The State of Nature according to Locke is a pre-governmental existence in which all are endowed with personal freedom, endowed by God's law or the Natural Law that governs and produces the State of Nature to pursue property, be free in their persons, speak their minds, and make their own decisions with their own consciences, etc. As one would expect, and as Locke also pointed out, the State of Nature can also be a pretty terrible state in which to live. Ultimate personal freedom in the State of Nature also means that any one person's pursuit of self-interest can infringe upon the self-interest and self-interested pursuits of others. In the State of Nature, you trade for your complete personal freedom the risk that it may be in the self-interest of someone more powerful, more popular, or more capable than you to hurt you, kill you, or enslave you. For this reason, according to Locke, the State of Nature is not such a great thing after all. In fact, the State of Nature is so undesirable a living condition that Locke figured that it would be reasonable for us to consent to give up some of our freedom in order to escape the State of Nature.
Specifically, Lock believed that by forming a government upheld by the consent of the governed and adherent to the will of the majority, we could protect our Natural Rights while guarding against the possibility that the self-interested pursuits of some could deprive others of their Natural Rights. This compromise is evident, for example, in Locke's discussion of taxation:
The supreme power [government] cannot take from any man any part of his property without his own consent...For the preservation of property being the end of government and that for which men enter into society, it necessarily supposes and requires that people should have property...Men therefore in society having property, they have such a right to the goods, which by the law of the community are theirs...(qtd. from Michael Sandel's 'Justice' podcast, Episode 4: 'This Land is My Land,' produced by WGBH Boston and Harvard University).
We can see in Locke's language here two very important ideas: first, that property is a Natural Right, worth so much to us that we consent to give up our ultimate freedom in the State of Nature to “enter into society,” and thus to preserve this Natural Right for all; second, and paradoxically, what endows us with our property once we've abandoned the State of Nature and 'entere[d] into society' is not Natural Law, but, crucially, 'the law of the community.' The important point to recognize here is that while Natural Rights like property arise and are endowed by Natural Law, once we consent to leave the State of Nature they are nonetheless endowed in a society not by God or the Law of Nature, but by the 'law of the community,' the consensual law of government. This engenders the fundamental distinction between Natural Rights and Legal rights.
The genius in Locke's admittedly flawed maneuvering around the paradox of the unsuitability of the State of Nature for our understanding of the rights of wo/man, and thus the paradox of God-given rights that must be given in practice by man-made government, is this: Locke recognized that there must be something more than simple majoritarian rule. He understood that if we couldn't bind everyone who's consented to enter into society to the decisions of the majority, we'd be treating people unequally, the system would collapse, and in effect we'd only have a slight revision of the undesirable State of Nature: majority rule would have no power to prevent rights infringements without the power and legitimacy to enforce its decisions over all who comprise the democratic society. Similarly, if we had no set or agreed-upon baseline, like some notion of Natural or inalienable rights, the rule of the majority could crush the rights of the minority, and, again, we'd be back to just a slightly reconfigured State of Nature in which Natural Rights cannot be equally protected for all. Thus, the genius of Locke here is to show that the will of the majority carries insignificant moral force to guide a society; and that while the will of the majority is important, we must have some other guiding principles, or rights, that a just government must protect. Arising from this important observation, then, is the longstanding debate over which rights, and with what costs, must the government protect.
Here we can consider the frequently made differentiation between what are called 'negative rights' and 'positive rights.' Negative rights are essentially what Locke and others considered Natural Rights or unalienable rights, rights like freedom of speech, habeas corpus, and the pursuit of property (later 'the pursuit of happiness'). For those who distinguish between negative and positive rights, what separates these negative rights is the notion that claiming these rights is an entirely individual gesture; that these rights require no person or no government to force another person to do something—to infringe upon the liberty of another—in order to produce these rights. This is the idea that, in other words, by simply exercising my freedom of speech right now, I'm not forcing anybody to do something to enable my exercising of this right to free speech. By contrast, a positive right would lie outside the scope of what are generally considered the Natural Rights, and would require the forced action of others, or the interference with the liberty of others, in order to exist as a right. A positive right in this sense would be, for example, the right to health care: by guaranteeing people the right to health care, it would be necessary also for me to require doctors, nurses, EMTs, etc. to give of their liberty and provide a service. As becomes clear, the differentiation between negative and positive rights is frequently used by libertarians and small-government conservatives to draw a line between services or protections that the government could be expected to provide and the people could expect to receive (negative rights) versus those for which it would be a violation of the individual liberty of others to ask the government to provide (positive rights).
I've given you the context of Locke thinking through the problem of the State of Nature versus the consent to 'enter into society' in order to help illustrate why this distinction between negative and positive rights is specious.
The first phase of the argument against this distinction relates directly to Locke: once we abandon the State of Nature and enter into society, Natural rights or negative rights (associated for our purposes here) might be a guideline for which rights our government should protect; but these rights are no longer endowed by Natural Law or God's Law, but by, in Locke's words, 'the law of the community.' In a society, Natural Rights become legal rights. Accordingly, in a society, it is no longer the 'free labor' of God or the State of Nature that upholds these rights in its own way, but the expensive labor of the government as well as the members of society.
