Human rights and positive duties: Response to world poverty and human rights.
In this essay, I focus on the claim that responsibility for world poverty should be conceived in terms of a violation of negative duties. I follow Pogge in distinguishing two questions (p. 134): What kind of duties (positive or purely negative?) would we be subject to in a just global society where everyone fulfilled their duty and there was no significant risk of injustice? And what kind of duties (positive or purely negative?) do we face given that our global society falls short of the just society?
I tackle these questions in reverse order below. I argue, in contrast to Pogge, that positive duties are relevant to our answers to both questions.
OUR DUTIES IN AN UNJUST SOCIETY
Pogge proposes "to call negative any duty to ensure that others are not unduly harmed (or wronged) through one's own conduct and to call positive the remainder" (p. 130). This requires further specification of what qualifies as "undue harm" or "wrong." It is not implausible to view all rights violations as undue harms, but then Pogge's definition would imply that all duties entailed by any right are negative by definition--including all duties to perform positive actions, such as the act of supplying food. Pogge offers further clarification by characterizing positive duties as "any duty to benefit persons or to shield them from other harms" (p. 130). But this is unsatisfactory: there is a sense in which my not hitting you benefits you, but my duty not to hit you should not therefore be classified as a positive duty. Standardly, negative rights are taken to include the right not to be assaulted and the rights to freedom of speech and movement; positive rights include the rights to food, clothing, and medical care. The distinction between negative and positive rights is then understood as the distinction between rights of noninterference and rights of assistance. Similarly, negative duties are understood as duties of noninterference, while positive duties are duties of assistance. (2) Some add that positive duties are duties to perform acts or to make things happen, while negative duties are duties to refrain from acts or to refrain from making things happen. (3) In my discussion, it emerges that the assistance/noninterference distinction diverges from the act/refrain distinction, but I begin by assuming that either of these two distinctions can be used to characterize the contrast between positive and negative duties.
For the sake of argument, for the remainder of this section I shall accept the following Poggean answer to the first question: in a just global society in which everyone respected human rights and there was no significant risk of rights violation, people would be subject only to negative duties (duties to leave others with their fair share of basic necessities and to refrain from interfering with those shares) (pp. 64-67, 134-35). Pogge demonstrates that our global economic regime violates even this undemanding libertarian theory of justice (pp. 137-39, 199-204). What duties does justice (in its libertarian guise) place on us in this unjust world? Pogge claims that I can best respect human rights by "working with others toward shielding the victims of injustice from the harms I help produce or, if this is possible, toward establishing secure access through institutional reform" (p. 66). Thus, in an unjust world I am under a duty to work to alleviate the suffering of poor people, while also campaigning for institutional change. This does not sound like a mere duty of noninterference, requiring me to refrain from action. How does this fit with Pogge's insistence that "human rights entail only negative duties" (p. 66)?
In arguing that "human rights entail only negative duties," Pogge has perhaps made the natural assumption that any negative right will entail only negative duties. (4) It is important to notice, however, that there are at least four classes of positive duty that can be entailed by any given negative right. We should begin by noting the following three:
* Remedial duties. Whenever someone violates any right, the violator thereby incurs various remedial duties, duties to offer compensation, reparation, and apology to the holder of the violated right. It is a conceptually necessary feature of rights that, when violated, they generate remedial duties. (5)
* Duties to stop. If you start to blackmail me out of my few possessions, in violation of my rights, then you immediately incur a duty to take whatever actions are necessary to stop blackmailing me--and this will sometimes involve positive actions (such as ordering your gangsters to stop threatening me). Any right will generate such duties to stop whenever the right is in the process of being violated.
* Personal precautionary duties. Your right to a fair trial entails that when I, as a judge, find myself sorely tempted to accept a bribe that will distort the trial, I am under a duty to take whatever measures are necessary to ensure that I do not accept the bribe--maybe I should resign my post before the trial begins and alert the police. Any right will always create such duties to take the actions necessary to ensure that I do not violate it.
