by Amartya Sen
* As Richard Tuck has plausibly argued, ‘one of the striking differences between a rights theory and Utilitarianism is that the ascription of a right to someone does not 378
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Having said this, however, I must also note that it is possible to define ‘interest’ in such an expansive – and capacious – way that it encompasses all the concerns that a person chooses to pursue, irrespective of motivation. Indeed, in ordinary language, a violation of a person’s freedom of choice is often identified with going against the person’s interest.* If such a commodious view is taken of what counts as interest, then the gap between interests and freedoms would be, to that extent, removed.† If that proves to be the right way of seeing Raz’s thesis, that would make our respective approaches to rights, to a great extent, congruent.
t h e p l a u s i b i l i t y o f e c o n o m i c a n d s o c i a l r i g h t s
I turn now from a general analysis of human rights to the analysis of some specific types of claims to be included within the category of human rights. There is a particular question about the inclusion of the so-called ‘economic and social rights’ and what are sometimes called
‘welfare rights’.‡ These rights, which are seen by their proponents as require us to make any estimate of the person’s inner condition’. Tuck goes on to explain: ‘If he has a right to stand in Trafalgar Square, it does not matter whether he gets pleasure from the act or a kind of Dostoevskian sense of tragedy; it does not even matter whether he chooses to perform the act on any particular occasion or not (compare Hobbes, for whom it does not matter, strictly, whether people do always seek to preserve themselves)’ (‘The Dangers of Natural Rights’, Harvard Journal of Law and Public Policy, 20 (Summer 1997), pp. 689–90).
* I have argued against the reasoning behind that identification not only in Chapter 8, ‘Rationality and Other People’, but also in Chapters 9, ‘Plurality of Impartial Reasons’ and 13, ‘Happiness, Well-being and Capabilities’.
† Indeed, Joseph Raz himself discusses the extensive connections between the notions of interests and freedoms, in his Morality of Freedom (1986), and even though I see a real distinction between the two, I am not trying to assess here how much of a difference there is between the implications of the two distinct ideas.
‡ The use of the word ‘welfare’ here is much narrower and more specific than its use as a synonym for well-being in general (as the term was used in the context of the discussion of the relevance of happiness or well-being in the assessment of justice (see Chapter 13, ‘Happiness, Well-being and Capabilities’). ‘Welfare rights’ refer typically to entitlements to pensions, unemployment benefits and other such specific public provisions aimed at curtailing certain identified economic and social deprivations, and 379
t h e i d e a o f j u s t i c e important ‘second generation’ rights, such as a common entitlement to subsistence or to medical care, have mostly been added relatively recently to earlier enunciations of human rights, thereby vastly expanding the domain of human rights.17 Even though these rights did not figure in the classic presentations of rights of human beings in, say, the American Declaration of Independence, or French ‘rights of man’, they are very much a part of the contemporary domain of what Cass Sunstein calls the ‘rights revolution’.18
A big departure came in this area with the Universal Declaration of Human Rights in 1948. The new proclamation reflected a transformation in radical social thought in the changing world of the twentieth century. The contrast with the earlier proclamations is sharp indeed.
It may be recollected that even President Abraham Lincoln had not initially demanded political and social rights for the slaves – only some minimal rights, concerning life, liberty and fruits of labour. The UN Declaration takes a much larger list of freedoms and claims under its protective umbrella. This includes not only basic political rights, but the right to work, the right to education, protection against unemployment and poverty, the right to join trade unions and even the right to just and favourable remuneration. This is quite a radical departure from the confined limits of the American Declaration of 1776 or the French affirmation of 1789.
The global politics of justice in the latter half of the twentieth century became more and more involved with these second-generation rights. The nature of global dialogue and of the types of reasoning entertained in the new era has come to reflect a much broader reading of agencies and the content of global responsibilities.19 As Brian Barry has argued, ‘the Universal Declaration of Human Rights has implications – and very important ones – for the international community as a whole, not just for individual states’.* The removal of global poverty the list of deprivations to be covered can be extended to include illiteracy and preventable ill-health.
* Brian Barry, Why Social Justice Matters (London: Polity Press, 2005), p. 28. Barry goes on to identify what he argues are the implications of this momentous recognition:
‘If governments simply do not have the means of supplying everyone with such things as adequate nutrition and housing, pure drinking water, sanitation and a generally healthy environment, education and medical care, then the wealthy countries, individu-380
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and other economic and social deprivations has thus come to centre-stage in the global engagement with human rights, sometimes led by philosophers, such as Thomas Pogge.20 The rapidly expanding interest on this subject has also had an impact on the demands of policy reforms. Indeed, as Deen Chatterjee has argued, ‘the global recognition of endemic poverty and systemic inequity as serious human rights concerns has put pressure on individual countries for internal democratic reforms and made vivid the need for more just and effective international institutional directives’.21 The second-generation rights have become a significant influence on the agenda of institutional reforms for the fulfilment of ‘imperfect’ global obligations, which have been explicitly but more often implicitly acknowledged.
