Sen. Elements of A Theory of Human Rights. 2004 PDF

Elements of a Theory of Human Rights Author(s): Amartya Sen Source: Philosophy & Public Affairs, Vol. 32, No.
4 (Autumn, 2004), pp. 315-356 Published by: Wiley Stable URL: http://www.jstor.org/stable/3557992 . Accessed: 01/05/2013 07:33
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AMARTYA SEN
of Elements ofa Theory HumanRights
I. THE NEED FOR A THEORY
invokedin contemporary Few conceptsare as frequently politicaldisin the Thereis something cussionsas human rights. deeplyattractive in theworld, ofcitizenship idea thatevery irrespective personanywhere which othersshould has some basic rights, or territorial legislation, of has been used for a variety The moral of human appeal rights respect. demandtorture and arbitrary incarceration to from resisting purposes, and ofmedicalneglect.' ingtheend ofhunger that idea ofhumanrights as something thecentral Atthesame time, seen is have even without and by anyspecific legislation, people have, A recurrent dubious and lackingin cogency. manyas foundationally It is notusuallydisputed do theserights come from? questionis,Where of humanrights can be politically thatthe invoking Rather, powerful. the worriesrelateto what is takento be the "softness" (some would of human rights. of the conceptualgrounding Many say "mushiness") as just see therhetoric ofhumanrights and legaltheorists philosophers
Lecture("WhyInvent versionof thisarticle servedas myGilbert An earlier Murray I am on 14 November 2002. For helpful Human Rights?") suggestions, givenin Oxford ofPhilosophy & PublicAffairs, and also to Catherine to theEditors particularly grateful IvanHare, SakikoFukudaParr, RosanneFlynn, JoMiles,Martha WillKymlicka, Barnard, Thomas Emma Rothschild, Onora O'Neill,Siddiq Osmani,MaryRobinson, Nussbaum, and RosieVaughan. Frances Stewart, Scanlon, Rosemary Thorpe, Sengupta, Arjun ed. Henry in Context: and Morals, HumanRights 1. See International J. Law,Politics Human Oxford Steiner and Philip Falk, 2000); Richard Alston Press, (NewYork: University in a Globalizing World ThePursuit Horizons: 2000); (NewYork: Routledge, of ustice Rights in Theory and Practice, 2nd ed. (Ithaca:Cornell Universal HumanRights Jack Donnelly, R.Ishay, Reader: TheHumanRights Press, 2003).See also Micheline MajorPolitUniversity and Documents ical Writings, (NewYork: fromtheBible to thePresent Essays, Speeches,
Routledge,1997).
Inc.Philosophy & PublicAffairs 32,no. 4 Publishing, ? 2004byBlackwell
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& PublicAffairs Philosophy
of locution-but and well meaningforms loose talk-perhaps kindly loose talknevertheless. use oftheidea ofhumanrights thewidespread The contrast between about its and the intellectual conceptualsoundnessis not skepticism in 1776, tookit to be "selfofIndependence, new.The U.S. Declaration with inalienis "endowed their Creator certain evident" thateveryone by French declaration of "the the able rights," and thirteen later, rights years free and equal inrights." "menarebornand remain ofman"asserted that Fallacies Benthamlong,in his Anarchical But it did not take Jeremy the French of and written (aimed 1792 1791 during against "rights man"), that ofall such claims.Bentham insisted to proposethetotaldismissal nonsense: natural and "natural is (an imprescriptible rights rights simple rhetorical nonsenseupon stilts."2 ThatsusAmerican nonsense, phrase), use of the idea and despitepersistent picionremains veryalivetoday, in practical thereare manywho see theidea of ofhumanrights affairs, of to use another as no morethan"bawling humanrights upon paper," ofnatural claims. Bentham's barbedportrayals right and is aimed is often The dismissalofhumanrights comprehensive of can have unconin existence that belief the rights people any against of their than virtue (rather humanity havingthem ditionally, simply by such as citizenship on thebasis ofspecific qualifications, contingently, Some critics, or legal entitlements). however, proposea discriminating from butexclude, idea ofhumanrights they acceptthegeneral rejection: the in particular classes ofproposedrights, theacceptablelist,specific These rights, or welfare so-called economic and social rights, rights. to as second generation such as a whichare sometimes referred rights, to subsistenceor to medical care, have mostly common entitlement to earlier ofhumanrights, enunciations been added relatively recently These the claimeddomain ofhumanrights.3 thereby vastly expanding
2. Jeremy Anarchical Fallacies;Beingan Examination Bentham, of oftheDeclaration in The Works Revolution IssuedduringtheFrench (1792);republished ofJeremy Rights vol.II, ed. J.Bowring Tait, 1843), William Bentham, (Edinburgh: p. 501. in Social and Labour as Foundational HumanRights," 3. See IvanHare,"SocialRights ed. Bob Hepple(Cambridge: in GlobalContext, 2002), Press, Cambridge University Rights in World and Social HumanRights andWilliam E Felice,TheGlobalNewDeal: Economic theRights & Littlefield, Politics (Lanham:Rowman 2003). See also Cass R. Sunstein, After State(Cambridge, Mass.:Harvard Revolution: the Press, University Reconceiving Regulatory and HumanRights: Cosmopolitan Poverty Responsi199o),and ThomasW Pogge,World bilities and Reforms Press, 2002). (London:Polity
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Elements ofHuman Rights ofa Theory
literature on human takenthe contemporary additionshave certainly that concendeclarations the well eighteenth-century beyond rights such demands ofman,"including class of"rights on a narrower trated have These newerinclusions and political freedom. as personalliberty withthecritics been subjectedto morespecializedskepticism, focusing on and their on theirfeasibility specificsocial dependence problems thatmayor maynotexist.4 institutions withsuch critiques. activists are often Humanrights quiteimpatient thosewho are from tendsto come mostly The invoking ofhumanrights it (to use a thaninterpreting theworldrather withchanging concerned thethat made famous, classicdistinction overarching by oddlyenough, to to understand their orist,KarlMarx). It is not hard unwillingness to provideconceptualjustification, giventhe great spend timetrying Thisproworld. around the to terrible to deprivations urgency respond immediallowed since it has activestancehas had itspractical rewards, to idea of human ate use of the colossal appeal of the rights confront thetheoto waitfor or great without intense misery, having oppression the conceptualdoubtsmustalso be satisretical air to clear.However, iftheidea ofhumanrights is to commandreasoned addressed, factorily and to establisha secure intellectual standing.It is critically loyalty between the forceand appeal of to see the relationship important and on the one hand, and theirreasonedjustification human rights, the other. on scrutinized use, ofany some defense need for some theory and also for Thereis,thus, and to conThe objectofthisarticle is to do justthat, proposedtheory. thejustification ofthegeneral idea ofhumanrights inthatcontext, sider, withinthe of economic and social rights and also of the includability it is necesviable For such a to be broad class ofhumanrights. theory ofhuman whatkindofa claimis made by a declaration saryto clarify howthe a claim can be and furthermore and how such defended, rights, of and ofthe coherence, diversecriticisms legitimacy human cogency
has been powerfully behindsuch rejection 4. The reasoning by Maurice presented
Towards and Virtue Press,1996).See also the Justice (Cambridge: Cambridge University diswhilestrongly some claimsto humanrights ofMichaelIgnatieff, supporting critique Princeton in HumanRights as Politics and Idolatry (Princeton: others, University puting
Press,2001).
Cranston, "Are There Any Human Rights?" Daedalus (1983): 1-17, and Onora O'Neill,
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rights (includingeconomic and social rights)can be adequately addressed. Thatis theaim ofthisarticle. I shouldmakea clarifibefore However, goingintothisinvestigation, is The rhetoric ofhumanrights sometimes appliedto parpoint. catory ticular Thereis clearly inspired bytheidea ofhumanrights. legislations no greatdifficulty in seeingthe obviousjudicialstatusofthesealready No matter whattheyare called ("humanrights legalizedentitlements. laws" or any otherappellation), theystand shoulderto shoulderwith on the foundations otherestablished The present legislations. inquiry and cogencyofhumanrights does not have anydirect bearingon the have been obviouslegalstatusofthese"humanrights laws,"once they if As far as these laws the are concerned, relevance, legislated. properly in the motivation would lie,rather, thatleads to the any,of thisstudy on the of such which builds of laws, pre-legislative standing enacting theseclaims. and legal conventions (such Indeed,a greatmanyacts oflegislation forthe Protection and as the "EuropeanConvention of Human Rights in a Fundamental havebeen clearly belief some Freedoms") inspired by ofall humanbeings.This applies even to the adoppre-existing rights linkedto the tion oftheU.S. Constitution, the BillofRights, including normative visionoftheU.S. Declaration ofIndependence(as was noted the statusand standingof earlier).The difficult questionsregarding arise in the domain of ideas, beforesuch legalization human rights is thepre-eminent, whether occurs. We also haveto examine legislation whichhumanrights can be pursued. or evena necessary, routethrough
II. QUESTIONS TO BE ANSWERED
A theoryof human rights must address the following questions in particular: of human rights does a declaration (1) Whatkind of a statement make?
(2) What makes human rightsimportant? (3) What duties and obligations do human rightsgenerate? (4) Throughwhat formsof actions can human rightsbe promoted, and in particularwhether legislation must be the principal, or even a necessary,means of implementationof human rights?
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(theso-calledsecondgeneration (5) Can economicand socialrights included human be rights? among rights) reasonably (6) Last but not least, how can proposals of human rightsbe status and howshouldtheir claimto a universal orchallenged, defended be assessed, especiallyin a worldwithmuch culturalvariationand diverse practice? widely inwhatfollows. Thesequestionsareaddressed However, sequentially I am perhapsallowedto giveaway a since thisis not a detective story, withthe hope thatthismight sketch ofthe proposedanswers, help in article and not this (even though uncomplicated entirely following long involvedin any summary there is some risk of oversimplification formulation). ethicaldemands.They can be seen as primarily (1) Human rights Even or commands. arenotprincipally "legal," "proto-legal" "ideal-legal" this is a and often human do, inspirelegislation, can, rights though characteristic ofhumanrights. thana constitutive further rather fact, ofthe to thesignificance ofhumanrights relates (2) The importance Boththe opporoftheserights. the subjectmatter thatform freedoms in human can figure aspect and the processaspect offreedoms tunity to be the freedoms To qualifyas the basis of human rights, rights. of (i) conditions" some "threshold defendedor advancedmustsatisfy and social (ii) influenceability. specialimportance reasonsforactionforagentswho are in (3) Human rights generate or safeguarding of the underlying a positionto help in the promoting involve the togivereaThe inducedobligations freedoms. duty primarily actionand their tothereasonsfor sonableconsideration implipractical of the individual into accountthe relevant cations,taking parameters as case. The reasonsforactioncan supportboth "perfect" obligations Even characterized. well as "imperfect" ones, whichare less precisely with are correlative in content, differ imperfect obligations they though In are. in muchthesame wayas perfect humanrights parobligations the acceptance of imperfect ticular, obligationsgoes beyond volunvirtues. or elective teeredcharity can go wellbeyondlegisofhumanrights (4) The implementation within confined cannotbe sensibly and a theory ofhumanrights lation, Forexample, incarcerated. thejuridicalmodel in whichit is frequently ofviolations) and agitation themonitoring (including publicrecognition
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can include significant and influenceable eco(5) Human rights Iftheycannotbe realizedbecause ofinadnomicand social freedoms. to workforinstitutional then, equate institutionalization, expansionor reform can be a partoftheobligations the of generated by recognition these rights. The current of human unrealizability any accepted right, whichcan be promoted or politicalchange,does institutional through thatclaimintoa non-right. convert not,byitself, of human rights relatesto the idea of surviv(6) The universality in unobstructed discussion-open to participation by persons ability is avoided not so much by across nationalboundaries.Partisanship a conjunction, either or an intersection, oftheviewsrespectively taking heldbydominant voicesin different societiesacrosstheworld(includin particuan interactive ones),butthrough repressive process, ingvery lar by examining what would survivein public discussion,given a and uncurbed opportunity to reasonablyfree flow of information view. discuss differing of Adam Smith's insistence that ethical points moralbeliefs inter disfrom, alia,"a certain requires scrutiny examining to global tance"has a direct on theconnection ofhumanrights bearing publicreasoning.
III. HUMAN RIGHTS: ETHICS AND LAw
Moral Subjectswas published in 1792).
can be part of the obligations-oftenimperfect-generated by the of human some human Also, acknowledgment recognized rights. rights are notideally butarebetter other means, legislated, promoted through includingpublic discussion,appraisal and advocacy (a basic point thatwould have come as no surprise to Mary whose A Wollstonecraft, Vindication with on Woman: Strictures Political and of the Rights of
Whatkindof an assertion does a declaration ofhumanrights make?I wouldsubmit that of human are to seen be as articproclamations rights ulationsofethicaldemands.Theyare,in thisrespect, comparablewith in utilitarian eventhough their subethics, pronouncements respective Likeother stantive contents different. ethicalclaims are,obviously, very
that demand acceptance, there is an implicit presumption in making thatthe underlying ethical claims will pronouncements on human rights survive open and informedscrutiny.Indeed, the invoking of such an
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Elements ofHumanRights ofa Theory
interactive (including processof critical scrutiny, open to information faras thatabout othersocieties)as well as to arguments from coming wellas near,is a central ofthetheory ofhumanrights feature proposed here.It differs both (i) from to justify the ethicsofhumanrights trying in terms of shared-and already established-universalvalues (the view),and (ii) from uncomplicated "non-partisan" anyclaim abdicating ofadherence to universal values(and in thissense,eschewing anyclaim that to being"non-partisan") in favor ofa particular conception political is suitableto thecontemporary world." Theseissues,which relate tothefoundational ofethicalcridiscipline will be in examined in Section to later, IX, response question (6). tique, Butthepointto notefor themoment, in answerto thefirst question,is that ofhumanrights are quintessentially ethicalarticpronouncements and theyare not,in particular, ulations, claims, despite putative legal considerableconfusion on this point,generatednot least by Jeremy theobsessiveslayer ofwhathe tookto be legalpretensions. (I Bentham, shall return laterin thissectionto the natureof the misapprehension involved.) A pronouncement of human rightsincludes an assertionof the ofthecorresponding freedoms-the freedoms thatare idenimportance tified and privileged in theformulation oftherights in question-and is of indeedmotivated Forexample, thehumanright bythatimportance. notbeingtortured from the of from freedom torture springs importance for all.Butitincludes, an affirmation oftheneed for others furthermore, to considerwhat theycan reasonably from do to secure the freedom torture for For a the is would-be demand torturer, obviously anyperson. towit, to refrain The demandtakesthe and desist. quitestraightforward, clearform ofwhatImmanuel Kantcalleda perfect However, obligation.6 for too (that others thanthewould-betorturers) thereare is,thoseother even less in the are and come responsibilities, thoughthey specific form of invoke another Kantian general "imperfect obligations"(to
variants ofthesetwocontrasting and also otheralter5. Thereare different positions, natives thatdiffer from whicharehelpfully in Charles discussedand distinguished both, "HumanRights as a Common American Political Science Review Beitz, Concern," 95 (June
2001): 269-82. Bobbs-Merrill, 1956).
6. ImmanuelKant,Critique Reason (1788), trans.L. W. Beck (New York: ofPractical
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demandnotto torture concept).'The perfectly specified anyoneis supthe more and less plemented by specified, requirement general, exactly to consider thewaysand meansthrough whichtorture can be prevented and thento decidewhatone should,thus,reasonably do. The relations betweenhumanrights, willbe further invesand obligations freedoms, in IV VI. Sections tigated through Even thoughrecognitions of human rights(withtheirassociated claimsand obligations) areethical need not,bythemaffirmations, they deliver a complete Anagreefor evaluative assessment. selves, blueprint menton humanrights to wit,to give does involvea firm commitment, to the duties that followfromthat ethical reasonable consideration on theseaffirmations, endorsement. Butevenwith there can agreement in thecase ofimperfect still be seriousdebates, particularly obligations, on (i) the ways in whichthe attention thatis owed to human rights shouldbe bestpaid, (ii) howthedifferent ofhumanrights should types be weighedagainst each other and their demands respective integrated should be consolidated (iii) how the claimsof human rights together, withotherevaluative concerns thatmayalso deserveethicalattention, and so on.8A theory ofhumanrights can leave roomfor further discusand The of sions, disputations arguments. approach open public whichis centralto the understanding of human rights as reasoning, settlesome disputesabout coverage proposed here,can definitively and content(including the identification of some clearlysustainable that and would be hard to others sustain),but may have to rights leave others,at least tentatively, The admissibility of a unsettled.9
