positive rights and natural rights

Here Professor Hittinger explains the origin of, and distinction between, positive rights and natural rights. These concepts are foundational in the study of law and justice.

Where do rights come from? Now, it’s undoubtedly a fact that most rights derive from human agreements. Umpteen-thousand times every day - well in fact, umpteen thousand times every day just in the state of Texas, individuals make contracts which specify precisely who owes what to whom. For example, if I decide to get a new car, and I want to lease a new car from Honda, the issue of justice is usually pretty clear. Justice obtains when I give to Honda what I owe them, namely, let’s say $300 a month for a lease payment, and Honda gives to me what was specified in the contract, namely, use of the car. Umpteen-thousand times every day, people figure out who owes what to whom because they make an agreement about it, and most of the time these agreements are pretty clear. Not always.

Where else do rights come from, besides contracts? Rights also come from the actions of government at the municipal, state and federal level. Every day, they too, reach agreements as to “who owes what to whom”. First, in the order of what’s called legal justice, which regards what individuals owe to the state. For example, a traffic code says that I owe to the entire community the act of driving on the right hand side of the road. But, states, local communities, political communities, also make agreements as to what the state owes individuals. For example, under federal law, the government owes to me, or to any criminal defendant, a trial by jury in a criminal case. Plainly, what I’m trying to say here is that most questions of justice are the creatures of contracts and positive laws, where we try to be very precise about who owes what to whom. The thing owed is called your right.

But then the issue emerges – are all rights merely the creatures of contracts and human positive laws? Are there rights that exist prior to those things created by human beings? And, if so, they’re entitled to be called natural rights. They’re called natural because, although governments recognize and enforce these rights, the rights are thought to be grounded in obligations which exist independent of contracts and statures. And you wouldn’t have to look very far to find these rights mentioned in our state constitutions, especially the right of religious conscience, which is mentioned at the beginning of virtually all of our state constitutions. Our state constitutions don’t believe that they created by contract the right of religious conscience. Rather, they believe that you have a right not to be coerced in matters of religion because this belongs to you by nature, not by contract, agreement or by stature.

- Russell Hittinger, "American Constitutionalism"

Other posts on this subject here.