Introduction (Symposium on the Human Rightto Subsistence)

ROWAN CRUFT & MAKSYMILIAN DEL MAR

Is there a human right to subsistence? The three essays in this symposium give diverginganswers. Much turns on which is correct.

First, if subsistence is something to which a person P has a right (be it a human rightor some other morally justified right), then failure to fulfil this right wrongs P, therebytriggering compensatory duties owed to P. This contrasts with cases in which someonehas a duty to secure subsistence for P but the duty is not owed to P. Suppose, forexample, that the duty is owed to god: god has a right that we care for his children, andP is one of those children. Or suppose one has a duty to secure P’s subsistence but theduty is not owed to anyone, so nobody has a right to its fulfilment. In these two cases,violation of the duty would certainly involve wrong-doing by the duty-bearer, but it wouldnot wrong P; in the second case it would not wrong anyone at all even though it wouldinvolve doing wrong. Holding a right to subsistence thus gives one a special normativestatus: the status of a being who is wronged when the right is violated.1

Secondly, if subsistence is protected by a human right, then most theorists think itmust be a right that is held universally.There is debate about whether every human rightwas borne by every human across time, but most agree that human rights are at least‘synchronically’ universal: everyone alive at any one time holds the same set of humanrights.2 Furthermore, human rights arguably bear a political dimension. Some think thathuman rights can only be violated by political agents (so my neighbour does not violatemy human rights if she tortures me ‘privately’, though she would if she did so as an agentof the state). Proponents of what has become known as the ‘political conception’ add thatit is central to the concept of human rights that they set a minimum standard for a state’slegitimacy. According to the latter view, inclusion of subsistence on our list of humanrights thus has wide-ranging ramifications for the legitimacy of particular states and, forsome theorists, for the justifiability of intervention in those states.3

In addition, many believe that if I hold a genuine human right to subsistence then thisentails duties not only to provide me with subsistence or not deny it to me, but also toprotect me against ‘standard threats’ to subsistence. If this were correct, then my rightcould be violated even if I had enough to subsist, if this were simply a matter of goodluck in a situation in which the state had taken no measures to protect or secure mysubsistence.4

Each of these issues intersects with concerns (familiar from debates over libertarian-ism) about the possibility and limits of ‘positive’ rights to assistance, as comparedwith ‘negative’ rights to non-interference — issues which themselves turn in part on thedefensibility of the general moral distinction between doing and allowing harm.5

Against this background, Charles Jones’s essay defends the human right to subsist-ence. He argues for such a human right by appealing to the very great importance of our

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interest in subsistence.6 Jones defends the right against criticisms that it is not feasiblyfulfillable, that it is insufficiently important, and that it will lead to rights inflation. Hegoes on to show how subsistence rights fit within a broader conception of human rightsas protecting our most important interests, where these include interests in education,health, and productive activity. Given the focus of the subsequent two essays, it is worthquoting Jones’s view on how to identify duties to fulfil a human right to subsistence:

[P]rotecting human rights requires institutional action, first by one’s own stateand then, when necessary, by organizations beyond one’s own state such ascorporations, NGOs, other wealthy states, and inter-state organizations. Buthuman rights protection does not demand specific policies uniformly appliedin every context. Determining the best ways to ensure access to clean air, water,and food is not a philosophical problem. Rather we need to consult the bestempirical work of social scientists to judge what works and what does not work.7

The next two essays criticise the human right to subsistence. Both are concerned withthe type of interest-based argument deployed by Jones, and in different ways both zoomin on the difficulty of identifying duty-bearers to fulfil the right.

