Must Rights Impose Enforceable Positive Duties?

Andrew I. Cohen

Social philosophers have much discussed whether there is a viable dis-

tinction between negative and positive rights. On typical accounts, negative
rights impose only duties of forbearance, while positive rights impose duties
to perform some action(s). No one doubts that individuals can by explicit
agreement create rights and that some of these rights might be positive rights.
What is often disputed is whether there are any general and basic positive
rights.1 Theorists suspicious of such positive rights typically defend the dis-
tinction between negative and positive rights with appeals to several consid-
erations, such as which sort of rights sustain the formal integrity of a theory
of rights,2 which correlative duties are most costly to bear,3 which rights
would be justified by contractarian decision procedures,4 which rights maxi-
mize overall human freedom,5 and which rights reliably foster opportunities
for developing and expressing human virtue.6 Proponents of positive rights
have responded in kind, often arguing that the distinction between negative
and positive rights is ultimately specious.7
One sort of objection to the negative/positive distinction draws on con-
ceptual considerations about what it is to be a right. On this account, there
can be no purely negative rights, because the very concept of a right includes
some positive duties. This objection thus attempts to assimilate negative
rights into positive rights.
I argue that this objection fails. Responding to representative arguments
of Henry Shue,8 Cass Sunstein, and Stephen Holmes,9 I show that moral claim
rights do not necessarily impose positive duties. I focus purely on formal and
conceptual issues, and so I do not intend my arguments to speak to substan-
tive controversies over whether to allow for general positive rights. I certainly
do not intend to present a complete theory of rights. I also do not address the
cogency of common libertarian arguments against positive rights. I aim only
to show that rights do not necessarily impose correlative positive duties. If
rights impose such duties, it is because of substantive—not conceptual—
considerations.
In what follows I first discuss Shue’s arguments that all rights impose
social guarantees. Shue’s arguments are compelling and subtle, so I shall
address them at some length in order to show how some of his arguments
fail. I then discuss the more recent work of Holmes and Sunstein, some of
whose key arguments are plausible only by assuming controversial moral and
empirical claims. I close with some general remarks about the sort of sub-
stantive considerations relevant to securing rights.

JOURNAL of SOCIAL PHILOSOPHY, Vol. 35 No. 2, Summer 2004, 264–276.

© 2004 Blackwell Publishing, Inc.
 Must Rights Impose Enforceable Positive Duties? 265

I. Shue’s Arguments for Positive Rights

Shue argues that any moral right necessarily imposes some positive
duties. As he writes, a moral right “provides (1) the rational basis for a justi-
fied demand (2) that the actual enjoyment of a substance be (3) socially guar-
anteed against standard threats.”10 Though Shue does not dwell on the point,
the first part of his notion of a right correctly highlights how rights are claims.
They delimit a normative advantage one person holds against others.11
Second, Shue maintains that rights provide for “actual enjoyment” of
some good by right. Consider free association. A person may happen to be
associating with whomever she likes, and it may also happen to be the case
that today she is not being assaulted when convening meetings with her
peers. In this sense she has the good: She is now associating as she sees fit.
But the current absence of conditions that hinder free association does not
make for enjoying free association by right.12 The enjoyment of any right, Shue
claims, requires reliable provisions to secure some good (155, 186 n. 13).13
These provisions need not be infallible, but they should be reasonably effec-
tive at securing the enjoyment of the right (17, 33).
Social guarantees, the third component of Shue’s notion of moral rights,
provide the reliable opportunities to enjoy some good. Shue claims that the
social guarantee of a right is what “necessitates correlative duties” (16). Laws
usually provide such guarantees, but Shue adds that informal social customs
can reliably secure enjoyment of a good (16).
Because some persons will not forbear violations of a right, Shue claims
mere forbearance is insufficient for a social guarantee (39, 55, 61). So Shue
argues that any right requires the fulfillment of two other duties: a duty to
protect bearers from deprivations of the substance of a right and a duty “to
aid the deprived” (52). He thus dismisses the notion that there can be purely
negative rights. No right is fulfilled merely by noninterference. What “nega-
tive rights” theorists neglect, says Shue, is which social structures are required
to secure any right.

A. Basic Rights

The protection and enjoyment of all rights, Shue argues, ultimately

require some positive measures (39). Shue’s argument for basic rights high-
lights how certain rights are essential to the enjoyment of any and all rights.
Among the duties necessarily attached to such basic rights are positive duties.
On Shue’s view, what distinguishes basic rights from their nonbasic coun-
terparts is that no right can be enjoyed without also enjoying these basic
rights. Shue maintains that any attempt to enjoy a nonbasic right at the
expense of some basic right “would be quite literally self-defeating,” for no
rights—including basic rights—can be enjoyed without enjoying those that
are basic (19, 184 n. 13). Shue cites physical security, subsistence, and certain
other liberties as examples of basic rights.14
Now, in what exact sense is a right basic? At times Shue seems to mean
that enjoying the good protected by any basic right is necessary for enjoying
the good of any other right. A right to physical security, for instance, is “a
266 Andrew I. Cohen