7. I have discussed,in an earlierpaper,the relevanceof the Kantiandistinction framebetween and "imperfect" evenfora largely "perfect" consequentialist obligations work. Evaluation and Practical Journal Reason," 97 (2000): "Consequential ofPhilosophy 8. Some ofthecentral issuesare discussedbyJohn Mackie,"CanThereBe a Rightsbased Moral Studies inEthical Midwest Studies inPhilosophy 3,ed. Peter Theory?" Theory: in Theories A. French, et al. (Morris ofMinnesota, : University 1978). Reprinted ofRights, ed. Jeremy Oxford (Oxford: Waldron Press, 1984), pp. 168-81. University ofinterpersonal but also to 9. Thisappliesnotonlyto thepersistence disagreements, areas ofunresolved one person's own reasonedassessment. An within specific disputes ofrationality has tomakeroomfor such"incompleteness" ofassessment. adequatetheory The general ofincompleteness is discussedin myCollective issue ofadmissibility Choice and Social Welfare NorthAmsterdam: (San Francisco: 1970;republished, Holden-Day,
Holland, 1979); "Maximization and the Act of Choice," Econometrica 65 (1997): 745-80, 477-502.
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Elements ofa Theory ofHuman Rights
is no embarrassment to a theory ofhuman domainofcontinued dispute rights.'" In practical ofhumanrights, suchdebatesare,ofcourse, applications quitecommonand entirely customary, particularly amonghumanrights of such activists. What is being argued here is that the possibility of the importanceof debates-withoutlosing the basic recognition ofwhatcan be called humanrights humanrights-isnotjust a feature ofhumanrights are actually partofthegeneral discipline practice, they to theunderlying thanbeingan embarrassment (rather including theory of the necessityto pay ethical that discipline).An acknowledgment theneed for from such delibattention to humanrights, far obliterating allow it. A invites of human eration, can,therefore, actually theory rights ofthe internal without considerable variations, losingthecommonality of substantial to human rights agreedprinciple attaching importance and of to the freedoms and (and beingcomcorresponding obligations) should be appromitted to considering how that importance seriously reflected. priately it tendsto ofthiskindis notonlynot an embarrassment, Variability in ethics. all of substantive be standardly theories present general a can be found within ethics, Indeed, similar diversity utility-centered of thatlargeethicaldisciplineoftenreceives even thoughthisfeature In thecase ofutility-based variations little orno recognition. reasoning, in which can be intercan arisenotonlyfrom thedifferent utilities ways of or realization of fulfillment choices),"nor desires, (as pleasures, preted ofutilities themselves the acknowledged (well onlyfrom heterogeneity
in Rationality and Freedom Mass.:Harvard Press, 2002); reprinted University (Cambridge, and also "Incompleteness and ReasonedChoice,"Synthese 2004). See also (forthcoming Isaac Levi, Hard Choices:Decision Making under Unresolved (Cambridge: Conflict von Press,1986),and HilaryPutnam,"Ober die Rationalittit CambridgeUniversity inhis TheCollapseoftheFact/Value and Other theRationality ofPreferences," Dichotomy Mass.:Harvard 2002). Press, University Essays(Cambridge, "is a sign-the best as Jeremy aboutrights has argued, Waldron to. Also, disagreement See Law and circumstances-that seriously." possiblesignin modern people takerights
Press, 2001), p. 311. Disagreement(Oxford:OxfordUniversity
11. See Jeremy An Introduction to thePrinciples Bentham, ofMoralsand Legislation TheMethod Oxford: Clarendon (London: Press); 1789; Sidgwick, Henry Payne, republished, A. C. Pigou, The Economicsof Welfare (London: 1874); of Ethics(London:Macmillan, P Ramsey, Mathematics Foundations: MacMillan, 1920);Frank Logic, EssaysinPhilosophy,
Philosophie 21 (1996): 204-28, English version, "On AllgemeineZeitschriftfiir Priiferenzen,"
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and John Stuart Mill).12 recognized bybothAristotle Theycan also arise from thediversity ofwaysinwhich utilities can be used,whether bymere or bymultiplication suitablenormalization), or through addition, (after theadditionofconcavetransformations ofutility all ofwhich functions, have been proposedand pursued, within thediscipline ofutility-based thediscipline ofinterpersonal ofutilevaluation.13 Further, comparison itiesmayitself allowalternative of of utilities procedures quantification and go comfortably withaccommodating within variations permissible classes of "partial The existence of different specified comparability."l4 use ofutility-based alternative utilitarian and waysofmaking reasoning or does not invalidate even undermine the procedures general approach of utility-centered ethics.And,similarly, the ethicsof human rights is not nullified or thwarted by internalvariationsthat it allows and incorporates. ofhumanrights between articulations and utilitarThus,theanalogy ian pronouncements has considerableperspicacity, even thoughthe of modernutilitarianism, Bentham, greatfounder Jeremy managedto miss thatconnectionaltogether in his classic hatchetjob on natural in general and on the"rights ofman"in particular. Bentham took rights
and Economics M. Hare, and Reason(Oxford: Richard Freedom (London: 1978); Routledge, ClarendonPress,1963);J.C.B.Gosling, Pleasureand Desire (Oxford: ClarendonPress, Reasonsand Persons(Oxford: Clarendon 1969);DerekParfit, Press,1984);R. E. Goodin, in TheFoundations ed. Jon Elster and Preferences," ofSocial ChoiceTheory, "Laundering Aanund Press, James 1986), Griffin, Hylland Cambridge pp. 75-101; (Cambridge: University ClarendonPress,1986); JohnBroome,Weighing Goods (Oxford: (Oxford: Well-being contributions. Blackwell, 1991); amongmanyother 12. See Aristotle, TheNicomachean trans. David Ross,rev. ed. (Oxford: ClarenEthics, don Press, and John Stuart London: Mill,Utilitarianism (London, 1861; 1980), republished theissuesinvolved in "Plural Collins/Fontana, I havediscussed 1962). Utility," Proceedings
of theAristotelian Society81 (198o-81):193-215. 13. See JohnE Nash, "The BargainingProblem," Econometrica 18 (1950): 155-62; John
C. Harsanyi, "Cardinal Individualistic and Interpersonal of Ethics, Welfare, Comparisons "AnExploration A. Mirrlees, Journal 63 (1955): 309-21; James Utility," ofPolitical Economy oftheTheory ofOptimum Income Studies Review Taxation," 38 (1971): 175-208. ofEconomic inAmartya and Partial 14. Theseissuesarediscussed Sen,"Interpersonal Aggregation Mass.: Harvard (Oxford: 1982; Press, Blackwell, 1997); republished, Cambridge, University Charles ofCardinality andAggregate Partial Econometrica Blackorby, Orderings," "Degrees BenJ.Fine, "ANoteon 'Interpersonal and Partial 43 (1975): 845-52; ComparaAggregation Econometrica ed. Jon 169-72; 43 (1975): bility'," Interpersonal Comparisons ofWell-beings, Elster and John Roemer Press, 1991). (Cambridge: University Cambridge
Econometrica 38 (1970): 393-409, and Choice, Welfareand Measurement Comparability,"
325
the appropriate to be thatbetweenthe legal significance, comparison ofhumanrights, and (2) actually of: declarations (1) legisrespectively to be essentially lated rights. he found the former Not surprisingly, enough,would obviously lackingin legal statusin the way the latter, have.Bentham's dismissalofhumanrights came,thus,withamazingly swiftness. reallaws come the substantive is the childoflaw; from right, Right, "law ofnature"[can come realrights; butfrom laws,from imaginary only]"imaginary rights."'5 oftheidea ofnatural It is easy to see thatBentham's "rights rejection ofprivileged use of the of man" depends substantially on the rhetoric term of"rights," However, seeingitin itsspecifically legalinterpretation. ethicalclaims,the as humanrights are meantto be significant insofar do notbythemselves have legal or instituto thefactthatthey pointer butalso quiteirrelevant tionalforce is obviousenough, to thediscipline between: ofhumanrights.'6 The appropriate is,surely, comparison which ethics(championed himself), (1) a utility-based byBentham or in none in human sees intrinsic ethical utilities but importance rights in the utilitarian human freedoms role that the latter can have (any and instrumental), is,thus,entirely system of (2) an ethicsthatmakesroomforthe fundamental significance of man" did), linkedwitha human rights (as the advocatesof "rights of humanfreedoms and the obligadiagnosisofthe basic importance tionsgenerated bythatdiagnosis.'7
in Collected Anarchical vol. II, p. 523. Bentham, Fallacies, Works, 15. Jeremy a general contrast between therespective ofethical assertions 16. Accepting categories viewsmay does not,ofcourse, thatethical and legalpronouncements denythepossibility to theinterpretation thesubstantive oflaws.The recognicontribute content and,thus, tion of thatpossibility of law (on whichsee positivist theory maygo againsta strictly A Matter RonaldDworkin, Mass.:Harvard Press, 19851). [Cambridge, ofPrinciple University disThisunderstanding does not,however, the motivational and substantive obliterate tinction between ethical claimsand principally primarily legalproclamations. with ofrights and freedoms be combined can,ofcourse, 17. Theimportance incorpoofutility thesignificance orwell-being inethical butifsucha "combined" reasoning, rating is to be pursued, some consistency willhave to be facedin devising system problems a coherentand integrated social choice procedure;on this see Amartya Sen, "The
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as utilitarian ethical takestheform ofinsisting thatthe Just reasoning utilities ofthe relevant personsmustbe takenintoaccountin deciding on whatshouldbe done,thehumanrights approachdemandsthatthe human be must ethical (theform acknowledged rights given recognition and theinformational willbe discussedfurther basis ofthatrecognition in thenexttwosections). The relevant lies in thiscontrast, comparison not in differentiating the legal forceof legislatedrights(forwhich from Bentham's phrase"thechildoflaw" is an appropriate description) theabsence ofanylegalstanding of generated byan ethicalrecognition orlegalreinterpretation). (without Indeed,evenas rights anylegislation of"rights Bentham was busyin 1791 and 1792 downhis dismissal writing of man,"the reach and rangeof ethicalinterpretations of rights were beingpowerfully explored byThomasPaine'sRights ofMan,and byMary A Vindication Wollstonecraft's with Strictures on oftheRights ofWoman: Politicaland Moral Subjects, to both publishedduringthe period1791 to neither seemed arouse 1792(though Bentham's curiosity).'" An ethical understanding of human rightsgoes not only against seeing themas legal demands (and againsttakingthemto be, as in from a law-centered but also differs Bentham's view,legalpretensions), to human that as if sees them are approach rights they basically grounds forlaw,almost"lawsin waiting." Ethicaland legal rights do, ofcourse, have motivational celebratedarticle"Are connections.In a rightly ThereAnyNatural Herbert Hart has Rights?" arguedthatpeople "speak of theirmoralrights when theirincorporation in a advocating mainly He added thatthe concept of a right legal system." "belongsto that branchofmorality whichis specifically concernedto determine when one person's be limited and to freedom another's so determine by may whatactionsmayappropriately be made the subjectof coercivelegal
of a Paretian and Journal Liberal," 78 (1970):152-57, Impossibility ofPoliticalEconomy and Freedom Mass.:Harvard 2002),essays12-14 Press, (Cambridge, Rationality University and20-22.See also Robert State BasicBooks, and Utopia(NewYork: Nozick, 1974), Anarchy, and thespecialnumber & Kritik 18(1996) on "theLiberal ofAnalyse Paradox," particularly Kotaro and SocialChoiceProcedures," "Welfare, Suzumura, Rights pp. 20-37. 18. ThomasPaine,TheRights to Mr Burke's Attack on the ofMan: Beingan Answer French Revolution second part,Combining and Practice(1792);repub(1791); Principle lished, The Rightsof Man (London: Dent, and New York: Dutton, 1906). Mary A Vindication TheRights Wollstonecraft, ofWoman(1792); republished, of theRights of Woman Dutton, (London:Dent,and NewYork: 1929).
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Elements ofa Theory ofHumanRights
Whereas Bentham sawrights as a "child oflaw," Hart's viewtakes rules."'9 theform, in effect, ofseeingsome natural as of rights parents law: they motivate and inspire Hartdoes notmake specific legislations. Although reference whatever to human in his the reasoning article, any rights abouttheroleofnatural as inspiration for can be seen rights legislation to applyto theconceptofhumanrights as well.20 Therecan, in fact, be little doubt thatthe idea of moralrights can and has often served in as the basis of new It serve, practice, legislation. has frequently been utilized in thisway, and thisis indeedan important use ofhumanrights. is precisely thewaythediagnoThat,for example, sis ofinalienable was invoked in the U.S. ofIndepenDeclaration rights dence and reflected in Bill the of a route thathas subsequently Rights, been well-trodden in the legislative in the of manycountries history forlegislationis certainly one way in world.21Providing inspiration which the ethical force of human rightshas been constructively deployed. to acknowledge thatsuch a connectionexistsis not the However, same as taking therelevance ofhumanrights to lie exclusively in deterwhat should be made the of coercive mining "appropriately subject legal Itis important rules." to see that theidea ofhumanrights can be, and is, used in severalother are actually waysas well.Indeed,ifhumanrights seen as powerful moralclaims,indeed as "moralrights" (to use Hart's we have reasonforsome catholicity in considering phrase),thensurely different avenues forpromoting these claims. (This questionwill be and implepursuedin SectionVII.) The waysand means ofadvancing humanrights need not,thus, be confined new menting onlyto making laws (eventhough sometimes indeed turn out to be the legislation may to For and other activist rightway proceed). example, monitoring as Human Rights Watchor support,providedby such organizations
"Are ThereAnyNatural ThePhilosophical Review 19. H. L. A. Hart, 64 (1955), Rights?" in Theories ed. Jeremy Oxford (Oxford: Waldron Press, reprinted ofRights, 1984), University p. 79. 20. On thissee Maurice "Are There Cranston, AnyHumanRights?" 21. The framers oftheUniversal Declaration in 1948hoped,in fact, ofHumanRights thatthisdeclaration wouldserveas a template for billsofrights in different with nations, nationalcourtstaking a lead in their See MaryAnn Glendon's enforcement. wonderful accountofthatremarkable A World Made New:Eleanor Roosevelt and theUniverhistory, sal Declaration RandomHouse,2001). (NewYork: ofHumanRights
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orOXFAM orM6dicins International canthemSansFrontiers, Amnesty infact, be involved. contexts, rights.22 legislation maynot, In many
IV. RIGHTS,
FREEDOMS AND SOCIAL INFLUENCE
selves help to advance the effective reach of acknowledged human
arehuman ofhuman are Since declarations Why rights important? rights ethical oftheneedtopayappropriate affirmations attention tothesignificance offreedoms intheformulation ofhuman incorporated rights inthe lastsection), an appropriate must (aswasdiscussed starting point offreedoms be theimportance ofhuman to be so beings recognized. Note that while involve claims claims on others who rights (specifically, arein a position to makea difference), in contrast, areprifreedoms, oftheconditions characteristics ofpersons.23 marily descriptive from the importance of freedoms as the appropriate By starting human condition to concentrate, on which rather thanon utilities (as Bentham reasonnot onlyforcelebrating did),we get a motivating ourownrights in the and liberties, an interest butalso for ourtaking of freedoms not in desiretheir and others, significant just pleasures fulfillment on choosing insistence (as under utilitarianism). Bentham's as thebasis of ethical evaluation can be contrasted withthe utility reasons for I havediscussed instead on freedoms. elsewhere focusing those reasons areweighty andhowthe focus onfreedoms canavoid why someofthemajor in form of of on the pitfalls concentrating only utility ordesire can fulfillment. Forexample, theutilitarian calculus pleasure from suffer valuational distortions from theneglect ofsubresulting ofthose stantive butwho whoarechronically deprivation disadvantaged force of to in and take small mercies learn, circumstances, by pleasure
22. SincetheGilbert in November Lecture 2002, in whichthis Murray givenat Oxford was arranged article was one ofOXFAM's (Gilbert founders), originated, Murray byOXFAM itwas also a suitable ofhumanrights witha occasionto discussthisbroaderconnection ofwaysofpursuing them. plurality theethical offreedoms On force can help to generate claimson others. 23. However, different see between and evaluative concerns, aspectsofthe"entanglements" descriptive TheCollapseoftheFact/ValueDichotomy and Other Putnam, Hilary Essays(Cambridge, Mass.:Harvard 2002).See alsoWilliam VanOrmanQuine,"TwoDogmas, Press, University OfEmpiricism," inhisFrom a Logical Point Mass.:Harvard ofView University (Cambridge,
A Dictionary ed. John Eatwell, ofEconomics, Murray grave: Milgateand PeterNewman