Each of these is a derivative duty, a duty that owes its existence to some other duty: remedial duties and duties to stop are only triggered when some other duty has been or is being violated; personal precautionary duties are only triggered when some other duty is at risk of being violated. A negative right (such as my right not to be attacked) will always entail negative duties (such as a duty to refrain from attacking me). But when these negative duties are violated, then derivative further duties of the types outlined will be triggered--and, as I show below, each of these duties can be seen as positive.
Certain remedial duties arguably qualify as positive duties according to both of my favored accounts of the positive/negative distinction: in offering compensation to someone it can seem that I offer them assistance (for example, to rebuild their house after I have destroyed it) by performing certain acts. But the applicability of the concept of "assistance" is not clear-cut here. If I have negligently destroyed your house when digging up the road, then is it really correct to describe your claim to compensation as correlative to a duty of assistance? The classification of duties to stop and personal precautionary duties is even less clear-cut. Sometimes my refraining from doing something will be sufficient for me to stop violating a right--and in these cases my duty to stop does not appear "positive" in any sense. At other times, to stop I will need to perform an act--and in these cases my duties to stop will perhaps appear "positive." But it is doubtful that taking actions to stop violating a duty ever qualifies as assistance. When I order my gangsters to stop threatening you, I do not thereby offer you assistance; rather I cease, at last, to interfere with you. Similarly, although personal precautionary duties involve actions, it is not clear that they involve assistance. When I resign from my role as judge in order to prevent myself from accepting bribes and thereby violating your right to a fair trial, it is not clear that I thereby assist you; rather, perhaps I merely assist myself by helping myself to refrain from interfering with you.
In sum, although remedial duties, personal precautionary duties, and duties to take actions to stop are duties to take actions, it is unclear whether and when they qualify as duties of assistance. Thus the act/refrain distinction diverges from the assistance/noninterference distinction. I shall not take a stance here on which understanding of the positive/negative distinction is correct. Instead, my aim is simply to note that all rights--including negative rights--will, in appropriate circumstances, entail some duties that are positive in the act/refrain sense, and arguably some duties that are positive in the assistance/noninterference sense too.
Pogge should not be read as maintaining that human rights entail no positive duties of the kind I described above. Pogge's suggestion that I should work "with others toward shielding the victims of injustice from the harms I help produce or, if this is possible, toward establishing secure access through institutional reform" should be read as describing, respectively, the remedial duties and duties to take actions to stop that are generated by people's negative human rights (p. 66). (6) In addition, I suspect Pogge would say that if I feel myself drawn by the allure of fascist or racist rights-violating institutions, then I should take positive actions to ensure that I can resist this allure (perhaps through making myself confront my racism, or by taking other measures to educate myself). In this situation, people's negative human rights impose on me a personal precautionary duty.
There is a fourth category of derivative positive duties that can be entailed by negative rights: other-directed precautionary duties. These are duties to take action to ensure that other people comply with their negative duties. Suppose there exists a fascist political party whose policies (if implemented) would violate many people's negative rights. Suppose also that you are an unusually morally upstanding person who would not contribute in any way to the violation of rights, even if the fascist party were elected to office and you were placed under pressure to support policies that would violate rights. (Suppose you would ignore all laws requiring you to harm certain groups--to deny employment to Jewish people, for example--and you would refuse to pay taxes or in any other way contribute to the institutions that support the fascist party.) If there was a significant chance that the fascist party could be elected to government, this possibility would not generate any personal precautionary duty requiring that you go down to the polling station and vote for an anti-fascist party. For we have supposed that you would not violate people's rights even if the fascist party were elected. Yet we might plausibly think, nonetheless, that you are under a duty to go to the polling station and vote for an anti-fascist party in order to ensure that other, less morally upstanding people do not become violators of rights (people who would succumb to pressure and violate rights if the fascist party were elected). In this example, you are under an "other-directed precautionary duty" to vote for an anti-fascist party. Your duty is a duty to take precautionary action aimed at ensuring that other people are not likely to violate rights. Such other-directed precautionary duties look like positive duties on both the act/refrain and the assistance/noninterference accounts. They are duties to perform actions: to go to the polling station and to vote appropriately. And they are more naturally described as involving assistance than noninterference: in voting for an anti-fascist party, I do not merely refrain from interfering with those people whose rights are threatened by the fascist party; if anything, I assist these people by helping them to avoid the injustices that others might impose on them.
