The Structure of Positive Duties

Abstract This chapter demonstrates that it is artificial to distinguish between rights according to their correlative duties. All rights give rise to both duties of restraint and positive duties. It then asks whether positive duties are sufficiently determinate to be normative. It is argued that positive duties are best understood by using Alexy's concept of principles. A principle is a norm which must be realized to the greatest extent possible given the legal and factual possibilities. Principles do not lose their prima facie binding force when outweighed by other principles. This explains why positive duties retain their normative force even when not immediately fulfilled. Nor is it necessary to specify precise standards to be determinate: it is sufficient to meet specific parameters, namely, effectiveness, participation, accountability, and equality. This analysis helps resolve the controversy over the minimum core obligation. The chapter concludes by examining the relationship between the right-holder and the duty bearer.