The Idea of Justice
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t h e i d e a o f j u s t i c e and usefulness of human rights in this specific context has been both illuminating and powerfully influential.* Many actual laws have been enacted by individual states, or by associations of states, which gave legal force to certain rights seen as basic human rights; for example, the European Court of Human Rights (ECHR), established in 1950
(following the European Convention), can consider cases brought by individuals from the signatory states against violations of human rights.
This has been supplemented, for example, in the United Kingdom, by the Human Rights Act of 1998, aimed at incorporating the main provisions of the European Convention into domestic law, with the ECHR trying to ensure ‘just satisfaction’ of these provisions in domestic judgments. The ‘legislative route’ has indeed had much active use.
b e y o n d t h e l e g i s l a t i v e r o u t e We can nevertheless ask whether this is all there is to human rights.
It is, in fact, important to see that the idea of human rights can be –
and is – also used in several other ways as well, that is, other than motivating legislation. To acknowledge that the recognition of human rights can inspire fresh legislation aimed at those rights is not the same thing as taking the relevance of human rights to lie exclusively in determining what should ‘appropriately be made the subject of coercive legal rules’, and it would be particularly confusing to make that into the definition of human rights. Indeed, if human rights are seen as powerful moral claims, as Hart himself suggests by seeing them as
‘moral rights’, then surely we have reason for some catholicity in considering different avenues for promoting these moral claims. The ways and means of advancing the ethics of human rights need not be confined only to making new laws (even though sometimes legislation may turn out to be the right way to proceed); for example, social monitoring and other activist support provided by such organizations as Human Rights Watch, Amnesty International, OXFAM, Me´decins
* On the enormous influence of Tom Paine on the emergence of a US public policy for poverty removal, see Gareth Stedman Jones, An End to Poverty (New York: Columbia University Press, 2005). See also Judith Blau and Alberto Moncada, Justice in the United States (2006).
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sans Frontières, Save the Children, the Red Cross, or Action Aid (to consider many different types of NGOs) can help to advance the effective reach of acknowledged human rights. In many contexts, legislation may not, in fact, be involved at all.
There is an interesting question about the appropriate domain of the legislative route. It is sometimes presumed that if an unlegislated human right is important, then it would be best to try to legislate it into a precisely specified legal right. This may, however, be a mistake.
For example, recognizing and defending a wife’s right to have an effective voice in family decisions, often denied in traditionally sexist societies, may well be extremely important. And yet the advocates of this right, who emphasize, correctly, its far-reaching ethical and political relevance, could quite possibly agree that it is not sensible to make this human right into (in Herbert Hart’s language) a ‘coercive legal rule’ (perhaps with the result that a husband would be taken in custody if he were to fail to consult his wife). The necessary changes would have to be brought about in other ways, including media exposure and criticism as well as public debates and agitation.* Because of the importance of communication, advocacy, exposure and informed public discussion, human rights can have influence without necessarily depending on coercive legislation.
Similarly, the ethical importance of a stammerer’s liberty not to be slighted or ridiculed in public meetings may well be very important and demand protection, but this is not likely to be a good subject for punitive legislation (with fines or imprisonment of the badly behaved) to suppress the violation of the freedom of speech of the afflicted person. The protection of that human right would have to be sought elsewhere, for example through the influence of education and public discussion on civility and social conduct.† The effectiveness of the human rights perspective does not rest on seeing it invariably in terms of putative proposals for legislation.
In the approach pursued in this work, human rights are ethical
* This recognition would not have come as a surprise to Mary Wollstonecraft, who discussed a variety of ways in which women’s rights could be advanced ( A Vindication of the Rights of Woman, 1792).
† See Drucilla Cornell’s illuminating discussion of the far-reaching role of civility and related values in Defending Ideals (New York: Routledge, 2004).
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t h e i d e a o f j u s t i c e claims constitutively linked with the importance of human freedom, and the robustness of an argument that a particular claim can be seen as a human right has to be assessed through the scrutiny of public reasoning, involving open impartiality. Human rights can serve as the motivation for many different activities, from legislation and implementation of appropriate laws to enabling help from other people and public agitation against rights violations.* The different activities can contribute – separately and together – to advancing the realization of important human freedoms. It is perhaps important to emphasize that not only are there several ways of safeguarding and promoting human rights other than legislation, these different routes have considerable complementarity; for example, for effective enforcement of new human rights laws, public monitoring and pressure can make a considerable difference. The ethics of human rights can be made more effective through a variety of interrelated instruments and a versatility of ways and means. This is one of the reasons why it is important to give the general ethical status of human rights its due, rather than locking up the concept of human rights prematurely within the narrow box of legislation – real or ideal.
r i g h t s a s f r e e d o m s
Since declarations of human rights are, I have argued, ethical affirmations of the need to pay appropriate attention to the significance of freedoms incorporated in the formulation of human rights, an appropriate starting point for investigating the relevance of human
* Following the Universal Declaration of Human Rights in 1948, there have been many other declarations, often pioneered by the United Nations, varying from the Convention on the Prevention and Punishment of the Crime of Genocide, signed in 1951, and the International Covenant on Civil and Political Rights and on Economic, Social and Cultural Rights in 1966, to the Declaration on the Right to Development, signed in 1986. The approach is motivated by the idea that the ethical force of human rights is made more powerful in practice through giving it social recognition and an acknowledged status, even when no enforcement is instituted. On these issues, see also Arjun Sengupta, ‘Realizing the Right to Development’, Development and Change, 31
(2000) and ‘The Human Right to Development’, Oxford Development Studies, 32
(2004).