Pogge's claim that "human rights entail only negative duties" can be read as denying that human rights ever entail other-directed precautionary duties:
The normative force of others' human rights for me is that I must not help uphold and impose upon them coercive social institutions under which they do not have secure access to the objects of their human rights. I would be violating this duty if, through my participation, I helped sustain a social order in which such access is not secure, in which blacks are enslaved, women disenfranchised, or servants mistreated, for example. Even if I owned no slaves or employed no servants myself, I would still share responsibility: by contributing my labor to the society's economy, my taxes to its governments, and so forth. I might honor my negative duty, perhaps, through becoming a hermit or an emigrant, but I could honor it more plausibly by working with others toward shielding the victims of injustice from the harms I help produce or, if this is possible, toward establishing secure access through institutional reform. (p. 66)
By stressing that rights violation occurs "through my participation" and that I could avoid violating rights by "becoming a hermit or an emigrant," Pogge appears to deny that I am under any human-rights-derived duties to ensure that other people respect human rights (that is, other-directed precautionary duties); instead I need merely check that I am not violating human rights myself. But if this is Pogge's position, then it is morally unattractive, it sits uneasily with Pogge's commitment to the institutional view of human rights, and it is unnecessary for Pogge's purposes.
It is morally unattractive to deny that human rights sometimes entail other-directed precautionary duties. Suppose that people's negative human rights have the content that Pogge proposes but do not entail other-directed precautionary duties. In this scenario, you are under a negative duty not to buy fuel sourced from an undemocratic regime. And you are under a derivative personal precautionary duty to ensure that you never become reliant on transport whose fuel is sourced in undemocratic regimes. And if you do buy such fuel, then you incur derivative remedial duties to the victims of the fuel-exporting regime. But if you manage to live without relying in any way on fuel sourced in undemocratic regimes (perhaps you are largely self-sufficient, and trade only locally), are you still under a duty to campaign against the practices of these regimes and the corporations that buy from them? If human rights are negative rights that entail no other-directed precautionary duties, then you cannot be subject to such a duty. But this overlooks the ties of community and fraternity that should bind us all. (7) If, instead, we accept that negative human rights can entail other-directed precautionary duties, it opens the possibility that when negative human rights are under threat by some people or organizations, other people--including even hermits and self-sufficient people who would never violate human rights themselves--should be concerned about it and should take action to prevent such rights violations.
Furthermore, it is particularly plausible to regard institutional rights as generating other-directed precautionary duties. Pogge rejects the interactional approach that holds that, for example, my human right against torture logically entails simply that all agents are under a duty not to torture me. Instead, Pogge endorses the contrasting institutional approach that holds that my human right against torture logically entails duties requiring that institutions secure a torture-free life for me, duties that require people who hold responsibility for my institutions to ensure that the institutions deliver the appropriate security (pp. 64-65). If my human right against torture is simply an interactional right, then it does not follow as a matter of logical necessity from the existence of this right that other people must similarly hold such a right--all that is logically entailed is that some others must be under a duty not to torture me. By contrast, if my human right against torture is an institutional right, then it follows immediately as a matter of logical necessity that there either do or should exist institutions (such as a legal system) for preventing torture. And, because institutions necessarily involve several people subject to or living within them, it also follows as a matter of logical necessity that there must exist other people who should be subject to the relevant rights-protecting institution. Thus, once I recognize the existence of an institutional right (as opposed to an interactional right) I am thereby immediately logically compelled to recognize the existence of others subject to the relevant institution. It is then a small and natural step to add that I, as a member of the institution, am under some duties to ensure that these others' claims to institutionally grounded security are respected--these duties will be other-directed precautionary duties. By contrast, the logical distance from the premise that I hold an interactional right to the conclusion that I am under some other-directed precautionary duties is considerably greater.