(London: Macmillan, 1987),pp. 861-69.
Press, 1961),pp. 20-46, and Vivian Walsh, "Philosophy and Economics," in The New Pal-
329
down theirdesiresto "realistic proportions" get reconciledto cutting in the be not to deprived specialmetric particularly (thereby appearing ofpleasuresor desire-fulfillment).24 which to rights, issue ofdutiesrelated Before goingintothedifficult of the connection will be examinedin SectionVI, some exploration is necessary, to whichI devotetherestof and freedoms betweenrights and can varyin importance thissectionas wellas Section V. Freedoms social which can influenced of the extent be also interms to help. by they to count as a part of the evaluativesystemof human For a freedom that it clearlymust be important requiring enough to justify rights, to decidewhatthey to pay substantial attention shouldbe ready others ofplaua condition do to advanceit.Italso has to satisfy can reasonably such thatothers couldmakea material difference through taking sibility an interest. and of (i) importance conditions" Therehave to be some "threshold within a to the for freedom social (ii) interperfigure influenceability Insofar as the idea of ofhumanrights. sonal and interactive spectrum which I demands public discussionand engagement, human rights that and willfurther discussin SectionIX,the agreement notedearlier of a some specificfreedom would be soughtis not onlyon whether whatsoever (thatcondiparticular personhas any ethicalimportance and its its significance tion can be easy to satisfy), but also whether for inclusion the conditions meet threshold amongthe influenceability on whichthesociety shouldfocus. humanrights fora variety ofreasons,parconditions The threshold mayprevent, of human from ticularfreedoms subjectmatter beingan appropriate should to some it that To is not hard illustrate, importance rights. argue ofthefollowing freedoms: to all four be attached freedom notto be assaulted; (1) a person's a serioushealth medicalcarefor toreceive (2) herfreedom problem; whom nottobe calledup regularly (3) herfreedom byherneighbors she detests; to achievetranquillity. (4) herfreedom
can providea more robust framework of substantive freedoms 24. The evaluative havereasonto value.On thissee ofa person's to achievewhatthey appreciation inability 82 The DeweyLectures and Freedom: Journal 1984," ofPhilosophy my"Well-being, Agency
(1985): 169-220; Inequality Reexamined; and Development as Freedom (New York: Knopf, 1999).
330
eventhough in one wayor another, all four However, maybe important itis notaltogether to arguethatthefirst notto be (freedom implausible fora human right, and so is the assaulted)is a good subjectmatter second (freedom to receivenecessarymedical care),25 but the third not to be called up bydetestedneighbors) is not,in general, (freedom ofsocial significance to qualify important enoughto crossthethreshold as a humanright. thefourth, whilequitepossibly Also, imporextremely tant for theperson, is tooinward-looking-and toohardtobe influenced The exclusion for humanrights. byothers-to be a good subjectmatter of a "right to tranquillity" relatesnot to any skepticism about the possible importanceof tranquillity and the significance of a person's to free achieve but to the of it through it, being difficulty guaranteeing social help. Therecan be fruitful debateson thethresholds and their use, and in on whether a case of freedom meets the threshold particular specific ornot.Aswas briefly conditions discussedin Sections and III II (and will be further in SectionIX),suchdiscussions examined arepartofthedisThe analysesofthresholds, related bothto the ciplineofhumanrights. seriousnessand to the social influenceability of particular freedoms, cannotbuthave a significant in of the human place discipline rights.
ANDCAPABILITIES OPPORTUNITIES V. PROCESSES,
I turn nowtoa closer ofthecontents offreedom anditsmultiscrutiny I haveargued elsewhere that and "process" ple features. "opportunity" aretwo offreedom that with theimportance distinction, aspects require ofeachdeserving Anexample can helpto specific acknowledgment.26 out the not relevance bring separate (though necessarily independent) ofboth substantive andfreedom opportunities ofprocesses. Consider an adult letus callherRima, whodecides that she person, would like togooutintheevening. Totake careofsomeconsiderations
inthesecondcase (that tonecessary medical 25. However, is,theentitlement care),we shallhaveto discusswhether thistypeofa "welfare or moregenerally, economic right," and socialrights, can be seen as humanrights, and thisexamination willbe takenup in 26. See Rationality and Freedom Mass.: Harvard 2002), Press, (Cambridge, University Lectures and Social Choice")includedthere: ("Freedom particularly myArrow essays20
through22.
Section VIII.
331
thatare not central to theissues involved here (butwhichcould make thediscussion morecomplex), itis assumedthatthere are no particular in risks and that she has reflected involved her critically safety goingout, on thisdecisionandjudgedthat out would be the indeed sensible, going the ideal, thingto do. Now considerthe threatof a violationof this ifsome authoritarian freedom ofsociety decidethatshe must guardians not go out in theevening("itis mostunseemly"), and ifthey force her, in one wayor another, to stayindoors. To see thatthere are twodistinct issues involvedin this one violation, consideran alternative case in which theauthoritarian bossesdecidethat shemust-absolutely mustout are for the There is a go ("you expelled evening: just obey"). clearly offreedom violation Rimais beingforced to do exactly hereeventhough whatshewouldhavechosento do anyway, and thisis readily seen when we comparethetwoalternatives to go out" and "being "choosing freely forcedto go out." The latterinvolvesan immediateviolationof the on her since an actionis beingforced aspectofRima'sfreedom, process chosenalso). itis an actionshe wouldhave freely (eventhough The opportunity since a plausible aspect may also be affected, of can include accounting opportunities optionsand itcan inter having alia includevaluing free choice.However, ofthe opportutheviolation ifshe werenotonly and manifest nity aspectwouldbe moresubstantial forcedto do something chosen by another, but in fact,forcedto do she herself wouldnototherwise choose to do. The comparisomething son between"beingforced to go out" (whenshe would have gone out iffree)and, say,"beingforced to polishtheshoes of othersat anyway, whichis prihome" (not herfavorite out thiscontrast, brings activity) one of the rather than the aspect, processaspect.In marily opportunity Rima loses home the shoes of forced to and others, polish being stay in two different to (1) being forced freedom ways,relatedrespectively to do withno freedom of choice,and (2) being obligedin particular to she would not choose do.27 something A denial inhumanrights. Bothprocessesand opportunities can figure can be of"dueprocess"in being,say,imprisoned a propertrial without whattheoutcomeofthe thesubjectmatter ofhumanrights (no matter
of the opportunity 27. More complexfeatures aspect and the process aspect of freedoms are also discussedin myArrow Lectures("Freedomand Social Choice") in and Freedom, 22. Rationality essays20 through
332
of fairtrialmightbe), and so can be the denial of the opportunity without the dangerof or the opportunity of living medicaltreatment, whichthese beingassaulted (goingbeyondthe exactprocessthrough are made real). opportunities theidea of"capability" Forthe opportunity (that aspect offreedom, of human functo achievevaluable combinations is, the opportunity a helpful whata personis able todo orbe) can typically provide tionings: what she to between Itallowsus distinguish (1) approach.28 appropriately values doing or being,and (2) the means she has to achieve what the in particular, towards the former, she values.Byshifting attention, on resists an overconcentration (such means capability-based approach of as incomesand primary goods) thatcan be foundin some theories The capabilin theRawlsian Difference Principle). justice(for example, can have differcan the fact that two very ityapproach capture persons set the same entsubstantial even when have exactly opportunities they ofmeans:forexample, a disabledpersoncan do farless thanan ablebodied personcan, withexactly the same income and other"primary The disabled cannot, thus,be judged to be equally person goods." same the substantive opportunities-asthe person advantaged-with with same set ofmeans (such as without but the handicap anyphysical incomeand wealthand otherprimary perspecgoods). The capability a person has, not the tiveconcentrates on what actual opportunities the capability means overwhichshe has command.Moreparticularly, in the allows to take into account us parametric variability perspective therelation themeans,on theone hand,and theactualopporbetween on theother.29 tunities,
Lectures on see my"Equality ofWhat?"in Tanner 28. On the conceptof capability, HumanValues, vol.I, ed. Sterling M. McMurrin Press, University (Cambridge: Cambridge bilities edited with Martha and also,jointly Nussbaum, (Amsterdam: North-Holland, 1985), TheQuality The approachis powerfully Clarendon Press, 1993). developed ofLife(Oxford: The Capabilities and appliedby MarthaNussbaum, and Human Development: Women of theories 2000). See also therelated Press, Approach (Cambridge: University Cambridge ofOpporsubstantial and Equality Arneson, "Equality opportunities developed byRichard
tunityforWelfare," Philosophical Studies 56 (1989): 77-112;G. A. Cohen, "On the Currency and Salt Lake City:University ofUtah Press,1980),pp. 197-220,and Commoditiesand Capa-
Differencesin the Means versus Freedoms," Philosophy& Public Affairs 19 (1990): 111-21.
E. Roemer, ofEgalitarian Theories Ethics and John Justice," 99 (1989): 90o6-44; ofDistributive ustice contributors. Mass.:Harvard Press, 1996), (Cambridge, University amongothers ofthis for a theory ofjusticeis discussedin my"Justice: 29. Theimportance variability tofunction means(suchas primary can ariseevenwith thesamesetofpersonal capability
333
out theneed for can also help in bringing The capability perspective of individual valuational advantagesand adversitransparent scrutiny in be and weighted have to assessed since the ties, differentfunctionings different combiof to each other, and theopportunities having relation The richness ofthe also have to be evaluated."3 nationsoffunctionings includes its insistence thus, interpreted, broadly perspective capability for socialjudgments, on theneed foropen valuational scrutiny making of in well with the and inthissense,itfits importance publicreasoning.31 withburying theevalcontrasts valuation Thisopennessoftransparent uative exercisein some mechanical,and valuationally opaque, conincome to be the vention(forexample,by takingmarket-evaluated norindividual standard of invariable implicit thereby giving advantage, market determined to institutionally mative prices). priority
for to ofreasons, suchas (1)personal a variety (related, example, heterogeneities goods)for condidiversities to illness), or proneness (such as climatic (2) environmental disability, in local crime),(3) variations from threats tions,or varying epidemicdiseases or from or (4) ofpublichealth resources care,orsocialcohesion), (suchas thenature non-personal in others relative discussion, (wellillustrated vis-a-vis byAdamSmith's positions different one needs "to and otherresources of the factthatthe clothing the Wealth ofNations, wearand how shame"dependson whatother peoplestandardly appearinpublicwithout livein thatsociety). they typically rather seen as an advantage, exercise an explicit valuational is,thus, 30. The need for on this directions in different Forarguments ofthecapability thana limitation approach. EconomSen'sResources, R. Beitz, Valuesand Development," issue,see Charles "Amartya Interests ofLiving: "The Standard 2 (1986): 282-90; Bernard icsand Philosophy Williams, Hawthorn ed. Geoffrey in Amartya Sen et al., TheStandard and Capabilities," ofLiving, Sen, Inequality Press,1987),pp. 94-102;Amartya University Cambridge (Cambridge: ed. Nussbaumand in TheQuality and Well-being," and "Capability Reexamined, ofLife, in application. For a difference 31. The capability approachcan allowconsiderable and Capabilsee Martha different somewhat Function, "Nature, Nussbaum, perspective, inAncient Studies on Political Aristotle Distribution," SupplemenPhilosophy, Oxford ity: The Capabilities and Human Development: and Women Volume(1988), pp. 145-54, tary "listof an overarching ofidentifying Nussbaum has discussedtheimportance Approach. to join in a moreAristotelian withgivenpriorities, way.Myownreluctance capabilities," in seeinghowtheexact from listarisespartly sucha canonical thesearch for mydifficulty ofthecontext oftheir wouldbe chosenwithout lists andweights specification appropriate diminuto acceptanysubstantive a disinclination butalso from couldvary), use (which as I see it,helpsto ofcapabilities, The framework tionofthedomainofpublicreasoning. whichcan involve matter ofpublicreasoning, thesubject and illuminate epistemic clarify ones. It as wellas ethicaland political claimsofobjective issues (including importance) does not-and cannot-displacetheneed for publicreasoning.
Sen, pp. 31-53.
334
ofdescribing these been some seriouscriticism Therehas, however, live kind of life or another-as "freeone a substantive opportunities-to too doms,"and ithas been arguedthatthismakestheidea offreedom of in her and Forexample, inclusive. critique illuminating sympathetic to Susan Okinhas presented as Freedom, arguments myDevelopment She I the of "to overextend that tend freedom."32 concept argues: suggest orthefulfillment of "Itis hardto conceiveofsomehumanfunctionings, as freeand such as health and some needs nourishment, wants, good to everything the termuntilit seems to refer doms without stretching value to humanbeings"(p. 292). thatis ofcentral on how broadly the conceptof Thereis indeed scope forargument inOkin's considered shouldbe used.Buttheparticular freedom example of the idea based on a misinterpretation is, I think, counterargument It has not been of freedomunderlying the concept of capability. at all thata functioning (for example, beingin good healthor suggested of any kind.Rather, seen should be as freedom beingwell-nourished) in the form of capability, concentrates on the opportunity to freedom, inter offunctionings achievecombinations alia, the oppor(including, orin good health, as in thisparticular to be well-nourished case): tunity or not.A capability the thepersonisfreeto usethisopportunity reflects of functionings over which the person has alternative combinations ofeffective choice. freedom Itis,therefore, notbeingsuggested at all thatbeing well-nourished or in itself.33 in good healthis to be seen as a freedom as a kind Capability, to the extent to whichthe personis able to choose of freedom, refers interalia, such combinationsof functionings particular (including, what the as no matter well-nourished), person actually things being decides to choose. Mahatma Gandhi famouslydid not use that tobe well-fed whenhe choseto fast, as a protest the opportunity against