right that is basic not to be subjected to murder, torture, mayhem, rape, or

assault” (20). The right to physical security is basic with respect to the right
to free assembly; the good of the one is required for enjoying the good of the
other. He writes, “For it is not that security from beatings, for instance, is sep-
arate from freedom of peaceful assembly but that it always needs to accom-
pany it. Being secure from beatings if one chooses to hold a meeting is part
of being free to assemble” (26). If murder, torture, mayhem, rape and assault
are understood as the sorts of activities that incapacitate a person from doing
anything else, then Shue’s point holds: Without physical security, a person can
enjoy no other good.
To be sure, physical security—as a cluster of goods—is not necessarily
required for enjoying any other good. Torture, assault, and mayhem do not
necessarily hinder a person from enjoying anything else. In Kurt Vonnegut’s
short story “Harrison Bergeron,”15 George Bergeron was subjected to inter-
mittent, debilitating blasts of sound from a “mental handicap radio” he was
legally forced to wear in his ear in order “to keep people like George from
taking unfair advantage of their brains.”16 George was certainly being tor-
tured and so did not enjoy (i.e., he did not possess or experience) the key
good of physical security. But he could still enjoy many goods despite his
torture. While his life and thinking were seriously impeded by the sounds,
he was not thereby hindered from enjoying anything else. This does not under-
mine Shue’s point, however, because Shue means to say only that the enjoy-
ment of physical security by right is required for the enjoyment of any other
good by right.17
Suppose that Jill tortures Jack with electrodes she forcibly implanted in
his skull. She incapacitates him with electric shocks, but only if he goes to
Tennessee. Suppose also that the electrodes would release a lethal shock were
Jack to attempt their removal—and Jack knows this. Jack is free to do as he
pleases so long as he avoids Tennessee and does not attempt to remove the
electrodes. Because Jack can enjoy many goods, Shue is committed to saying
that Jack is physically secure—at least in enjoying some goods. By hypothe-
sis, however, Jack is not physically secure in visiting Tennessee.
The relevant physical security that is then necessary for enjoying any
good is physical security in enjoying the good. Being physically violated
when attempting to enjoy a good is incompatible with successfully enjoying
the good. Physical security—construed purely as the current absence of the
appropriate obstructive violations—is required for enjoying any good.18 So
one way rights are basic is that the goods of basic rights are, in a restricted
sense, analytically required for enjoying any good.
It is important to note that, on Shue’s view, what makes certain rights
basic is an issue of “conceptual necessity” about what it is to be a right (31).
Shue stresses this point on several occasions. Basic rights are “inherent neces-
sities” for enjoying any right (26). Enjoying all basic rights is “necessary,”
“essential,” and “analytically necessary” for enjoying anything by right (see,
e.g., 19, 21, 26, 27, 29, 30, 32, and 184 n. 13). There then seem to be at least
two ways to undercut Shue’s account: (a) Show that at least one right can be
enjoyed without enjoying all those rights that are basic. If so, then perhapsthe
positive duties Shue has in mind would not attach to the enjoyment of rights
 Must Rights Impose Enforceable Positive Duties? 267

as a conceptual matter. (b) Show that rights as a conceptual matter need not
provide for the “actual enjoyment” of some good. If so, then we might speak
meaningfully of rights without saying any positive duties are correlated as a
conceptual matter. I believe Shue’s account is vulnerable on both fronts, and
I discuss each in turn below.19

B. Guaranteeing Basic Rights

Earlier I discussed one sense in which a right is basic: The good(s) such
a right protects are required for the enjoyment of any other good. Another
way rights are basic concerns the social guarantees of rights. A basic right is
one whose social guarantee is required for the guarantee of any other right.
I focus first on traditional duties of forbearance to show where Shue’s argu-
ment works. I then argue that coercively enforceable positive duties neither
are required for the enjoyment of rights nor need be required for the typical
enjoyment of rights.
Shue includes duties of forbearance among the social guarantees of any
right. No doubt, if a person is under a duty to forbear violations of free-
assembly rights, she must be under a duty to forbear at least some violations
of physical security. Hence the conceptual point: Persons bound by duty to
respect rights are under duties not to perform actions that violate rights, such
as, say, by initiating the use of force. Coercion sometimes violates rights. Shue
thus has the entailment he defends among rights and correlated second-party
duties of forbearance.20 Furthermore, if there are any third-party duties of pro-
vision or protection of free assembly, then such guarantees must include secu-
rity against coercion when assembling. But we have not shown on Shue’s
behalf that rights impose third-party positive duties; we have shown only an
entailment among the duties themselves. If rights do not or need not impose
such duties, then the point is moot. So do the positive duties of provision and
protection Shue discusses attach to moral rights?
Consider first the right to subsistence, which Shue says is basic to all
rights. Shue maintains that subsistence rights are inherent necessities for the
enjoyment of all other rights. Shue takes subsistence rights to include rights
to be provided with the material components required for a “reasonably
healthy and active life of more or less normal length, barring tragic inter-
ventions” (23). Is it possible to enjoy any right without enjoying a basic right
to subsistence that imposed positive duties of provision?
Shue thinks not. His argument comes in a lengthy note. As he claims, an
individual who was not guaranteed a basic right to food (part of a right to
subsistence) could not be secure in his right not to be tortured (a physical
security right) (185 n. 13; see also 162–63). Such an individual would be vul-
nerable to participating in an exchange in which he received some food after
submitting himself to torture. Though this individual may be said to “have a
right not to be tortured, he cannot actually enjoy the right because he must
choose between undergoing torture and undergoing starvation” (185 n. 13).
But this does not show that subsistence is basic in the sense Shue needs.
If Jack lacks food and is unable to acquire it on his own, he clearly can enjoy
the right not to be tortured. It need only be true that there are social
268 Andrew I. Cohen