As you recall, the problem with the State of Nature was that Natural Law resembles more closely the Law of the Jungle than the laws of a democracy of the people; in the State of Nature, this lack of protection against the will of one person to impose upon the will of another in such a way as to deprive that person of his or her life or freedom was the very reason to leave the State of Nature and enter into society. The whole point of a society, in other words, is to offer protections that the State of Nature cannot. And the means of achieving this—of endowing rights through the 'law of the community'—is precisely through the necessity that members of the society choose to give of their labor and sacrifice some of their freedom in order to uphold and protect an agreed-upon set of rights. To put it simply, once we leave the State of Nature and enter into society, there is no such thing as a negative right; ALL rights are upheld, enforced, and protected by the 'law of the community,' at the expense of the community. In practice, this means that even rights that you enjoy that seem like negative rights—like free speech—require a vast and expensive social apparatus to guarantee.
Just as Locke and other Natural Rights philosophers argue that taxation (a prime example of giving up some individual freedom in order to enter into society) is a necessary and just government action because a government apparatus (including an army, navy, etc.) provides us with protection from enemy invasion, taxation is necessary to provide us with the structure of society itself, the whole point of which, you recall, is to protect and uphold our rights. Without such protections, society would serve no purpose; and without revenue and consensual commitment from members of society to produce lawyers, judges, police officers, legislators, and a military force, all of which make the societal endowment of rights possible, and protect our rights crucially from both inside (domestic policy) and out (foreign policy), we would have nothing better than a formulation of the State of Nature, from which the very founders of the US Constitution and other key Enlightenment political documents sought prudently and visonarily to escape.
As you can see, then, negative rights, based on Natural Rights, have theoretical value only, because they cannot exist in practice. No government can protect against the otherwise unchecked encroachment of the self-interest of some upon the rights of others without requiring the people who consent to, form, and comprise that government to give up some of their liberty and property (taxation) to uphold and to maximize these rights for all members of the society. You cannot erase the Lockean tradeoff, or the conundrum of sacrificing some of the positive aspects of the State of Nature to eradicate the worst aspects of the State of Nature by entering into society. Even Locke attempted to have it both ways; but as we can see the Natural Rights or negative rights given everyone by God from the starting point in the State of Nature are no more protected by doing nothing in society to uphold them than by doing nothing in the State of Nature. Accordingly, even these so-called 'negative rights' require positive action from others in order to exist in any meaningful sense.
The second phase of the argument against negative rights, then, is the interrogation of the idea that even if negative rights don't formally exist in practice, they are nonetheless the guide for which rights a society and its government should uphold, versus which 'rights' it should not. In other words, that even if it costs money and service (freedom sacrifices) to uphold the right to free speech in any meaningful sense, just as it costs money and service to uphold the right of healthcare, the former should be protected and upheld by government in a society because it's a Natural Right in the State of Nature, whereas the latter should not be protected by government in a society because it never existed as a Natural Right in the State of Nature.
This is a circular argument that holds no water, however. For what, then, are Natural Rights (or negative rights) to begin with, if not rights endowed by God that cost no sacrifice of liberty from others to uphold (as a corollary, what is a Natural Right in the State of Nature if it's not protected as a right? It's like giving someone surrounded by a pack of hungry wolves a porterhouse steak and calling it a 'right.')? Once we remove from our understanding of negative rights the false distinction of 'not requiring any freedom sacrifice from others,' what else is there to separate a so-called negative right from a so-called positive right? If life, liberty, and property cost nothing in the State of Nature both because they were in some sense endowed by God as basic human desires and they were not protected for all (thus requiring no cost of protection), what makes them meaningful or special, other than an unsubstantiated belief in their superiority on an abstract 'rights hierarchy'? Do not humans have other basic desires that can be linked with other important rights, which could also have been just as plausibly endowed, but not protected, in the State of Nature? The right to food? The right to sex? Or would traditionalists file these also under 'property'? This is to suggest that what we call negative rights are not only meaningless as rights unless they're upheld or enforced with the money and labor of others (in which case their very definition as 'negative rights' collapses); they're also no different, qualitatively, from certain so-called 'positive rights' without the circular and illogical definition of 'negative right' attached to them. Is freedom of conscience or freedom of religion, for example, more important for the fundamentally free existence of a human being than the right to basic treatment, through healthcare, of treatable ailments that can otherwise cause a lifetime of pain, suffering, or premature death? Does life precede liberty, or is it the other way around?
The question of healthcare as a right is an example of the kind of pertinent question for which there are legitimate arguments for both sides, the very type of question a society should debate. But by shutting down such an important debate by applying to rights like, for example, basic healthcare, what I have shown to be the arbitrary and illegitimate distinction of 'positive right' (since there is no such thing as a negative right in any meaningful sense), we prevent societies from having such important debates in a serious way, and mislead people with this lazy thinking about 'negative' and 'positive' rights. If, as I have shown, there is no such thing as a negative right in a society, and, without that distinction, no argument and no firm definition yet made in Natural Rights discourse to separate a right like free speech from a right like basic healthcare, then it's time for us to stop hiding behind these weak rhetorical and theoretical distinctions between rights within an abstract rights hierarchy. It's time to start having the difficult political and societal discussions about which rights we think governments should protect, which rights are most important for the free flourishing of us all, or, in other words, where to draw the baseline. We need to face the reality that there is no easy, comfy, 'natural' distinction between which things we can call rights (and task governments to protect and enforce) and which we can't. The negative versus positive rights distinction, heuristic at best, has taken us as far as we can get in this discussion. It's time to do the intellectually and socially responsible thing and let it go in order to move beyond it.