31 (2003): 280-316. On related issues see also Joshua Cohen, "Review ophy & Public Affairs of Sen's Inequality Reexamined,"Journalof Philosophy92 (1994): 275-88, esp. 278-80, and G. A. Cohen, "Review:AmartyaSen's Unequal World,"The New LeftReview (1995): 117-29, esp. 120-25.
and Gender: WhatCounts, Who'sHeard?" Philos32. SusanOkin, "Poverty, Well-being
The DeweyLecand Freedom: 33. I have discussedthisissue in "Well-being, Agency tures1984." It is also important to examinehow the conceptof "freedom" linkswitha defined which idea of"interest," underlies Raz'sreasoned Joseph "Rights broadly diagnosis: for actionintheinterest ofother See TheMorality ground requirement beings." ofFreedom
(Oxford:Clarendon Press, 1986),p. 18o.
335
oftheactualfunctioning of policiesoftheBritish Raj in India. In terms from Gandhi did not differ a the well-nourished, starving being fasting and opportunities had famine butthefreedoms victim, respectively they can diswerequitedifferent. to have be Thefreedom anyparticular thing Whata personis free tohave, from thatthing. actually having tinguished I haveargued, to a theory notjustwhathe orshe actually has,is relevant, A similar ofsubstanofjustice.34 pointcan be made abouttherelevance in a theory tivefreedoms ofhumanrights. in theworldseem to The factthatmanyoftheterrible deprivations a lack of freedom to avoid those deprivations than arise from (rather in the to be "indolent": a classic issue from choice,including choosing reasonto historical literature on poverty) is an important motivational for Thisled Marxto arguepassionately emphasizetheroleoffreedom. ofcircumstances and chance over theneed to replace"thedomination overchance and circumof individuals individuals by the domination of with its The idea freedom, compomanydistinct stances."35 general in relevant to normative social choice theory, seems particularly nents, is in The here the and to of particular. argument theory justice, general, of in human the normative foundations thatitcan also figure powerfully rights. of new To take a different typeof example,considerthe freedom theancestral America to conserve toWestEuropeor North immigrants fromtheircountriesof origin.This culturalcustoms and life-styles cannot be distinguishing adequatelyassessed without complexsubject A strong to do thatthing. and being between argufree doingsomething ofan immigrant's thefreedom in favor mentcan be constructed having butthismustnotbe seen ofherancestral toretain atleastparts life-style, whether in favor ofherpursuing herancestral as an argument life-style is the she chooses to do thisor not.The central issue,in thisargument, to the opportunity to choose how she should live,including freedom
in favor offocusing on achievedfunction34. G. A. Cohenhas presented arguments see his "On the than on capability; ings-relatedto his conceptof "midfare"-rather Resourcesand and "Equalityof What?On Welfare, of Egalitarian Justice," Currency See also Richard in TheQuality ed. Nussbaumand Sen,pp. 125-41. Capabilities," ofLife, Studies56 forWelfare," and Equalityof Opportunity Arneson, Philosophical "Equality withFriedrich 35. KarlMarx,The German Ideology, Engels,in Karl Marx: Selected Oxford ed. DavidMcLellan Press, (Oxford: 1977), University Writings, p. 190.
(1989): 77-112.
336
and itcannotbe turned intoan argument for customs, pursueancestral those in of the herspecifically customs particular, irrespective pursuing she has and thechoicesshe wouldmake."The importance alternatives to thisdistinction."3 ofcapability, is central opportunities, reflecting I have been concentrating on whatthecapability can do perspective in theimmediately fora theory ofjusticeor ofhumanrights preceding butI nowto turn to whatitcannotdo. Although theidea of discussion, in the assessment ofthe opportunity has considerable merit capability withthe process it cannotpossibly deal adequately aspect offreedom, since of individual of are characteristics freedom, capabilities aspect or and fall short of us about the fairness telling enough advantages, they to of the or about freedom of citizens the processesinvolved, equity invokeand utilize thatare equitable. procedures ofperspectives harsh Let me illustrate thecontrast witha somewhat is well It now established that care, example. fairly given symmetric womentendto livelonger thanmen. Ifone wereconcernedonlywith withequalityof the else), and in particular capabilities(and nothing to livelong,itwouldhavebeen possibleto construct an argucapability attention mentfor men more medical than women to counteract giving thenatural masculinehandicap.Butgiving womenless medicalattentionthan men forthe same healthproblemswould clearly violatean of process equity, and it seems reasonableto requirement important in cases ofthiskind, thatdemandsofequityin processfreedom argue, could sensibly override a single-minded on theopportuconcentration of capability (and the requirements nity aspect of freedom equalityin to emphasizetherelevance ofthecapaWhileitis important particular). injudging bility perspective people'ssubstantive opportunities (particua critical assessment of"multicultural36. Thoughthisis nottheoccasionto provide ism"as a socialpolicy, itis perhaps herethat worth there is a bigdifference between noting andtotheextent multiculturalism becauseoftheway, itenhances thefreethat, (1)valuing domsofthepeopleinvolved to chooseto liveas they wouldlike(and havereasonto like); and (2) valuing cultural focuses on thedescriptive characteristics of diversity perse,which a societalpattern, ofthepeopleinvolved. rather thanon thefreedoms is also central to therelationship between multiculturalism and gender 37. Capability Theimportant that SusanOkinasksin herjointbook,Is Multiculturalism equity. question Bad forWomen?, ed. J.Cohen,M. Howardand M. C. Nussbaum(Princeton, PrinceN.J.: tonUniversity on possibletensions to a greatextent, betweenmultiPress, turns, 1999), culturalism and the freedom of individualpersons (in this case, women) withina to freely and choosehowthey consider wouldlive. community
337
in comparison withalternative larly approachesthatfocuson incomes, or primary that or resources), point does not, in any way,go goods, the relevance also oftheprocessaspect of simultaneous againstseeing in a theory in a of of freedom or,forthatmatter, theory humanrights, justice. Relatedto thisissue,I shouldperhapstakethe opportunity here to in a misinterpretation oftheplace ofthecapability correct perspective ofjustice,or moregenerally an adequate a theory ofjustice.A theory ofnormative collective choice,has to be alivebothto thefairness theory of the processesinvolved and to the equityand efficiency of the substantive that can with thelatter, In opportunities people enjoy.38 dealing in can indeed a provide very helpful capability perspective, comparison concentration on "primary with, say,theRawlsian goods."Butcapabilthe sole for can serve as informational basis theotherconsidity hardly erations,relatedto processes,that must also be accommodatedin normative collective choicetheory. the differPerhapsthepointcan be seen mosteasilybyconsidering ofjustice.His"first ofjustice entcomponents ofRawls's theory principle" the priority ofliberty, involves and the first of the "second principart that"positions and ple" involves processfairness, through demanding theconcerns offices be open toall."Eventhough that lead Rawlstothese formulations can be dealtwithin different particular ways,not onlyin the way thatRawlshimself addressesthem,the forceand cogencyof these Rawlsianconcernscan neitherbe ignorednor be adequately addressedthrough base ofcapabilities.39 relying onlytheinformational In contrast, comesintoitsownin dealing withthe remaincapability viz."theDifference itsconderofthesecond principle, (with Principle"
whichis of concerns, 38. The plurality processesas well as opportunities, involving is disinvolved in normative collective choice (including theories ofjustice), inescapably cussed in my Collective Choiceand Social Welfare and (1970)and "Well-being, Agency a "capability-based I shouldmakeitabsolutely asserted that I propound ofjustice," theory accordclearthat thiscouldbe trueonlyintherather limited senseofnaming something or with,say,usingEnglandforGreatBritain, partof it (comparable ing to a principal Hollandfor theNetherlands). Choice and SocialWelfare, 9, and 39. See myCollective 5 through particularly chapters aremore andFreedom: TheDeweyLectures Theissuesinvolved 1984." "Well-being, Agency in myforthcoming bookFreedom and Justice, to be published addressed byHarvard fully Press. University
Freedom: The Dewey Lectures 1984,"Journalof Philosophy 82 (1985). Since I have seen it
338
centration on "primary thatRawlsreserved for goods").40The territory the accounting in of primary as used his Difference Principle, goods, would indeed be, I argue,better servedby the capability perspective. in anywaytherelevance Thatdoes not,however, oftherestof obliterate theterritory ofjustice, inwhich processconsiderations, including liberty and procedural The of same informational base figure. plurality equity, linkswiththe multiplicity of considerations thatcan be invokedin a Capabilitiesand the opportunity aspect of theoryof human rights. as they freedom, are,have to be supplemented important byconsiderationsoffair ofthe individual's processesand thelack ofviolation right to invoke and utilizethem.
VI. DUTIES,REASONABLE ANDIMPERFECT CONSIDERATION OBLIGATIONS
I turn nowfrom to correlative duties. We can,again,proceedfrom rights theimportance offreedoms and their different aspects.Sincefreedoms are important, people have reasonto ask whattheyshould do to help each otherin defending or promoting their freedoms. Since respective of the freedoms violation,or non-realization, underlying significant bad things to happen,even others are,in thisevaluative rights system, whoarenotthemselves for havea good responsible causingtheviolation reasonto consider whatthey shoulddo tohelp.41 themove Nevertheless, from which is a reasonforactionto help another person, easyto see in a consequence-sensitive ethical system,to an actual duty to give
in theRawlsian ofidentifying an inadequacy focuson 40. Itwas indeedin thecontext for distributional that theuse of Principle, equity, primary goodsintheDifference judging thecapability in my1979 was proposed Tanner as "EqualLectures, perspective published ofWhat?" In judging distributional thecapability also has,I ity perspective (198o). equity, overtheconcentration on whatRonaldDworkin calls "resources" in believe, advantages of Resources," "WhatIs Equality? Part2: Equality & PublicAffairs Philosophy lo (1981): Dworkin has recently thereis no substantial 185-243. arguedthaton one interpretation, and his focuson resources, difference between whileon another myfocuson capability he isjustright andI am plainwrong Virtue: TheTheory and Pracinterpretation, (Sovereign ticeofEquality[Cambridge, Mass.:Harvard thetemptaPress, 2000]). I resist University whichI mustconfess to join thatdebatein thisarticle. is fairly tion, strong, and reachof a consequence-sensitive forthistypeof framework 41. The rationale in myessays"Rights and Agency," ethical havebeen investigated & reasoning Philosophy and "Consequential and Practical Evaluation Journal Reason," 126-45, 97 ofPhilosophy
(2000).
Public Affairs 11(1982): 3-39, "Positional Objectivity," 22 (1993): Philosophy& Public Affairs
339
to undertaking such an actionmight reasonableconsideration appear, to be a rather at leastat first sight, gigantic jump. The difference that sense of distanceis largelyillusory. However, in were if the an immense escalation wouldindeedinvolve duty question to a possibleaction,but an reasonableconsideration not one ofgiving that action, no matterwhat other absolute obligationto undertake commitments one has reasontoconsider. valuesone has and whatother action-is not only Butthatwayofseeingone'sduties-as compulsory ofreasonsforaction,butit theacknowledgment at some distancefrom Thereare manyfine and even internal coherence. also lacks cogency, butitwouldtypically each ofwhicha reasonforactionexists, deeds for ofall thosedeeds.Thereis a need outthetotality be impossible to carry in the way the and fordiscrimination forthe assessmentof priorities be followed to reasonable consideration up by may obligation give sensiblechoicesofaction. to To accept thatone has a dutyto give reasonableconsideration to tie oneself up in manydifferent typesofactionsis notan agreement in the context to And it is knots. important present hopeless particularly the the not to into a converse: determination get pandemoemphasize is not a groundfordenying thatone does niumofpractical reasoning to whatone can sensibly have a dutyto givereasonableconsideration freeand influenceable therights, and theunderlying do for significant would vary The demandsofreasonableconsideration doms,ofothers. witha great thatmaybe relevant to a person's practimanyparameters freedoms thatcertain theacknowledgment cal reasoning.42 Eventhough an assessment oftheir reflects as humanrights general already qualify in Section and their (discussed IV), possibleinfluenceability importance intomorespecific features a personhas to go beyondthesepervasive in giving to whathe or she,in circumstances reasonableconsideration in should do a case. specific particular, the freedoms The personhas to judge,forexample,how important with other claimson the areinthecase in questioncompared and rights but also otherrights and freedoms, possibleactions(involving person's