Moreover, we can maintain (contra Pogge) that the human rights violated by global poverty entail other-directed precautionary duties without thereby undermining Pogge's broad aim to portray the human rights violated by global poverty as morally akin to the human rights violated by slavery, apartheid, and genocide. People's rights not to be enslaved or subject to apartheid or genocide would commonly be understood as entailing other-directed precautionary duties, at least within the bounds of one's community. Surely it is plausible that the rights protecting members of one's community against slavery, apartheid, and genocide entail duties requiring one to do one's best to make sure that other people do not violate these rights.
OUR DUTIES IN A JUST SOCIETY
Throughout the previous section, I assumed that in a just global society in which everyone respected human rights and there was no risk of rights violation, people would be subject only to negative duties. According to this picture, any human-rights-based positive duties would be only derivative duties, activated when certain negative duties are violated or at risk of violation. There are, however, compelling reasons to maintain that human rights also entail some fundamental positive duties--that is, positive duties whose existence is independent of the existence of negative duties. (8)
Pogge writes that human rights include rights to "liberty of conscience," "political participation," and "a minimally adequate share of" certain basic goods (pp. 48-49). In a perfectly just world, we would be subject to duties not to participate in denying these goods to anyone; and (because the world is perfectly just) we would not be subject to derivative positive duties to remedy or prevent rights violations by ourselves or others. Would our duties in this perfectly just world be correctly classified as only negative? Positive duties to campaign against slavery, apartheid, or genocide are only triggered if some people are inclined to favor slavery, apartheid, or genocide. If we lived in a world where nobody would ever attempt to institute slavery, apartheid, or genocide, then we would need to take no actions to ward off these rights-violating institutions. By contrast, to secure minimally adequate supplies of food and drink for people living in a resource-poor environment, positive actions of assistance can seem necessary even if nobody is inclined to deny food and drink to them. Similarly, even with nobody inclined to undermine people's access to clothing, shelter, health care, and education, actions of assistance are sometimes required to supply these goods. On this basis, one might conclude that Pogge's human rights to minimally adequate supplies of food, drink, clothing, shelter, health care, and education (unlike the human rights not to be subject to slavery, apartheid, or genocide) must sometimes entail positive assistance duties that are not derived from the violation of more fundamental negative duties.
Pogge, however, suggests a "left-libertarian" way in which human rights to minimally adequate supplies of food, drink, and so on can be construed as entailing only negative duties. This involves maintaining that everyone has a human right to institutionally grounded control over a share of society's resources. Each person's share will be sufficient to enable that person to obtain minimal supplies of food, drink, clothing, shelter, health care, and education. And when a person lacks this share, then this qualifies as a form of interference involving the violation of negative duty, since others must have supported economic institutions that give them more than their fair share (pp. 135-39). (9)
There are two difficulties for this way of construing our duties to ensure that people have minimally adequate supplies. First, this approach seems morally unattractive by leaving those who are too disabled to use their fair share with no positive human rights to assistance. Some people are so disabled that they are unable to trade or engage in other human interactions at all (for example, people with severe mental health difficulties). For these people, being left free from interference in their possession of even a generous share of resources could never be enough to ensure that they had minimally adequate supplies of food, drink, and education. Instead, duties of assistance seem necessary (institutionally grounded duties to supply food and drink to the relevant people, and to educate them). If human rights have the content Pogge proposes, then they must entail some positive duties to assist those who are severely disabled.
