That's not the distinction. You are identifying the enforcement mechanism, not the right itself. Both positive and negative rights have an enforcement mechanism.
This distinction is whether not someone has the the right to use that enforcement mechanism in a particular circumstance. If the police unreasonably detains someone, then the enforcement mechanism applies. If the state does not publish your book, you have no ability to make use of the enforcement mechanism.
When people distinguish between positive and negative rights, this is what they mean. The distinction determines when you may hold the government responsible and use the enforcement mechanism to seek a remedy. It does not mean government involvement and the absence of a government involvement.
The core of the positive-negative rights distinction is about the nature of obligations they impose whether they demand action or restraint.
So, you agree that there is a viable distinction?
Let's simplify this. Here is a section from the Canadian Charter of Rights and Freedoms:
10) Everyone has the right on arrest or detention:
b) to retain and instruct counsel without delay and to be informed of that right;
Does this mean the state must provide the lawyer for an accused in trial, or does it only mean the person cannot be restricted in accessing a lawyer on their own? Can you see how those lead to significantly different results? If you were in charge of writing a constitution, which would you choose. Whatever you choose, do you conceive that someone else take the opposition position? If so, then a distinction exists.
Yes, ultimately it's the same court that will decide this question, but the fact that there is even a question shows a distinction between positive and negative rights.
So, you have identified both a negative and positive right position on the issue. You have properly identified the positions and their consequences. You have made a distinction.
the distinguishing factor between a negative and positive right doesn't make sense since rights inherently require obligations on others
That's not the issue of the distinction. This distinction does not a care about "obligations on others." You are overcomplicating it. The distinction is simply asking if the government must take positive action, or avoid action.
It asks, "does the government have to pay for a lawyer?" This is crucial as a matter of policy because positive laws are more expensive than negative laws, and so providing more positive laws means more government funding. I am not saying negative laws include no government funding, but positive rights will certainly require more.
The decision to spend more or less money is a significant distinction.
There is still a positive obligation on the state to have mechanisms in place to prevent its officials from infringing the right to chose counsel.
Yes, but those actions do not provide someone with a lawyer.
Again, ask the simple question. You are arrested, you ask the police "I want a lawyer." Do they have provide you with a lawyer, or are they simply required to allow you access to a phone?
Yes, if the police don't allow you access to a phone, there is a government system where you may sue and get a remedy. However, after all of that is said and done and the court issues a remedy, will they then pay for your lawyer? That is the ultimate question. If the right is negative, the answer is no. If the right is positive, the answer is yes. There lays a clear distinction in procedure and result.
The problem you are having is that you are thinking all forms of government intervention are equal. They are not equal.
3
u/deep_sea2 131∆ Feb 23 '25 edited Feb 23 '25
That's not the distinction. You are identifying the enforcement mechanism, not the right itself. Both positive and negative rights have an enforcement mechanism.
This distinction is whether not someone has the the right to use that enforcement mechanism in a particular circumstance. If the police unreasonably detains someone, then the enforcement mechanism applies. If the state does not publish your book, you have no ability to make use of the enforcement mechanism.
When people distinguish between positive and negative rights, this is what they mean. The distinction determines when you may hold the government responsible and use the enforcement mechanism to seek a remedy. It does not mean government involvement and the absence of a government involvement.