The inclusion of second-generation rights makes it possible to integrate ethical issues underlying general ideas of global development with the demands of deliberative democracy, both of which connect with human rights and quite often with an understanding of the importance of advancing human capabilities. In his far-reaching contribution to this integration in Ethics of Global Development: Agency, Capability, and Deliberative Democracy, David Crocker points out that because agency and valuable capabilities are ‘the basis for human rights, social justice, and both individual and collective duties, a development ethic will also examine how a globalized world is a help or a hindrance as individuals and institutions fulfil their moral obligation to respect rights’. He goes on to argue that ‘the long-term goal of good and just development – whether national or global – must be to secure an adequate level of agency and morally basic capabilities for everyone in the world – regardless of nationality, ethnicity, religion, age, gender, or sexual preference’.22 It is only with the inclusion of second-generation rights that this kind of a radical proposal for extended integration becomes possible, without taking us beyond the human rights framework.23
These newer inclusions of human rights, however, have been subjected to more specialized disputation, and the reasoning behind such rejection has been powerfully presented by a number of political ally or in any combination, have an obligation to ensure that, by one means or another, the resources are forthcoming’ (p. 28).
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t h e i d e a o f j u s t i c e theorists and philosophers. The objections are not confined to the use of economic and social rights across the globe, and are intended to apply to the viability of these rights even within the limits of any particular nation. Two of the most powerful rejections have come from Maurice Cranston and Onora O’Neill.24 I should hasten to explain that the arguments against the inclusion of these freedoms under human rights do not typically spring from ignoring their importance. Inde
ed, O’Neill’s analysis of the philosophical issues – to a great extent along Kantian lines, involving poverty and hunger in the world – provides a far-reaching investigation of the momentous importance of these problems.25 Rather, the proposed exclusions from the domain of human rights are related to the interpretation of the content and reach of the idea of human rights favoured by these critics, including O’Neill.
There are, in fact, two specific lines of reproach, which I shall call the ‘institutionalization critique’ and the ‘feasibility critique’. The institutionalization critique, which is aimed particularly at economic and social rights, relates to the belief that real rights must involve an exact correspondence with precisely formulated correlate duties. Such a correspondence, it is argued, would exist only when a right is institutionalized. Onora O’Neill has presented the following criticism with clarity and force:
Unfortunately much writing and rhetoric on rights heedlessly proclaims universal rights to goods or services, and in particular ‘welfare rights’, as well as to other social, economic and cultural rights that are prominent in international Charters and Declarations, without showing what connects each presumed right-holder to some specified obligation-bearer(s), which leaves the content of these supposed rights wholly obscure . . . Some advocates of universal economic, social and cultural rights go no further than to emphasize that they can be institutionalized, which is true. But the point of difference is that they must be institutionalized: if they are not there is no right.26
In responding to this criticism, we have to invoke the understanding, already discussed, that obligations can be both perfect and imperfect.
Even the classical ‘first-generation’ rights, like freedom from assault, can be seen as imposing imperfect obligations on others, as was illustrated with the example of the case of assault on Kitty Genovese in 382
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public view in New York. Economic and social rights may similarly call for both perfect and imperfect obligations. There is a large area of fruitful public discussion, and possibly effective pressure, concerning what a particular society or a state – even an impoverished one – can do to prevent violations of certain basic economic or social rights (associated with, say, the prevalence of famines, or chronic undernourishment, or absence of medical care).
Indeed, the supportive activities of social organizations are often aimed precisely at institutional change, and the activities are plausibly seen as part of imperfect obligations that individuals and groups have in a society where basic human rights are violated. Onora O’Neill is, of course, correct to see the importance of institutions for the realization of ‘welfare rights’ (and even for economic and social rights in general), but the ethical significance of these rights provides good grounds for seeking realization through their work in pressing for, or contributing to, changes in institutions as well as social attitudes. This can be done, for example, through agitation for new legislation, or through helping to generate greater awareness of the seriousness of the problem.* To deny the ethical status of these claims would be to ignore the reasoning that fires these constructive activities, including working for institutional changes of the kind that O’Neill would like, with good reason, to have for the realization of what the activists see as human rights.
The ‘feasibility critique’, which is not unrelated to the institutionalization critique, proceeds from the argument that even with the best of efforts, it may not be feasible to realize many of the alleged economic and social rights for all. This is an empirical observation of some interest on its own, but it is made into a criticism of the acceptance of these claimed rights on the basis of the presumption, largely undefended, that to be coherent human rights must be wholly accom-plishable for all. If this presumption were accepted, that would have the effect of immediately putting many so-called economic and social
* The role of public discussion and the media in helping to bring about a reduction or removal of social and economic deprivations was discussed in Chapters 15, ‘Democracy as Public Reason’, and 16, ‘The Practice of Democracy’.
