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Comment by rmc | Hacker News Reader

> A lot of conversations about expanding rights, end up with a distinction between positive and negative rights.

Correct. Right to a fair trail is also a positive right. To uphold it, the state must pay for a lawyer if you don't have one, the state must pay for enough judges (& associated costs) to ensure your trail isn't delayed ("Justice delayed is justice denied" and all that).

> The right to free speech, conscience, affiliation , assembly and other political freedoms mean we need to tolerate and protect the proverbial nazis’ rights to try and spread their politics.

Plenty of legal systems have those rights, and also ban nazis or similar groups. It's not an either/or.

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Right to a fair trail is also a positive right.

Ehh, I'm not sure. The actual right is better described as the right not to be unfairly tried, which is clearly negative. The distinction is more than semantic: if the State launches an investigation and then drops it, leaving suspicion in the public's mind, you can't force them to go to trial to present your case and clear your name.

The right not to be unfairly tried is easily satisfied by not having a trial at all.

The right to a fair trial is about two things: you must be tried before being found guilty and punishment/sentencing is administered, and that trial must be executed fairly. In effect, you have the right to a (fair) trial.

A trial and especially a fair trial are undeniably interventions on how things would otherwise proceed. But I agree with moomin that the positive/negative distinction is not really meaningful.

There is still the option to mandate both. (No unfair tried, and a fair trial.)

A trial and especially a fair trial are undeniably interventions on how things would otherwise proceed

No, because otherwise it would just be aggression. A trial is a method for the accusers to be able to show that their subsequent aggression (imprisonment, removal of property, etc) is justified.

No, it is to prevent the defendant from being unjustly blamed and punished.

Unjustly blaming and punishing someone is defamation and aggression. You don't need extra rights to be protected from that.

How about you read declarations of rights to a fair trial and point out where they imply that they are principally about ensuring the accusers' application of aggression is justified, as opposed to protecting the accused?

Whether or not you think an "extra right" is necessary has no bearing on why that right is provided.

What you're running into is the fuzzy distinction between positive and negative rights. Actually, in my mind there probably is no distinction and the classification of some rights as positive and others as negative is just a matter of wording, take this from James Sterba:

What is at stake is the liberty of the poor not to be interfered with in taking from the surplus possessions of the rich what is necessary to satisfy their basic needs. Needless to say, libertarians would want to deny that the poor have this liberty. But how could they justify such a denial? As this liberty of the poor has been specified, it is not a positive right to receive something, but a negative right of non-interference.

"Plenty of legal systems have those rights, and also ban nazis or similar groups. It's not an either/or."

They are mistaken. Free speech and free association are not extant when books are banned or ideas are outlawed.

It is an either/or and all historical evidence serves to confirm this.

If you want blowfish source to not be a munition you need to put up with the Westboro Baptists.

> Free speech and free association are not extant when books are banned or ideas are outlawed.

I mean, is this just arguing about the definition of the term "free speech"? It's not hard to think of easy examples, like the "shouting fire in a crowded theater" or "revealing military secrets to the enemy at times of war" or "libel" or "slander". By necessity, we accept that there are restrictions.

In general I favor a generous standard, where to disallow certain types of speech you need to carve out a compelling case -- the default should be that speech (and speech-like things) should not be forbidden. But stating it as a naked tautology is not helpful because it acknowledges none of the nuance.

> all historical evidence serves to confirm this

Once again, if we're just talking definitions, then sure, any place or time where books are banned or ideas are outlawed is not practicing free speech. But I think you'd be hard-pressed, given the exceptions above, to ever find a place in history where this was practiced.

> Right to a fair trail is also a positive right. To uphold it, the state must pay for a lawyer...

Nope. The state could just choose not to prosecute.

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