The Idea of Justice
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Both processes and opportunities can figure in human rights. For the opportunity aspect of freedom, the idea of ‘capability’ – the real opportunity to achieve valuable functionings – would typically be a good way of formalizing freedoms, but issues related to the process aspect of freedom demand that we go beyond seeing freedoms only in terms of capabilities. A denial of ‘due process’ in being, say, imprisoned without a proper trial can be the subject matter of human rights – no matter whether the outcome of a fair trial could be expected to be any different or not.
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o b l i g a t i o n s
In the general approach being outlined here, the significance of rights relates ultimately to the importance of freedom including its opportunity aspect and the process aspect. What about the duties of others that may be associated with these rights? We can, again, proceed from the importance of freedoms, but now look at consequential connections that relate freedoms to obligations. If freedoms are seen as important (in line with what has been discussed earlier in the book), people have reason to ask what they should do to help each other in defending or promoting their respective freedoms. Since violation –
or non-realization – of the freedoms underlying significant rights are bad things to happen (or bad social realizations), even others who are not themselves causing the violation, but who are in a position to help, have a reason to consider what they should do in this case.11
However, the move from a reason for action (to help another person), which is straightforward enough in a consequence-sensitive ethical system, to an actual duty to undertake that action is neither simple, nor sensibly covered under just one straightforward formula.
Possible variations of reasoning can be entertained here, including the assessment of how – and how strongly – a person must take a reason for action for it to serve as the basis of a possible duty. There is, related to this question, the issue of sympathy, which makes other people’s concerns – and the freedom to pursue them – among one’s own derivative involvements. The reach and force of sympathy must be part of the conceptual underpinning of human rights. However, sympathy in the form of feeling other people’s pain is not really essential in being able to see reasons to help a person in pain (or suffering from any other serious adversity or deprivation).*
The basic general obligation here must be to consider seriously what one can reasonably do to help the realization of another person’s
* Adam Smith’s distinction between helping others on grounds of ‘sympathy’ and doing the same because of ‘generosity’ or ‘public spirit’ is relevant here ( The Theory of Moral Sentiments, 1759, 1790). On the distinction, see also Chapter 8, ‘Rationality and Other People’.
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freedom, taking note of its importance and influenceability, and of one’s own circumstances and likely effectiveness. There are, of course, ambiguities here and scope for disagreement, but it does make a substantial difference in determining what one should do to acknowledge an obligation to consider this argument seriously. The necessity to ask that question (rather than to proceed on the possibly comforting assumption that we owe nothing to each other) can be the beginning of a more comprehensive line of ethical reasoning, and the territory of human rights belongs there. The reasoning cannot, however, end there. Given any person’s limited abilities and reach, and the priorities between different types of obligations as well as the demands of other
– non-deontological – concerns one may reasonably have, there is serious practical reasoning to be undertaken, in which one’s various obligations (including imperfect obligations) must, directly or indirectly, figure.*
The recognition of human rights is not an insistence that everyone rises to help prevent any violation of any human right no matter where it occurs. It is, rather, an acknowledgement that if one is in a position to do something effective in preventing the violation of such a right, then one does have a good reason to do just that – a reason that must be taken into account in deciding what should be done. It is still possible that other obligations, or non-obligational concerns, may overwhelm the reason for the particular action in question, but the reason is not simply brushed away as being ‘none of one’s business’. There is a universal ethical demand here, but not one that automatically identifies contingency-free, ready-made actions.
The choice of actions related to these connections must allow for considerable variation, depending on the choice of priorities and weights as well as evaluative frameworks. There can also be some
* The importance of obligations related to one’s power and effectiveness was discussed in Chapter 9, ‘Plurality of Impartial Reasons’, and 13, ‘Happiness, Well-being and Capabilities’. This takes us well beyond obligations related to imagined ‘social contracts’ which are typically seen as being confined to people in one’s own community or polity, rather than applying also to others outside these boundaries. On the general issue of global inclusiveness, without ignoring foreigners, or alternatively, without having to opt for some mechanical formula of what should be done for foreigners, see Kwame Anthony Appiah’s illuminating discussion in Cosmopolitanism: Ethics in a World of Strangers (New York: W. W. Norton & Co., 2006), Chapter 10.
