Making sense of negative freedom in charters of rights: a study of the philosophical foundations of the Virginia Bill of Rights and the Universal Declaration of human rights, based on John Locke's second treatise and Robert Nozick's Anarchy, State, and Utopia

Abstract

Charters of rights enumerate those things that governments are not allowed to do, and those things that they are required to do. The rights contained within charters are held against the state. Rights documents attempt to have a real effect on our lives by regulating government action. Two such documents are the Virginia Bill of Rights (1776) and the Universal Declaration of Human Rights (1948). Contained within both these documents are expressions of negative freedom rights. These rights aim to prescribe a sphere of freedom within which the subject is able to do or be as the subject chooses, without interference from others. Of note is that, included as a negative freedom right, is a right to property. Related to negative freedom rights are due process of law rights, which aim to protect individuals from an unjust curtailment of their negative freedom on account of incarceration resulting from a criminal prosecution. Other rights - political rights, and economic and social rights (which only exist in the Universal Declaration) - are of a different character and do not aim to provide individuals with a sphere of freedom. When discussing negative freedom rights as they exist in the Virginia Bill of Rights and the Universal Declaration, the question arises as to why it is said we possess the area of freedom that negative freedom rights prescribe. To make sense of the negative freedom rights in these documents, it is necessary to examine the philosophical foundations for such rights. John Locke's Second Treatise and Robert Nozick's Anarchy, State, and Utopia can assist in making sense of the articulation of negative freedom rights in such rights documents, including property rights.