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I am educating myself on the differences between positive and negative rights. This website describes positive rights as 'freedom to' something, and negative rights as 'freedom from' something.

Specifically, it states (emphasis mine):

"My negative freedom requires only that you respect the right by not preventing me in doing it. Examples of negative rights are the right to live, to be free, freedom of speech, freedom of religion, freedom from violence, freedom from slavery, and property rights.

My positive right requires you to respect it by complying with it. Examples of positive rights are the rights to free schooling, free healthcare, a job, and a minimum wage."

Positive rights require some type of positive claim over an external resource (healthcare, education, wages), whereas negative rights represent a freedom from some type of external restriction (restriction of religion, speech, movement).

However, it strikes me that property rights do not seem to fit cleanly into either of these forms.

Property rights:

1) Require a positive form claim over an external resource: If I claim ownership over a piece of land/resource/etc, the burden of proof is on me, to provide evidence to support my claim in the form of a title/deed/army/etc

2) Others are forced to comply with my claim

3) Restricts anyone else from accessing that claimed resource

4) Do NOT require anyone else to provide me with anything

1 and 2 seem like elements of positive rights: ie, I claim a right to healthcare, and others must comply with my claim.

3 is a restriction on the freedoms of others, specifically, you are NOT free to use resources that I have claimed*. Most negative rights are based on the absence of a restriction: ie, in the absence of religious restrictions, there is freedom of religion.

4 does seem like an element of negative rights. Freedom of speech doesn't require anything of anyone else.

From what I can tell, property rights appear to display elements of both positive and negative rights. So why are property rights usually considered a negative right?

*I am aware that capitalists and socialists have very different opinions on whether this restriction is justified or not. Debating the merits of that restriction is NOT the intent of this question. This question should focus on the structure and nature of positive vs negative rights.

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Property could be considered a positive right in a Communist society, where the society decides everyone is entitled to own certain personal things and just hands them to the citizens free of charge.

But in a Libertarian society, people are not entitled to receive property for free. For example, you do not have a positive right to receive a free house to live in. The society does not owe you anything, so you don't have a positive right to property. If you want property, you have to acquire it by trading or by creating it yourself. And this is where negative property rights come into play: The freedom from restrictions on creating property through work, the freedom from restrictions on exchanging property with others through commerce and the freedom from people taking your property away without your consent.

The right to claim property not yet claimed by anyone else is considered something you can just do without requiring permission to do so. Limiting your ability to claim such property would be an infringement of your right, so the right to claim property is also a negative right.

In the real world, governments are neither 100% Communist nor 100% Libertarian. So governments infringe on negative property rights by collecting taxes, but also grants positive property rights by granting welfare and subsidies.

  • I think it is simply confusing to conflate the two concepts behind what happens to be the same word; property. The only other thing they have in common is that someone ends up with possession of something, which would happen in any society. But here we are discussing the concept of negative vs positive rights. So a communist state cannot change the concept of negative rights into a positive right, it is a contradiction in terms, they just happen to use the same word. – morten Jun 19 '19 at 7:40
  • The ability to claim unclaimed stuff as your property is a political pragmatic solution. In the theory of negative property rights it does not directly follow that this is something you can do. You would have to perform actions which does not interfere with anyone else`s actions first. Then, the "propertyness" of a thing is a consequence of nobody else interfering with your actions or what is the consequences that follow from it, not of your claiming anything. The claim is a legal implementation, which will of course never perfectly align with all, or any, theories of rights. – morten Jun 19 '19 at 7:54
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Law enforcement, e.g. protections against trespassing and theft, are positive rights. The government actively creates them. They also aren't guaranteed in the United States constitution. They are empowered by it, in that the government is allowed to engage in law enforcement activity. The US government may provide such protections at its discretion. But it is not obliged to do so constitutionally. There is no positive right to property in the US constitution.

If someone enters my home and takes my property, I cannot sue the US government for reimbursement as a constitutional issue. I need to find some other basis, e.g. legislation passed. For example, if the government offers theft insurance. That would be a legislative positive right, not a constitutional one (absent amendment).

But a protection from land or other property being confiscated by the government without due process and compensation is a negative right. The government can't (negative) take the property without due process and compensation.

There may be other constitutions, outside the US, where positive property rights are offered. But in the US constitution, only negative property rights, protections against legal takings, are offered.

Compare this with other negative rights. For example, a right against being enslaved. You can tell me that I am your slave. I have no way of preventing you from doing that. But you can't force me to work as your slave by appealing to the government. I have a negative right against government compulsion. I can tell you that I'm not your slave, and you have no legal recourse, not even a signed contract can change that.

That right against compulsion has limits. If I commit a crime, I can be forced to comply with prison officers. Or if there is a war, I can be drafted into the army. Similarly, I can be compelled by the government to return property that I took from you without permission. But if I consumed your property (e.g. a bottle of beer) and have no alternate resources, the government is not generally responsible for reimbursing you. Exceptions would include if the government is my employer and I was acting as an employee when I committed the theft.

This structure is specific to the US constitution. But the distinction between negative and positive rights is held there. There are (limited) negative rights to property and freedom of action. The constitution does not include positive rights to either.

Freedom of speech doesn't require anything of anyone else.

But a positive right to freedom of speech would compel people to listen. And that's where I think that the confusion lies. Most negative rights have associated positive rights that are not asserted in the US constitution. But that doesn't make the freedom of speech as offered in the US constitution a positive right. It only offers the negative right against government infringement of freedom of speech. It doesn't guarantee that anyone will listen to your speech. Individuals may absolutely infringe your free speech rights by ignoring you.

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The question of enforcement is not related to the definition of the right itself. This is the same for both positive and negative. You can imagine for any right that people spontaneously behave accordingly. The distinction is in the necessity of specific actions.

Property rights, in a liberal philosophical sense, are negative in that no one has to do anything specific to provide them. They simply have to abstain from taking it away. They are supposed to be an implementation of your possibility to go about your business. If everyone agreed on the definition, no action would be required to respect these rights.

Imagine two people on an island. They can perfectly well grow their own food, and eat it themselves, without either one having to do anything specific. As long as they live like this, they own the results of their actions. This is the behavior pattern that property rights seek to enable. In contrast, a right to medical assistance would require that the other one has to do something quite specific to provide this assistance. It does not matter if they do it voluntarily or not.

The enforcement issue comes in after this. If not everyone agrees, then someone will enforce their ideas. Any enforcement will violate property rights, that is just reality.

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