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.

Types of Duties

Duties come in a wide variety of types. Everyone is pretty familiar with the distinction between legal and moral duties, and between negative duties that constrain our actions, and positive duties that require us to act in a certain way. But these are very broad-brush distinctions. As always, the real world of everyday morality and law is more complex. In fact, differences between duties can be drawn on a host of distinct dimensions. Sometimes it is appropriate to skate over these subtleties in making an argument or propounding a position. Sometimes it is appropriate to conflate the categories, and presume that all imperfect duties are not stringent, say, or that they can’t be made legal. For the other cases, though, taking some time to make the appropriate distinctions can be fruitful. With this in mind, here is an attempt at a comprehensive taxonomy of duties, distinguished over seven dimensions (meaning that an exhaustive description of a duty would require plotting its location in seven-dimensional space!).

Where there is an orthodox term for the type of duty I have used it; where there is not, I have selected one, or coined one. For the most part orthodoxy does not prevail in this arena, so be aware that many of the terms below (especially ‘imperfect duty’) are regularly invoked in opposition to the meanings I stipulate below.

One. The Legality-Morality Dimension: Some duties are legal – to fail to perform the duty is held to be a breach of law, and to make one the object of legal sanction or punishment. Other duties are only moral; one should definitely do them, as a matter of proper moral conduct. However, one is not subject to legal sanction if one fails to comply with them. One further and special form of moral duties is supererogatory duties. These duties are not required – they are moral ideals to aim for, but one does not fail morally by not performing them.

As always, the situation is a little more complicated; for instance there are quasi-legal duties: duties where the legal status is not entirely clear. These commonly arise in the context of international law under the rubric ‘soft law’. In that context it is, for example, quite possible to have a duty that is accepted as legally required, but for there to be no court that can or must adjudicate on it, and no legal mechanism for sanctioning states or individuals that fail such duties.

Two. The Stringency Dimension: This dimension tracks the ethico-political importance of the duty. A stringent duty is one that implies a high degree of wrongdoing if one fails it. For example, it is widely held that failing to respect a right (actively assaulting someone, for example) is worse than failing to help them (say as a Good Samaritan). The Stringency Dimension is linked to the legality-morality dimension, but it is distinct from it. For instance, betraying a friendship or having a marital affair are widely thought much more morally serious than getting a fine for speeding or littering, those these latter are legal duties. Equally, there is an obvious different in stringency between some crimes (assault) and others (jaywalking).

Three: The Agent Dimension: This dimension tells us who the duty-holder is. A universal duty applies to everyone all the time. A circumstantial duty applies to anyone who finds themselves in a particular situation (such as an emergency when a young child falls into a pool).

A special duty, on the other hand, applies only to one person or one class of people. Often (though not always) a special duty is held because of some historical relationship between two people. For instance, the special duty from Amy to Bob can have arisen out of Amy’s consent or contract, or the role she has assumed (as Bob’s adopted parent, say), or because of her prior violation of Bob’s rights, or perhaps simply because she and Bob are from the same community or otherwise have a shared identity.

Four: The Subject Dimension: This dimension delineates who the duty-recipient or beneficiary is. A general duty is one owed (all other things equal) to everyone, such as the duty not to murder. In contradistinction, a specified duty is one owed to just some specific person or class of people. A specified duty might be created along the same methods as the special duty above: Amy’s promise to Bob creates a special, specified duty from Amy to Bob. But other cases are possible. An important set of specified duties are the ones owed by state authorities to all their citizens, or more broadly to all those in their territory or under their control. A state’s bill of rights, or constitutional guarantees, or commitments under international human rights law are (for the most part) specified in just this way.

Institutions apart from the state will often take on board specified duties in order to keep their operations tractable and focused – for instance the UNHCR has specified duties to refugees and internally displaced persons, while UNICEF has specified duties to children. More generally, it is often held that we all have distinct specified duties to children, because of their vulnerable nature.

Five: The Discretion Dimension: Duties can differ in the types of discretion they allow the duty-holder. Duties that have very little discretion are perfect duties. But for many duties, duty-holders have substantial discretion over how, when, where and to whom they fulfil their duties. When there is a significant level of discretion, these duties are termed imperfect duties. (Note that this dimension is quite separate from the legality-dimension; in particular, imperfect duties are not (necessarily) supererogatory.) Discretion can appear in some respects but not in others. For example, if there is a parental duty to work towards the happiness of their children’s lives (a duty my children, at least, propound) then there is wide discretion in how this is performed; I might take them to the movies tomorrow, or play with them down at the creek this afternoon. It is up to me. But there is no discretion regarding the agent or subject of this duty– it is I who owe the duty to my children. When there is a fairly determinate goal set down, and the duty-holder and duty-recipient are determined, then this type of imperfect duty might be called a responsibility. So the imperfect duty of parents to bring up their children well is a responsibility.