feature of rational variations is a general 42. Makingadequate roomforparametric I have disin particular. and not a characteristic assessment, onlyof ethicalreasoning and Freedom Mass.:Harvard cussedthis issueinRationality Press, University (Cambridge,
2002), essays 1 through5.
340
different concernsthat a person may,interalia, sensibly altogether the personhas to judge the extent to whichhe or have). Furthermore, she can make a difference in thiscase, eitheractingalone or in conwithothers. Itwillbe relevant whatothers also to consider can junction be expectedto do, and the appropriateness of how the requiredsupportiveactionsmay be sharedamong possible agents.A greatmany considerations of these and otherkindswill inescapably parametric in the reasoned evaluation ofwhata personshoulddo, evenafter figure theneed to undertake suchan evaluation has been fully accepted.Also, on whatone shoulddo is itself timeconsuming sincedetailedreflection for undertaken all theillsoftheworld), the (and cannotevenbe actually in of will a reasonable consideration transnot, duty great manycases, late intoan obligation to takeon an elaboratescrutiny-only a willingwhenitseems relevant ness to do justthat, and appropriate. ofobligations in relation to therights and freedoms The recognition of all human beingsneed not,thus,be translated intopreposterously of demandingcommands.And yet,despitethe parametric variability the reach and forceof reasonableconsideration, the requirement to is notbyanymeansvacuous.The basic general givesuchconsideration is one be willing to consider that must what one obligation seriously shouldreasonably noteoftherelevant ofthecases do,taking parameters involved. The necessity to ask thatquestion(rather thanproceeding on the assumption thatwe owe nothing to others, unlesswe have actually of a more comprehensive harmedthem)can be the beginning line of ethicalreasoning.43 The territory ofhumanrights firmly belongsthere. The reasoning end there. Givenone'slimited abilities cannot,however, and reach,and theneed for different of priorities involving types obligationsas wellas thedemandsofother moralconcerns, there are serious ofpractical exercises to be undertaken, in whichone'svarious reasoning inan explicit mustfigure, "imperfect obligations (including obligations") or implicit form. The recognition of humanrights is not an insistence thateveryone risestohelpprevent ofevery violation humanright no everywhere every matter whereitoccurs.It is,rather, an acknowledgment thatifone is in
a plausible position to do somethingeffective in preventing the violation
ofthat is powerfully discussed 43. Thecentrality question general byThomasScanlon, What WeOwe toEach Other Mass.:Harvard Press, 1998). University (Cambridge,
341
ofsuch a right, thenone does have an obligation to considerdoingjust that.It is stillpossiblethatotherobligations or non-obligational concernsmayoverwhelm thereasonforthe particular actionin question, butthatreasoncannotbe simply brushedawayas being"noneofone's business."Looselyspecified mustnot be confused withno obligations at all. as was mentioned to the Rather, earlier, they obligations belong, of that duties Immanuel Kant called important category "imperfect (and to whichhe attachedgreat importance). obligations" Itis to be notedthat, in thisunderstanding, are imperfect obligations that ethical stretch delineated "the duties, requirements beyondthefully thatspecific perfect obligations," personsmayhaveto perform particularacts.Theyinvolve thedemandthatseriousconsideration be given by anyonein a positionto providereasonablehelp to the personwhose humanright is threatened. correThese "imperfect obligations" firmly late,in the same way as fully do, specified"perfect obligations" with ofrights. the recognition The difference lies in the natureand form of the obligations, not in the generalcorrespondence betweenrights and whichapplyin thesame wayto imperfect as wellas perfect obligations, obligations. Itmaybe useful to illustrate, witha concrete thedistinction example, in kindsofobligations betweendifferent differences that, despitetheir in a similar relate Consider a real-life case content, wayto humanrights. in Queens,NewYork, in 1964, whena woman,Kitty thatoccurred Genin view was assaulted full of others the ovese, fatally many watching their who did nothing eventfrom to helpher.It is plausible apartments, whichare distinct to arguethatthree terrible but happenedhere, things interrelated: freedom-andright-notto be assaultedand killed (1) thewoman's in thiscase); was violated(thisis clearly theprincipal nastiness violatedthe immunity thatanyoneshould have (2) the murderer ofa "perfect and (a violation againstassaultand killing obligation"); whatever to help the victimalso (3) the otherswho did nothing theirgeneral-and "imperfect"-obligation to seriously transgressed to consider thehelpwhichthey couldreasonably be expected providing
provide. These distinct failings bring out a complex pattern of rights-duties correspondence in a structuredethics, which can help to explicate the
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framework ofhumanrights, whichyields as wellas evaluative imperfect perfect obligations.44 The presumedprecisionof legal rightsis oftencontrastedwith in theethicalclaimsofhumanrights. Thisconinescapableambiguities forethicalclaims, is notin itself a greatembarrassment however, trast, of since a ofnormathose framework imperfect obligations, including thatcannotbe easilyaccomtivereasoning can sensibly allowvariations As Aristotle in modatedin fully remarked specified legalrequirements. in each class of theNicomachean we have "tolook forprecision Ethics, so the of far as nature the admits."45 subject things just in thelaws ofsome countries, is evena As ithappens,however, there which can have extreme for precision, providing legal demand, hardly For example, in Francethereis provireasonablehelp to third parties. in thefailure sion for "criminal ofomissions" to provide reasonliability from of Not able helpto others suffering particular types transgressions. in of laws have the such application provedto surprisingly, ambiguities be quitelargeand havebeen thesubjectofconsiderable legaldiscussion in recent ofdutiesofthistype, in ethics The ambiguity whether years.46 to escape ifthird-party or in law,wouldbe difficult of obligations others in generalare givensome room,and this cannot be avoided foran ofhumanrights. adequate theory
AND LEGISLATION VII. RECOGNITION,AGITATION
Whilethepreceding with has been concerned reasonable giving analysis that in defendconsideration to actionsingeneral people can undertake it of or the human of is the others, ing advancing rights legislation humanrights, with their that to has tended institutionalization, along
I do notgo intothedistinction between and agent44. In thisanalysis agent-specific The present line ofcharacterization can be further neutral moralevaluations. extended I havetried inwaysthat roomfor toinvesassessments, making "position specific" through in "Rights andAgency," and "Positional tigate Objectivity." ofinescapable within a framework ofrational assess45. Theadmissibility ambiguities
ment is discussed in my "InternalConsistencyof Choice," Econometrica61 (1993): 495-521,
and "Maximization and theActofChoice," Econometrica bothreprinted 65 (1997): 745-79, inRationality and Freedom. See also Inequality Reexamined, 131-35. pp. 46-49, Andrew Ashworth and Eva Steiner, "Criminal Omissionsand 46. See, forexample,
Public Duties: The French Experience,"Legal Studies to (1990): 153-64; GlanvilleWilliams, "CriminalOmissions: The ConventionalView,"Law Quarterly Review 107 (1991):86-98.
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receivethe lion'sshareofattention in the theoretical in this literature It is thislegislative field. outlook thathas also been firmly incorporated in much of the institutional ofhuman rights. However, understanding while legislation is an important domain of public action,thereare other and often in effective waysand means whichare also important the cause of human advancing recognized rights. underwhatcan be called the"recognition route"(to be distinFirst, from the there is but not route"), guished "legislative acknowledgment or institutional enforcement of a class of necessarily any legalization claims that are seen as fundamental human rights.47 The Universal Declaration ofHumanRights, sponsored bytheUnitedNationsin 1948, whichwas perhaps the most important move that promotedglobal activities on humanrights in thelastcentury, fallssolidly intothiscateas was discussedearlier, oftheDeclaratheframers gory(eventhough, tion had also hoped that it would lead to specificbills of rights in different there has been a of other countries). Subsequently, sequence international oftenthrough the United Nations,giving declarations, rather thana legal and coercivestatus, to variousgeneral recognition, on the Right to Development," demands,forexamplethe"Declaration in This is motivated the idea thattheethical signed 1986.48 approach by force ofhumanrights is made morepowerful in practice through giving itsocialrecognition and an acknowledged evenwhenno enforcestatus, mentis instituted. A secondlineofadvancegoes beyondrecognition to activeagitation. Therecan be organized basic compliancewithcertain advocacyurging claimsofall humanbeingsthatareseen as humanrights, and there can
47. As CharlesBeitzhas pointedout,humanrights play"therole of a moraltouchstone-a standard of assessment and criticism fordomesticinstitutions, a standard of for their and increasingly a standard ofevaluation for thepoliciesand reform, aspiration ofinternational economicand political See "HumanRights as a practices organizations." ofthecontent oftheright to development havebeen presented in United 48. Analyses NationsDevelopment HumanDevelopment 2000 (NewYork: United Programme, Report to Food, Health, and Education," mimeoNations, 2000); S. R. Osmani,"HumanRights UNDP and theUniversity ofUlster, 2ooo; Arjun graphed, "Development Policy Sengupta, and the Right to Development," Frontline, 7-March2, 2001;ArjunSengupta, February Asborn andBArd Anders "TheRight toDevelopment and Marks, Eide,Stephen Andreassen, HumanRights in Development," at theNobelSymposium in Oslo on Right to presented
Development, October 2003. Common Concern," p. 269.
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also be monitoring and attempts ofviolations oftheserights to generate effective social pressure. The global NGOs have increasingly been involvedin advancinghuman rights, and discussion public through on the one and and on hand, violations, support, publicizing criticizing theother. Theseefforts havecomenotonly from dedicated humanrights such as Human Watch and International, organizations, Rights Amnesty broaderorganizations, but also from such as OXFAM, M6dicinsSans the Red Save the Action Aid. and The rights Cross, Children, Frontibrs, in this"agitation invoked route" mayormaynothave anylegalstatusin in question, the country but advocacyand supportare not necessarily rendered useless by the absence of legal backing.49 even Furthermore, humanrights whensome identified havelegalstatus, good enforcement oftherelevant whichis to legislation mayalso call forpublicactivism, be distinguished from theprocessoflegislation itself. Thethird that of"legislation." Aswas discussed approachis,ofcourse, in SectionIII, eventhough mustnotbe seen theethicsofhumanrights as "parents" of"humanrights the case that laws,"it is certainly merely havebeen encouraged or inspired manysuchlegislations byconsiderationsofhumanrights. Manyactuallaws have been enactedbyindividor byassociations ofstates, whichgave legalforce ual states, to certain seen as basic humanrights. Forexample, theEuropeanCourtof rights HumanRights, established in 1950following theEuropeanConvention, can considercases brought fromthe signatory states by individuals violations of human This has been bythe against rights. supplemented Human Rights Actof1998, aimed at incorporating the main provisions oftheEuropeanConvention intodomesticlaw,withan overseeing role of the EuropeanCourtto see "just satisfaction" of these provisions in
thatevenwhentheagents in activist of involved 49. Itis also worth promotion noting humanrights do nothaveanyspeciallegalstatus, to politcan still makea difference they the use of existing with ical,social and administrative laws,combined practice through and critical unlike debates.Forexample, theIndianand South publicdisclosures seeking African HumanRights which intherespective arerecognized national Commissions, laws, thePakistan HumanRights is basically thevisionCommission justan NGO,andyetunder ofAsmaJahangir, and others, it has been I. A. Rehman, aryand courageous leadership inidentifying effective andresisting and indefendviolations ofhumanrights, remarkably women.Fora good minorities and ill-treated ingvulnerable persons, including religious discussionof some of thesesupportive see TheStateofHuman Rights, 2001 activities, HumanRights ofPakistan, Commission (Lahore: 2002).
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Elements ofHumanRights ofa Theory
different domestic Manyotherexamplescan be givenfrom judgments. use. much had active route" has The of the world. "legislative parts ofthe domain the about Thereis an interesting appropriate question I to would route.It would be a mistake, argue, presumein legislative thenit mustbe ideal to legis important, thatifa humanright general For example,recognizing islateit into a precisely specified legal right. moralright to be consultedin family a wife's and defending decisions, well be sexistsociety, even in a traditionally important, extremely may as needed to qualify conditions thethreshold and can plausibly satisfy who emphaAndyettheadvocatesofthishumanright, a humanright.50 can quite ethicaland politicalrelevance, itsfar-reaching size,correctly, this human to make it is not sensible that into,in right agree possibly a "coercive Hart'slanguage, Herbert legal rule"(perhapswiththeresult his ifhe wereto failto consult in custody thata husbandwouldbe taken in about other would have to be wife).The necessary brought change ofcommunication, advocacy, exposure ways.Because oftheimportance and informed public discussion,human rightscan have influence on coercive without legislation. necessarily depending whichcan easilybe seen moral the or entitlement, political Similarly, slowspeakernotto be snubbedin an ofa somewhat as a humanright, articulate maywellbe imporsprinter bya rudely open publicmeeting and for oftheleisurely theself-respect tant bothfor publicgood, speaker The proto be a good subjectfor butitis notlikely punitive legislation. The would have to be soughtelsewhere. tectionof thathuman right does not reston seeing of the human rights effectiveness perspective as putative theminvariably legislation.5" proposalsfor
