are two theories of law, natural law and positivism. Natural law is the idea that our conduct as humans is governed by an observable, objective set of moral principles. Murder, rape, theft, and deception are all considered crimes under natural law because they have an observable victim that has been harmed. These laws are believed to exist as gravity exists; they are a condition of reality. Legal positivism, on the other hand, believes that laws are socially constructed, are relative to the society that creates them, and are established by best practices within a given society. Under such a legal system, you have the right to free speech if and only if the law allows it. The only rights you have are those granted to you by the government.

At this point it would make sense to connect natural law to negative rights, and positivism to positive rights, and that is typically what has happened throughout most of our public discourse on rights and legal theory. However, rights do not exist. They are not a tangible part of reality. My water bottle and this computer are tangible. My physical body is tangible. Rights are not. They are beliefs held in your head, and sometimes they are written on paper. No matter their presentation, whether in your head or on paper, they require recognition from other people in order to be real. It is not a right that is observed when someone does not steal from you. You are witnessing a choice being made by an individual person. Choices are real, and actions are observable. However, the reasons people have for their choices are always up for debate. In any case, your right to life and your right to property are every bit as dependent upon the choices and actions of others as are your rights to healthcare and education.

Due to the fact that negative claim rights are as dependent upon the actions of others as are positive claim rights, all rights must be characterized as positive claim rights. Natural law does not require the recognition of rights, only the presentation of an aggrieved party. Also, anarchy does not require the recognition of rights, only the recognition of reality, part of which is self-ownership, something I discuss here.

Now, the argument can be made that natural law depends upon the actions and choices of others to recognize the suffering of the aggrieved party and act in a way to ameliorate that suffering. It can also be argued that anarchy demands that others recognize self-ownership. While both arguments are valid, natural law and anarchy require only that members in society live in accordance with observable reality. It is easy to observe when someone is the victim of a crime, and it is easy to observe self-ownership. In fact, one is using self-ownership when they engage in the act of observing. Determining when something is wrong, in the sense that it does not comport with reality or violates self-ownership, is like observing the weather; you need only pay attention. I would like to note here that punishments for crimes, justice, vengeance, and retribution are all positive acts and thus require a positivist framework within which to operate. These are concepts outside the scope of this discussion.

I do not argue from a rights perspective because rights do not exist, and the argument over rights is like arguing about whether or not a hypothetical rain storm will extinguish the fire that is currently consuming your house. So much time, effort, thought, and language goes into arguing and debating rights that in so doing we miss the very obvious wrongs being perpetrated by our governments and the people that run them. Taxation is theft. War is murder. Citizenship is slavery. Until we, as individuals, start recognizing reality for what it truly is, we are doomed to live a dimmed existence of our potential selves.

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