About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

LOG IN
LOG IN


1983 Bull. Austl. Soc. Leg. Phil. 44 (1983)
Can There Be Positive Human Rights

handle is hein.journals/ajlph1983 and id is 226 raw text is: - 44 - CAN THERE BE POSITIVE HUMAN RIGHTS? by T. Patrick Burke* The thesis of this paper is that, in a sense to be explained, there can be no positive human rights, but only negative ones. A consequence of that is that many things which are claimed to be human rights cannot actually be such in any strict sense. The paper is in three parts. The first part examines the general notion of a right, the second part considers the distinction between positive and negative rights, and the third part argues that human rights can only be negative. I. The Notion of a Right What do we mean when we say that a person has a right to something? At the least we mean that he has a claim to it, but we mean more than that. Claims are of various sorts, and not all claims are rights. The first contention of this paper is that there is an extremely important distinction between those claims in regard to which non-feasance can legitimately be punished, and those in regard to which it cannot; and that that distinction coincides with the distinction between rights properly so-called and other claims. There are some claims in regard to which non-feasance cannot legitimately be punished. Take the case of Ermintrude, who has made the mistake of trying to drive from Eulo to Thargomindah with insufficient petrol, and is consequently stranded. As she stands by the roadside flagging the traffic down, does she have a claim on the passersby that they should stop and give her a lift? She certainly has. She has a claim in humanity, or, as it used to be called, in charity. She is a human being, and they are too. If she is in distress, and if they can help her without too much inconvenience, then they have a duty to charity to do so. But now suppose no one does. When at last she trudges her weary way into Thargomindah, could she be justified in persuading the police to round up all those unkind motorists and fine or imprison them? Scarcely. * Professor of Religious Studies at Temple University and Visiting Professor in the Department of Religious Studies, University of Sydney. ASLP Bulletin No. 28, 1983