VIII. ECONOMIC AND SOCIAL RIGHTS
aimed against that have been particularly I turnnow to criticisms and social economic include human to of the idea rights extending to basic education or the not to be as the such right hungry, right rights, in the did not figure Eventhoughtheserights or to medicalattention.
is disinfamily decisions ofwoman's and socialreach participation 50. Theimportance and SocialChange." ch. 8, "Women's as Freedom, cussedin myDevelopment Agency A Vinsee Mary ofa muchbroader Wollstonecraft, 51. Foran early approach, advocacy and MoralSubjects with Strictures on Political dication (1792). ofWoman: oftheRights
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ofrights classicpresentations ofhumanbeingsin,say,theU.S. Declaraofman,"theyare very much a tionofIndependence, or French "rights of of what calls the the domain Cass Sunstein part contemporary "rights Thelegitimacy ofincluding theseclaimswithin thegeneral revolution."52 class ofhumanrights has been challenged twospecific linesof through theinstitutionalization whichI shallcall,respectively, reproach, critique and thefeasibility critique. The institutionalization whichis aimed particularly at ecocritique, nomicand social rights, relatesto the generalissue ofthe exactcorreauthentic and precisely formulated correlate spondencebetween rights itis argued, when duties. a right Sucha correspondence, wouldexist only is institutionalized. Onora O'Neill has presentedthisline of criticism withforce: much writing and rhetoric on rights proheedlessly Unfortunately claims universalrightsto goods and services,and in particular as well as to othersocial, economic and cultural "welfare rights," in international thatareprominent Charters and Declarations, rights without what connects each to some presumed right-holder showing leaves the content of these which supspecific obligation-bearer(s), posed rights whollyobscure.... Some advocates of universalecothanto emphasizethat nomic,social and cultural rights go no further be which is true. But thepointofdifference can institutionalized, they is that if is no right.53 must be institutionalized: are they they notthere In responding we have to invokethe to this significant criticism, can be bothperfect that discussed, understanding, obligations already and imperfect. Eventheclassical"first likefreedom generational" rights, on as from assault,can be seen as yielding imperfect obligations others, was illustrated with theexampleofthecase ofassaulton Kitty Genovese in publicviewinNewYork. on ecoinstitutional possibilities, Depending nomicand socialrights call for and both maysimilarly perfect imperfect Thereis a largearea offruitful publicdiscussionand possiobligations. whatthe societyand the state,even pressure, concerning blyeffective
theRights Revolution: theRegulatory State. 52. Sunstein, After Reconceiving and Virtue, See also herBoundsofJustice Justice 53. OnoraO'Neill,Towards pp. 131-32. Press, 2000). University (Cambridge: Cambridge
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an impoverished violations ofcertain basic ecoone,can do to prevent nomicor social rights the of (associatedwith, prevalence famines, say, or chronic absence of or medical care). undernourishment, the activities of social are often Indeed, supportive organizations at institutional aimedprecisely can be seen change,and theseactivities as partof imperfect that individuals and obligations groupshave in a where basic are violated. Onora O'Neill is right to human society rights the of institutions for the of realization "welfare emphasize importance in general),but the (and even foreconomic and social rights rights" ethicalsignificance of these rights providegood groundsforseeking realizationthrough This can be institutional expansion and reform. a of and agihelpedthrough variety approaches, including demanding and the supplementation of legal tatingfor appropriate legislation, To denythe demands by politicalrecognition and social monitoring. thereasoning ethical status oftheseclaimswouldbe to ignore motithat vatestheseconstructive activities. Thefeasibility theargument that evenwith the critique proceedsfrom bestofefforts, to arrange therealization itmaynotbe feasible ofmany oftheallegedeconomicand social rights forall. Thiswould have been an some ofitsown),butitis made observation interest (of only empirical intoan allegedly criticism ofthe acceptanceoftheseclaimed powerful on thebasis ofthepresumption, thatrecogundefended, rights largely nizedhumanrights ofnecessity, be wholly Ifthis must, accomplishable. would were that have the effect of presumption accepted immediately outsidethedomain manyso-calledeconomicand social rights putting ofpossiblehumanrights, in thepoorersocieties. especially MauriceCranston the thus: puts argument The traditional to institute. are not difficult politicaland civilrights Forthemostpart,they and otherpeople genrequire governments, to leave a manalone. ... The problems posed byclaimsto ecoerally, nomicand socialrights, How are of another order however, altogether. can governments of thosepartsofAsia,Africa, and SouthAmerica, has hardly whereindustrialization called upon begun,be reasonably to provide and holidays withpayfor millions socialsecurity ofpeople
"Are There 54. Cranston, HumanRights?" Any p. 13.
who inhabit those places and multiplyso swiftly?"4
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we have to ask:whyshouldcomplete In assessingthisline ofrejection, whentheobjective a of ofhumanrights be condition cogency feasibility if necessary is to work towardsenhancingtheiractual realization, that The their feasibility? understanding some rights expanding through underpresent realizable and maynotevenbe fully arenotfully realized, that liketheconclusion entailanything does not,initself, circumstances, not rights at all."55 that theseare,therefore, Rather, sugunderstanding the prevailing circumstances changing geststhe need to worktowards and ultimately, to maketheunrealized realizable, rights realized.56 is offeasibility in that the this context Itis also worth question noting more wideit is a much to economicand socialrights notconfined only; thata to guarantee Evenfor liberties and autonomies, spreadproblem. is simpleto guarseems to think alone,"whichCranston personis "left Thatelementary been particularly fact, antee,has never easilyseen easy. since Sepat least cannot but be rather now, clearly recognized always, of tember11,2001 (and more recentevents).If the current feasibility weremade into fulfillment completeand comprehensive guaranteeing for ofevery thennotonlyecocondition thecogency a necessary right, autonomiesand even politibut also liberties, nomicand social rights, far of well fall short cal rights cogency. may REASONING IX. THEREACH OFPUBLIC and assess ofclaimsto humanrights Howcan we judgetheacceptability the challengestheymay face?How would such a disputation-or a defense-proceed? I would argue that like the assessmentof other mustbe some testofopen and informed ethicalclaims,there scrutiny,
thefamiliar to invoke I wouldargue, itwouldbe a misapplication 55. Forthisreason, realizable cannot arenotyetfully can"to suggest that claimsthat "ought implies principle ofsomeclaimsis also a demandto conat all.To see theethical force be taken tobe rights forthe forexamplethrough siderwhatone shoulddo to makethemrealizable, working ofnewinstitutions. development ofhuman to whatCharlesBeitzcallsthe"practical 56. Thiscorresponds conception" thatfailto is a humanright is to say thatsocial institutions "To say something rights: efforts to aid or that"international are defective" withthe implication theright protect and in some cases maybe morally reform are legitimate ("Human required." promote and theDistant in TheEthics and theLawofPeoples," Morality Needy Rights ofAssistance: ed. Deen Chatterjee 2004], Press, p. 210.See also Henry [Cambridge: Cambridge University Princeton and U.S. Foreign Shue,Basic Rights: Subsistence, Policy[Princeton: Affluence,
Press, 1980; 2nd ed., 1996].) University
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to proceedto a thatwe have to lookin order and itis to such a scrutiny The statusoftheseethicalclaimsmustbe disavowalor an affirmation. on theirsurvivability in unobstructed discusdependentultimately linked with what sion." In thissense,theviability ofhumanrights is John Rawlshas called"publicreasoning" and itsrolein "ethical objectivity."58 betweenpublicreasoning and the formulaIndeed,the connection to tionand use ofhumanrights is extremely important understand. Any thatthese ethicalclaims,or theirdenials,have is generalplausibility when they on thistheory, on their survival and flourishing dependent, and scrutiny, encounter unobstructed discussion alongwithadequately wide informational of a claim fora human right The force availability. ifitwerepossibleto showthattheyare undermined wouldbe seriously to survive But contrary to a commonly open public scrutiny. unlikely and rejection, the case forhuman rights offered reasonforskepticism to thefact(evenwhenthatis the cannotbe discarded simply bypointing whichdo not in that and case) regimes, politically sociallyrepressive are nottaken allowopen publicdiscussion, manyofthesehumanrights is for dismissalas at all. critical essential Uncurbed seriously scrutiny Evenas faras use is concerned, thefactthatmoniwellas fordefense. and of"naming ofviolations ofhumanrights and theprocedure toring the violators on the (at least in putting shaming"can be so effective is some indication of the reach of public reasoningwhen defensive) areallowedrather information becomesavailableand ethical arguments thansuppressed. itis important notto confine thedomainofpublicreasonHowever, in view in a the case ofhumanrights, to only, ing society especially given are meant which oftheinescapably nature of these non-parochial rights, Thisis in contrast Rawls's with to applyto all humanbeings. inclination,
on insistence has a largely thevery thisrequirement form, 57. Eventhough procedural an acceptanceofequality, from no one is excluded involves which open publicdiscussion On thesubalso forthecontent ofthedeliberation. whichhas substantive implications and Substance stantive see Joshua Cohen,"Procedure democracy, aspectsofdeliberative inDeliberative inDemocracy the Boundaries and Difference: ofthe Contesting Democracy," Princeton ed. SeylaBenhabib(Princeton: Press, Political, 1996), pp. 95-119. University A Theory Mass.:Harvard Press, 1971), Rawls, 58. John University (Cambridge, of]ustice On and Political ColumbiaUniversity Liberalism Press, 1993), (NewYork: esp. pp. 110-13. and Disagreesee also Amy Guttman and DennisThompson, related matters, Democracy and Difference, and Democracy ment(Cambridge, Mass.:Harvard Press, 1996), University ed. SeylaBenhabib.
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in his later to limit such publicconfrontation within works, particularly theboundaries ofeach particular nation(oreach "people," as Rawlscalls thisregional for whatwouldbe just,at leastin collectivity), determining domesticaffairs.59 We can demand,on thecontrary, thatthediscussion even fordomestic include, justice(ifonlyto avoid parochialprejudices and also to examinea broaderrangeofcounterarguments), viewsalso from "a certain The necessity ofthiswas powerfully distance." identified Adam Smith: by ourown sentiments We can neversurvey and motives, we can never form we unless remove as them; ourselves, anyjudgment concerning itwere, from and to view ourownnatural endeavour them as station, at a certain distance from us. Butwe can do thisin no other waythan to viewthemwiththe eyes of otherpeople, or as by endeavouring to viewthem.60 other people are likely The universalist nature ofAdamSmith's approachraisesthequestion of local whether distantpeople can, in fact,provideusefulscrutiny ofculture. whataretakento be "uncrossable" barriers One issues,given ofEdmundBurke's criticisms oftheFrench ofthe"rights declaration of was concerned with theacceptman"and itsuniversalist spirit disputing ofthatnotionin othercultures. Burkearguedthat"theliberties ability and the restrictions and admitof varywithtimesand circumstances, infinite that cannot be settled abstract modifications, rule."61 upon any The argument for orsome similar, theuniversality that that, this, reason, underliesthe notionof human rights is profoundly mistakencan be foundin manyother as well. writings
Mass.: Harvard UniJohn 59. See particularly Rawls,TheLaw ofPeoples(Cambridge, See also Rawls's formulation oftheoriginal in Political LiberPress, 1999). versity position is thatofa closedsociety: thatis,we areto alism,p. 12:"I assumethatthebasic structure itas self-contained andas having no relations with other societies. ... Thata society regard is closed is a considerable abstraction, justified onlybecause it enables us to focuson Ifmyreasoning certain mainquestions free from details." theRawlsian is right, distracting muchmorethantheinfluence of"distracting restrictions eliminate details." in my"Openand ClosedImpartiality," TheJournal 99 (2002): ingis pursued ofPhilosophy 445-69. 61. Quotedin Steven "FiveFablesaboutHumanRights," in TheHumanRights Lukes,
60. Adam Smith, The Theoryof Moral Sentiments (1759; rev. ed., 1790; republished, Oxford:Clarendon Press,1976),III, 1,2, p. 11o.The Smithian perspective on moral reason-
Reader, ed. Micheline R. Ishay (London: Routledge,1997),P. 238.
