Civil Rights

An adequate understanding of civil rights requires that they be set within the broader conceptual framework provided by rights theory. Civil rights are related both to natural rights and positive rights, which are typically characterized as distinct and incompatible accounts of rights. According to natural law theory, natural rights are those rights that are part of the natural, given, moral structure of the universe, not unlike those other natural laws that govern the physical universe (i.e., the law of gravity, the law of constant motion, etc.). As natural rights, civil rights are those that are justified by appeal to the moral structure of the universe rather than to any given political system. What makes civil rights important, on this view, is their relation to this higher moral order. A society is well-ordered when its members enjoy all the rights that inhere in this natural, moral order. Natural rights are also often referred to today as human rights—those rights that all humans are entitled to by virtue of our common human nature. In this sense, civil rights and human rights overlap considerably.

On the other hand, according to positive law theory, rights are granted by a given political system or regime and are justified only by reference to the values and principles espoused by that regime. In this sense, the sort of civil rights one has will depend on one's government. For example, civil rights, understood in this way, may include the right to park in your driveway or the right to vote for judicial officers in your district. However, living in a district that does not appoint justices by popular vote means that no such right exists in that district for those citizens. In this theoretical framework, civil rights may refer to rights as diverse as the natural human right against torture or to the positive right to drive a car in California.

A further important theoretical distinction, which relates to the discussion of civil rights, is the distinction between negative rights and positive rights. Here, the sense of positive rights is slightly different from that found in positive law theory. Here, positive and negative are defined in opposition to one another. A negative right is typically the sort of right that imposes [Page 316]duties of noninterference or nondiscrimination on others. An example of a negative right may be the right to vote, where the right prohibits interference with the exercise or enjoyment of the right. If someone bars a voter from the polling station, or uses their public power to remove an eligible voter from the polling lists, then this amounts to interference with the right to vote and would be considered a violation of that right.

A positive right, on the other hand, is the sort of right that imposes duties of provision on others. Such a duty may be placed on individuals in a position to provide what the right requires or it may be addressed collectively by vesting the duty to provide in government. For example, a child may have a right to be fed, which imposes a duty to provide suitable food for the child. Typically, this duty falls on the child's parent, but it may fall on the society as a whole or on some appropriate social or governmental institution when the parent is unable or unwilling to comply. Another example of a positive right is the right to a minimum level of education; where this exists, it typically imposes a duty on the society as a whole, through the government, to provide either the education directly (as in a system of publicly funded schools) or at least the means to acquire such education (as in a system of grants or loan guarantees to attend various private schools). Civil rights may be of both sorts—negative and positive.

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