Saladin Meckled-Garcia poses a dilemma for defenders of a human right to sub-sistence. He argues that if a person’s claim to subsistence goods is conceived as funda-mentally a claim against social institutions, then calling this claim a ‘human right tosubsistence’ involves a distortingly partial description of what is actually a fuller right tofair treatment within an institutional social order (a right that will often demand for itsbearer much more than subsistence goods). But, he goes on to argue, if a person’s claimto subsistence goods is ‘not a claim against a social scheme’, then there is no standard todetermine what could count as reasonable, justifiable burdens imposed by the claim. ForMeckled-Garcia, the kind of reasoning outlined in the quotation from Jones aboveis misguided because it overlooks the requirement that human rights should imposeburdens that are justifiable as reasonable for duty-bearers (and others) to bear. Thisrequirement cannot be fulfilled because what counts as reasonable in this context — thatis, what duties and other burdens it would be reasonable to impose on corporations,wealthy states or wealthy individuals independently of matters of fairness within a socialorder — cannot be specified. In particular, Meckled-Garcia argues that outside a socialscheme that ‘frame[s] social goals [and] fix[es] contributions to those goals [. . .] it isunclear how much burden falling on any agent fairly corresponds with securing a givendegree of benefit for others’. We lack a criterion or principle of reasonable cost todetermine this.8

Simon Hope focuses on a similar issue but develops a very different argument. Hopedefends a conception of human rights as forms of ‘natural right’ that are not only borneby everyone but entail duties for everyone. Hope’s argument against subsistence rightsstarts by rejecting Raz’s view that a given ‘right to X’ could entail waves of dynamicallychanging duties whose content will be more specific than X and not necessarily closelytied to X. Instead, Hope argues that a given right must entail fairly determinate duties.9

Hope goes on to note that while I could in principle provide subsistence goods forpersons P, Q, R and any one of the others also in need of them, I could not providesuch goods for all these people taken together. For this reason, Hope classifies duties toprovide subsistence, and other duties to assist in the meeting of needs, as ‘imperfect’duties that cannot correspond to rights. Underpinning Hope’s argument is his develop-

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ment of a new Kantian understanding of the distinction between perfect and imperfectduties: on this account, a duty is imperfect if the action it requires of the duty-bearer —such as a duty of care — is ‘enactable by all but not for all’, while a duty is perfect if whatit requires — such as a duty not to attack — is both enactable by all people and forall people.10 If Hope is correct, there cannot be a human right to subsistence becausesubsistence goods can be required only by imperfect duties.

Hope’s view is close to but different from Onora O’Neill’s celebrated argumentagainst pre-institutional universal rights to goods and services.11 O’Neill’s centralpremise is that there are no pre-institutionally specifiable duty-bearers for such rights,while Hope’s argument hinges instead on the impossibility of fulfilling certain duties(e.g. duties of care) for everyone. Like O’Neill, Hope leaves us with important imperfectduties to work to supply subsistence goods, though these duties do not correspond tohuman rights. Meckled-Garcia’s thesis, by contrast, seems as critical of duties to supplysubsistence goods as of rights to such things. For Meckled-Garcia, we should abandontalk of duties to supply subsistence goods and replace it with duties of fair treatment byinstitutions, duties to develop institutions to ensure such fair treatment, and duties ofrescue.

Beyond the section quoted earlier, Jones’s essay explicitly sets aside the issue ofthe duties corresponding to human rights.12 Jones’s willingness to do this reflects hisconfidence in the compellingness of the case to regard as matters of human right anyinterests that meet the standards of importance he outlines. In addition, there are specificlines Jones could pursue in response to Hope and Meckled-Garcia, most obviously bydenying a sharp conceptual linkage between justified rights and justified duties (orother burdens): one route would be to adopt Nickel’s idea that some human rights are‘right-goal mixtures’, and other options are also available.13 Such approaches might openthe door to novel institutional possibilities, i.e. instead of the backward-looking, blame-apportioning institutions (especially judicial) associated with a tightly integrated right-duty complex, a conceptual alternative — such as Nickel’s ‘right-goal mixtures’ notedabove — might call for forward-looking, condition-improving institutions, which placeemphasis on open-ended, incremental joint-responsibility and not individual blame forspecific acts or omissions. Whether such an approach could give people suffering foodinsecurity the normative status of genuine right-holders, beings who have been wronged,is a central question for anyone seeking a rapprochement between the positions in Jones,Meckled-Garcia and Hope. 14