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thinker and political Rosa Luxemburg, a leadingMarxist Forexample, line invoked a similar ofcriticism twentieth leaderin theearly century, ofman' ofwhatshe calledthe"metaphysical clicheofthetypeof'rights real a scrutiny ofRosa Luxemburg's ofthecitizen'.""62 and 'rights However, invoked factthatshe persistently concernsbringsout the remarkable in the Marxist tradias is standard universalist herself, quite principles to "from to his ability, to each according each according tion(consider: the subon that was keen emphasizing his needs").Rather, Luxemburg mustdepend on specific circumstances oftheseprinciples stantiation no particular there obtain.Shornoftherhetoric, that is,in fact, difficulty note ofLuxin while inusing basic universalist principles general, taking and to of local circumstances the relevance regional pointer emburg's of in appropriately or parametric, conditions specification contingent, theexactdemandsofhumanrights. betweenthevalues of difa beliefin uncrossable barriers However, over the cenhas surfacedand resurfaced ferent cultures repeatedly The claimofmagnificent areforcefully articulated and they turies, today. critics has sometimes come from often of and superiority, uniqueness, of from ethics of "Western (well values,"varying champions regional excellence in the about the illustrated the fuss 1990s peerless by of"Asian values"), or religiousor culturalseparatists(with or withoutbeing of one kindor another). Sometimes, accompaniedbyfundamentalism from Western the of has come claim however, particularists. uniqueness thatthe "Westwas insistence A good exampleis Samuel Huntington's and his claimthat"a sense ofindividWestlongbefore itwas modern," of individual and liberties" are "unique ualism and a tradition rights a of ideas than no less historian civilized societies.""63 Similarly, among Himmelfarb has arguedthatideas of"justice," Gertrude "reason" "right," are "predominantly, and "love of humanity" perhaps even uniquely, Western values."64
Reader,p. 291.
The Human Rights "The NationalQuestionand Autonomy," 62. Rosa Luxemburg,
Order TheClashofCivilizations and theRemaking 63. SamuelP.Huntington, of World Simonand Schuster, 1996). (NewYork: ofCosmopolitanism," in ForLoveofCountry: "TheIllusions 64. Gertrude Himmelfarb, ed. Joshua Cohen Nussbaum with theLimits /Martha Respondents, ofPatriotism Debating Beacon Press, 1996), (Boston: pp. 74-75.
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to cultural I have discussed these diagnoses elsewhere.65 Contrary in world have different countries the shown the histories of stereotypes, traditions variations overtimeas wellas betweendifferent considerable of open public discussion, The championing within the same country. has a longhistory in different and encouraging pointsofview, tolerating of earliest in world. some the countries the Indeed, open general many different at settling between aimedspecifically disputes points meetings thefirst of ofviewtookplace in Indiain theso-calledBuddhist councils, which was held shortly afterGautama Buddha's death twenty-five of thesecouncils,the third, The occurred hundred grandest yearsago. ofEmperor Ashokainthethird underthepatronage BCE. century Ashoka whatmusthave been amongtheearand propagate also tried to codify version a kindofancient liestformulations ofrulesfor publicdiscussion, Robert's Rules of Order.He demanded,for of the nineteenth-century in regard to speech,so thatthere shouldbe no extol"restraint example, ofothersectson inapproprimentofone's own sect or disparagement eveninappropriate occasions." ateoccasions, and itshouldbe moderate in "other sectsshouldbe dulyhonoured Evenwhenengagedin arguing, all occasions." on every way To consider anotherhistorical example,in early seventh-century Japan,the BuddhistPrinceShotoku,who was regentto his mother, of seventeenartiEmpressSuiko,producedthe so-calledconstitution oftheMagna muchinthespirit The constitution insisted, cles,in 604AD. laterin 1215 AD: "Decisionson important Cartato be signedsixcenturies matters shouldnot be made by one personalone. Theyshouldbe discussedwithmany." Maimonedes the Jewish When,in the twelfth philosopher century, his to to human to had to fleean intolerant Europe try safeguard right stickto his own religiousbeliefsand practice,he soughtshelterin and foundan honored (via Fez and Palestine), Saladin'sEgypt Emperor hundredyears of Muslim Several in the this court emperor. position of was arguing, in the later, when, Agra, Moghulemperor India,Akbar, to religious toupholdtheright on thegovernment's and legislating, duty
as Freedom, ch.io. Also"Human andAsian The Values," 65. See myDevelopment Rights
New Republic, July14 and 21, 1997, pp. 33-40; "The Reach of Reason: East and West," The New Republic,October,2003, pp. 28-35.
and ItsGlobalRoots," TheNewYork Review 20,2000,pp. 33-38;"Democracy ofBooks, July
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freedom ofall citizens, theEuropean werestill on,and Inquisitions going Giardino Brunowas burnt at thestakein Rome,in 1600. In his autobiography, Long Walk to Freedom,Nelson Mandela he describeshow learnedabout democracy and individual as a rights, held in the ofthelocal meetings youngboy,byseeingtheproceedings house in Mqhekezweni: regent's whowantedto speakdid so. Itwas democracy in itspurest Everyone form. Theremay have been a hierarchy of importance among the chief warrior and but was and heard, speakers, everyone subject, medicineman,shopkeeper and farmer, landowner and laborer.66 Not onlyare thedifferences and rights on the subjectoffreedoms that exist between different societies often much but actually exaggerated, also thereis, typically, little within note takenof substantial variations each local culture-over timeand evenat a pointoftime(in particular, to criticisms often now).Whataretakento be "foreign" correspond right Iranian dissiinternal criticisms from non-mainstream If, groups. say, dentsare imprisoned because of by an authoritarian regimeprecisely their be as "ambasthat should seen heterodoxy, any suggestion they wouldonly sadorsofWestern values"rather thanas "Iranian dissidents" add seriousinsult to manifest injury. Thisissueis particularly in determining whatmaybe taken important to be culturally in of cultural differences. a world "partisan" many Beitzrejects, ofseeingtheuse ofhuman Charles theplausibility rightly, to the as from a relationship rights emanating "supposedly symmetrical in of the world's or to be found conception political justice legitimacy in terms and he goes on to seektheir of"therole cultures," justification But how should this "role"be theyplay in international relations."'67 in terms of its and judged acceptability, in whatsense shouldsuch an here is If the reasoning evaluationbe culturally presented "partisan"? domithen we must values that are between the (1) right, distinguish in a society(no matter how repressive it is), and (2) the favored nantly
values that could be expected to gain wider adherence and support when open discussion is allowed, when information about other
66. NelsonMandela,LongWalktoFreedom Brown & Co,1994), Little, (Boston: p. 21. "HumanRights as a CommonConcern," 67. Beitz, pp. 279-80.
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with societiesbecomesmorefreely available,and whendisagreements theestablished viewscan be expressed and defended without suppression and fear. ofpeople theparticipation requires Being"non-partisan" respecting from oftheearth, whichis notthe same thing as accepting anycorner in existingsocieties when information the prevailingpriorities is restricted discussions and are not and perextremely disagreements mitted. from which must be distinguished Widespreadacceptability, is an important issue in any social ubiquitousacceptance, pre-existing evenin dealing with therolethathumanrights evaluation, playin internationalrelations. Theredoes, ofcourse,existconsiderable variation in thebalance of in different manifest countries opinionsand observedpreconceptions and different societies. Theseopinionsand beliefs often as Adam reflect, Smithnoted in a powerfully influence of strong illuminating analysis, in with of different of the a lack world,along existing practices parts broader intellectual with unreThe need for engagement. open scrutiny, strained access toinformation that about elsewhere (including practices in theworldand theexperiences is particularly because of there), great on theseconnections. Whichis precisely insistence Adam Smith's why thenecessity ofviewing from a "certain actionsand practices distance" is so important forsubstantive ethicsin general and theunderstanding ofhumanrights in particular. In a chapter "On theInfluence ofCustomand Fashionupon entitled ofMoralApprobation theSentiments illusand Disapprobation," Smith trated his contention: almostall the statesofGreece,even amongthe politeand civilized and whenever thecircumstances rendered it oftheparent Athenians; inconvenient tobring it the to abandon to or to wild child, up hunger, withoutblame or censure.... Uninterrupted beasts, was regarded customhad bythistimeso thoroughly authorized the practice, that notonlytheloose maxims oftheworldtolerated thisbarbarous prebuteventhedoctrine ofphilosophers, whichoughtto have rogative,
been more just and accurate,was led away by the established custom, and upon this,as upon many other occasions, instead of censuring, considerations of public supported the horribleabuse, by far-fetched Aristotle of it talks as of what the utility. magistratesought upon many ... the murder of new-born infants was a practice allowed of in
355
occasionstoencourage. Platois ofthesame opinion, allthat and,with love of mankind whichseems to animateall his writings, no where thispractice withdisapprobation.68 marks Whatare takento be perfectly and "sensible" in an insulated "normal" be not able to survive a and less limited exambroad-based may society once theparochial ination reactions are critical gut replacedby scrutiny, an awarenessofvariations ofpractices and normsacrossthe including world.69 from a distancemayhave something in the assessto offer Scrutiny mentofpractices as different from each other as thestoning ofadulterous womenin Taliban's and use the of capital Afghanistan abounding withmass jubilation)in partsof the United (sometimes punishment States. This is thekindofissue thatmade Smith insistthat"theeyesof the restof mankind" mustbe invokedto understand whether "a punishment the of moral critical appearsequitable."7' Ultimately, discipline to view [oursenrequires, scrutiny amongother "endeavouring things, and beliefs] timents with theeyesofother or other as people, people are Theneedfor inrich interactions acrosstheborders can be as important societies as they areinpoorer Thepointtonotehereisnotso much ones.72 whether we arepermitted to makecross-boundary butthatthe scrutiny, of how critical of moral no assessment matter sentiments, discipline established demands that such be undertaken. are, locally they scrutiny
X. A CONCLUDING REMARK likelyto view them."71
I havetried to present, in thisarticle, theelements ofa theory ofhuman whichsees themas pronouncements in social ethics, sustainable rights,
Oxford:Clarendon Press, 1976),p. 210. 99 (2002): 445-69.
68. Adam Smith, The Theory (rev.ed., 1790, V.2.15; ofMoral Sentiments republished, thisissuein"Openand ClosedImpartiality," 69. I havediscussed Journal ofPhilosophy
D. D. Raphaeland P.G. Stein Lectures onJurisprudence, ed. R.L. Meek, 70. AdamSmith, Clarendon (Oxford: Press, Press, 1982), 1978; reprinted, Indianapolis: Liberty p. 104.
71. Smith, The Theory III, 1,2, p. 11o. ofMoral Sentiments,
ofprisoners held bytheUnitedStatesin theso-calledwaragainst 72. The treatment terrorism raisesimportant oftheprevailing issuesofhumanrights, and theanalysis practicecan be helpedbymorewide-ranging of and a fuller understanding publicdiscussion thenature ofglobalconcerns on thisissue.
356
in a legal by open publicreasoning. Theymayor maynot be reflected framework "human but through, say,specific legislation," there rights are also otherways of implementing human rights public (including and monitoring). recognition, agitation Since the main themesdeveloped in this articlewere specifically notedin SectionII, I shallnottry to provide a further in this summary I section. the that understandshould,however, concluding emphasize of human rights are, in this perspective, ing and viability intimately withthereachofpublicdiscussion, linked betweenpersonsand across borders. Theviability and universality ofhumanrights aredependent on in theirability to survive The critical open scrutiny public reasoning. of public scrutiny drawson Rawlsianunderstanding of methodology in ethics, buttheimpartiality thatis needed cannotbe con"objectivity" fined within theborders ofa nation. The factthatauthoritarian are typically ofuncenorders quiteafraid sorednewsmediaand ofuncurbed which make them publicdiscussion, resort often intimidation, enoughto suppression (including censorship, and even execution), some indirect evidence incarceration, provides thatthe influence can indeed be quite large.That of publicreasoning influence also lies behindthe effectiveness ofthe interactive waysand and informational means, includingsocial recognition, monitoring whichhumanrights tendto use. Thereis ceractivists publicagitation, a need fora fuller ofthe associative natureofthe tainly understanding of this to and us well acceptability values, requires go beyond lazy on thegiven reliance in therespecmoresofthedominant social groups tivesocieties. To conclude,despitetheirpracticalpreoccupations, human rights activists have reasonenoughto pay attention to theskepticism thatthe idea ofhumanrights theorists. generates amongmany legaland political These doubtshave to be-and can be-addressed. Butit is also importantto notethat theconceptual in turn, ofhumanrights, understanding can benefit from the the that moves substantially considering reasoning activists and therangeand effectiveness ofpractical actionsthey underin to legand addition take, including recognition, monitoring agitation,
islation.Not onlyis conceptual clarity forpractice,the richness important ofpractice,I have argued,is also critically relevantforunderstandingthe There is, I must conclude, no great concept and reach of human rights. deficitin the balance oftrade between theoryand practice.