guarantees for Jack to enjoy freedom from torture, meaning that there are
some social norms/institutions that reliably provide for the following:
(1) individuals forebear torturing Jack, (2) individuals protect Jack from being
tortured, and (3) individuals assist Jack whenever he nevertheless falls victim
to torture. If all the conditions above are met (and there seems to be no reason
why they cannot), then Jack enjoys the right not to be tortured despite there
being no basic rights to food, that is, no rights that impose enforceable second-
or third-party positive duties of provision of food for a “reasonably healthy
and active life” (23).
Shue objects, What if some wealthy sadist were willing to provide food
only if Jack agreed to undergo torture? (186 n. 13). As Shue might say, since
it is possible that Jack might be able to obtain food only by dealing with a
wealthy sadist, Jack must be guaranteed subsistence if he is to be guaranteed
freedom from torture.
But this will not help Shue, for we need only stipulate that there are social
guarantees against wealthy sadists’ torturing hungry persons otherwise
unable to obtain food.21 And even if some wealthy sadists were somehow able
to circumvent the prohibition against sadistic torture, this would not count
against the social guarantee of freedom from torture, since, as Shue notes, the
social guarantees need not be infallible (17, 33).
To be sure, were Jill to deprive Jack of his liberty or his opportunity to
acquire food, he would certainly have positive rights that Jill return his food
to him or that she otherwise take those positive measures that would release
him from her illegitimate custody. But such rights would be neither basic nor
general. They would be secondary to Jack’s original negative rights not to be
tortured and not to be deprived of his property.22 They would also be special
positive rights Jack held against Jill because she had violated his negative
rights.
Shue would certainly take exception to this argument. “No one can fully,
if at all, enjoy any right that is supposedly protected by society if he or she
lacks the essentials for a reasonably healthy and active life” (24). But this
moves away from the conceptual claims Shue made about the content of the
notion of a right. Doubtless a person deficient in the material necessities of a
flourishing human life might find it difficult to exercise her rights, but neither
is a deficiency a deprivation, nor is a deficiency of subsistence, whatever its
cause, necessarily incompatible with enjoying rights.23 Were Jack deficient in
food either through laziness or unfortunate circumstance (e.g., some natural
disaster), he might still enjoy, say, freedom from torture by right. Meanwhile,
he could go out and get a job or appeal to others for charity. It thus seems
that neither is the right to subsistence basic to all other rights nor are the
second-party positive duties of provision of subsistence required for the
enjoyment of any other right.
Shue correctly notes that effectively protecting rights requires positive
measures such as establishing and maintaining institutions of law enforce-
ment (37–38) and educating persons about the meaning of their rights
(162–63). But it does not seem that enforceable positive duties to provide such
protections and empowerment are part of the concept of a basic right.24
Persons might meaningfully have and enjoy their rights without it being
 Must Rights Impose Enforceable Positive Duties? 269

true that second and third parties are under duties to provide the sub-
stance of such rights. Key here is whether such duties are owed by justice.
Perhaps other virtues (such as generosity, charity, or even prudence)
might be more fitting to guide our conduct toward persons in need of assis-
tance. Whether persons have rights to such assistance is another matter that
cannot be settled purely by conceptual arguments. So without appeal to sub-
stantive arguments, it seems that rights need not necessarily impose positive
duties.
Citizens of Western representative democracies may have some legiti-
mate claims to resources funded by the public purse. But a claim to such ben-
efits is justified by a lengthy substantive argument resting heavily on notions
of fairness and political legitimacy; the claim is not necessarily part of the
concept of a right.25 There is still a distinction between the interests rights
protect and the institutions persons might establish to protect or fulfill such
interests, hence vitiating the conceptual point Shue defends. Certainly Shue
goes on at great length to make substantive points in defense of second- and
third-party duties of provision, protection, and restitution. But the point
remains that such duties are not necessarily part of the concept of a moral
claim right.26
Shue anticipates a related objection that would appeal to a distinction
between a right to physical security and a right to be protected from viola-
tions of physical security (38). The first might be a traditional negative right;
the second would be a right that imposed some enforceable second- or third-
party duties of provision and protection:

