Gewirth Are All Rights Positive

8/4/2019 Gewirth Are All Rights Positive

http://slidepdf.com/reader/full/gewirth-are-all-rights-positive 1/14

Are All Rights Positive?

Gewirth, Alan.

Philosophy & Public Affairs, Volume 30, Number 3, Summer 2001,

pp. 321-333 (Article)

Published by Princeton University Press

For additional information about this article

Access Provided by University Of North Texas at 07/06/11 11:57PM GMT

http://muse.jhu.edu/journals/pap/summary/v030/30.3gewirth.html





2002 by Princeton University Press. Philosophy & Public Affairs 30, no. 3

ALAN GEWIRTH 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 see-

ing to it that the rights are implemented and paid for and taxes there-

fore imposed. Rights to police protection, to social security, to health

care and many others are traced by the authors with a literal elucida-

tion of the dollar expenses that are incurred by them. The Cost of Rights

succeeds brilliantly in bringing rights-talk from the conceptual heavenin which it is usually carried on down to the empirical earth in which

it impinges on the money and government of its participants, includ-

ing 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 inmy text are to this book.



322 Philosophy & Public Affairs

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 benefici-

aries. 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 chap-

ter 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. Ac-

cording 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 exam-

ple, requires that one refrain from interfering with persons’ continuing

to live; the right to free speech requires that one refrain from prevent-

ing persons’ speaking. Positive rights, on the other hand, entail posi-

tive 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 educa-

tion; 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 “forbear-

ances” and “performances” (p. 50). But they hold that, whichever of

these is required by rights, there is an overriding positive role for gov-

ernmental 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 le-gally enforced rights are necessarily positive rights” (p. 43).1

1. With this thesis should be compared the more complex thesis of Henry Shue, Basic Rights, Subsistence, Af fl uence, and U.S. Foreign Policy , 2nd ed. (Princeton, N.J.: Princeton

University Press, 1996), who holds that every basic right entails three kinds of duties: to

avoid depriving, to protect from deprivation, and to aid the deprived (p. 52). UnlikeHolmes and Sunstein, Shue does not try to show that any one of these duties, or the

correlative right, is more fundamental or more encompassing than the others. While

skeptical of the distinction between negative and positive rights as often interpreted, he



323 Are All Rights Positive?

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

the difficulty of allocating their correlative duties to appropriate re-

spondents.2 But the authors’ thesis, as they develop it, raises important

questions for rights in general and constitutional rights in particular. If

the authors are correct, then some of the most traditional views of rights as negative, as debarring governmental interference and oppres-

sion, are cast into grave doubt. So strong is the authors’ emphasis on

the positive responsibility of government in relation to rights that, as

they develop their thesis, it eventuates in a kind of statism or govern-

mentism whereby not only is government the essential protector of

rights but it even defines and creates whatever rights persons have. If

their book may be regarded as a valiant attempt to steer a middle

course between individualist libertarianism and governmental authori-

tarianism, its success is questionable because, in rejecting negative

rights against government, they fall too closely into the latter pole. In

view of the seriousness of these issues, as well as the obvious cogency

of many of the authors’ arguments and the sincerity of their liberal

commitments, I have thought it worthwhile to subject their main ideas

to careful examination.

To come to closer grips with the authors’ thesis that “all rights are

positive” and the inferences they draw from it, we must consider two

questions. One concerns the meaning and justification of the thesis,

the other its bearings for the authors’ liberalism.

The word “positive” is used in two different senses by the authors. In

in effect accepts both kinds of rights. The cost of rights is also discussed in James W.

Nickel, Making Sense of Human Rights (Berkeley and Los Angeles: University of Califor-

nia Press, 1987), chap. 7.