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Elements of a Theory of Human Rights Author(s): Amartya Sen Source: Philosophy & Public Affairs, Vol. 32, No.

of Elements ofa Theory HumanRights

I. THE NEED FOR A THEORY

Inc.Philosophy & PublicAffairs 32,no. 4 Publishing, ? 2004byBlackwell

& PublicAffairs Philosophy

Elements ofHuman Rights ofa Theory

& PublicAffairs Philosophy

Elements ofHuman Rights ofa Theory

& PublicAffairs Philosophy

Moral Subjectswas published in 1792).

Elements ofHumanRights ofa Theory

6. ImmanuelKant,Critique Reason (1788), trans.L. W. Beck (New York: ofPractical

Philosophy& Public Affairs

Elements ofa Theory ofHuman Rights

Philosophie 21 (1996): 204-28, English version, "On AllgemeineZeitschriftfiir Priiferenzen,"

Philosophy& Public Affairs

Elements ofa Theory ofHuman Rights

& PublicAffairs Philosophy

Elements ofa Theory ofHumanRights

& PublicAffairs Philosophy

selves help to advance the effective reach of acknowledged human

A Dictionary ed. John Eatwell, ofEconomics, Murray grave: Milgateand PeterNewman

Elements ofHuman Rights ofa Theory

& PublicAffairs Philosophy

Elements ofHuman Rights ofa Theory

& PublicAffairs Philosophy

Elements ofHuman Rights ofa Theory

& PublicAffairs Philosophy

and Gender: WhatCounts, Who'sHeard?" Philos32. SusanOkin, "Poverty, Well-being

Elements ofa Theory ofHuman Rights

& PublicAffairs Philosophy

Elements ofa Theory ofHuman Rights

& PublicAffairs Philosophy

Elements ofa Theory ofHuman Rights

2002), essays 1 through5.

& PublicAffairs Philosophy

Elements ofa Theory ofHuman Rights

& PublicAffairs Philosophy

Elements ofa Theory ofHumanRights

& PublicAffairs Philosophy

Elements ofHumanRights ofa Theory

& PublicAffairs Philosophy

Elements ofa Theory ofHuman Rights

who inhabit those places and multiplyso swiftly?"4

& PublicAffairs Philosophy

Elements ofHuman Rights ofa Theory

& PublicAffairs Philosophy

Reader, ed. Micheline R. Ishay (London: Routledge,1997),P. 238.

Elements ofHuman Rights ofa Theory

The Human Rights "The NationalQuestionand Autonomy," 62. Rosa Luxemburg,

& PublicAffairs Philosophy

and ItsGlobalRoots," TheNewYork Review 20,2000,pp. 33-38;"Democracy ofBooks, July

Elements ofa Theory ofHuman Rights

& PublicAffairs Philosophy

Elements ofa Theory ofHumanRights

& PublicAffairs Philosophy

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