Insofar as this frail distinction holds up, it is the rights-to-be-protected-

against-assaults that any reasonable person would demand from society.
A demand for physical security is not normally a demand simply to be
left alone, but a demand to be protected against harm. It is a demand for
positive action, or . . . a demand for social guarantees against at least the
standard threats. (38–39)

But here Shue does not deny the distinction; he merely argues that the dis-
tinction has little effect in public policy. Further, he does not thereby show
that claims to social guarantees of provision and protection are part of the
concept of a moral claim right. He merely says that such positive measures are
what people demand. He has not shown that the demand is legitimate, but
more sharply, he has not shown that satisfaction of such a demand is either
a formal or a conceptual requirement of a rights theory. Perhaps there are
good substantive reasons for recognizing and fulfilling such demands, but we
have not seen any argument for why such claims rise to the level of basic
general rights. Shue has failed to show that enforceable positive rights must
be part of the concept of any moral claim right.
It seems that what motivates much of Shue’s argument is an entirely plau-
sible substantive commitment that rights are norms uniquely suited to secur-
ing the enjoyment of certain goods that are instrumental to a successful
human life. Shue is especially concerned with the most helpless members of
a moral community.27 Shue argues that everyone—especially the indigent—
270 Andrew I. Cohen

must have enforceable rights to be provided with a certain welfare minimum.

But recall Shue acknowledged that informal social norms might suffice to
guarantee enjoyment of certain goods. Running with this suggestion, perhaps
moral exhortation, ordinary partialist concern, basic human compassion, and
the voluntary social institutions people create to protect their rights and care
for the indigent may be better suited to optimizing overall enjoyment of
the goods constitutive of a successful human life—even for those otherwise
unable to provide for themselves. Of course all this rests on empirical and
substantive moral issues. Without appealing to such matters, we cannot settle
purely by conceptual analysis whether persons enjoy rights that correlate
with enforceable positive duties.28

II. Holmes and Sunstein on Positive Rights

My next target is a recent argument by Holmes and Sunstein.29 They argue

against the negative/positive rights distinction by explicitly assimilating all
rights into positive rights. They state that rights without claims to public
enforcement are “toothless” (17). “No right is simply a right to be left alone
by public officials. All rights are claims to an affirmative governmental
response” (44). I argue that Holmes and Sunstein are mistaken to claim that
rights must impose enforceable positive obligations.
Holmes and Sunstein’s basic point is that all rights require government-
guaranteed enforcement. “The private realm we rightly prize is sustained,
indeed created, by public action” (15). Unlike Shue, they disclaim any concern
with moral rights. Rights, they say, are to no effect unless they are backed by
legal institutions and agents empowered by them.30 So, for instance, a tradi-
tional right to property means nothing unless there are public institutions to
define and enforce one’s property rights and to punish any violations of one’s
rights. Rights, the authors frequently insist, cost money. Of course, what costs
money are not the rights as such but their enforcement. And so rights are
meaningful “only when dereliction is punished by the public power drawing
on the public purse” (43).
As Holmes and Sunstein note, even rights that are claims to immunities
from government interference are rights that depend on government enforce-
ment. An area of freedom is protected from government interference, they
say, only if there is “relatively easy access to a second, higher-level set of gov-
ernment actors whose decisions are deemed authoritative” (54). But this
threatens to eliminate rights with a regress. If rights are only those claims that
are effectively protected by government, and if the claims are effective only
because of access to supervisory levels of governmental oversight, then what
makes the rights to supervisory oversight effective? We would need a meta-
overseer. And so forth. We can stop the regress in two ways. (1) We can pos-
tulate some unaccountable Hobbesian sovereign. The rights citizens enjoy
would be purely a function of the sovereign’s edicts. But I suspect the authors
would resist this move. Alternatively, (2) what rights people have would not
be purely a function of political dictates. There would be many complex
norms that determined the legitimacy of rights claims. This would leave room
for normative accounts of government actions/inactions.
 Must Rights Impose Enforceable Positive Duties? 271