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t h e i d e a o f j u s t i c e diversity in the way the causal analysis is pursued, particularly in dealing with actions that may be undertaken by other people who are also in a position to help or harm. There can, therefore, be much variation and possibly even some ambiguity in the specification of duties. However, the presence of some ambiguity in an idea is not a reason for dismissing the cogency of it. Ambiguity in the application of an otherwise significant concept is a reason for incorporating appropriate incompletenesses and allowable variations in the understanding of that concept itself (as I have argued in Inequality Reexamined, 1992).*
Indeed, loosely specified obligations must not be confused with no obligations at all. They belong, rather, to an important category of duties, as was mentioned earlier, which Immanuel Kant called ‘imperfect obligations’, and which can coexist with other – more fully specified – imperatives of ‘perfect obligations’.12 An example can help to illustrate the distinction between (as well as the dual presence of) different kinds of obligations. Consider a real-life case that occurred in Queens in New York in 1964: a woman, called Catherine (Kitty) Genovese, was repeatedly and then fatally assaulted in full view of others watching the event from their apartments, but her cries for assistance were ignored by the observers.† It is plausible to argue that three terrible things happened there, which are distinct but interrelated: (1) the woman’s freedom not to be assaulted was violated (this is, of course, the primary issue here);
(2) the assaulter’s duty not to attack and murder was violated (a breach of a ‘perfect obligation’); and
(3) the others’ duty to provide reasonable help to a person facing
* See my Inequality Reexamined (Cambridge, MA: Harvard University Press, and Oxford: Clarendon Press, 1992), pp. 46–9, 131–5. This issue is also addressed in my ‘Maximization and the Act of Choice’, Econometrica, 65 (1997), reprinted in Rationality and Freedom (Cambridge, MA: Harvard University Press, 2002).
† One spectator from an apartment above did shout to the assailant to ‘let that girl alone’, but the help provided did not go beyond that solitary and very distant effort, and the police were not called until long after the assault. For a powerful discussion of the incident and the moral and psychological issues involved in it, see Philip Bobbitt, The Shield of Achilles: War, Peace and the Course of History (New York: Knopf, 2002), Chapter 15, ‘The Kitty Genovese Incident and the War in Bosnia’.
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assault and murder was also violated (a transgression of an ‘imperfect’
obligation).
These failings are interrelated, and bring out a complex pattern of correspondence of rights and duties in a structured ethics, which can contribute to explicating the evaluative framework of human rights.*
The human rights perspective demands engagement with these diverse concerns.†
The presumed precision of legal rights is often contrasted with inescapable ambiguities in the ethical claims of human rights. This contrast, however, is not in itself a great embarrassment for ethical claims, including those of imperfect obligations, since a framework of normative reasoning can sensibly allow variations that cannot be easily accommodated in fully specified legal requirements. As Aristotle remarked in the Nicomachean Ethics, we have ‘to look for precision in each class of things just so far as the nature of the subject admits’.13
Imperfect obligations, along with the inescapable ambiguities involved in that idea, can be avoided only if the rest of humanity –
other than those directly involved – are exempted from any responsibility to try to do what they reasonably can to help. While that kind of general immunity might seem reasonable as far as legal requirements are concerned, the case for such impunity in the ethical domain would be hard to justify. As it happens, in the laws of some countries, there is even a legal demand to provide reasonable help to third parties; for example, in France there is provision for ‘criminal liability of omissions’ in the failure to provide reasonable help to others suffering from particular types of transgressions. Not surprisingly, ambiguities in the application of such laws have proved to be quite substantial
* In this analysis I do not go into the distinction between agent-specific and agent-neutral moral evaluations. The present line of characterization can be further extended through making room for position-specific assessments, as was discussed in Chapter 10, ‘Realizations, Consequences and Agency’. See also my ‘Rights and Agency’, Philosophy and Public Affairs, 11 (1982), and ‘Positional Objectivity’, Philosophy and Public Affairs, 22 (1993).
† The obligational failure of the passive observers of Kitty Genovese’s violation and murder relates to the diagnosis that it would have been reasonable for them to do something to help, including calling the police without delay. This did not happen: no one came out to scare away the assaulter and the police were called after – indeed, long after – the event.
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t h e i d e a o f j u s t i c e and have been the subject of some legal discussion in recent years.14
The ambiguity of duties of this type – whether in ethics or in law –
would be difficult to avoid if the third-party obligations of others in general are given some room.
f r e e d o m a n d i n t e r e s t s
A pronouncement of human rights, as interpreted here, is an assertion of the importance of the freedoms that are identified and acclaimed in the formulation of the rights in question. For example, when the human right of a person not to be tortured is acknowledged, the importance of freedom from torture is reaffirmed and acclaimed for everyone,* and with this the confirmation of the need for others to consider what they can reasonably do to secure freedom from torture for all. For a would-be torturer, the demand is obviously quite straightforward: to refrain and desist (this is clearly a ‘perfect obligation’). For others, too, there are responsibilities, even though they are less specific and generally consist of trying to do what one reasonably can in the circumstances (this would fall in the broad category of
‘imperfect obligations’). The perfectly specified demand not to torture anyone is supplemented by the more general – and less exactly specified – requirement to consider the ways and means through which torture can be prevented and then to decide what one should, in this particular case, reasonably do.15
There is an interesting and important issue here concerning the competing claims of freedoms and interests as the basis of human rights. In contrast with the focus on freedoms here, Joseph Raz has developed, particularly in his insightful book, The Morality of Freedom, a powerful, interest-based theory of human rights: ‘Rights ground requirements for action in the interest of other beings.’16 I find Raz’s approach attractive, not just because he is an old friend, from
* As Charles Beitz has pointed out, human rights play ‘the role of a moral touchstone
– a standard of assessment and criticism for domestic institutions, a standard of aspiration for their reform, and increasingly a standard of evaluation for the policies and practices of international economic and political institutions’ (‘Human Rights as a Common Concern’, American Political Science Review, 95 (2001), p. 269).