2. Cass Sunstein has previously urged that “positive rights” (which he seems toequate with social and economic rights) be excluded from the constitutions of East

European countries because, among other reasons, the difficulties of implementing

them may render the constitutions vacuous and their interference with free marketsmay have counterproductive results. See Sunstein, “Against Positive Rights,” East Euro-pean Constitutional Review 2 (Winter 1993): 35–38. The United States government has

adduced similar grounds for unqualifiedly rejecting social and economic rights from thesphere of recognized human rights. See Frank Newman and David Weissbrodt, eds.,International Human Rights: Law, Policy, and Process , 2nd ed. (Cincinnati, Ohio: Ander-

son Publishing Co., 1996), pp. 60–61. In The Cost of Rights , however, Sunstein takes amore general view of positive rights.




one sense, “positive” is opposed to “moral.” Thus they distinguish be-

tween “moral and positive accounts of rights” (p. 18), and they equate

the latter with legal protections whereby “an interest qualifies as a

right when an effective legal system treats it as such by using collective

resources to defend it” (p. 17).

Now when “positive” is interpreted in this “legally effective” sense,

the authors’ thesis that “all legally enforced rights are necessarily posi-tive rights” becomes a tautology. For what “positive rights” means in

this sense is rights that are legally enforced, so that they are saying that

all legally enforced rights are rights that are legally enforced. As the

authors emphasize, “Individuals enjoy rights, in a legal as opposed to a

moral sense, only if the wrongs they suffer are fairly and predictably

redressed by their government” (p. 43). So, insofar as “positive rights”

are equivalent to “legal rights,” it is no wonder that “necessarily ” all

legally enforced rights are “positive rights.” In accordance with their

legal positivism, the authors refuse to call any interest a right, no mat-

ter how essential it may be for human well-being, unless that interest

is backed by legal enforcement. To this extent, then, the authors have

not yet proved their thesis. They have, however, directed our attention

to the great importance of legal enforcement, with its accompanying

costs.

This result has no direct bearing on the distinction between negative

and positive rights, since the sense of “positive” here is one that is

opposed not to negative rights but to moral rights. We must now note,

however, that the authors also use “positive” in a second sense, as

bearing not on the foundations of rights but on their correlative duties.

In this second sense, “positive” is opposed to “negative.” But although

it is to this second distinction that the authors devote most of their

attention, their references to it are almost always disparaging: “Upon

inspection, the contrast between two fundamental sorts of rights [i.e.,negative and positive] is more elusive than we might have expected.

. . . In fact, it turns out to be based on fundamental confusions, both

theoretical and empirical” (p. 43).

The main confusion seems to be this: whereas the negative –positive

rights dichotomy assumes that some rights are “negative” in that they

require that governments and others refrain from interfering with per-

sons’ having the objects of their rights, it is instead the case that all

rights to be effective require af firmative intervention and protection




by government, so that all rights are “positive” in this af firmative-

intervention sense.

When “positive” is taken in this sense, the authors’ thesis that “all

legally enforced rights are necessarily positive rights” may still be a

tautology, because “positive” means af firmatively enforced by govern-

ment. But the issue now is more complicated because the authors do

not merely appeal to their “positivist” (as against moral) definition of rights; they also point out that these rights, to be effective and not

merely aspirational, must be legally enforced. It is from its extensive

empirical underpinnings in the nature and kinds of enforcement that

the authors’ thesis derives its cogency. And it is on this basis that their

emphasis on the costs of enforcement rests.

Have the authors, then, made out their case against “negative” rights?

They acknowledge that “for very limited purposes, some versions of

the negative–positive dichotomy may be usefully applied to the anal-

ysis of rights” (p. 50). But while they accept that the “distinction be-

tween forbearance and performance” is “ wholly reasonable,” they in-

sist that it “lends no credence to the opposition between immunity

against government interference and entitlement to government ser-

vice” (p. 51). For the forbearance-performance distinction applies not

to government action but only to rights-relations between “private in-

dividuals.” It does not apply to government because, for rights to be

made effective, governments must protect them by enforcing the cor-

relative duties. So government has an af firmative role to play even with

regard to rights that are negative in relation to individuals’ forbear-

ance. We may say, then, that while individuals fulfill these rights by

forbearing or performing, governments implement them by perform-

ing, by taking appropriate means to the end that the rights be fulfilled.

