Abstract
This paper asks whether (human) rights enforcement is permissible given that it may entail infringing on the rights of innocent bystanders. I consider two strategies that adopt a rights-sensitive consequentialist framework and offer a positive answer to this question, namely Amartya Sen’s and Hillel Steiner’s. Against Sen, I argue that trade-offs between rights are problematic since they contradict the purpose of rights, which is to provide a pluralist solution to disagreement about values, i.e. to allow agents to act in accordance with their values. I further argue that Steiner’s compensation strategy does not succeed in avoiding trade-offs so it falls prey to the same criticism. I propose a non-trade-off solution that is implicit in the accounts discussed and is more consistent with the meta-ethical framework advocated by Sen. This solution relies on an enforceable duty to share in the costs of rights enforcement hence it entails a degree of redistribution for enforcement purposes.
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Notes
See, for example, Shue (1996), especially chapter 2—‘Correlative duties’. Shue argues that socio-economic rights, which imply positive duties, are not necessarily more onerous than civil and political rights, since the latter also entail positive duties in his view. But while civil and political rights entail positive duties if they are to be enforced, it is not clear that enforcement, as opposed to mere respect, is required at the bar of justice, particularly outside the framework of the state.
Throughout the paper, the term ‘enforceable’ refers to the ‘permissibility’ rather than the ‘possibility’ of enforcement.
For the distinction between special and general duties, see Hart (1984, pp. 84–88).
I will use A, B, C and D to refer to the characters in this story for the rest of the paper.
Some argue that Dworkin’s notion of a ‘trump’ and Nozick’s side-constraints are almost indistinguishable. See Pettit (1987). But as we shall see below, seeing rights as trumps or as lexically prior values leaves room for trade-offs between rights, which means that they are not values of infinite weight. However, as Steiner points out, it makes no sense to assign infinite weight to more than one value. Cf. Steiner (1994, p. 145).
For the notion of compossibility, see Steiner (1994, pp. 86–102).
Following Steiner, I use ‘conceptions of the good’ and ‘moral codes’ interchangeably.
Simon Caney disputes the fact that this is the most plausible account of impartiality in Caney (1997).
Note that Steiner equivocates somewhat between saying that the rights rule should be lexically prime and that rights themselves should be prime and therefore compossible. See Steiner (1994, pp. 201–202).
As Caney puts it: ‘Rights will be of no help in resolving a disagreement if there are conflicting rights: they simply redescribe or reproduce the original conflict and offer no way of overcoming the disagreement’. Caney (1997, p. 151).
For a definition and discussion of agent-relative and agent-neutral values, see Nagel (1979, pp. 46–61) and Sen (1982, pp. 19–38). Sen distinguishes between several types of agent relativity and argues that consequence based evaluation can accommodate some types and not others but reasons of space prevent me from elaborating on this.
Contrary to Nagel, I would argue that since deontological reasons are reasons for an agent not to act in certain ways herself, they stem not so much from others’ claims but rather from the agent’s claim not to be required to act in a way that s/he finds objectionable; in that sense, they are similar to reasons of autonomy.
Following J. J. Thomson, we could distinguish between ‘infringing’ and ‘violating’ a right, where a violation is a wrongful infringement of a claim. See Thomson (1992, p. 122). But I do not mean to suggest that compensation is only required for wrongful infringements of rights; on the contrary, on Steiner’s account compensation is required precisely when we are dealing with a justified violation. I am grateful to Daniel Schwartz for helping me clarify this point.
Steiner puts the issue in terms of conscription so in his account Charles, Donna, Ali and the bashers become Conscript, Conscriptor, Victim and perpetrators, respectively. I will continue to use C for both Conscript (C) and Conscriptor (D), whose normative positions are identical with respect to the victim.
Nozick, for instance, considers and rejects the possibility of allowing boundary crossings provided that compensation is paid. See Nozick (1974, pp. 57–59).
Or because the victim is no longer alive but we shall set this possibility aside here.
Both Steiner and myself assume here that there is no morally relevant difference between D’s and C’s position vis-à-vis A. In other words, the fact that D is a friend, or perhaps a compatriot of A, makes no difference to her duties to him. This is of course a controversial assumption but it will not be defended here.
This is similar to Cécile Fabre’s requirement that complying with a duty to defend others should allow one to pursue one’s conception of the good. See Fabre (2007).
What constitutes a fair share is, of course, a separate question that cannot be dealt with here.
Redressing rights violations, as Steiner suggests, is probably the most expensive mode of enforcement since it also requires apprehending the perpetrators, which is presumably a very costly exercise.
This is not to say that some violations are not excusable, rather than justified.
I owe the second objection to Anca Gheaus.
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Acknowledgments
I want to thank Elizabeth Ashford, Nir Eyal, Maria Paola Ferretti, Chloë Fitzgerald, Anca Gheaus, Axel Gosseries, Mark Reiff, Massimo Renzo, Daniel Schwartz, Shlomi Segall, Hillel Steiner and Nicholas Vrousalis for very helpful written and/or verbal comments as well as the audiences at the ALSP Annual conference, April 2008, the Society for Applied Philosophy conference, July 2008, and two anonymous referees for this journal.
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Preda, A. Rights Enforcement, Trade-offs, and Pluralism. Res Publica 17, 227–243 (2011). https://doi.org/10.1007/s11158-011-9152-4
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DOI: https://doi.org/10.1007/s11158-011-9152-4