Pogge might perhaps argue that institutions that impose human-rights-based duties to assist severely disabled people do not genuinely impose positive duties. But this seems strange. The duty to supply food to someone too disabled to trade their share to acquire it seems clearly to be a duty of assistance, involving positive actions. Indeed, even the duty to leave an able-bodied person with a fair share of resources might require more than that I merely sit back and allow events to unfold. As new people are born, previous distributions of resources will need to be rearranged to ensure that the new people receive a sufficient share. Perhaps my reallocation actions will not qualify as assistance but rather as ensuring proper noninterference with people's fair shares. But my reallocation actions will be actions nonetheless, and thus the duty to reallocate will be in one sense a positive duty. In sum, given Pogge's view of the content of human rights (as rights to an institutionally secured minimally adequate supply of food, drink, and so on), then even on the "fair share" approach, some positive duties will be entailed. These duties will exist (as institutionally imposed) even in a perfectly just world where nobody is inclined to violate human rights.
There is also a deeper reason to be wary of Pogge's claim that the fundamental duties entailed by human rights are only negative. Like many theorists, Pogge construes human rights as, in a certain sense, individualistically justified. In describing a feature of the concept of natural rights that he sees as shared by the concept of human rights, Pogge writes:
By violating a natural right, one wrongs the subject whose right it is. These subjects of natural rights are viewed as sources of moral claims and thereby recognized as having a certain moral standing and value. (p. 55)
Later, Pogge writes:
A commitment to human rights involves one in recognizing that human persons with a past or potential future ability to engage in moral conversation and practice have certain basic needs, and that these needs give rise to weighty moral demands. The object of each of these basic human needs is the object of a human right. (p. 58)
Implicit in these statements is, I think, the thesis that any human right is justified ultimately by how it serves its individual holder. Each person's basic needs are the source of his or her human rights, and justify his or her human rights independently of whether this serves collective well-being or the wider community. It is plausible to regard human rights as justified in this individualistic manner. (10)
But if human rights are individualistically justified, then it is doubtful that they will entail only negative duties. The individualistic approach maintains that there are certain features of a person that deserve the protection of rights, and we should note that any such features will be usefully served by assistance duties as well as noninterference duties. For example, suppose that Ingrid's basic need for bodily integrity is of sufficient importance on its own to justify the protection of rights. Assistance duties (duties to provide medical assistance, or to create institutions that provide medical assistance) can be as useful or, sometimes, more useful in securing Ingrid's bodily integrity than noninterference duties. So if it is the importance of Ingrid's bodily integrity that on its own justifies her human rights to bodily integrity, this would seem to justify rights entailing assistance duties as well as noninterference duties. There might be considerations that defeat the justification for duties to assist Ingrid. For example, assistance duties tend to be more burdensome to respect, and tend to generate more conflicts, than noninterference duties; so perhaps in many cases prima facie justifications for assistance duties are defeated. However, those--like Pogge--who hold that "human rights entail only negative duties" need to provide an argument to show that for all human rights, the individualistic justification for assistance duties is defeated. Pogge does not provide this argument. Even if my basic needs individualistically justify only institutional protection rather than interactional duties, these basic needs will be best served by institutionally secured assistance as well as noninterference. Hence these basic needs will prima facie entail institutionally grounded assistance duties. Pogge overlooks the fact that if human rights are individualistically justified then there will be prima facie justification for many assistance duties entailed by these human rights. They will not be derivative assistance duties triggered by someone's reneging on, or threatening to renege on, more fundamental negative duties. They will be fundamental assistance duties entailed directly by the interests or needs that justify a person's human right.
I have argued that even fundamentally negative rights will entail various derivative positive duties when such rights are violated or at risk of violation. If this is true, then in our currently unjust world we cannot escape our duties by withdrawing from society. Even when we are not ourselves contributing to rights violation, we should campaign against the rights violation of others. We can recognize that we are subject to other-directed precautionary duties without thereby undermining the parallels that Pogge wishes to draw between the rights violated by global poverty and the rights violated by slavery, apartheid, and genocide. Further, human rights entail certain fundamental, nonderivative positive duties. These positive duties contrast with our duties not to support slavery, apartheid, or genocide, in that the positive duties require actions from us even if nobody is inclined to act unjustly. Even in a perfectly just world, sitting back and letting events happen is not good enough. Instead, we are required to set up institutions that will sometimes demand that we assist people.
