UNIT 3 TOWN HALL SEMINAR

Jurisprudence and Legal History

Objective

Should rights trump the democratic will? What are the implications of negative and

positive rights?

Democratic Will

Democracy is a form of government in which all eligible citizens have an equal say in the decisions that affect their lives. Democracy allows people to participate equally—either directly or through elected representatives—in the proposal, development, and creation of laws.

Democratic Will

A democracy is a form of government in which the people, either directly or indirectly, take part in governing. However, the term is also sometimes used as a measurement of how much influence a people has over their government, as in how much democracy exists. The word democracy originates from the Greek "demos" meaning "the people" and "kratein" meaning "to rule" or "the people to rule" which meant literally: "Rule by the People."

Democratic Will

A modern democracy implies certain rights for citizens:

right to elect government through free and fair elections

freedom of speech the rule of law human rights freedom of assembly freedom from discrimination

Individual Rights

“Every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his.” - John Locke, The Second Treatise On Civil Government

“A 'right' is a moral principle defining and sanctioning a man's freedom of action in a social context.” - Ayn Rand

Individual Rights

Individual rights state explicitly the requirements for a person to benefit rather than suffer from living in a society. They codify man's protection from the initiation of force, as required by his rational nature. Being required by man's rational nature, rights are not arbitrary or negotiable. They are absolute requirements for life within a society. Rights are absolute.

Individual Rights

Individual Rights

Negative and Positive Rights

Philosophers and political scientists make a distinction between negative and positive rights (not to be confused with the distinction between negative and positive liberties). According to this view, positive rights permit or oblige action, whereas negative rights permit or oblige inaction. These permissions or obligations may be of either a legal or moral character. Likewise, the notion of positive and negative rights may be applied to either liberty rights or claim rights, either permitting one to act or refrain from acting, or obliging others to act or refrain from acting.

Negative Rights

Some rights are negative rights.  Negative rights are typically rights to not be subjected to certain conditions, such as a right to freedom of speech or autonomy.  Negative rights are often some varietal of a right to non-interference.  They impose duties on others to leave you alone and let you do things that are important to you, like speak your mind or make your own decisions.  They also carry a great deal of normative weight, in that we place great importance upon not violating the negative rights of other people.

Positive Rights

Some of our rights are not negative, but positive.  Positive rights are usually rights to receive some benefit, such as a right to an education or accessible health care (both of which are controversial types of positive rights).  Positive rights differ substantially from negative rights.  First, negative rights are usually based on something about the bearer.  Humans have a negative right to autonomy because humans are the sorts of creatures that make choices that matter to them.  But positive rights are often not based on things about the bearer.  Some positive rights, like a right to be paid for work that you do, are based on agreements.  Other positive rights are based on idealized conceptions of human interaction, such as a right to health care or clean water.

Why negative and positive rights?

Why does this distinction matter?  There are at least two important implications.  First, rights often come into conflict with one another.  When you are making a difficult moral decision that will lead to the inevitable violation of someone’s rights, it might be helpful to identify what sorts of rights are at risk.  If you have the option, you may be better off violating someone’s positive right rather than a much more stringent and cherished negative right.

Why negative and positive rights?

The other important implication for this distinction is in the realm of public policy.  There is very little resistance to the enshrinement of negative rights into law.  Most of them are already protected, and any that are not safeguarded are usually held in sufficiently high esteem that resistance to granting them the force of law is not significant.  But positive rights are far trickier, and few politicians make the distinction between positive and negative rights, often because of the rhetorical strength of disguising a positive right as a negative one.

Why negative and positive rights?

For example, many politicians are pressing for a universal health care system, from the claim that people have a right to health care. 

This is a convincing statement if one treats a right to health care like a negative right.  Unfortunately, there is no obvious sense in which health care can be a negative right, because there is nothing about being a person that clearly entails a negative right to health care. 

However, this does not mean that we cannot have a positive right to health care.  Positive rights can be the product of agreements.  If a society agrees that everyone has a positive right to health care, they are essentially creating this positive right.  However, because positive rights are less stringent, it is an open question what sorts of duties a right to health care would impose on others.

Why negative and positive rights?

Whatever your views may be on the subject of a negative or positive right to health care, it is clear that the distinction makes a difference for how we think about rights in general.  Not only can this distinction help us to resolve difficult moral dilemmas, it is also a useful tool for recognizing when rights talk is being employed as a rhetorical mechanism for political gains.

Protecting Rights

One of the greatest examples of America’s failure to protect an individual’s rights is slavery. For example, historically there seems to be no distinction between law and morality. There are passages from ancient Greek writers, for example, which suggest that the good person is the one who will do what is lawful.

Protecting Rights

It is the lawgivers, in these early societies, who determine what is right and wrong. But it is not long before thoughtful people recognize the difference between what is actually legal, or legally right according to the political authorities and what should be legal.

Ethics and the Law

Using the Lucky Spoon Discussion Board hypothetical let’s explore the topic of what is legally and morally required and how compliance with a requirement doesn’t mean that compliance with the other requirement has been met.

Because there is an interrelationship between what is ethically and legally required, neither can be viewed in isolation from the other.

Question

Should rights trump the democratic will?

Question

Returning to our Island of Tagg hypothetical, could the Leader and Elders decide that only those folks born on the Island of Tagg prior to a certain date have the benefits of Tagg individual liberties?

Individual Liberties

The state of being free; enjoying various social, political, or economic rights and privileges The concept of liberty forms the core of all democratic principles. Yet, as a legal concept, it defies clear definition.

Ex post facto law

An ex post facto law (from the Latin for "from after the action" or "after the fact"), also called a retroactive law, is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law.

Conversely, a form of ex post facto law commonly called an amnesty law may decriminalize certain acts or alleviate possible punishments (for example by replacing the death sentence with lifelong imprisonment) retroactively. Such laws are also known by the Latin term in mitius.

Ex post facto law

Ex post facto laws are expressly forbidden by the United States Constitution. In some nations that follow the Westminster system of government, such as the United Kingdom, ex post facto laws are technically possible, because the doctrine of parliamentary supremacy allows Parliament to pass any law it wishes. In a nation with an entrenched bill of rights or a written constitution, ex post facto legislation may be prohibited.

No Assignment for Unit 3

Just make sure your Unit 2 Assignment has been submitted.

sources

http://www.importanceofphilosophy.com/Politics_Rights.html