Holmes and Sunstein correctly claim that the institutional elements of

constitutional rights and the more quotidian rights claims codified in law are
nothing without immediate claims to state action. But they conflate rights
with the institutions that enforce them.31 This conflation runs through much
of their book. Rights to property, they say, “are meaningful only if public
authorities use coercion to exclude nonowners, who, in the absence of law,
might well trespass on property that owners wish to maintain as an invio-
lable sanctuary” (59). But rights need be neither institutionally enforced nor
enforceable.
In current institutional environments of Western representative democ-
racies, government performance sometimes determines which rights a person
can effectively exercise. Consider property rights. These are clusters of claims
to liberties, immunities, and powers. To the extent that Jack has an effective
property right in some object held by another, or to the extent that Jack’s prop-
erty rights entitle him to exclude trespassers, Jack may invoke public institu-
tions of coercion. “One private individual has a right either to force another
private individual to act or to preclude another private individual from
acting. In both cases, obviously, enforcement of a right requires decisive gov-
ernment performance” (51). But we must steer clear of reducing the meaning
of rights to such claims. Rights do much more. Rights normatively define and
protect an area of freedom.
Holmes and Sunstein often slide from saying that the enforcement of
rights depends on government into making a stronger claim that rights are a
creation of government. “Property rights exist because possession and use are
created and regulated by law” (60). More starkly, they say that private prop-
erty “is, more generally, a creation of state action” (66). But this is manifestly
false. We need only consider nonstate norms that define and protect property
rights such as the norms of customary law (e.g., merchant law and common
law). Informal norms and institutions of civil society can also help to deter-
mine the effective scope of property rights through reputation effects or
through ranching and homesteading norms.32
A right is not its enforcement mechanism. A right need only describe a
freedom of action that represents a normative advantage some agent(s)
enjoy(s) over others. The normative advantage need not be a function of gov-
ernment action/inaction. Jack’s right to life does not simply mean that Jack
has an interest that government agents protect. Jack’s right to life need mean
only that others must forbear violating his physical security and that Jack
would be right to use force to defend against any such violations. Doubtless
in any civil society the state claims ultimate authority to determine which
activities count as invasions of physical security and which count as permis-
sible self-defense.33 But that must not obscure the possibility that rights might
delimit a normative advantage that constrains the actions persons and states
may legitimately take.
If Holmes and Sunstein were correct, then rights would lose an impor-
tant role of guiding and constraining the actions of states and those of private
individuals. Saying that rights are a creation of state action and a function of
state enforcement guts the notion of its distinct normative power. Indeed,
suppose agents meaningfully had rights only when there were social
272 Andrew I. Cohen

guarantees of provision and protection. But there were no social guarantees

for protecting the rights of African Americans or Indians for much of the
history of the United States. They often failed to enjoy, for instance, physical
security by right. But it makes perfect sense to say that they had rights to
physical security; unfortunately the rights were often tragically violated. Those
who violated the rights—especially government agents—were wrong. The
victims who protected themselves, or those who assisted them, were justified
in doing so. Rights can thus delimit what freedoms agents ought to or ought
not to have without imposing effective government-guaranteed second- or
third-party positive obligations.34 Of course, this is not an argument that
rights do not impose government-guaranteed positive obligations. This is
merely an argument that rights do not necessarily do so.
Interestingly, Holmes and Sunstein acknowledge that rights might not
entirely be a function of state action. After arguing at length for the depen-
dency of rights on power, they write that such power “arises not from money
or office or social status alone. It also comes from moral ideas capable of ral-
lying organized social support” (203).35 They cite the civil rights movement
as an example. But this works against their thesis, for now rights need not
merely be a function of state action. (Otherwise the rhetoric of the civil rights
movement would have been meaningless.) Rights can instead be principles
that give reasons for action, including reasons for effecting social change.
Rights are not necessarily what government effectively protects. Rights prin-
ciples can serve well in describing which interests government ought to
protect and how government may go about protecting them. And basic rights
might fulfill this task without imposing second- or third-party positive duties.

III. Conclusions

Shue, Holmes, and Sunstein all argue that enforceable positive duties of
provision and protection are part of the concept of a right. Shue purports to
be making explicitly analytical and conceptual points, but his arguments rest
on disputable empirical and moral claims. Holmes and Sunstein wish to
argue that the concept of rights has certain content, but they seem to conflate
rights with enforcement mechanisms and thereby threaten to strip the notion
of rights of its distinct rhetorical and moral power.
All three authors are understandably concerned about a regime of basic
rights that does not include positive claims to provision and protection guar-
anteed by justice. Since rights are norms intended to secure agents in the
enjoyment of certain goods, we might worry about a moral community in
which rights lacked automatic social guarantees. Suppose a theory of rights
excluded enforceable basic positive obligations. In such a regime of rights,
what sort of a right would a right to physical security be?
Shue believes it would be no right at all: “An alleged right that did not
include a demand for social guarantees, in the sense of arrangements made
by, or with, some or all of the rest of humanity, would be a right with no cor-
relative duties, with nothing required of others, and this would not be a
normal right at all but something more like a wish, a dream, or a plea” (75).
But this is too strong. There would be much required (and certainly permit-
 Must Rights Impose Enforceable Positive Duties? 273

