TERM-PAPER

On

“Explore how you can/not think of enforcing positive rights?”

Of

GOVERNANCE – II

Submitted by:

ANIRUDDHA PRATAP

I Semester

2010

M. Phil.

Centre for Study of Law and Governance

 INTRODUCTION

Simply stated, a right is a claim of an individual recognised by the society and the state.
The term ‘right’, in civil society, is defined to mean that which a man is entitled to have or to
do, or to receive from others, within the limits prescribed by law. A right is an interest which
is recognised and protected by law. As it is recognised by law a man is entitled to have it. As
it can be protected by the law the possessor can enforce it by an appropriate action in a Court.
Immunity is one aspect of right and entitles the possessor to see that no one interferes with it.
It also furnishes him with a complete answer to any action intended to interfere with that
right.1

Since the subject matter of this enquiry relates to the enforcement of positive rights we
must first briefly mention the distinction between positive rights and negative rights. In
general terms holder of a negative right is entitled to non-interference, while the holder of a
positive right is entitled to provision of some good or service. 2 This distinction naturally
recalls the well-known distinction that Isaiah Berlin drew between negative liberties that refer
to non-interference by government and positive liberties that refer to individual self-
realization or a democratically organized collectivity. As understood by Holmes and
Sunstein, the positive/negative rights distinction refers to the distinction between rights that
set a limit to invasive government action and rights that require a certain minimal level of
government intervention. Whereas negative rights are rights against government intervention,
positive rights are rights to government intervention.3 Holmes and Sunstein’s primary target
is the widely accepted distinction between the ‘negative’ property rights of the laissez-faire
state and the ‘positive’ welfare rights of the regulatory state. To contest this distinction, they
show repeatedly that government necessarily must allocate significant resources to the
enforcement and maintenance of all rights, including private-property rights that may
intuitively (but misleading) appear to impose no cost upon the public fisc. They show that
both negative and positive types of rights – that is, property rights and welfare rights – always
generate significant social costs and always rely on affirmative government intervention. For
most part, they refer to the government’s enforcement costs in taking affirmative steps to 1)
1
Raj Rajendra Sardar Maloji Narsing Rao v. Shankar Saran, AIR 1958 All 775, 787.
2
Wenar, Leif, “Rights”, The Stanford Encyclopaedia of Philosophy (Fall 2010 Edition), Edward N. Zalta (ed.),
URL = <http://plato.stanford.edu/archives/fall2010/entries/rights/>
3
Barnett, J. M., ‘Rights, Costs, and the Incommensurability Problem’ in Virginia Law Review, Vol. 86, No. 6
(Sep., 2000), p. 1307
detect and punish public and private actors who infringe upon legally recognized rights; and
2) establish and maintain a legal apparatus whereby private individuals can present and seek
compensation for alleged rights violations.4 What they are trying to show is that the effective
enforcement of the positive rights to minimal levels of housing, education and medical care
obviously requires that the government expend considerable resources on hospitals, schools
and building construction. But it should be just as obvious that the effective enforcement of
negative rights to security of person and property requires that the government expend
considerable resources on police, prosecutors, judges and prisons.

Therefore what becomes apparent from the aforesaid is that for the enforcement of rights
(positive or negative) the state bears costs. In traditional sense we understood that it’s the
positive rights which need costs for their enforcements but one can easily make out that for
negative rights also state has to bear enforcement costs.

