ABSTRACT
Finding an unassailable grounding for positive rights is notoriously difficult. For those who live under a stated regime of the protection of negative liberties, or liberties from government, the idea of positive rights sits uncomfortably at best. Positive-rights claims such as the right to food, shelter, medical care, or other subsistence – claims that would require action in the derogation of existing distributions and entitlements – seem to be in clear violation of fundamental beliefs about the functions and purposes of government. In this chapter, it is argued that this conclusion about positive rights is false. In fact, there is an undeniable imperative that government recognize positive rights. The grounding for that imperative is found not in some extrinsic source, such as constitutional command or moral ideas, but in the intrinsically fiduciary nature of the government/citizen relationship itself.
Underkuffler, Laura, Fiduciary Theory: The Missing Piece for Positive Rights (2018) in Evan J Criddle, Evan Fox-Decent, Andrew S Gold, Sung Hui Kim, and Paul B Miller, Fiduciary Government 96 (Cambridge University Press 2018); Cornell Legal Studies Research Paper No 20-15.
First posted 2020-03-07 11:22:38
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