ted) of others by a right without enforceable positive obligations of provision

and protection.36 Jill’s right to physical security would mean that Jack or
anyone else would be unjustified in maiming or murdering her. It would
mean Jill (or third parties) may use coercion to stop Jack from maiming or
murdering her. Jill’s right thus gives moral reasons for forbearance and action.37
A moral community where rights stopped short of imposing basic, enforce-
able positive obligations of provision and protection could still afford an
agent her rights.
My point here is modest in scope: I have argued only that basic rights do
not, as a conceptual or formal matter, necessarily impose second- or third-
party positive duties of protection or provision. There may very well be such
duties, but they might not be correlated with basic rights. They might corre-
late only with derivative rights that arise by agreement or through special
relationships. Alternatively, such duties might bind us all the time at varying
levels of stringency, but the duties might not be enforceable as a matter of
justice.
Rights can be protected and fulfilled by norms and institutions other than
enforceable basic positive obligations of protection and provision. Voluntary
institutions can educate individuals about the history, meaning, and impor-
tance of their rights. Individuals and their communities can sustain norms
of personal responsibility, mutual respect, and basic compassion that allow
for the optimal flourishing of each individual, and it need not be the case
that these norms are enforced by justice. Individuals in a moral community
without basic positive obligations of provision and protection (enforceable
by justice) might then have better reason to respect the boundaries rights
describe, and they might have better reason voluntarily to sustain those insti-
tutions that enforce respect for rights. Of course, this is all quite speculative.
But Shue, Holmes, and Sunstein have not shown that positive duties are nec-
essarily part of the concept of a right. Much now depends on complex moral
argument drawing on empirical findings.38

For extensive comments on a distant ancestor to this essay, I am grateful to Tom Hill,
Jerry Postema, Harry Dolan, and especially Bernie Boxill. Thanks also to Jennifer
Samp, Kit Wellman, and an anonymous reviewer for many helpful comments on
recent versions of this essay.

Notes
1
Sometimes writers speak of “general” rights as “human” rights or “natural” rights. Since
my focus is on formal and conceptual matters, I hope to avoid substantive controver-
sies regarding the term “general rights.” Persons hold “general” rights independently
of special acts (such as promises) or special relationships (such as being the child of
some particular adult). “Basic” rights, in the sense relevant here, are justified immedi-
ately by whatever considerations fund rights overall. We can thus contrast basic posi-
tive rights (whose existence is disputed) with derivative positive rights. A derivative
positive right would be some right a person enjoys secondary to some negative right.
Even negative-rights theorists grant there can be derivative positive rights. (For
instance, Jack’s basic negative right not to be robbed translates into a derivative posi-
tive right that a robber return Jack’s property.) For the distinction between basic and
derivative rights, see Roderick T. Long, “Abortion, Abandonment, and Positive Rights,”
274 Andrew I. Cohen

Social Philosophy and Policy 10 (1993): 166–91, esp. 171–76. Unless otherwise noted, the
positive rights I discuss are both basic and general.
2
See, for instance, Michael Levin, “Negative Liberty,” in Human Rights, ed. Ellen Paul,
Jeffrey Paul, and Fred Miller (New York: Blackwell, 1989), 90–91; Douglas Den Uyl and
Tibor Machan, “Gewirth and the Supportive State,” in Gewirth’s Ethical Rationalism:
Critical Essays, ed. Edward Regis, Jr. (Chicago: University of Chicago Press, 1984),
167–79; Tara Smith, Moral Rights and Political Freedom (Lanham, Md.: Rowman &
Littlefield, 1995), 194–206; Michael Levin, “Conditional Rights,” Philosophical Studies
55 (1989): 211–13; Ayn Rand, “Man’s Rights,” in The Virtue of Selfishness, ed. Ayn Rand
(New York: Signet, 1964), 92–100; David Kelley, A Life of One’s Own (Washington, D.C.:
Cato Institute, 1998); Jan Narveson, The Libertarian Idea (Philadelphia: Temple Univer-
sity Press, 1988), chap. 5; and Daniel Shapiro, “Conflicts and Rights,” Philosophical
Studies 55 (1989): 263–78.
3
See, for example, Narveson, The Libertarian Idea, chap. 4; Robert Nozick, Anarchy, State,
and Utopia (New York: Basic Books, 1974), e.g., 160–62. See also Loren Lomasky, Persons,
Rights, and the Moral Community (New York: Oxford University Press, 1987), chap. 5,
where Lomasky gives a carefully conditioned defense of the primacy of “liberty” over
“welfare” rights, partly by appealing to the costs of correlative duties.
4
See, for example, Narveson, The Libertarian Idea, part 2; and Tibor Machan, Individuals and
Their Rights (La Salle, Ill.: Open Court, 1989), 127.
5
See, for example, J. C. Lester, Escape from Leviathan (New York: St. Martin’s, 2000); Kelley,
A Life of One’s Own; Smith, Moral Rights and Political Freedom, part 2.
6
See, for example, Tibor R. Machan, Generosity: Virtue in Civil Society (Washington, D.C.:
Cato Institute, 1998); Douglas B. Rasmussen and Douglas J. Den Uyl, Liberty and Nature
(La Salle, Ill.: Open Court, 1991), chap. 3, and “Rights as Meta-Normative Principles,”
in Liberty for the 21st Century, ed. Tibor R. Machan and Douglas B. Rasmussen (Lanham,
Md.: Rowman & Littlefield, 1995), 59–75; Douglas J. Den Uyl, “The Right to Welfare
and the Virtue of Charity,” in Liberty for the 21st Century, ed. Tibor R. Machan and
Douglas B. Rasmussen (Lanham, Md.: Rowman & Littlefield, 1995), 305–34; Daniel
Shapiro, “Egalitarianism and Welfare-State Redistribution,” Social Philosophy and Policy
19 (2002): 1–35.
7
Though no advocate of positive rights, Andrew Melnyk provides a compelling critique
of formal objections to positive rights. See “Is There a Formal Argument against Posi-
tive Rights?” Philosophical Studies 55 (1989): 205–9. On related themes, see Alan Gewirth,
The Community of Rights (Chicago: University of Chicago Press, 1996), chap. 2. On the
issue of the costs of correlative duties, see, for instance, Richard L. Lippke, “The Elusive
Distinction between Negative and Positive Rights,” Southern Journal of Philosophy 33
(1995): 335–46; Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy,
2nd ed. (Princeton: Princeton University Press, 1996); and Stephen Holmes and Cass
R. Sunstein, The Costs of Rights (New York: Norton, 1999), 14–58. As to which rights
would be justified by contractualist procedures, see, for instance, Lippke; James Sterba,
“A Libertarian Justification for a Welfare State,” Social Theory and Practice 11 (1985):
285–306; and John Rawls, A Theory of Justice (Cambridge, Mass.: Belknap Press, 1971).
Many social philosophers have defended positive rights as amplifying overall human
freedom. See, for instance, Rawls; Shue, part 1; and T. L. Zutlevics, “Libertarianism and
Personal Autonomy,” Southern Journal of Philosophy 39 (2001): 461–71. Among writers
arguing that respecting some positive rights enhances opportunities for virtue, see, for
instance, Zutlevics and Shue.
8
Shue, Basic Rights.
9
Holmes and Sunstein, The Costs of Rights.
10
Shue, Basic Rights, 13. All further page references to Shue in the text refer to his Basic
Rights.
11
I borrow the phrase “normative advantage” from L. W. Sumner, “Rights,” in The Black-
well Guide to Ethical Theory, ed. Hugh LaFollette (Malden, Mass.: Blackwell, 2000), 290.
12
Shue seems to regard “enjoying x by right” as equivalent to “enjoying a right to x.”
13
For a related discussion of rights as norms, see James W. Nickel, Making Sense of Human
Rights (Berkeley and Los Angeles: University of California Press, 1987), chap. 5.
 Must Rights Impose Enforceable Positive Duties? 275

