Positive Versus Negative Rights and Government Welfare Obligations

Abstract

This paper considers the traditional distinction between negative and positive rights arguing that such a distinction is problematic. A distinction between the two is considered problematic because negative rights, which supposedly prevent the state from taking certain action, routinely require positive state action for their enforcement and realisation. This paper will also analyse the approach taken by American courts in determining when there is a positive obligation on the state to provide for the welfare of certain individuals. After the courts’ approach has been analysed, this paper will also briefly consider whether the rationale underpinning the courts’ approach can be used to argue for welfare rights for the indigent.