Friday, August 8, 2014

Can human rights impose positive duties to act?

Here’s a perplexing question that eventually confronts almost everyone who thinks long enough and hard enough about human rights: Can human rights impose positive duties? Everyone of course agrees human rights impose negative duties, that is, duties to refrain from performing some action. The right to bodily security furnishes an example. Our right to be free from arbitrary assault prohibits duty-holders from physically attacking us. But what about positive duties? Can human rights bind duty-holders to perform positive acts to support, rescue or protect others?

We might view the question as important because ‘welfare rights’ require positive duties and contributions. If human rights cannot impose positive duties, then this pretty much rules out the possibility of rights to healthcare and education. But the question of positive duties still looms large if we restrict our attention to basic liberty rights. Reflect again on our human right to bodily security. We need to know whether this right guarantees us positive protection from assault (say, by imposing duties on others to contribute to police or peacekeeping forces), or whether it remains limited to just forbidding the assaults themselves. This philosophical question carries genuine real-world implications. If human rights commitments imply positive duties, then this will impact upon the duties that we think particular actors (such as peacekeepers and other international agents) should shoulder.

A moment earlier I characterized the question as perplexing. Why? Because like many philosophical conundrums, we can unearth impressive reasons on both sides of the argument. I’ve already hinted at some of them.

On the side of the advocate of positive duties we can marshal the alluring temptation of welfare rights. To many thinkers, the same reasons that justify duties to refrain from harming other people seem to present solid grounds for helping those people (at least sometimes). Return to the reasons put forward for liberty rights by John Locke or Robert Nozick, such advocates argue, and you will find equally good reasons for at least some welfare rights. Even setting aside welfare rights, many people agree a concern for human rights provides us with reasons to contribute to the basic institutions of justice that guard our classic rights of life, liberty and property. If everyone really deserves protection from arbitrary violence, then human rights must at least impel us to lift a finger to prevent such violence when we can easily do so.

All well and good, reply the opponents of positive duties. But there remains the small hurdle of explaining how we can even think of linking positive duties and human rights together. Even the most cursory examination of the most well-known and well-accepted human rights (such as liberty rights to bodily security) shows they impose universal, legally-binding duties. Scratch a little deeper we can unearth a host of other properties. For example, human rights-based duties are ‘directed’—owed from one determinate human being to another determinate human being. The duties are also ‘perfect’—they allow little discretion in where, when, how and towards who they are performed.

Why does this matter? It matters because positive duties seem to possess almost none of these key properties. It beggars belief to think that Amy’s right to healthcare (say) can be secured by legally-binding, directed, perfect duties universally imposed on all individuals.

Actually, the situation for positive duties is even worse than this. For sometimes there will be insufficient resources available to adequately fulfill Amy’s welfare rights, such as to healthcare. So how can Amy possibly have a right to something when absolutely no-one bears duties to hand over the resources that would secure that right? Maybe those others don’t even have those resources, or those resources are protected by their own (liberty or welfare) rights. A human right that cannot be fulfilled, declares the opponent of positive duties, hardly warrants the name. As theorists like Onora O’Neill contend, we debase the very notion of human rights when we attach it to such vacuous chimeras.

And so the arguments fly back and forth. Opponents of positive duties demand that rights-based duties must possess an array of vital properties (such as being legal, universal, directed, perfect and so on). Such properties, they declaim, constitute conceptually necessary ingredients of human rights moralities. Advocates of positive duties counter that such assertions amount to argument by sheer stipulation. Why should all rights-based duties be perfect, say, if it can be shown that imperfect duties can in some cases get the job done better?

How can we break this stalemate? One way forward is to get really clear about what we mean by ‘conceptually necessary’ when we say that it is conceptually necessary that a rights-based duty must possess a particular property. Some theorists seem to imply that the property is required by definition: so they mean that human rights by definition must correlate with perfect, legal duties. But this assertion will hardly persuade anyone, for each theorist of course adopts a different definition of human rights—and the ambiguity in the actual practice and discourse of human rights makes it impossible to rule in or out any given definition.

But there is another way conceiving ‘conceptually necessary’. Rights-based ways of thinking about political morality are different from other ethical perspectives, such as consequentialist or duty-based philosophies. Rights theories possess signature features that make them attractive in their own way. If removing a particular property from human-rights-based duties collapses the rights theory into a type of consequentialism, for example, then a signature attraction of the rights theory has been lost (because it becomes possible to sacrifice the one for the many).

This is the method I adopt in a just-published article in Political Studies, entitled ‘Positive Duties and HumanRights: Challenges, Opportunities and Conceptual Necessities’ (the article is available through ‘Online Open’, so if you’re interested you can download the final version through this link for free!).

In this article I describe exhaustively the properties of duties that correlate with apparently straightforward human rights. It turns out that things are surprisingly complex—a classic example of how ordinary and intuitive moral thinking winds up being really subtle and intricate when we try and precisely describe what is going on. Once we have a clear understanding of the properties of well-accepted rights-based duties, we can reflect on which of these duty-properties rights theories absolutely must retain if such theories are to maintain their hallmark features.

There’s no point denying it: it turns out that the answer to this question is pretty darn complex. (Heck, if it was straightforward someone else would have done it  already!) I argue duty-properties such as legality, perfection, directed-ness and universality turn out not to be essential to rights theories—but these duty-properties do link in various ways to deeper properties like ‘guarantees’, ‘fairness in duty allocation’ and ‘deontological structure’ that are essential. Losing these properties would sunder key attractions of human rights theories.

I won’t go into the full details here, but my investigation concludes that positive duties can accord with human rights. But this is not to say that anything goes. I argue that positive duties must be structured and developed in quite particular sorts of ways in order to possess the necessary duty-properties.

Of course, the debate will go on. Libertarians and others who disagree with welfare rights might find room to object to my arguments about which duty-properties are conceptually necessary. On the other hand, even thinkers who like the idea of welfare rights might wind up being a bit worried about where my argument leads us. For while I agree that even though human rights can impose multiple waves of duties to ensure the right is afforded proper protection (as rights-theorists like Jeremy Waldron and Henry Shue have previously advocated), I go on to argue that the stringency of such duties must diminish with each new wave of duties. That is, in order to retain a rights-theory’s signature properties, backup-duties to protect rights cannot be as strict as the duty held by the first-instance duty-bearer. If I’m right about this, then it might have significant consequences for certain types of rights-based duties (such as, perhaps, duties to refugees).

As I say, the debate will go on. One of the virtues of this article’s method, though, is that it lays bare exactly what types of duty-properties are in play, and provides reasons why we might judge some as vital and others as unnecessary. Rather than talking past one another in generalities and stipulations, this allows the philosophical debate to focus on the specific underlying duty-properties, and the reasons we must hold to (or alternatively can dispense with) each such property. For both proponents and opponents of human-rights-based positive duties, then, I hope that this way of proceeding provides a helpful way forward in unearthing the answer to this philosophical conundrum—a puzzle with very real practical implications for law and policy.

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