Abstract
With regard to the problem of world poverty, libertarian theories of corrective justice emphasize negative duties and the idea of responsibility whereas utilitarian theories of help concentrate on positive duties based on the capacity of the helper. Thomas Pogge has developed a revised model of compensation that entails positive obligations that are generated by negative duties. He intends to show that the affluent are violating their negative duties to ensure that their conduct will not harm others: They are contributing to and profiting from an unjust global order. But the claim that negative duty generated positive obligations are more acceptable than positive duties is contestable. I examine whether Henry Shue’s model that is integrating negative duties and positive duties is more convincing concerning the foundation of positive duties to protect others. I defend the idea that there are positive duties of justice. This approach can integrate an allocation of positive duties via responsibility and maintain the advantage of an independent foundation of positive duties.
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Notes
Therefore, even if the compensation for negative rights violations were possible via fair and clear determination of duty-bearers, it would be contingent if the restitution of the status quo ante would significantly reduce or even eradicate poverty.
There has been a long discussion about this point that reflects the different positive laws in different countries as well as the underlying moral intuitions. On the one hand, the English Common Law follows the libertarian intuition that a bystander cannot be punished for not helping the child. (Cf. Murphy 1980, p. 168, n.6; for a critique see Feinberg 1985 and Stepanians 2006.) On the other hand, German legislation (as well as the law of Belgium, France, Greece, Italy and other European countries) refers to “Unterlassene Hilfeleistung” (failure to render assistance in an emergency) as a fact constituting an offence (323c StGB). And that makes it possible to legally punish the Bad Samaritan.
For the causal efficiency of omissions see also Birnbacher 1995, chapter 3.
A standard objection against Singer’s argument is that the poverty-case leads to an overcharge for the duty bearer, what we would have to sacrifice in order to help as much as we can is “of equal moral importance,” above all the ability to lead one’s life autonomously. (For a defence of his and Unger’s argument cf. Singer 2002, pp. 186ff.) Especially Unger’s approach, which does not envisage any threshold for helping, could lead to an instrumentalisation of the helper. (For this aspect see Birnbacher 1995, p. 282 and Lewis 2000.)
Joel Feinberg has made a similar point by differentiating between the drowning child case and the case of a beggar endangered by starvation. While he proposes “to defend a bad Samaritan statute” in the drowning child case, he would prefer “a state system of income maintenance to handle the hungry mendicant cases” (Feinberg 1985, p. 228).
“Individuals cannot be obliged to resolve the problems of world hunger, or to grow wings and fly” (O’Neill 2005a, p. 251). I agree with this point but we have to add that individuals might be obliged to diminish poverty because they have the capability to lessen some of the suffering of the poor (as opposed to eradicate poverty or to “resolve” the problem). Many theorists have proposed that individuals have the duty to establish institutions that will protect social rights and allocate duties efficiently (cf. Orend 2002, p. 145 or Ashford 2006). But depending on the circumstances the capability-problem might reappear. How exactly is one individual able to fulfil this duty? What actions are required? Is electing the right party enough? What if the aim to establish just global institutions is not part of the program of any political party you could vote for? What is then required: the foundation of a new political party? Civil disobedience? Donations to NGOs? How much engagement can reasonably be expected?
Pogge gives Singer the credit that his argument even reaches those who think that “the persistence of severe poverty is due solely to domestic causes. But catering to this empirical view, Singer also reinforces the common moral judgement that the citizens and governments of the affluent societies, whom he is addressing, are as innocent in regard to the persistence of severe poverty abroad as” the helper in Singer’s drowning child case “is in regard to the child’s predicament” (Pogge 2005b, p. 265).
Pogge agrees here with the defenders of the priority-for-compatriots-idea who also reject EET by claiming that “failing to save lives is not on a par with killing” (Pogge 2002, p. 12).
Alan Patten (2005, p. 24f.) has shown that Pogge does avoid the strong thesis that poverty is only caused by global factors, excluding domestic factors (cf. Pogge 2002, pp. 49, 112, 115).The strong thesis of “explanatory globalism” would be empirically implausible (cf. Satz 2005, p. 49 and Patten 2005, p. 24) but the weak thesis cannot show that poverty should be eradicated (as opposed to diminished) by those who are responsible for the global factors because it cannot attribute all instances of poverty to those global factors.
