Rights:

Given my recent exchange with my friend and colleague Steve Bainbridge about positive and negative rights, I thought it might be interesting to give a slightly broader perspective on rights, at least as that term is used in American law and legal thinking. (None of this is new to Steve, but I thought it might be interesting to some readers.)

The term “right” is a broad one, which encompasses many different kinds of entitlement.

Rights can be against the government (e.g., the freedom of speech or the right to keep and bear arms) or against private entities (e.g., the right to be free from trespass, negligent or intentional injury, or defamation).

Rights can be constitutional (e.g., the freedom of speech), statutory (e.g., copyright, which is authorized by the constitution but actually secured by Congressional statute, or freedom from many kinds of private discrimination), common-law (e.g., historically, rights to be free from private trespasses, negligence, defamation, breach of contract, etc.), or contractual, depending on which source of law secures those rights.

Rights can belong to individuals, associations of individuals (churches, partnerships, corporations), or governments (especially when the government’s right is a right asserted against other governments). Some people claim that governments can only have “powers,” not “rights,” but that’s not the way American legal usage has operated (see here for sources).

Rights are generally judicially enforceable, but they may also be broadly agreed on as entitlements even when the courts don’t step in. For instance, most people would say that everyone has a right to police protection, even though such a right may be unenforceable. We think the government ought to provide that protection (subject to manpower constraints, and possible police and prosecutorial discretion not to enforce certain relatively petty laws). If the government fails to provide such protection, we would think it’s doing something wrong, and the political process would often correct this. So this is something of a right (especially when the judgment is about the government’s proper role, and not just judicially enforceability). Likewise, the constitutional command that Congress protect each State from invasion is probably not judicially enforceable; but one can characterize this as a right of a state.

Rights can be negative rights, which is to say (quoting Black’s Law Dictionary), “entitling a person to have another refrain from doing an act that might harm the person entitled.” Some examples: Free speech, a negative right against the government; my property rights in my land, a negative right against both the government and private entities.

Rights can be positive rights, which is to say “entitling a person to have another do some act for the benefit of the person entitled.” Some examples: The right to demand that the government enforce your contracts (a constitutional right against the government); the right to public education under those state constitutions that secure such a right (a state constitutional right against the government); the right to get money under an annuity you’ve bought (a contractual right against a private entity); a child’s right to support from his parents (a common-law and statutory right against a private entity).

Rights can be equality rights, which is to say rights to be treated the same way that others who differ only in certain particulars are treated. Some examples: The right not to be discriminated in government hiring (a constitutional and statutory equality right against the government) or in private hiring (a statutory equality right against a private party). This may end up being a right to get a certain benefit, but only when the government or the private party is already giving the benefit to others.

Rights can also be rights to participation in government functions, such as the right to vote (secured by various state and federal statutory provisions, and in some measure by some state and federal constitutional guarantees). These are in a sense positive rights, but not quite the same as other rights.

Rights can also be mixtures, or look like one while actually being the other. The right to have a criminal defense lawyer appointed for you (if you’re too poor to afford one) may look like a constitutional positive right, but I think it’s really a constitutional negative right — it’s really the right not to be deprived of your liberty unless you’ve been convicted through a process in which a lawyer has been appointed for you. Similarly, your rights in your property consist of (1) a negative right against private people who would trespass on it, (2) a more limited negative right against the government, preventing it from trespassing on the property unless it takes the property for a public purpose and pays just compensation, and (3) a positive right against the government to protect your property via the court system and the police.

The Constitution and positive rights: As I’ve mentioned above, the federal Constitution does secure a few positive rights. The clearest example is the Contracts Clause, which bars states from impairing the obligation of contracts, and thus mandates states to provide a forum for enforcing contracts. Under this Clause, people do have “[a] right entitling [them] to have another [the government] do some act for the benefit of the person entitled.” (The Court has provided only weak protection for this right, which I think is a mistake, but the right still is a positive right.)

Likewise, the Takings Clause bars the government from interfering with my right to exclude others from my property. If I own some wooded land, the government can’t just say “You must allow everyone onto the land.” I think it follows that the government also can’t simply refuse to enforce trespass laws, for instance by saying “The police and the courts shall not enforce civil or criminal trespass laws against those who trespass on others’ woodland property, or who tear down fences protecting others’ woodland property.” Such a deprivation of legal protection would be close to legally destroying my property right. (It wouldn’t be exactly the same, because it would still leave me with some negative right to be free of legal punishment for defending my property through force.) I think that such a denial of property protection probably would violate the Takings Clause.

In any case, the Contracts Clause example at least illustrates that the quotes Steve Bainbridge gives about the Constitution’s securing only negative rights are not completely correct — they are generally right, but they admit of some exceptions.

Many state constitutions provide more positive rights — two prominent examples are the right to sue in court, and in many constitutions the right to a public education.

Conservatives and positive rights: Finally, this helps me elaborate on my point about the rights to property and enforcement of contracts being positive rights that even conservatives and many moderate libertarians generally endorse.

Consider the various agencies of government, and the demands that you can place on them.

You can go to the police station and say “Come eject these people who are trespassing on my property.” That’s generally seen by conservatives as a right, even if not always a legally enforceable one. It’s the positive right to get (and without paying for it, except through taxes) a certain government service.

You can go to court and say “Issue a judgment awarding me damages for my ex-partner’s breach of contract.” That is a legally enforceable right, secured both by common-law and by the federal constitution. It’s the positive right to get (and these days without paying for the entirety of the court’s expenses) a certain government service.

You can go to the government and say “Educate my child for free.” That is a legally enforceable right, secured by state statutes and many state constitutions. It’s the positive right to get a certain government service — one that’s more controversial among many libertarians and some conservatives, though also one that’s broadly accepted by many conservatives and some moderate libertarians (though they might prefer that the right be to a voucher redeemable at a wide range of schools).

You can go to the government and say “Give me medical care.” That too would be a positive right to get a certain government service, though one that is probably opposed (except perhaps as to a few services, especially ones having to do with communicable diseases) by many hard-core conservatives and libertarians.

All of these are claims of positive right. Indeed, one can distinguish them on various grounds — for instance, one can argue that government enforcement of property and contractual rights simply “facilitat[es] private ordering” (see this post of Steve’s) or “provide[s] public goods” (see this other post of Steve’s). I’m not sure that these are perfect distinctions, but I do think there’s much to them. As I said, I generally oppose many proposed positive rights against the government.

But none of these distinctions change the fact that

1. a right to get the government to enforce your contracts (secured by the Contracts Clause and by the common law and statutes of all states),

2. a right to get the government to protect your property by awarding you injunctions and damages against trespassers (secured by the common law and statutes of all states, and I think by the Takings Clause),

3. a right to get the government to protect your property by sending out the police or the sheriff to eject trespassers (accepted as a matter of practice everywhere, even where it’s not legally enforceable through a lawsuit against the police department, and I suspect actually legally enforceable in many states), and

4. a right to get the government to protect you by sending out the police when you call for them (accepted as a matter of practice everywhere, subject to manpower constraints and other limitations, though generally not legally enforceable)

are all positive rights — “right[s] entitling a person to have [the government] do some act for the benefit of the person entitled” (though indirectly also for the benefit of society) — that conservatives and moderate libertarians would generally endorse.

So I return to my earlier point: “[P]rotection of private property and freedom of contract” is indeed a core function of government. Conservatives are right to stress its importance. But it is not the antithesis of positive rights against the government. Rather, it necessarily involves such positive rights (at least in the view of conservatives and most moderate libertarians, and in the American legal tradition of protecting property and contract).