Positive Duties and Human Rights: Challenges, Opportunities and Conceptual Necessities
| Date | 01 December 2015 |
| DOI | 10.1111/1467-9248.12150 |
| Published date | 01 December 2015 |
| Subject Matter | Article |
Positive Duties and Human Rights: Challenges,
Opportunities and Conceptual Necessities
Hugh Breakey
Griffith University
Can human rights impose positive duties to act, as well as negative duties constraining action? At first glance there
seem to be strong reasons for wishing human rights could impose positive duties – such reasons include the promotion
of welfare rights and the positive protection of liberty rights (e.g. police protection against assault). However, any
attempt to construct rights-based positive duties threatens to dissolve hallmark features of rights. In this article the
duty-properties possessed by uncontroversial rights-based negative duties are comprehensively analysed. Drawing on
this analysis, a range of key properties is developed, including ‘regime-level right-holder universality’ and ‘many-
to-one directedness’, as well as a ‘centres of pressure’ vision of rights, by which it is argued that positive duties can
accord with the keystone commitments of rights-based moral theories. In so doing, a conceptual space for
rights-based positive duties is defended.
Keywords: human rights; natural rights; positive duties; imperfect duties; welfare rights
Positive duties oblige duty-bearers to actively perform actions or pursue goals. Such duties
differ from negative duties, which prohibit actions (‘thou shalt not ...’). Rights-based
positive duties comprise a subset of positive duties more generally. For ease, when I refer
to ‘positive duties’ in this article, I mean rights-based positive duties, though of course many
will agree there are positive duties based on other moral grounds, such as personal virtue.
Positive duties based on human rights pose a dilemma. On the one hand, they seem a
sensible way to respect, promote and facilitate human rights. On the other hand, rights-
based conceptual arguments against positive duties can appear compelling.
In the literature on each side of this argument, different camps often talk past one
another. Given that positive duties have myriad properties (ten, at my count) about which
a rights theorist can have justifiable qualms, arguments in favour of positive duties can fail
to consider the full gamut of challenges facing them.1Equally, however, those arguing
against rights-based positive duties often proceed too swiftly, confidently declaring sup-
posed conceptual necessities about rights-based duties, and using these putative necessities
to reject positive rights-based duties (Frederick, 2010; Nozick, 1974, pp. 28–9). For
example, Onora O’Neill (2005, pp. 427–31; 2010, pp. 167–8) castigates the very idea of
rights without determinate duty-holders. How can Alf hold a right to health care (say)
unless at least one specific person (a physician, presumably) holds a correlative duty to treat
him? Rights against harm, in contrast, have determinate duty-holders. We all obey a
universal obligation not to assault Alf. But this tactic will not work for rights to health
care; everyone cannot bear a duty to heal Alf. Since we cannot universally allocate positive
duties to provide goods and services, O’Neill (2005, p. 430) charges such duties must
remain un-allocated, threatening welfare rights with being ‘null and void, indeed unde-
fined’. O’Neill thus isolates specific properties (properties I will later term ‘duty-bearer
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doi: 10.1111/1467-9248.12150
POLITICAL STUDIES: 2015 VOL 63, 1198–1215
© 2014 The Author. Political Studies published by John Wiley & Sons Ltd on behalf of Political Studies Association.
This is an open access article under the terms of the Creative Commons Attribution License, which permits use,
distribution and reproduction in any medium, provided the original work is properly cited.
universality’ and ‘duty-right sufficiency’) attached to well-accepted rights-based duties and
determines they should be present in all rights-based duties. She then completes the
argument by showing that positive duties supporting welfare rights cannot possess these
vital properties.
Against the critics, but taking seriously the extensive challenges they lay down, in this
article I vindicate the possibility of rights-based positive duties by exhaustively describing
all the relevant properties of uncontroversial rights-based negative duties and arguing that
positive duties can, through the adoption of key properties I develop below, successfully
capture what is essential in these properties.
Before embarking on the argument, allow me to clarify some terminology and sketch
two reasons why a rights theory might avail itself of positive duties. For our purposes here,
‘human rights’ refers to key interests or freedoms of a human being that just on their own
demand respect from all other people. Like the natural rights of the early Enlightenment
liberals (e.g. John Locke), these entitlements command respect even in the state of nature,
where there is no state authority to enforce them. Contemporary rights theorists such as
Jeremy Waldron, Amartya Sen, Henry Shue and James Griffin employ this broad notion
of human rights, and it accords with the notion of rights captured by the Universal
Declaration of Human Rights (UDHR). This notion of human rights differs, on the one
hand, from the purely legal notion of human rights found in international human rights
law,2and on the other hand, from ‘political’ conceptions of human rights – as they arise,
for example, in the work of John Rawls (1999) – where rights are constructions of the
constitutional or discursive processes of specific political communities.
I will refer to the object protected by the right as an ‘interest’. But the object of
protection may be a freedom or capacity, a need, or an aspect of a person’s welfare or
personhood (Griffin, 2008; Sen, 2004; Shue, 1980; 1988). Note also I want to keep it as
an open question at the outset whether all the duties corresponding to the right must be
legal duties. This is one of the questions the following analysis aims to answer rather than
a premise from which it begins.
So conceived, we can divide human rights into negative rights (e.g. against assault and
theft) and positive rights (e.g. to education). Complicatedly, protecting negative rights
requires performing positive duties (Shue, 1980, pp. 37–40). For example, a police officer
might need to apprehend Aneka (a positive action) to stop her from assaulting Ahmed
(violating his negative rights). To avoid confusing talk of positive duties based on negative
rights, I will refer to negative rights as ‘liberty rights’ and positive rights as ‘welfare rights’–
thereby confining my use of ‘positive’ and ‘negative’ terms exclusively to duties.
Using this terminology, then, we can locate two reasons why human rights might
ground positive duties. First, we need positive protection to secure people’s liberty rights
(as we just saw with Aneka and Ahmed). Protecting people’s liberty rights against assault
and theft requires police forces, judiciaries, prison systems and defence forces. These
institutions require positive actions and contributions.3If respect for rights justifies these
minimal-state institutions it presumably justifies the positive contributions such institutions
require. Second, an optimal theory of rights might include welfare rights, such as the rights
to education and health care laid down in the UDHR. Since these welfare rights require
substantial resources, they must be capable of imposing positive duties. Such rights might
POSITIVE DUTIES AND HUMAN RIGHTS 1199
© 2014 The Author. Political Studies published by John Wiley & Sons Ltd on behalf of Political Studies Association
POLITICAL STUDIES: 2015, 63(5)
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