So what are rights, anyway?

By Joseph Schultz

Students at Macalester spend a lot of time determining what rights an individual ought to have in an ideal society. We talk about things like health care, education, the environment, and occasionally even debate the merits of individual rights versus societal rights. Rarely, I think, do we take the time to distinguish what we mean by “rights.”

Rights can be divided into two basic types: negative rights and positive rights. The term negative rights can be defined as possessing the right to do anything that does not interfere with someone else’s ability to engage or not engage in that same activity. Many of the rights granted in the U.S. Constitution are, properly defined, negative rights. The right to freedom of religion, for example, is really the right to not be bothered for engaging in activities that do not endanger the rights of anyone else to engage in those same activities. The right to own a firearm is really the right not to have that firearm taken away. No one has ever claimed that he or she is entitled to a firearm without first paying for that firearm.

Positive rights are best defined as entitlements. For example, many Americans believe they have a “right” to health care, education, and many other commonly termed `social’ programs. The exercising of a positive right does affect the ability of other people to exercise that same right. It is also almost always the case that exercising a positive right requires the elimination of some negative right.

So what happens when two rights come into conflict? For example, what happens when one person exercises her or his Constitutional right to free speech by running around naked through City Hall? I think a lot of people would feel their “right” to not be witness to such a sight has been violated. These people feel entitled not to be exposed to such activities. They require the elimination of the individual’s right to free speech to satisfy their own perceived “right.” The individual streaking is exercising a negative right; the people offended a positive right.

So what? Well, if we’re hoping to build a society that is as free as humanly possible, it seems to me we need to give people as many rights as is practical. By giving people all possible negative rights, we are always adding to the absolute level of freedom in any given society. Positive rights are a different story. With every positive right granted to a person, someone, somewhere, had to have at least some of their negative rights (or other positive rights) taken away.

So how does one go about determining which rights to eliminate and which rights to grant? I’m honestly not sure. And frankly, I am very suspicious of anyone claiming to know which rights are best for everyone in a society. Government, the entity that typically possesses the right to grant (and eliminate) rights, just does not have the motivations to grant an optimal level of rights – even in a democratically elected version. We see this everyday: the recently proposed fee on students in Saint Paul, domestic surveillance, television censorship, and a long list of others.

Rather, the people employed within government work to better their own position, granting individuals’ positive rights while removing negative rights and calling the result “progress.” Let’s not mention that the “rights” granted are in fact not rights at all, but rather entitlements, with no contractual obligation placed on government to fulfill those obligations in the future (i.e. social security). Let’s also not mention that those new “rights” came at the price of lost negative rights, which were true rights (they can be enforced by the courts). While it is not necessarily the case, it does seem that government works to diminish, rather than increase, the rights of the individual. Of course it is not practical to have only negative rights in a society. Still, I am sure of one thing: we would be much better off as a society if the individual retained more of these negative rights.