Good lord, what a lot of confusion on the topic of negative and positive rights. Eugene Volokh. Stephen Bainbridge. Jane Galt. Jonathan Wilde.
Here’s why everyone is confused: They are working under the mistaken notion that negative rights and positive rights are fundamental concepts, which can be defined by reference to specific kinds of actions and behavior. But negative and positive rights are in fact derivative concepts: they have no particular meaning without reference to some more fundamental notion of rights, specifically, of property rights.
Example: I have a negative right not to be punched in the nose. This accords with the standard definition of a negative right, inasmuch as it requires someone else to refrain from something rather than doing something. But what about that other fellow’s negative right to swing his arms around without interference, perhaps as part of a funky dance? These two rights, both seemingly negative, seem to be in conflict, and the conflict is resolved in my favor only by the presumption that I own my nose. If I did not – say, if I had signed a contract giving someone else the right to make decisions regarding my nose – then the conflict would be resolved in the arm-swinger’s favor.
This is exactly equivalent to Eugene’s point about private property: that my negative right not to have strangers walking around on my land entails a restriction of the negative right of other people to walk wherever they please. To assume that other people have such a right is to assume an underlying regime (moral or legal) in which land is communal. And if that is the case, then I have no negative right to exclude others at all. Once again, the conflict between seemingly negative rights is resolved by an assignment of underlying property rights.
Any positive right can be recast in negative terms, if you’re willing to jigger with the underlying property rights distribution. For instance, a right to food and shelter is usually treated as a positive right, but we can cast it as a negative right if we are also willing to say that those who must provide these things do not own the labor and resources needed to do so. And indeed, that’s essentially what we say in cases where the initial owners have specifically agreed to provide the goods or services in question, such as through a grain futures contract. The contractual arrangement changes the distribution of property rights.
So are libertarians wrong to say their position supports negative rights and eschews positive ones, and that this distinguishes libertarianism from other points of view? If they intend those terms to carry much philosophical weight, then yes, they’re wrong. But the language of positive and negative rights is better understood as a shorthand summary of the libertarian point of view, given a context in which the basic elements of the libertarian understanding of property rights – one of self-ownership and private ownership of external resources such as land – happen to be pretty well accepted. Very few Americans, at least, would be willing to admit that you don’t own your labor or your private home. Libertarians can thus use the language of positive and negative rights to explain how their vision builds on (though is not identical to) commonly understood conceptions of self- and world-ownership.