STRUCTURE-AGENCY QUESTION

I will now move the debate to another course and focus on what factors appertain to the
enforcement of positive rights and adversities involved in doing the same. What I will try
here will be to invoke the ‘structure-agency’ question (which pertains to the arena of social
sciences) in context of enforcement of rights. For the purpose of this paper I will briefly
indicate what might be understood as both structure and agency. Every state is having some
mechanism for the enforcement of rights. This mechanism further consists of formal as well
as informal institutions which are actually responsible for the enforcement of rights. These
institutions intend to work according to the prescribed models of enforcement (of rights, here
positive). Though the end results may not correspond with the intended models but then it is
these models which provide the whole scheme of action. We will call the mechanism of
institutions along with their models of action as ‘structure’. This structure is responsible for
the enforcement of positive rights as well as the shaping of the outcomes. Agency is generally
understood to refer to the capacity of agents (including individuals, groups, organisations
etc.) to shape their environment. Here we will address agency in relation to the capacity of
agents to enforce positive rights.
4
Ibid, pp. 1310-11
 So the ‘structure’ part may comprise of institutions like Judiciary, Police, Ministries (e.g.
Ministry of Health and Family Welfare, Ministry of Consumer Affairs, Food and Public
Distribution etc.) and prescribed models like National Rural Health Mission, Integrated Child
Development Services (ICDS), National Rural Employment Guarantee Scheme (NREGS)
etc. The aim of these institutions and prescribed models is enforcement of ‘welfare rights’
which are in the form of positive rights. The agents on the other hand will be actors like
Judges, Bureaucrats, Ministers, Rights-Activists etc. The ‘agency’ will be the capacity of
these actors to shape the outcomes of the aforesaid institutions and schemes. The point which
I want to forward here is that traditionally the rights-enforcement debate is ‘structure-centric’
and it underestimates the role which agents play. The institutions and prescribed models do
provide a scheme of action for the enforcement of positive rights but it’s the behaviour of the
agents which shapes the actual outcomes. Rather than focusing on creation of some
transcendental or perfect institutions the attention should be on the functioning of agency. I
mean it’s futile to look for perfect institutions without appreciating the behaviour of agents
because it’s the later which shapes the actual outcomes. This is not to suggest that ‘structure-
aspect’ is of no importance, institutional arrangements do make sense but what is missing is
any sense of how those arrangements get to be accepted, adopted, adapted and systematically
implemented. So if you’re seriously thinking of enforcing positive rights you cannot overlook
the ‘agency-aspect’. If the agents are efficient and well motivated we can always have better
chances of enforcing positive rights, but if they are corrupt and inefficient then even the best
models of institutions or schemes of action are not going to help.

SENSITIVITY TO CONSEQUENCES

Another point which I want to forward is that for the enforcement of positive rights there
has to be some sensitivity to the consequences (on the part of the agents). Here I would like
appeal to an argument made by Amartya Sen in his book Idea of Justice (though in a different
context), it goes like this: “Sensitivity to consequence does not demand insensitivity to
agencies and relations in evaluating what is happening in the world. There can be good
reasons to take note of both agent-relative and agent-independent concerns in the appraisal of
what happens in the world, and thus assessing justice in the sense of nyaya.”5 Sen in his
5
Sen, A., Idea of Justice, London, 2009, p. 221
distinction of niti and nyaya (not relevant here) invokes a dialogue between Krishna and
Arjuna from Mahabharata. In the debate Krishna’s focus is primarily on the basic niti of
doing one’s duty, whereas Arjuna both questions the niti (why should I kill so many people
even if that appears to be my duty?) and asks about the nyaya of the society that would result
from the war (can a just world be built through extensive killing?). In simple words the
question Arjuna is asking is why should we want only to ‘fare forward’ and not also ‘fare
well’? Can a belief in a consequence-independent duty to fight for a just cause convincingly
override one’s reasons for not wanting to kill people? The point which I want to make here is
that agents can (while enforcing rights) do both, that is, ‘fare forward’ and ‘fare well’. In
other words agents can fare forward by following the policy or prescribed models but in
doing so they can also fare well by being sensitive to the consequences. The scope for later
usually is missing in the traditional prescribed models.

CONCLUSION

In conclusion I would say that ‘agency’ matters. Even the best models of institutions or
schemes of action cannot deliver the enforcement of positive rights if the agents are
inefficient or corrupt. Efficient and motivated agents can make the institutions work; the
focus should not be on creation of transcendental or perfect institutions rather making the
already existing institutions workable. This is not to suggest that ‘structure-aspect’ is of no
importance, institutional arrangements do make sense but what is missing is any sense of how
those arrangements get to be accepted, adopted, adapted and systematically implemented.
Also, if you’re seriously thinking about enforcing positive rights there should be some scope
of sensitivity to the consequences on the part of the agents, and in traditional models we do
not see that. I do not see faring forward as very practical exercise if it does not have scope for
faring well also.