Otherwise the significance of the difference between negative and positive duties will be lost. This would be the case if we said that the violation of any duty (positive or negative) means harming the corresponding right-bearer.
Defending his book, Pogge makes this point of feasible avoidance even stronger and more explicitly. (Cf. Pogge 2005a, pp. 55; 60, 62 and more often.) This seems to follow the prevention of evil thesis. Furthermore he points out that one of our faults consists in letting our governments harming the poor by allowing them to shape the unjust global order. (Cf. Pogge 2005a, b, p. 65) This sounds like harming by omission.
For this point see Nozick’s well-known critique of Rawls’ theory of justice. He describes any (re)distribution that goes beyond the reestablishment of the status quo as unjust (1974, p. 168). In Onora O’Neill’s words: “The central demand of libertarian justice, whether national or transnational, is: do not redistribute” (O’Neill 2005b, p. 127). One point I cannot discuss here in detail is if and how the Lockean proviso that would restrict acquisitions in a state of nature by the condition of leaving “‘enough and as good’ for others” (Pogge 2002, p. 137, referring to Locke 1960, Sections 27 and 33) could force libertarians to modify Nozick’s entitlement theory of justice. In this case, there might be a tension between just acquisition of property X according to the Lockean proviso at t1 and just transfer of property X at t2 if we look at the distribution of property at a later point of time, i.e. t3. The question is: given that the original acquisition of X from A was correct at t1 in the state of nature (since the others at t1 got “enough and as good” so that the Lockean proviso was not violated) and the transfer of X from A to B was correct at t2 – would a libertarian then be forced to say that at t3 C who does not have “enough and as good” as B would have a right to some of X because at t3 the Lockean proviso is violated by B if he recommends all of X for himself from the entitlement theory of justice? (Cf. Nozick 1974, pp. 149–151 and the discussion of the proviso pp. 178–182.) I don’t think that Nozick’s historical entitlement Theory would recommend redistribution from B to C. His examples are different. If A owns all the water holes in the desert (or owns one and the others dry up) he might be forced to let C drink, because his owner rights can be “overridden to avoid some catastrophe” (Nozick 1974, p. 180). What we are talking about here is a scenario of emergancy 1 : acute deprivation of C. But the poverty problem is different as we saw above. It cannot be solved by the idea that owner rights are overridden at some exceptional point in time. Rather, Pogge says that a distribution that does not avoid poverty while there is a feasible alternative is unjust. So in Pogge’s interpretation (as opposed to Nozick’s), the proviso is a principle that “focuses [...] on the structure of the situation that results” from the distribution of property what Nozick denies (Nozick 1974, p.181). In my opinion, Pogge goes clearly beyond Nozick but he does not go as far as Rawls’ difference principle that recommends maximizing the position of the worst off. Pogge’s position seems to resemble that of Alan Gewirth (1987) with respect to the idea that an order is minimally just if and only if basic human rights (the access to basic goods) are secured. And this means in terms of Gewirth’s theory that B (who has more of X than she needs) does not have a right to all of X as long as the needy C has a right to basic goods (that is unfulfilled at t3) and cannot attain them by her own efforts. B has the duty to share in providing the basic goods for C she has a right to by transferring that part of X to C that she has a right to and B has no right to. But in Gewirth’s theory B’s duty to provide C with X to the degree C has a right to X is of course positive. (Cf. Gewirth 1987, pp. 66ff.) And here lies the difference between Pogge and Gewirth: Pogge concentrates on the indirect negative duty not to take part in shaping and upholding unjust institutions without compensation whereas Gewirth directly concentrates on positive human rights and correlative positive duties.
Pogge’s idea is that negative duties can generate “specific moral reasons for action: obligations.” The negative duty is that we must not “harm others by cooperating, without compensating protection and reform efforts, in imposing on them an institutional order that forseeably gives rise to avoidable human rights deficits. This is a generative duty that, in conjunction with our cooperation in imposing an institutional order that forseeably gives rise to avoidable human rights deficits, generates obligations to make compensating protection and reform efforts for those whose human rights remain unfulfilled under this order. These are positive obligations. They require each of us to make up for our share of the harm we inflict together – by shielding its victims or by working for institutional reforms” (Pogge 2005a, b, p.68).
