One reason there’s a lot of confusion about rights from both liberals and conservatives is that there are different sorts of rights. Besides the distinction between legal and moral rights, we also need to distinguish the different sorts of claims the assertion of a right makes.
Philosophers generally use the expressions negative rights and positive rights to express these distinctions. Now there’s nothing evaluative about these terms. It’s not negative in a bad way. These are precise terms that philosophers use to make an important distinction. So let’s see if we can explore it.
Consider this claim: I have the right to go to the store and get a lottery ticket. Let’s begin with what this doesn’t mean. First of all, it doesn’t mean that I have an obligation to buy a lottery ticket. It’s up to me. No one should be forcing me to buy one, but also no one should be forcing me not to buy one. Second of all it doesn’t mean that the store clerk has any obligation to give me one. I’ll have to pay for it, which is shorthand for making a trade.
This works whether we’re talking about lottery tickets, milk, potato chips, coffee, beef. My right to get these things is not an obligation to get them, and neither is it a warrant to be given them. My right to get these things means that no one ought to stop me from making trades through which I can acquire them. That’s a little different from, say, when you get arrested and are informed that you have the right to an attorney. You know how they say it from TV – If you cannot afford an attorney, one will be provided for you. The store is under no obligation to provide me with a steak if I can’t afford one, but the folks who arrested me are obliged to provide me with an attorney if I cannot afford one. So these are different kinds of rights.
One way to get clear on this distinction is to think about the relationship between rights and duties. If Smith has a right then Jones has a duty. Understanding what different kinds of duties Jones might have is one way to understand what kinds of rights Smith might have.
Let’s call negative rights the kind of rights which impose on others a negative duty, a duty not to do anything, a duty of noninterference. If I have a right of this sort all you have to do to respect that right is refrain from blocking me. Negative rights are sometimes called liberties. My right to a lottery ticket or a steak is a negative right. No one can properly interfere with my efforts to acquire these through trade. Freedom of speech is another example of a negative right. I cannot be arrested for speaking my mind unless it imposes danger on others.
Positive rights, on the other hand, impose on others a positive duty, a duty to provide or act in a certain way. If I have a right of this sort, you respect it by complying. Positive rights are also sometimes called entitlements. The right of criminal suspects to an attorney is a positive right. These rights can conflict at times. One way is through scarcity. If there are 10 public defenders and 100 people get arrested, they can’t all have their right to an attorney satisfied equally. This sort of conflict can sometimes help us understand which claims are legitimate. Your property rights give you exclusive use of a resource so others can’t claim a right to vacation in your yard, at least not without your permission.
The other source of conflict raises a more troubling issue. Since positive rights create duties on others to act or provide, doesn’t that represent a violation of their negative rights, their liberty? It depends. Some positive rights are created by a contractual relationship. Since I’m a member of AAA, I have a positive right to towing services if my car breaks down. Nonmembers have a negative right to seek towing services, but I am actually entitled to receive them. That doesn’t violate anyone’s negative rights, though, because the relationship is entirely consensual and defined by a contract.
If I claimed I had a positive right to a steak, someone would have an obligation to give me one, not as a trade but as a nonconsensual service. That would violate their liberty, making them involuntarily subservient to me. This suggests that if we’re free and equal by nature, any positive rights would have to be grounded in consensual arrangements. Unfortunately, for a lot of so called positive rights this just isn’t the case.
Source: Positive Rights vs. Negative Rights by Prof Aeon Skoble, Chairman of the Philosophy Dept at Bridgewater State University