The question that arises here is whether the negative –positive dis-

tinction applies also to the government itself. It is in this context thatthe authors’ ignoring of the negative duties of government, its obliga-

tion to refrain from interfering with important interests of individuals,

leads them to the kind of illiberal statism I mentioned above. So we

must now consider how their thesis bears on their liberal commitments.

Although the authors confine their discussions largely to the United

States, it will be helpful here if we compare the governments of the

United States and China with regard to the freedoms of speech and

religion. The authors twice quote the opening words of the American




Bill of Rights: “Congress shall make no law ” abridging the freedoms of

speech or religion (pp. 36, 180). There is, of course, a marked difference

here between the American and the Chinese institutions: Americans

do, and the Chinese do not, enjoy these freedoms. What this means, in

the first instance, is that Americans do, and the Chinese do not, have

the negative rights to free speech and religion. And this directly in-

volves that the American government refrains from interfering withpersons’ practices of speech and religion, while the Chinese govern-

ment does not refrain: it interferes, often with lethal results.

So at this point, despite the authors’ protestations that the distinc-

tion between negative and positive rights is “elusive” and “based on

fundamental confusions” (p. 43), the distinction, so far as it concerns

the applicability of negative rights, is quite meaningful and clarifica-

tory. Americans do have these negative rights; the Chinese do not. This

difference bears on the vitally important freedoms of speech and reli-

gion, freedoms whose great importance underlies the importance of

negative rights in this context.

The authors’ immediate response is that it is illegitimate to talk of

Americans’ negative rights here because the rights do not exist in the

absence of the government’s effectively supporting them by active pro-

tective measures. So the emphasis falls again on positive rights be-

cause of the positiveness of the government’s role.

There are at least two reasons why this recurrence to the positive

leaves open some pressing doubts. One is that, even if we remain within

the positive rights context, what the government protects is individ-

uals’ immunity from governmental interference with speech and reli-

gion, and this immunity is a negative right within the overarching con-

text of positive rights. So here the negative–positive rights distinction

has a firm place. The government constitutionally commits itself (posi-

tive) to refrain from interfering (negative) with individuals’ speech andreligion, and this is distinct from its committing itself to actively assist

them to speak or practice their religion. Hence, even on the authors ’

own restrictive conception of legal rights, what individuals have here

are indeed rights because they carry government’s pledge of noninter-

vention, and they are negative ones. So the authors’ thesis that “all

rights are positive” should be amended to read that “all rights are not

only positive; they may also be negative in part.”

The authors may still object that individuals’ immunity from govern-

mental interference is not a “right,” because they have definitionally




restricted rights to the interests that are legally protected by the af fi r-

mative acts of government. Nevertheless, insofar as the government is

legally committed to protect the important interests of speech and re-

ligion from interferences, including interferences by the government

itself, the interests in question count as rights on the authors’ own

criterion, and they are negative rights because the government is

thereby obligated to refrain from interfering with these interests.The better to grasp this point, let us tie it more directly to the au-

thors’ central discussion. Even in the course of denying the distinction

between negative and positive rights, the authors recognize the dis-

tinction between governmental (negative) forbearance and (positive)

performances. For example, they say: “No right is simply a right to be

left alone by public of ficials. All rights are claims to an af firmative gov-

ernmental response” (p. 44). The first sentence (“left alone”) signifies

forbearance (negative behavior) by government; the second (“af firma-

tive response”) signifies performance (positive behavior) by govern-

ment. Now these two governmental behaviors are obviously closely re-

lated, at least in a legal context. Both of them can be thought of as

objects of legal requirements with regard to government: the former,

that it is to refrain from acting; the second, that it is to act. Such

requirements, moreover, conform to the authors’ criterion for rights,

since each is legally enforced. But their objects can also be distin-

guished as negative and positive rights. For insofar as duties or respon-

sibilities are here correlative with rights, the negative duties of the gov-

ernment’s forbearance entail negative rights on the part of the citizens

or individuals, while the positive duties of the government’s af firmative

enforcement entail positive rights on their part. So in this way, while

they have it in common to be rights because protected by legal en-

forcements, they are different kinds of rights because of the differences

in just what is enforced: governmental forbearance or negative behav-ior in the former case, governmental performance or positive behavior