This point is made by Debra Satz (2005).
For a defence of the contribution-principle against the conjecture that it is only backwards-looking see Barry (2005, pp. 112–117).
This aspect is expressed very clearly by Barry with regard to defending the contribution-principle: “It recognizes people’s interests in autonomy – the freedom to define for oneself a conception of the good life and being left free to pursue it – because it does not demand that agents disrupt their plans whenever, for example, they are well placed to alleviate the acute deprivations of others. It can thus be seen as linking two attractive normative ideals – that people should bear the costs of the burdens that they impose on others and that there should be, as Nozick (1974) has put it, a ‘presumption in favour of liberty’” (Barry 2005, 110). Birnbacher speaks of the costs for the acceptance of duties to act: they are the more heteronomous (and therefore costly in a way the agent cannot control) the more they depend on factors the agent cannot control such as distress caused by others or by nature (Birnbacher 1995, pp. 270; 279). At first sight, according to capacity we might have much more duties than according to contribution.
The difference between contributing and profiting is carefully examined by Anwander (2005). He comes to the conclusion that there is a significant moral difference between “the descriptive claim” that we are passively being benefited by the global order and “the normative claim that by benefiting we are violating a negative duty” which makes most sense if “understood as actively seeking to take advantage of” (Anwander 2005, 43, emphasis in the original).
“A man was going down from Jerusalem to Jericho, when he fell into the hands of robbers. They stripped him of his clothes, beat him and went away, leaving him half dead. A priest happened to be going down the same road, and when he saw the man, he passed by on the other side. So too, a Levite, when he came to the place and saw him, passed by on the other side. But a Samaritan, as he travelled, came where the man was; and when he saw him, he took pity on him. He went to him and bandaged his wounds, pouring on oil and wine. Then he put the man on his own donkey, took him to an inn and took care of him. The next day he took out two silver coins and gave them to the innkeeper. ‘Look after him,’ he said, ‘and when I return, I will reimburse you for any extra expense you may have’” (Luke: 10:30–35).
I think at least in case of murder or assault it is not true that compensating can balance contributing. It is not plausible in this case to say that negative “duties do not make it wrong to contribute to, or to profit from, a collective injustice when one makes compensating protection and reform efforts for its victims” (Pogge 2005a, b, p. 69).
Alan Gewirth comes to the same conclusion. He criticizes that in Shue’s model positive duties ground on primary, negative duties. Positive duties to protect only exist for the sake of the fulfilment of negative duties (Gewirth 1987, p.64). In contrast to this view, Gewirth holds that positive rights to economic goods require direct positive duties of assistance. But this position is confronted with the allocation problem: who does have which positive duty against whom?
As Elizabeth Ashford has recently pointed out, the fact that both negative and positive rights confront us with an allocation problem concerning corresponding positive duties to protect is absolutely not trivial. Ashford shows that “institutional structures are just as important in specifying and allocating many of the negative duties imposed by rights as the positive duties, so that the need for an institutional allocation of the corresponding duties does not distinguish positive rights to aid from negative rights not to be harmed” (Ashford 2006, p. 221). I agree with Ashford on this point. Not the existence of welfare rights is dependent on adequate institutional structures (like O’Neill 1996 claims), rather the securing of the substance of welfare rights requires just global institutions.
My proposal is illustrated by the following overview:
Duties
Corresponding rights
Substance
Violation
Sanctions
Allocation
Duties of justice (negative and positive)
Basic rights (negative and positive)
Basic goods: Security, Subsistence: basic necessities
Harming: violating a negative duty corresponding to a basic right vs. failure to give one’s fair share according to economic justice
Formal sanctions, relevant for human rights protection
Institutional rights-protection by allocation of positive and negative duties
Duties of benevolence (positive)
Duty to do good (to benefit non basic interests)
Non basic goods, depending on preference satisfaction
Failing to benefit (disregard of sensibilities, not rights)
Informal sanctions
Individual moral actors
This picture resembles Brian Orend’s. But there are two important modifications.