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rights must be the importance of the freedoms underlying those rights.
The importance of freedoms provides a foundational reason not only for affirming our own rights and liberties, but also for taking an interest in the freedoms and rights of others – going well beyond the pleasures and desire-fulfilment on which utilitarians concentrate.*
Bentham’s ground for choosing utility as the basis of ethical evaluation, which was more declaratory than justificatory, has to be contrasted and comparatively assessed with the reasons for focusing on freedoms.7
For a freedom to be included as a part of a human right, it clearly must be important enough to provide reasons for others to pay serious attention to it. There must be some ‘threshold conditions’ of relevance, including the importance of the freedom and the possibility of influencing its realization, for it to plausibly figure within the spectrum of human rights. In so far as some agreement is nee
ded for the social framework of human rights, the agreement that would be sought is not only whether some particular freedom of a particular person has any ethical importance at all, but also whether the relevance of that freedom meets the threshold condition of having sufficient social importance to be included as a part of the human rights of that person, and correspondingly to generate obligations for others to see how they can help the person to realize those freedoms, a subject that will be more fully discussed presently.
The threshold condition may prevent, for a variety of reasons, particular freedoms from being the subject matter of human rights.
To illustrate, it is not hard to argue that considerable importance should be attached to all five of the following freedoms of a person –
let us call her Rehana:
(1) Rehana’s freedom not to be assaulted;
(2) her freedom to be guaranteed some basic medical attention for a serious health problem;
(3) her freedom not to be called up regularly and at odd hours by her neighbours whom she detests;
(4) her freedom to achieve tranquillity, which is important for Rehana’s good life;
(5) her ‘freedom from fear’ of some kind of detrimental action by
* The contrast was examined in Chapter 13, ‘Happiness, Well-being and Capabilities’.
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t h e i d e a o f j u s t i c e others (going beyond the freedom from the detrimental actions themselves).
Even though all five may be important in one way or another, it is not altogether implausible to argue that the first (the freedom not to be assaulted) is good subject matter for a human right, as is the second (the freedom to receive basic medical attention), but the third (the freedom not to be called up too often and too disturbingly by unloved neighbours) is not, in general, reason enough to cross the threshold of social relevance to qualify as a human right. In contrast, the fourth (the freedom to achieve tranquillity), while quite possibly extremely important for Rehana, may be too inward-looking and beyond the effective reach of social policies to be good subject matter for a human right. The exclusion of the right to tranquillity relates more to the content of that freedom and the difficulty of influencing it through social help, rather than to any presumption that it is not really important for Rehana.
The fifth alternative, involving fear of negative action by others, cannot really be sensibly judged without examining the basis of that fear, and how that can be removed. Some fears may, of course, be entirely cogent, such as the fear of the finiteness of life as a human predicament. Others may be hard to justify on reasoned grounds, and as Robert Goodin and Frank Jackson argue in their important essay
‘Freedom from Fear’, before determining whether we should ‘rationally fear’ something, we ought to ‘ascertain the likelihood of that possibility, which might turn out to be very remote’.* Goodin and Jackson are right to conclude that ‘freedom from fear’ seen as ‘being free from undue influences that irrationally frighten us, is . . . a genuinely important but genuinely elusive social goal’.8 And yet freedom from fear can be something that a person has reason to want and that others – or the society – may have good reason to try to support,
* Goodin and Jackson cite former Vice President Dick Cheney’s ‘one percent doctrine’
in this context: ‘if there was even a one percent chance of terrorists getting a weapon of mass destruction – and there has been a small probability of such an occurrence for some time – the United States must now act as if it were a certainty’ (Robert E. Goodin and Frank Jackson, ‘Freedom from Fear’, Philosophy and Public Affairs, 35 (2007), p. 249). See also Ron Suskind, The One Percent Doctrine: Deep Inside America’s Pursuit of Its Enemies Since 9/11 (New York: Simon & Schuster, 2006).
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whether or not that fear is particularly rational. Panic attacks of mentally impaired persons certainly demand attention for medical reasons, and there is quite plausibly an argument for medical facilities in these cases, from the perspective of human rights: the irrationality of such fear need not exclude it from consideration in the rights perspective since the fear and suffering are genuine and may not be removable by the solitary efforts of the medically ill.