Rowan Cruft, Law and Philosophy, School of Arts and Humanities, Law and Philosophy,University of Stirling, Stirling, FK9 4LA, Scotland, UK. Rowan.Cruft@stir.ac.uk

Maksymilian Del Mar, Department of Law, Queen Mary, University of London, Mile EndRoad, London E1 4N, UK. m.delmar@qmul.ac.uk

NOTES

1 See Michael Thompson, ‘What is it to wrong someone? A puzzle about justice’ in R. J. Wallace, P. Pettit,S. Scheffler & M. Smith (eds), Reason and Value: Themes from the Moral Philosophy of Joseph Raz (Oxford:Clarendon, 2004), pp. 333–84. See also the four essays in the symposium on Rights and the Direction ofDuties in Ethics, 123 (2013), forthcoming.

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2 See, e.g., Joseph Raz, ‘Human rights in the emerging world order’, Transnational Legal Theory 1 (2010):31–47.

3 See the discussion in Charles Jones, ‘The human right to subsistence’, this symposium, p. 59 below, and thereferences in his note 4.

4 The ‘standard threats’ notion is Henry Shue’s. See Basic Rights: Subsistence, Affluence, and United StatesForeign Policy, 2nd edn. (Princeton, NJ: Princeton University Press, 1996). See again the discussion in Jones,p. 63 below.

5 For recent discussion in relation to positive and negative rights, see Frances Kamm, Intricate Ethics (Oxford:Oxford University Press, 2007), Chapter 9.

6 Jones uses James Nickel’s interest-based approach (see Jones, pp. 62–63). It is worth noting that Nickel’sapproach (and Jones’s use of it) is subtle; it does not maintain that there is a human right wherever there isan important interest. See James Nickel, Making Sense of Human Rights, 2nd edn. (Oxford: Blackwell, 2007),pp. 144–152.

7 Jones p. 66.8 Saladin Meckled-Garcia, ‘Giving Up the Goods: Rethinking the Human Right to Subsistence, Institutional

Justice, and Imperfect Duties’, this symposium, p. 77 below. Note that Meckled-Garcia avoids the languageof ‘duties’ (and ‘obligations’), referring instead to ‘burdens’. For the purposes of this introduction, we haveretained the nomenclature of ‘duties’, but the choice of language here is important. As Meckled-Garciaexplains, ‘I use “burdens” instead of “obligations”, as obligations are only one type of burden in addition to,for example, a reduced set of opportunities for others’ (see Meckled-Garcia, this symposium, note 19).

9 For Raz’s position, see Joseph Raz, The Morality of Freedom (Oxford: Clarendon, 1986), pp. 171–2. ForHope’s criticism, see Simon Hope, ‘Subsistence needs, human rights, and imperfect duties’, this symposium,pp. 90–91 below.

10 Ibid., p. 92. Hope notes that this makes it historically contingent whether a duty is perfect or imperfect(ibid., pp. 94–95).

11 Onora O’Neill, Towards Justice andVirtue (Cambridge: Cambridge University Press, 1996), Chapter 5.12 See Jones’s conclusion, ‘The human right to subsistence’, p. 70.13 See the remarks on ‘right-goal mixtures’ in James Nickel, ‘Human rights’ in E. N. Zalta (ed.), Stanford

Encyclopedia of Philosophy. Online at: http://plato.stanford.edu/archives/sum2003/entries/rights-human/. Forfurther imaginative suggestions about how to configure the relationship between rights and duties in orderto allow human rights to subsistence goods and other goods and services, see Nickel, Making Sense of HumanRights, pp. 150–152. For recent defence of the ‘dynamic’ conception of the relationship between rights andduties that Hope criticises, see John Tasioulas ‘The moral reality of human rights’ in T. Pogge (ed.), Freedomfrom Poverty as a Human Right (Oxford: Oxford University Press, 2007), pp. 75–101.

14 The three articles in the symposium were presented at a workshop on human rights and subsistence at theUniversity of Stirling, funded by the UK’s Arts and Humanities Research Council.

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