Kelsey Farish

In the Liberal tradition, democracies emphasise the political and civil rights of their citizenry: autonomy, the rule of law, and both positive and negative liberties of the individual are some of many examples. But what of the negative and positive obligations regarding the state, in as much as human rights are concerned? While the democratic values of Europe and America are largely built upon the same ideals, it is the means by which their different legal systems ascertain government duty wherein a fundamental divergence of responsibility occurs. Principally, the distinction centres on the reach of law, and to what extent conflicts can be ameliorated through courts.

This essay will discuss the descriptive implications of the largely normative claim that the acknowledgement of positive obligations on the state, ie those acknowledged by the European Court of Human Rights, is one aspect in which the European understanding of rights is superior to that demonstrated by the Supreme Court of the United States. To accomplish this analysis, a framework of terminologies will be established, followed by brief historical context juxtaposing the development of European and American case law. An alternative judgement of Deshaney v Winebago County will then be explored before concluding with a general remark on sociopolitical norms.

Definition of Terms

Individual agency remains at the forefront of our definitions of liberty. Positive liberty, on the one hand, signals the capacity to meet one’s own potential in absence of sociological constraints or obstacles. By contrast, negative liberty is often considered freedom from the interference of others. These two considerations form the crux upon which the concepts of positive and negative obligations of the state rest. Negative obligations are defined as ‘duties of restraint, preventing the state from interfering with individual freedom’ (Fredman 2006: 1). Positive obligations however ‘in practice require national authorities to take the necessary measures to safeguard a right or, more precisely […] to adopt reasonable and suitable measures to protect the rights of the individual’ (Akandji-Kombe 2007: 7). Negative obligations therefore demand a limitation of or minimal interference from government, whereas positive obligations require the state to act, either by protecting or providing some good, service, or behaviour. A violation of such positive obligation is therefore nonfeasance.

It is this latter definition which now requires acute attention for the purview of this essay, but our framework is incomplete without addressing the notion of ‘superiority.’ The difficulty lies in the subjectivity of the word. While law may not inherently function as an amelioration of social injustices prima facie, ‘superior’ is to be understood as a process best suited to offer remedies for the inequalities and harm found in an increasingly complex society. In the centuries following the ratification of the American Constitution and the decades since the European Convention on Human Rights became law, the general public of both polities have come to expect and rely upon particular norms and responsibilities of their governments. Of course, no judicial interpretation can be completely without contention. But the European reliance on positive obligations is closer to the apex of a just legal system than that of its American cousin.

Historical and Social Context

We must first underscore the historical context from which the American Constitution was born. Deontological conceptions of American rights are first expressed in the Declaration of Independence, which predates the Constitution by several years. In the preamble, the Founders asserted that the current form of Government – the British Monarchy – had become destructive to the ends of unalienable rights. That which follows is a list of malfeasances committed by King George III which include, in modern parlance: the obstruction of justice, maintaining standing militaries in times of peace, sending officers to harass the general public, and intervening with trade (US Declaration of Independence: 1776). From the perspective of the early Colonists, the majority of these grievances stemmed from government abuse of power. As such, the limitation of state authority – or interference in an individuals’ obtainment of liberties both positive and negative – was an integral element in the development of American legal doctrine later enshrined in the Constitution.

The United States does enjoy a relatively immalleable Constitution, and one which is unique for being the oldest charter of supreme law still in use today. These factors however may illuminate a particular inadequacy, especially in light of historical and social paradigm shifts which undoubtedly altered our understandings of the rights of individuals, as well as the political systems which maintain democracy. The Convention for the Protection of Human Rights and Fundamental Freedoms however was conceived in the mid-20th century.

In the aftermath of World War II, the United Nations initiated a sea change in the global context of rights inherently entitled to all: the Universal Declaration of Human Rights. Noting that egregious human rights violations occurred systemically during the global conflict, the democratic governments of Europe responded to twin contemporary concerns: preventing another Holocaust, and protecting the rights of individuals against the tyranny of communism spreading in the east.

In the Continental context, governments were afforded a recent opportunity to recognise the shifting notions of political and social responsibilities in a new Europe. Limitation of state power alone as a means to preserve fundamental rights was regarded as inefficient. If freedom as a fundamental right is to be considered the active involvement of an individual in the shaping of their destiny and maintenance of their dignity, the role of government has thus been transformed to include the obligation to strengthen and protect those aforementioned rights (Fredman 2006: 16).

European states have established legal orders which ‘guarantee the protection of fundamental human rights and freedoms’ as a necessity to satisfy their understandings of positive obligations (Komárek 2005: 27). Contrasted with jurisprudence in the United States, the present European state is one which is note merely an agent which orchestrates legal functions on behalf of its constituency, or principal. Instead, the government and judicial order it adheres to actively provide and protect, in many ways, opportunities for Europeans to maximise their autonomy, dignity, and other fundamental rights.

Textual Interpretations