*countable infinities only

Seth Johnson seth.p.johnson at gmail.com
Wed Jun 20 00:26:53 UTC 2012

The positive/negative right formulation is a post-New Deal notion,
rooted in the question of whether it has been textually granted --
very different from the notion that we hold rights prior to
government.  It may be that we can describe all rights regardless of
whether they are the result of legislation or constitutional language,
but we have a unique foundation that renders the government
accountable to the people in that we established the States and the
Union on the basis of inalienable rights that are not subject to
government abrogation (except for very compelling reasons and by
narrowly tailored laws).


On Tue, Jun 19, 2012 at 10:45 AM, Eric Smith <eric at brouhaha.com> wrote:
> Andrew Haley wrote:
>> The problem with this claim is that it equivocates on the meaning of "a
>> right". There are at least two definitions of "a right" in this sense: moral
>> rights and legal rights. These are not the same. Moral rights are not in the
>> gift of any Government. While we may not have a legal right to run whatever
>> software we wish on hardware we own, it's not at all unreasonable to claim a
>> moral right to do so. Andrew.
> Orthogonal to moral vs. legal rights, there is also a distinction between
> positive and negative rights.  If you have a positive right to something,
> that actually puts an obligation on someone to guarantee that you
> get/have/exercise the something.  If you have a negative right to something,
> that only prohibits taking the something away from you, but doesn't put an
> obligation on anyone to guarantee that you get/have/exercise the something.
> For instance, in the US the right to use a printing press is protected by
> the First Amendment (freedom of speech), but it is a negative right, in that
> the government can't (except in very limited circumstances) do anything to
> prevent you from using a printing press, but the government is NOT obligated
> to provide you with a printing press.  On the other hand, the right to an
> attorney for criminal defendants, protected by the Sixth Amendment, has been
> interpreted by SCOTUS a positive right, since if you cannot afford an
> attorney the government is obligated to provide one for you.
> I would claim that the moral right to run whatever software we wish on
> hardware we own is a negative right; it doesn't put any obligation on
> another party to help you do it.  If you can hack up Fedora to run on a
> Nokia Windows phone, more power to you, but Nokia and Microsoft aren't
> obligated to help you do it, and aren't legally prohibited from doing things
> that make it difficult for you to exercise your moral right.  Possibly in
> this example someone might consider Nokia and Microsoft to be infringing
> their moral right, but (in the US at least) they'd have no recourse.
> Eric
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