14
Shue’s argument that a right is basic proceeds as follows:
1. Everyone has a right to something.
2. Some other things are necessary for enjoying the first thing as a right, whatever the
first thing is.
3. Therefore, everyone also has rights to the other things that are necessary for enjoy-
ing the first thing as a right. (31)
The argument as it stands is not valid unless we add in another premise: (2a)
Everyone has a right to enjoy by right the goods to which he or she has rights. Premise
(1) would, however, remain problematic. It would be better as the conclusion of an argu-
ment than a stipulated premise. But the argument could be revised to have a hypo-
thetical structure that mimics the form of Hart’s argument about natural rights. As Hart
argued, “if there are any moral rights at all, it follows that there is at least one natural
right, the equal right of all men to be free” (H. L. A. Hart, “Are There Any Natural
Rights?” Philosophical Review 64 [1955]: 175–91, at 175.) In this way, Shue could argue
that if individuals have any rights, then they have basic rights. He gestures toward such
a formulation when he writes, “we could in fact give a strong argument that shows
that if there are any rights (basic or not basic) at all, there are basic rights to physical
security . . .” (21).
15
Originally appearing in Magazine of Fantasy and Science Fiction (October 1961): 5–10; also
in Vonnegut’s Welcome to the Monkey House (New York: Delacorte, 1968).
16
Ibid., 5.
17
I am grateful to an anonymous reviewer for emphasizing the importance of this
issue.
18
I set aside the complications of specifying the content of this concept. To preserve the
necessity Shue describes, “enjoyment” would have little to do with feelings of content-
ment during certain experiences. Suffering bad weather during a visit to Tennessee
does not impede enjoying a [right to a] Tennessee visit in the sense Shue needs. The
notion of enjoyment would have to be narrow enough to preclude Jack’s continuously
electrocuted visit to Tennessee from counting as enjoying a [right to a] Tennessee visit,
and it would need to be defined so that a rainy stay in Memphis does not count against
enjoying a [right to a] Tennessee visit. It is also uncertain whether “enjoying a [right to
a] good” would be bivalent, threshold, or scalar. Since Shue sees basic rights as the
“morality of the depths” (18), I suspect the guaranteed enjoyment that rights suppos-
edly entail is merely a minimal threshold of opportunities to exercise certain freedoms.
Where to fix that threshold would be another, more complicated matter hinging on con-
troversial substantive issues. I pass over these details here.
19
I stress that there may yet be good substantive reasons for and against positive rights; I
set those issues aside.
20
Note that the rights in question must be claim rights; the entailment would obviously not
hold for bare (e.g., Hobbesian) liberties.
21
Such a stipulation would be redundant. Guaranteeing the right not to be tortured means
protecting against any acts of torture. The case of the wealthy sadist would, by defin-
ition, be covered here. Of course, here I suppose that torture is inherently nonconsen-
sual. Suitably specified consent, I would argue, precludes an act from being torture,
just as suitably specified consent precludes a killing from being murder. Thanks to Kit
Wellman for a discussion of these points.
22
Jack may also have such derivative positive rights against others who may have bene-
fited from his unjust imprisonment. This touches on knotty problems with theories of
restitution, which, fortunately, I need not explore here.
23
A deficiency of some forms of physical security would, however, necessarily be a depri-
vation. (The only way a person lacks freedom from torture is if someone tortures her.)
And following the earlier restricted sense of how physical security is basic to other rights,
a deficiency of physical security in f-ing is incompatible with enjoying a right to f.
24
They could be part of a derivative right, such as the right one creates when freely con-
tracting with a private security agency or educational institution.
25
Moreover, whether current redistributive or tax-funded social institutions are the only or
best means for satisfying the legitimate interests represented by traditional negative
276 Andrew I. Cohen