While it is important to be clear that human rights impose positive as well as negative duties, we should not allow this issue to deceive us in the wealthy developed world into thinking that currently our duties toward poorer people are primarily assistance duties that are not derived from any violation of noninterference duties. Although human rights do entail such fundamental assistance duties, my argument does not undermine Pogge's demonstration that most of us in the wealthy developed world are currently contributing actively to the violation of negative duties. I have claimed that even if we manage to avoid violating negative duties in this way, we are still subject to fundamental assistance duties and (if others are still violating negative duties) to derivative other-directed precautionary duties. But Pogge's great achievement is in showing that most of us do not attain even this degree of moral success. Most of us are currently violating negative duties--and hence most of us are under pressing positive duties to remedy the situation.
(1) Thomas W. Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (Cambridge: Polity Press, 2002), ch. 6, 7, and 8. All in-text citation references are to this book.
(2) See, e.g., Alan Gewirth, The Community of Rights (Chicago: University of Chicago Press, 1996), pp. 33-38; and Onora O'Neill, Towards Justice and Virtue: A Constructive Account of Practical Reasoning (Cambridge: Cambridge University Press, 1996), pp. 128-36.
(3) See, e.g., Jan Narveson, The Libertarian Idea (Philadelphia: Temple University Press, 1988), p. 57.
(4) This is a common assumption, implicit in the work of many writers. It is explicit in Narveson, The Libertarian Idea, pp. 57-58; and Jeff Jordan, "Why Negative Rights Only?" Southern Journal of Philosophy 29, no. 2 (1991), pp. 245-55.
(5) See Rowan Cruft, "Rights: Beyond Interest Theory and Will Theory?" Law and Philosophy 23, no. 3 (2004), pp. 359-60.
(6) See also Pogge's acknowledgment that "to be sure, promoting institutional reform is doing something (positive). But the obligation to do so may nonetheless be negative for those who would otherwise, through their involvement in upholding the relevant institutional order, be harming its victims" (p. 172). Here the duty to campaign for institutional reform is presented as a derivative duty triggered by the violation of more fundamental negative duties.
(7) It is not clear whether I should hold other-directed precautionary duties to ensure merely that the rights of members of my community are not violated by other members of my community, or whether I should hold other-directed precautionary duties to ensure that the rights of any person (inside or outside my community) are not violated by any other person. Because Pogge argues forcefully that the relevant "community" today encompasses the entire interdependent global economy (e.g., pp. 15-20), it is not necessary to resolve these questions about the scope of other-directed precautionary duties.
(8) See, e.g., Gewirth, The Community of Rights, ch. 2.
(9) The interpretation of Locke on p. 138 especially lends itself to a "left-libertarian" reading. For similar approaches, see Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994); and Michael Otsuka, Libertarianism without Inequality (Oxford: Oxford University Press, 2003).
(10) Joseph Raz offers an individualistic theory of rights when he writes that X has a right if "an aspect of X's well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty." See Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), p. 166. On Raz's view, as expressed here, for each right the right-holder's interest (rather than her Poggean basic need) is of sufficient importance on its own to constitute a justifying reason for the existence of that right, independently of whether the right would serve the collective interest. Several theorists have drawn attention to the inadequacy of nonindividualistic accounts of human rights--such accounts would deny human rights to people whenever this would best serve collective goals. See, e.g., John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), p. 27.
Rowan Cruft, An early draft of this paper was presented at a colloquium on Thomas Pogge's World Poverty and Human Rights held at the University of St. Andrews. I am grateful to Liz Ashford for organizing this event, and to the participants for their useful comments. I would also like to thank Christian Barry, Thomas Pogge, and my colleagues at the University of Stirling for helpful criticisms.
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|Publication:||Ethics & International Affairs|
|Date:||Apr 1, 2005|
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