in the latter. The commonality of governmental enforcement in both

types of case does not remove the distinction between the different

kinds of governmental behaviors that are enforced in the respective

cases. So, while recognizing the authors’ unitary emphasis on legal en-

forcement as definitive of rights, they also can still consistently recog-

nize the distinction between negative and positive rights without hold-

ing that it is based on “fundamental confusions.”

The normative implications of this distinction can also be brought




out by reference to the freedom from governmental interference that is

embodied in the negative right. Even if the protection of negative rights

requires active performance by the state, there is the prior normative

point that the state’s refraining from interfering with the negative right

indicates of itself the state’s respect for the (negative) freedom of the

persons who have the negative right. As we shall see, if this respect by

the state is not recognized, if the state’s positive tutelage is alone em-phasized in relation to negative rights, then the way is opened for an

illiberal authoritarianism in which the state is assigned a kind of cre-

ative, supernumerary role with regard to the rights, in contrast to the

normatively prior freedom that moderates and limits that role. A simi-

lar respect for freedom is not, as such, betokened by the state’s active

intervention for positive rights.

Let us now return to the American–Chinese contrast discussed

above and ask whether the authors’ thesis can do justice to the con-

trast. We can agree that there is indeed a significant difference be-

tween a situation where the powers of government are “af firmatively ”

used to enforce the legal prohibition on governmental and other inter-

ferences with free speech and where the powers of government are not

so used. This means that no legal or constitutional duty is imposed on

the Chinese government to refrain from interfering with freedom of

speech. So the Chinese people have no positive rights to enforcement

of legal prohibitions against interference with speech.

But underlying this contrast with regard to positive rights is another,

prior contrast with regard to negative rights. The Americans have a

positive right to governmental protection of their freedom of speech

because they have a normatively prior, negative right to the related

freedoms, that their speech not be abridged or interfered with. It is

this negative right that provides the rationale or justification for the

positive right. The ground for referring to it as a “right” has been dis-cussed above. The Chinese, on the other hand, have no such prior

legal negative right. Hence, even if the Chinese government incurs

costs of enforcing various of its regulations, these do not amount to a

positive legal right to freedom of speech. So what gives value to the

government’s af firmative enforcement of the prohibition of interfering

with speech is the prior negative right against such interference. To

overlook this prior right is to elide the basis of the positive right.

We may therefore distinguish three levels in the structure of the legal




right to freedom of speech. First, there is the value of or interest in the

free expression of ideas. Second, there is the negative right of freedom,

that this value not be interfered with by government or others. Third,

there is the positive right that government enforce this prohibition of

interference. It is the second level that provides the valuable rights-

content that the third level enforces. And it is this second level that

differentiates the American from the Chinese situation. Without thesecond level we would simply have governmental acts of enforcement

that, as such, do not distinguish the two situations.

Let us now consider a second basis of doubt concerning the govern-

ment’s active, af firmative role. As we have seen, for the authors this

role is crucial in the determination of rights. But here again the ques-

tion arises of its relation to the Chinese government’s role. This latter

role is also active and af firmative: the Chinese government is as pre-

pared to intervene in support of its preferred interests as the American

government is in support of its own. To be sure, the methods or pro-

cesses of intervention are very different: the American is far more dem-

ocratic in its appeals to public reason than is the Chinese government.

But still, insofar as the emphasis falls, as it does in Holmes and Sun-

stein’s analyses, on the active, af firmative interventions of government,

there is, to this extent, no difference between the American and the

Chinese governments in relation to the rights they respectively espouse.