Imperfect duties themselves can be understood in a variety of ways: consider the different ways we might have an imperfect duty of charity. First, we might have an imperfect duty to develop certain sorts of emotional dispositions, for example; to develop the traits of character known as virtues. In this case we are required to work towards having a charitable emotional character. Second, we might be required to achieve a quite determinate goal – such as the alleviation of the situation of the homeless people in our neighbourhood – but be allowed to do so in a wide variety of ways. Third, the imperfect duty might require us to take on board, as one part of our larger life-plan, an open-ended goal of alleviating poverty. Here we are required to become serious about helping needy others in the same way we might say a person is serious about a relationship or serious about a vocation. Fourthly and finally, we might have to perform a certain number or threshold of charitable acts – such as duties of almsgiving or paying tithes. All these are imperfect duties of charity, in that they all aim to better the situation of the needy, and give the duty-holder discretion over precisely how this is done. But they are each somewhat distinct from one another, and an actor following one duty rather than another would respond differently to different situations.

One further word on imperfect duties is worth noting (at least, I hope it is worth noting, as I am currently working on the topic). ‘Discretion’ is an ambiguous word. Often it connotes judgment. In such cases there may be criteria for what the result of the judgment should be. Observers looking in from the outside may not be able to tell if those criteria were judiciously acted upon, but there may nevertheless be an objective answer as to what the result of the judgment should have been in a particular case. In these cases, even though you have discretion, you can get it wrong. Other times ‘discretion’ can mean subjective choice. Here there is no judgment and no criteria – you can literally choose whatever you want, and cannot possibly be wrong. Any time ‘discretion’ is used in the context of a moral duty, it is often worth thinking for a moment about whether judgment or subjective choice (or a subtle mix of the two) is being implied.

Note however, that discretion about how to perform an imperfect duty is not discretion about whether to perform an imperfect duty per se. An imperfect duty is still a duty, and should not be assumed to be supererogatory (an all-too-familiar error in both theory and practice).

Six: The Directedness Dimension: Some duties are owed to specific others, and others are not. A duty that Amy owes to Bob, arising from her promise, is a directed duty. It is not merely that Amy should do what she promised, it is that Amy owes it to Bob in particular that she do it. If she doesn’t do it, then it is Bob that is wronged, and in such situations it will usually be Bob that is owed compensation or apology. Other duties are non-directed because the duty-recipients are unclear or diffuse. Amy shouldn’t pollute the air with her smokestacks, but she doesn’t owe that duty to Bob, even if he is a suffering asthmatic. (Coming at the issue of duties from the perspective of rights, we might also speak of non-directed rights, where it is clear that street-urchin Amy is not having her right to education provided, but it is unclear who exactly is failing in their duty to Amy. There is a rights-claim, but it does not match up neatly with any vested duty in any particular person.)

Note that directedness is related to, but not quite the same as, the special-specified properties noted above on dimensions three and four. Amy might have a duty to better Bob’s situation (so the duty is special to Amy and specified to Bob), but she might not owe that duty to Bob – she may owe the duty to Connie. This might happen, for example, if Amy promised Connie she would help Connie’s father Bob around his house while Connie was away on holidays.

Seven: The Mode Dimension: This dimension determines the basic type of action that the duty-holder must perform. It may also be called the ‘directness’ of the duty, as it describes how close the duty is to the effect it is designed to achieve, or the threat it is hoping to assuage.

The most basic distinction on the mode dimension is of course the distinction between negative and positive duties. A negative duty is an ‘action constraint’ – it precludes a person from acting in a particular, determined way. Very often, negative duties foreclose acting in ways that harm others, and for this reason are often stringent and legal. A positive duty, on the other hand, propels a duty-holder into action, requiring her to perform some action or to pursue some goal.

Positive and negative duties come in a variety of modes. Approaching duties from the perspective of rights, theorists and lawyers have distinguished duties of (i) respecting rights: negative duties not to violate rights; (ii) protecting rights: positive duties to protect against rights-violations by third parties; (iii) promoting rights: positive duties to undertake specific actions to structurally contribute to a rights-respecting environment; (iv) facilitating rights: negative duties to alter one’s other actions to structurally contribute to a rights-respecting environment; and finally duties of (v) providing rights: positive duties to give people the necessities of life (these may also be called remedial or restorative duties, since when people do not have these necessities it is usually of a prior rights violation).

Any given duty may thus be mapped onto the seven-dimensional space. So we may say, to give a (contentious) account of the duty to rescue a drowning child by way of example, that this duty is a moral, stringent, circumstantial, specified, perfect, directed and rights-providing duty.

Of course, there are linkages between each of the dimensions. If a duty is imperfect, then that will make it harder (though not impossible – think of holding a ‘duty of care’ or a legal responsibility) to impose legal sanctions for its failure. The linkages, however, are only rarely conceptual in nature. We should be careful about swift assumptions that presence in one category of one dimension determines the duty’s properties on another dimension.