A negative concept of law confers a double benefit: first, it is practical, in that a negative concept of law deals realistically with a particular evil. It states, “Thou shalt not steal,” or, “Thou shalt not bear false witness.” A negative statement thus deals with a particular evil directly and plainly: it prohibits it, makes it unlawful. The law thus has a modest function; the law is limited, and therefore the State is limited. The State, as the enforcing agency, is limited to dealing with evil, not controlling all men.
Second, a negative concept of law ensures liberty. If the commandment says, “Thou shalt not steal,” it means that the law can only govern theft: it cannot govern or control honestly acquired property. When the law prohibits blasphemy and false witness, it guarantees that all other forms of speech have their liberty. The negativity of the law is the preservation of the positive life and freedom of man.
But, if the law is positive in its function, and if the health of the people is the highest law, then the State has total jurisdiction to compel the total health of the people. The immediate consequence is a double penalty on the people. First, an omnipotent State is posited, and a totalitarian State results. Everything becomes part of the State's jurisdiction, because
everything can potentially contribute to the health or the destruction of the people. Because the law is unlimited, the State is unlimited. It becomes the business of the State, not to control evil, but to control all men. Basic to every totalitarian regime is a positive concept of the function of law.
This means, second, that no area of liberty can exist for man; there is then no area of things indifferent, of actions, concerns, and thoughts which the State cannot govern in the name of public health. To credit the State with the ability to minister to the general welfare, to govern for the general and total health of the people, is to assume an omnicompetant State, and to assume an all-competent State is to assume an incompetent people. The State then becomes a nursemaid to a citizenry whose basic character is childish and immature. The theory that law must have a positive function assumes thus that the people are essentially childish.
When the law of the State assumes a positive function in protecting the health and general welfare of its people, it then does not assume the liability. The people are absolved of responsibility, but the medical profession (business firms, property owners, and the like) assume total liability. The steps toward total liability are gradual, but they are inevitable with a welfare economy.