Are All Rights Positive?

In Hohfeld's classical typology of rights, he says that all rights are "legal advantages" in that they serve in various ways to protect the interests of the right-holder. It has not gone unnoticed that Hohfeld's claim-rights entail correlative duties, and that these are usually burdens to the duty-bearer because they require that he control his conduct with a view to benefiting not himself but rather the right-holder. But the overwhelming rights-emphasis has been on the benefits to the right-holder, to the extent that many theorists have complained that "rights-talk" involves a complete neglect of duties or responsibilities.

The Cost of Rights seeks to redress this imbalance in an empirically cogent way. The authors point out that the legal establishment of rights inevitably carries costs or burdens to the society and its members—costs of specification and implementation—and these costs must be factored in whenever rights are broached or extended. Far from doing away with governmental authority or responsibility, the invocation of rights opens the door to increased governmental participation in seeing to it that the rights are implemented and paid for and taxes therefore imposed. Rights to police protection, to social security, to health care and many others are traced by the authors with a literal elucidation of the dollar expenses that are incurred by them. The Cost of Rights succeeds brilliantly in bringing rights-talk from the conceptual heaven in which it is usually carried on down to the empirical earth in which it impinges on the money and government of its participants, including the rights-holders themselves.

A critical discussion of The Cost of Rights: Why Liberty Depends on Taxes by Stephen Holmes and Cass R. Sunstein (New York: W.W. Norton & Co., 1999). Page references in my text are to this book.

Stephen Holmes and Cass R. Sunstein have, then, provided a valuable empirical description of how legal rights actually function in modern society, including the responsibilities they impose on their beneficiaries. While admiring their achievement, I want to devote the bulk of this review to a critical discussion of a feature of their thesis that goes much too far in an illiberal direction, by attributing to government a set of responsibilities that tend to swallow up the rights and duties of their individual members. We may begin by noting that the first chapter of their book has the challenging title: "All Rights Are Positive." This is challenging because it contravenes the widely accepted view that there are two different kinds of rights, negative as well as positive. According to this view, the distinction between the rights turns primarily on what is required by their correlative duties. Negative rights entail negative duties, i.e., duties to forbear or refrain from interfering with persons' having the objects of their rights. The right to life, for example, requires that one refrain from interfering with persons' continuing to live; the right to free speech requires that one refrain from preventing persons' speaking. Positive rights, on the other hand, entail positive duties, i.e., duties to help persons to have the objects of their rights. The right to education requires that one help persons to get an education; the right to health care requires that persons be given health care in appropriate circumstances, and so forth.

Holmes and Sunstein reject this distinction, as least as it applies to government. They do indeed accept the distinction between "forbearances " and "performances" (p. 50). But they hold that, whichever of these is required by rights, there is an overriding positive role for governmental responsibility: it legally enforces rights by protecting the human interests that are the objects of rights and, in many cases, by bringing remedies to bear to redress the wrongs that are violative of rights. Without such remedies, rights are "toothless" (p. 17). So "all legally enforced rights are necessarily positive rights" (p. 43).¹

This thesis is a refreshing departure from the widespread idea that positive rights, in contrast to negative rights, are problematic not only because of their costs but also because of their diffuse contents and...