Rights have objects, and with regard to some of their especially valu-

able objects, such as speech and religion, a liberal society requires that

the government keep hands off and thereby respect the relevant free-

doms. To be sure, the maintenance of this hands-off policy may itself

require positive governmental enforcement. But if it is only this posi-

tive aspect that is taken into consideration, this involves that a vitally

important normative distinction is ignored: the distinction between

objects or values and the related freedoms with regard to which thegovernment must not intervene, and objects with regard to which it

may or should intervene, such as welfare, education, and health care.

This is, once again, the distinction between negative and positive rights,

and to fail to take account of it is to overlook a central normative basis

of rights.

What we are left with, then, is this: if the authors’ valuable emphasis

on the cost of rights is to avoid lending legitimacy to the kinds of

illiberal regimes that also incur costs by their interventionist policies,




the authors should give an at least equally central place to the con-

tents or values of freedom that are the objects of liberal rights and that

differentiate various kinds of governmentally interventionist policies.

Much of the authors’ animus is soundly directed against conserva-

tives who seek to limit the sphere of government. The authors’ mes-

sage is that this cannot be done because the very rights that conserva-

tives hold sacrosanct—property rights—need external governmentalprotection if they are to be legally effective. The authors succeed bril-

liantly in this debate. But they jeopardize a significant part of their

argument by pushing it to a statist extreme which severely weakens

the limits on government authority that liberals have traditionally es-

poused: limits represented by negative rights against government. The

authors seem so fearful of conceding the conservatives’ advocacy of

such limits that they go to the opposite, statist-absolutist extreme,

which rejects those limits altogether. They tend to attribute to formal

legal “positive” institutions accomplishments that stem directly from

the exertions of private individuals and groups, so that they uphold a

kind of governmental authoritarianism that goes counter to their lib-

eral intentions.

In this connection, the authors are so concerned with the costs of

rights that they tend to confuse these costs with the contents of rights.

Even if rights, to be effectively enjoyed, must be implemented or pro-

tected by governments, this does not entail that the contents of the

rights, their objects, what they are rights to (e.g., life, liberty, property)

themselves also stem from governments. If it is replied that they

wouldn’t be rights unless they were protected by governments, this

confuses necessary and suf ficient conditions, and justification with au-

thoritative regulation. To be rights, their objects must be certain kinds

of goods, must fulfill certain kinds of human interests, and this is dis-

tinct from their being implemented by governments. The authors areso wrapped up in the positive governmental implementation that they

make it seem as if the very contents of the rights stem from the gov-

ernment—hence a kind of governmental authoritarianism.

Consider such statements as the following: “rights are ‘creatures’ of

government” (p. 30); “the rights of Americans are creatures of state

action” (p. 83); “ A liberal legal system does not merely protect and

defend property. It defines and thus creates property ” (p. 60); “Private

property is . . . a creation of state action” (p. 66); “‘private wealth’, as




we know it, exists only because of governmental institutions” (p. 29);

“Private property as we know it exists only because legislation and

adjudication has specified the respective ownership rights of rival

claimants” (pp. 67–68).

Statements like these can be applied to the Chinese regime as well

as to the American. Yet, while the authors surely want to differentiate

them, their of ficial thesis tends to assimilate them. The statements be-token a kind of fetishism of positive legal regulatory institutions that

tend to reify them without regard to the human activities and values

that provide their ground. One wonders whether the phrase “only be-

cause” in the last two statements quoted above refers to necessary

conditions or suf ficient conditions. The statements may be granted if

they are interpreted as referring to necessary conditions of property

and other rights. But the statements as presented are sweeping and

unqualified. One wonders also how the governmental “creation” of

property fits with the authors’ humane appreciation of “the rights of

workers” (pp. 46, 47), “the rights of employees and job seekers” (p. 47),

“the welfare of employees and their dependents” (p. 222). Government

does not do everything in the creation of property; it provides its pro-

tective and definitional services on the basis, in part, of prior labor by

those whose welfare is to be protected.