rights rests on complex and controversial empirical and substantive claims that need
not detain us here.
26
A critic might argue that Shue is only making a substantive argument for such positive
duties, and so the criticism here is beside the point. (A reviewer suggested a related
worry.) So suppose we read Shue as not intending for such duties to follow analyti-
cally from the concept of a right. (I have grave reservations about this reading; his
language often suggests such entailment. See 32–33.) Still, Shue clearly and repeatedly
claims that such duties are part of the concept of a right. By arguing, for instance, that
the enjoyment of basic rights is an “inherent necessity” for the enjoyment of any right
at all (26), and by arguing that basic rights impose second- and third-party duties of
provision, protection, and restitution, Shue is saying that some positive duties of pro-
vision are an inherent necessity for the enjoyment of anything by right. I argue against
only this line of argument, leaving Shue’s substantive points to the side.
27
“Basic rights are the morality of the depths. They specify the line beneath which no one
is to be allowed to sink” (18).
28
One caveat: Shue insists that “conceptual analysis alone (of the scope, substance, or
content of a right) provides inadequate information for grounding judgments about
implementation. It is necessary, but not sufficient, to understand the conception of the
right and what the right is to” (161). Here I have focused only on that part of Shue’s
discussion that unpacks the “conception” of a right and how it supposedly imposes at
least some second- and third-party duties of provision and protection.
29
All page references to Holmes and Sunstein refer to their The Costs of Rights.
30
See, e.g., 17, 18–20, 36, 43–48, 49–51, 53, 57, 59, 61–62, 70, 220–22.
31
They cite the Voting Rights Act as evidence that “individual rights are invariably an
expression of government power and authority” (57). But this is false: Rights can be
legitimate claims whose current enforcement may simply happen to provided by
certain institutions—some of which happen to be publicly financed.
32
See, for example, Robert C. Ellickson, Order without Law: How Neighbors Settle Disputes
(Cambridge, Mass.: Harvard University Press, 1991); Bruce L. Benson, To Serve and
Protect: Privatization and Community in Criminal Justice (New York: New York Univer-
sity Press, 1998). Medieval Iceland is also an interesting example of how private parties
can establish voluntary institutions to secure order and relative prosperity. See, for
instance, Jesse L. Byock, Medieval Iceland: Society, Sagas, and Power (Berkeley and Los
Angeles: University of California Press, 1988); William I. Miller, Bloodtaking and Peace-
making: Feud, Law, and Society in Saga Iceland (Chicago: University of Chicago Press,
1990).
33
The state can claim such authority. Whether it rightly has it is another question altogether.
See, for instance, Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press,
1986). See also Christopher W. Morris, An Essay on the Modern State (Cambridge:
Cambridge University Press, 1998).
34
For similar reasons, rights are not just those “interests on which we, as a community,
have bestowed special protection” (116) precisely because of a possible mistaken con-
sensus as to the proper scope of such protection.
35
Elsewhere they add, “Law should be and is shaped by moral aspirations” (163).
36
I stress that it is the basic status of such obligations that is disputable. There is no formal
obstacle to creating (and much substantive reason to create) voluntary institutions that
protect rights or provide for agents otherwise unable to care for themselves.
37
Initially the right would generate reasons for forbearance, but it could generate reasons
for others’ action, either as part of second-party positive duties of restitution secondary
to first-party basic negative rights, or for third-parties who wish (but are not necessar-
ily under an enforceable positive duty) to increase overall security of rights in the
community.
38
I would note again that Shue (and sometimes Holmes and Sunstein) provide such argu-
ments. Whether they succeed is beyond the scope of this essay.