There can even be a reasonable case for placing elimination of the fear of terrorism within the concerns of human rights, even if the fears were stronger than probability statistics would justify. There is something to be concerned about in a general climate of fear, even if a fear of terrorist violence may be exaggerated in the aftermath of what happened in New York in 2001 or in London in 2005, or in Mumbai in 2008.* What makes sense from the perspective of human rights in the fifth case is open to scrutiny and assessment, and much would depend on the characterization of the necessary contingencies, in particular whether society or the state can help to eliminate these fears in a way that an individual acting separately cannot, no matter how rational he or she may try to be.†
* The trouble with Cheney’s ‘one percent doctrine’ does not lie in the irrationality of fearing something terrible that may have only a 1 per cent chance, but in treating it as if ‘it were a certainty’, which is clearly irrational and does not lead to a particularly good way of deciding what should be done, especially by the state.
† The possibility of a person’s freedom being compromised by interference of the state raises a different kind of question in the perspective of the ‘republican’ view of freedom, defended by Philip Pettit ( Republicanism: A Theory of Freedom and Government, Oxford: Clarendon Press, 1997); it is also very similar to the ‘Neo-Roman’ view discussed by Quentin Skinner ( Liberty before Liberalism, Cambridge: Cambridge University Press, 1998). That way of seeing the content of freedom does not turn pivotally on the high likelihood of state intervention but on the mere possibility of such interference which makes the liberties of the individuals contingent on the will of others. I have resisted the argument that this is the central content of freedom, though I have argued for making room for it within the broad spectrum of different aspects of freedom (see Chapter 14, ‘Equality and Liberty’). As was also discussed earlier, whatever support Thomas Hobbes might have given to the republican view did in fact disappear in his later writings in the evolution of his theory of freedom; on this, see Quentin Skinner, Hobbes and Republican Liberty (Cambridge: Cambridge University Press, 2008). See also Richard Tuck, Hobbes (Oxford: Oxford University Press, 1989), and jointly edited with M. Silverthorne, Hobbes: On the Citizen (Cambridge: Cambridge University Press, 1998).
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t h e i d e a o f j u s t i c e Obviously, we can have debates on how the threshold of relevance should be determined, and on whether a particular freedom crosses that threshold or not. The analyses of thresholds, related to the seriousness and social relevance of particular freedoms, has a significant place in the assessment of human rights. The possibility of disagreement always exists in pronouncements about human rights, and critical examination is part of what can be called the discipline of human rights. Indeed, even the viability of claims about human rights, which will be discussed presently, is closely linked with impartial scrutiny.
o p p o r t u n i t y a n d p r o c e s s a s p e c t s o f f r e e d o m
I turn now to a different distinction in the idea of freedom that may be of relevance to the theory of human rights. I have discussed earlier, particularly in Chapter 11 (‘Lives, Freedoms and Capabilities’), the importance of the distinction between the ‘opportunity aspect’ and the ‘process aspect’ of freedom, and have pointed to the complex issues involved in assessing each aspect.9 An example, a variation of the one discussed in Chapter 11,10 can help to bring out the separate (though not necessarily independent) relevance of both substantive opportunities and the actual processes involved in a person’s freedom.
Consider a young person, let us call her Sula, who decides that she would like to go out dancing with a friend in the evening. To take care
of some considerations that are not central to the issues involved here (but which could make the discussion unnecessarily complex), it is assumed that there are no particular safety risks involved in her going out, and that she has critically reflected on this decision and judged that going out would be sensible (indeed, as she sees it, the
‘ideal’ thing to do).
Now consider the threat of a violation of this freedom if some authoritarian guardians of society decide that she must not go dancing (‘it is most unseemly’), and force her, in one way or another, to stay indoors. To see that there are two distinct issues involved in this one violation, consider an alternative case in which the authoritarian 370
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bosses decide that she must – absolutely must – go out (‘you are expelled for the evening – stay away from us this evening – we are entertaining some important guests who would be upset by your behaviour and outlandish look’). There is clearly a violation of freedom even in this case, and yet Sula is being forced to do something that she would have chosen to do anyway (she has to go out to go dancing), and this is readily seen when we compare the two alternatives: ‘choosing freely to go out’ and ‘being forced to go out’. The latter involves an immediate violation of the ‘process aspect’ of Sula’s freedom, since an action is being forced on her, even though it is an action she would have also freely chosen (‘imagine spending time with those pompous guests, rather than dancing with Bob’). The opportunity aspect is affected too, though in an indirect way, since a plausible accounting of opportunities can include having options and Sula can inter alia include valuing free choice (an issue that was discussed in Chapter 11, ‘Lives, Freedoms and Capabilities’).
However, the violation of the opportunity aspect would be more substantial and manifest if Sula were not only forced to do something chosen by another, but in fact forced to do something she would not otherwise choose to do. The comparison between ‘being forced to go out’ when she would have chosen to go out anyway, and being forced to stay at home with boring guests, brings out this contrast, which lies primarily in the opportunity aspect, rather than in the process aspect. In being forced to stay at home to listen to pontificating bankers, Sula loses freedom in two different ways, related respectively to being forced to do something with no freedom of choice, and being obliged in particular to do something she would not choose to do.