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t h e i d e a o f j u s t i c e rights outside the domain of possible human rights, especially in poorer societies. Maurice Cranston puts the argument thus: The traditional political and civil rights are not difficult to institute. For the most part, they require governments, and other people generally, to leave a man alone . . . The problems posed by claims to economic and social rights, however, are of another order altogether. How can the governments of those parts of Asia, Africa, and South America, where industrialization has hardly begun, be reasonably called upon to provide social security and holidays with pay for millions of people who inhabit those places and multiply so swiftly?27
Is this apparently plausible critique persuasive? I would argue that it is based on a confounding of the content of what an ethically acknowledged right must demand. Just as utilitarians want to pursue maximization of utilities and the viability of that approach is not compromised by the fact that there always remains scope for further improvement in utility achievements, human rights advocates want the recognized human rights to be maximally realized.28 The viability of this approach does not crumble merely because further social changes may be needed at any point of time to make more and more of these acknowledged rights fully realizable and actually realized.*
Indeed, if feasibility were a necessary condition for people to have any rights, then not just social and economic rights, but all rights –
even the right to liberty – would be nonsensical, given the infeasibility of ensuring the life and liberty of all against transgression. To guarantee that every person is ‘left alone’ has never been particularly easy (contrary to Cranston’s claim). We cannot prevent the occurrence of murder somewhere or other every day. Nor, with the best of efforts, can we stop all mass killings, like those in Rwanda in 1994, or in New York on 11 September 2001, or in London, Madrid, Bali and Mumbai more recently. The confusion in dismissing claims to human rights on grounds of incomplete feasibility is that a not fully realized right is still a right, calling for remedial action. Non-realization does not, in itself, make a claimed right a non-right. Rather, it motivates further
* Affirmation of human rights is a call to action – a call for social change – and it is not parasitic on pre-existing feasibility. On this, see my ‘Rights as Goals’, in S. Guest and A. Milne (eds), Equality and Discrimination: Essays in Freedom and Justice (Stuttgart: Franz Steiner, 1985).
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social action. The exclusion of all economic and social rights from the inner sanctum of human rights, keeping the space reserved only for liberty and other first-generation rights, attempts to draw a line in the sand that is hard to sustain.
s c r u t i n y , v i a b i l i t y a n d u s e I turn now to the postponed question about the viability of human rights. How can we judge the acceptability of claims to human rights and assess the challenges they may face? How would such a disputation – or a defence – proceed? To some extent, I have already answered the question indirectly, through defining human rights (or, perhaps more accurately, articulating the implicit definition behind the use of human rights) in a certain way. Like other ethical propositions that claim acceptability under impartial scrutiny, there is an implicit presumption in making pronouncements on human rights that the cogency of the underlying ethical claims would survive open and informed scrutiny. This involves the invoking of an interactive process of critical scrutiny with open impartiality (including being open to information coming inter alia from other societies and to arguments coming from far as well as near), which allows disputations on the content and reach of putative human rights.*
A claim that a certain freedom is important enough to be seen as a human right is also a claim that reasoned scrutiny would sustain that judgement. Such sustaining may indeed take pla
ce in many cases, but not whenever such claims are made. Sometimes we may be quite close to a general agreement, without getting universal acceptance. The advocates of particular human rights can be involved in active work to get their basic ideas accepted as widely as possible. No one, of course, expects that there will be complete unanimity in what everyone in the world actually wants, and there is little hope that, say, a dedicated racist or sexist will be invariably reformed by the force of public
* See the earlier discussion of public reasoning and open impartiality in Chapters 1,
‘Reason and Objectivity’, 5, ‘Impartiality and Objectivity’, and 6, ‘Closed and Open Impartiality’.
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t h e i d e a o f j u s t i c e argument. What sustainability of a judgement demands is a general appreciation of the reach of reasoning in favour of those rights, if and when others try to scrutinize the claims on an impartial basis.
In practice we do not, of course, have any actual worldwide undertaking of public scrutiny of putative human rights. Actions are undertaken on the basis of a general belief that if such impartial scrutiny were to occur, the claims made would be sustained. In the absence of powerful contrary arguments coming from well-informed and reflective critics, a presumption of sustainability tends to be made.29 It is on that basis that many societies have introduced fresh human rights legislation and given power and voice to the advocates of human rights to particular freedoms, including non-discrimination between members of different races or between women and men, or the basic liberty to have reasonable freedom of speech. Advocates of the recognition of a wider class of human rights will tend, of course, to press for more, and the pursuit of human rights is understandably a continuing and interactive process.*