First Orend suggests redefining Shue’s concept by reformulating the notion of a negative duty. He thinks that we can keep “the belief that negative duties are more important than positive ones” by summing up all three duties that correspond to basic rights under one “normatively negative duty not to harm” (Orend 2002, pp. 143f). Normatively positive duties would then be duties of benevolence that refer to non basic goods such as politeness. I agree to this division but in order to avoid confusions I would reject the label “normatively negative duties” and rather speak of duties of justice in order to indicate that they are enforceable.
Second, according to Orend’s view there can be harming by action (HAT) and harming by omission (HOT) if a person’s basic rights are concerned. From this point of view we can indeed judge poverty as the result of an individual human rights violation either by action or by omission to shape better institutions or even to aid the poor. But as I pointed out there is a dissimilarity within the duties corresponding to basic rights between the allocation of universal individual negative duties not to harm others in the narrow libertarian sense, and the positive duties corresponding to subsistence rights. As we have seen above, in the case of subsistence rights much depends on the institutional order and its rules. Furthermore, according to HOT there is a direct positive duty to help if the helper can prevent damage to an important good (that basic rights are intended to protect). The bad Samaritan and the robbers seem to commit an equivalent evil from this point of view because they are both violating their normatively negative duties not to harm the man. And this is not plausible. I don’t know whether we should generally avoid speaking of harming by omission. Anyway, it makes only sense in cases where the omission is traceable like in Singer’s drowning child case and not in the case of poverty. So my idea is to indicate the rights violation corresponding to positive rights to subsistence as an institutional allocation failure that does indeed result in some individual benefiting from unjust structures. This is because we must determine positive duties before we can say in what way they are violated. So it is true that negative duties are somehow more determined but – and this is my point against Pogge – positive duties are also absolutely necessary in order to guarantee the fulfilment of positive human rights. And insofar as they are corresponding to basic rights they are enforceable duties of justice what makes them categorically different from duties of benevolence. (For a critique of Pogge’s unwillingness to consider positive duties as duties of justice see Gilabert 2004, 543, n 12.)
Pogge’s concept of compensation and the concept of strong positive duties overlap in identifying the global rich as the primary duty bearers with regard to the eradication of the poverty problem. Here is my suggestion: if my argument is right and there are strong positive duties of justice, then the allocation problem is still an open question. Here it might make sense to use the case of contributing to and benefiting from injustice as one allocation principle. To illustrate my point I will use a modified form of Pogge’s own example. A injures B by reckless driving. C and D observe this in their vehicles from the other side of the road. Pogge holds that A has a positive obligation to get B to the hospital that is stronger than the positive duty of C and D to help B. My point is that the injured B (no matter where his injury comes from) has a right to get help that results in a positive duty of A, C and D to help him. The good thing from this point of view is that B will have a moral claim to get help from C who is capable to drive him to hospital if A’s car is damaged so that she cannot do so. B also has a right to D’s first aid who happens to be a doctor and whose competence might be life-saving. On the other hand, the burdens of helping should be fairly allocated so that, other things equal, A’s taking over the costs for helping makes most sense. In the deviant scenarios A might compensate B (by paying the hospital bill) and he might compensate C or D for their help because she caused the problem in the first place. We all have positive duties to help the workers form Shue’s flower-contract example but it makes a lot of sense to burden the peasant (who gets all the benefits from the flower contract) with especially high taxes.
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Acknowledgements
I am grateful to all those who critically discussed earlier drafts of this paper with me at the conference on Political Ethics and International Order at Oxford in August 2006 and at the University of Bonn. I am especially grateful to Ryan Bremner, Christoph Horn, Fred Ketchum, Thomas Mueller, Jacob Rosenthal and the anonymous referees from Ethical Theory and Moral Practice for their critical reading and helpful comments.
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Mieth, C. World Poverty as a Problem of Justice? A Critical Comparison of Three Approaches. Ethic Theory Moral Prac 11, 15–36 (2008). https://doi.org/10.1007/s10677-007-9088-0
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DOI: https://doi.org/10.1007/s10677-007-9088-0