There are other examples of where the authors’ overarching of ficial

concern for governmental intervention and control leads them to over-

look values that are the objects of negative rights. Thus they make the

paradoxical statement that “rights have nothing to do with autonomy

from public authority ” (p. 47). This overlooks that rights may prohibit

certain kinds of governmental acts, so that a person is autonomous

with regard to those acts. This kind of autonomy is indeed not abso-

lute; the authors are on sound ground in emphasizing that the prohi-

bitions against such governmental acts themselves require other gov-ernmental acts that enforce these prohibitions. But what these latter

acts enforce is the finite, prior autonomy of persons with regard to the

prior prohibited governmental acts. It is this autonomy that provides

the normative importance of the distinction between negative and

positive rights.

A significant source of the dif ficulties I have found in Holmes and

Sunstein’s discussions is the sharp contrast they draw between moral

and legal rights. Although they subsequently soften this contrast (pp.




147 ff.), they still interpret moral rights as such as being completely

ineffectual, because they do not have any legal enforcement. But a

broader view would show that moral rights are dynamic; they do not

rest with being mere “aspirations” unconnected with any legal imple-

mentation. On the contrary, upholders of the major moral rights, espe-

cially those classed as human rights, seek both moral justification and

incorporation into legal implementation. The authors should have car-ried their opposition to “the lure of dichotomy ” (p. 39) over to the

fundamental area where the moral–legal contrast is overcome. The au-

thors recognize the importance of the moral grounding of rights (p.

163), but they fail to pursue it to the point where the moral is imple-

mented by the legal. The abolitionists of the nineteenth century and

the nineteenth- and twentieth-century women’s suffragists are exam-

ples of this continuum of moral and legal rights, past and present. The

authors’ own bitter criticisms of the inequalities and hardships im-

posed by some aspects of capitalism testify to their own deeply felt

moral concerns. To paraphrase Kant, moral rights without legal rights

may be ineffectual, but legal rights without moral rights are blind. But

both the ineffectualness and the blindness can be, and historically

have been, overcome by growing awareness of the ends or purposes

for which the legal rights are implemented. It is here that the vitally

important interests that are the objects of constitutional rights are

seen, despite the negativity of their fulfillments, to be undeniably

kinds of rights.

In contrast to their emphasis on the legal-governmental enforce-

ment of rights, the authors recognize, somewhat more obliquely, that

rights have independent justifications. It is not enough to say that

rights-enforcement incurs costs; there is the prior question of what

there is about rights that makes them worth the cost. The authors

show their appreciation of this point:

An empirically oriented theory of rights must consider how individ-

ual liberties create and sustain cooperative relations both among

groups of citizens and between citizens and their government. Why

should citizens willingly defray the costs of rights enforcement?

They may disburse from fear, of course, or from habit, without ask-

ing why. But they may also perceive these rights to be worth the

price. This is what it means to call rights and especially basic rights




the cornerstone of the liberal social contract, the source of the legit-

imacy of liberal political authority (p. 177).

Here, it will be noted, rights are the “source” of legitimate government,

whereas before it was the government that “creates” rights. The two

relations are, of course, different: the first is justificatory, the second

regulative. But the justificatory relation does not, as such, incorporatethe regulative; the former has its own independent contribution to the

understanding of rights. A similar justificatory focus is found in the

authors’ statements that “the aim” of rights is “improving the quality

of reflective and individual life” (p. 217) and that “Some rights are even

a precondition for individual agency ” (p. 165). Such justificatory or nor-

mative statements could readily be specified to include the negative

freedoms that are among the objects of negative rights.

Holmes and Sunstein have not made their case that “all rights are

positive.” But they deserve credit for bringing to the fore the important

issues of the costs of implementing rights and the government’s essen-

tial role therein. I have tried to show that the dichotomy between neg-

ative and positive rights makes sense where noninterference with im-

portant interests by the government or by others is itself enforced by

acts of government. Here the freedom that such noninterference

makes possible provides an important part of the normative grounding

of the distinction between negative and positive rights. In this way the

objects of negative constitutional rights can be given due recognition

on the basis of the vital importance of policies and institutions of non-

interference with them.

Documents

Gewirth Are All Rights Positive