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whom, in discussions over a decade in Oxford (1977–87), I have learned a great deal, but mainly because he sketches out a line of reasoning that seems to have much understandable appeal.* The question must, however, be asked, whether the focus on the interests of different people as the foundational basis of rights, attractive as it is, is adequate for a theory of rights in general and human rights in particular. And, related to that question, we also have to ask: is the contrast between the perspective of freedom and that of interest significant?
There is certainly something of a contrast here. I have already touched on the profound importance of this contrast in general in a context very different from that of human rights. To consider an example discussed in Chapter 8,† the person sitting in a window seat finds a strong enough reason to pull the window shade down (thereby sacrificing his own enjoyment of the sun) to allow his neighbour to play a silly computer game that he wants to play. The reason involved, as seen by the occupant of the window seat, was not the ‘interest’ of
* For a similar claim, see also Thomas Scanlon, ‘Rights and Interests’, in Kaushik Basu and Ravi Kanbur (eds), Arguments for a Better World (2009). On a related, but different, point of disagreement with Scanlon from the same essay, I take the opportunity here of noting that there is some misinterpretation in his belief that if he were to accept my argument for the need to ‘weigh’ different claims based on rights, then what would be ‘needed is a ranking of rights, which determines which right is to prevail in cases of conflict’ (p. 76, italics added). The mathematics of weighing allows various weighting procedures, taking note of intensities, circumstances and consequences, without making us go for a straightforward ‘lexical’ priority of one type of right over another in all cases. This issue has been discussed earlier in Chapter 2, ‘Rawls and Beyond’ in the context of commenting on Rawls’s choice of lexical priority for liberty (in every case against every contrary concern), rather than more sophisticated forms of weighting that could recognize the strong and special importance of liberty, without ignoring everything that competes with it. The point here also relates to Herbert Hart’s argument that the claims of liberty may sensibly be outweighed if the exercise of the liberty involved leads to very unfavourable consequences for the well-being of people, even though liberty may win in other cases against considerations of well-being.
Non-lexical weighting systems can accommodate the fairly common understanding that the conflict between competing concerns related to rights need not be resolved by pure ‘typology’ and a contextless ‘ranking of rights’ that is completely innocent of intensities and consequences. See also S. R. Osmani, ‘The Sen System of Social Evaluation’ in the same book, Arguments for a Better World.
† See Chapter 8, ‘Rationality and Other People’, pp. 192–3.
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t h e i d e a o f j u s t i c e the game maniac (indeed, the window-seat occupant did not think the move enhanced the game-player’s interest at all, quite the contrary), but the game enthusiast’s ‘freedom’ to do what he wanted very much to do (whether or not it served his interest, as seen by the window-seat occupant or the game-player himself). The contrast between freedom and interest can be quite significant.
Now consider a different example – more in
line with the kind of cases that figure in Raz’s investigation of rights. A non-Londoner’s freedom to travel to London to join a peaceful demonstration there (against, say, the 2003 US-led military intervention in Iraq) could be violated through some policy of exclusion by which the aspiring demonstrator could be prevented from joining in (this is an entirely hypothetical example; there was no such exclusion). If such a restriction were to be imposed, it would be manifestly a violation of the freedom of the excluded person (who does want to demonstrate), and correspondingly a violation of something in the person’s rights if rights were to incorporate such freedoms. There is a direct connection in the reasoning here.
If, however, rights are grounded only on ‘interests’ (as opposed to
‘freedoms’) of the person involved, we shall have to consider whether it is in that person’s interest to join such a demonstration about Iraq.
And if the answer turns out to be that while it is a political priority of the potential demonstrator in question, it does not really serve his own ‘interest’ much or at all to join in the organized protesting, then the freedom to demonstrate in London could not be readily included within the orbit of human rights if they have to be based on the person’s interest. If the interest-based understanding of rights were to be accepted, then the status of freedom as the basis of the human right to demonstrate would surely be undermined. If, on the other hand, freedoms are accepted as important because they give the person involved the liberty to choose (no matter whether he chooses to pursue personal interest or something very different) and lead his life in terms of his own priorities (whether interest-oriented or not), then an interest-based perspective on human rights must, ultimately, be inadequate.*