Judging Subsistence Rights by their Duties Eric Boot

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1 Judging Subsistence Rights by their Duties Eric Boot Introduction Though Kant is often considered one of the fonts of inspiration for the human rights movement, the book in which he speaks most of rights was actually viewed by Kant himself as a general doctrine of duties (MS 6:380, cf. 239). Accordingly, we should not speak of human rights without also considering the duties involved. Unfortunately, however, this is often what happens: the promulgation of sundry rights without any attention for the duties they involve for individuals. Today, I therefore want to assess whether a somewhat contentious human right i.e. the right to a decent standard of living can actually be considered a human right, on Kantian grounds. First, I will briefly demonstrate how one can provide quite easily an argument in favor of subsistence rights by taking Kant s innate right to freedom as one s starting point. Subsequently, I will move on to show that when one instead focuses more on the duties that such a human right would involve, it becomes doubtful whether one can provide a Kantian justification for subsistence rights. Accordingly, I will discuss the central concepts involved: right, duty, duties of Right, duties of virtue, perfect and imperfect duties. With these concepts in place, I will then apply them to the matter at hand, namely Do subsistence needs give rise to human rights? I The Argument from the One Innate Right If one starts considering the problem of the human right to subsistence from the perspective of rights, it does not seem very difficult to provide a Kantian argument for such a right based on the one innate right. This human right to freedom is a right to be independent from the constraining choice (Willkür) of another. Quite often, scholars have interpreted Kant s one innate right as an indication that Kant intends to only recognize negative rights: we have a right to be left alone, to not be assaulted or forced. Recently, however, a number of scholars (Ripstein, Wood, Holtman) have argued that the innate or, as I will also call it, the human right to independence must necessarily involve subsistence rights, that is, something like a human right to a decent standard of living (UDHR 25, ICESCR 11). The argument is that, unless one has a right to assistance when one is in need, one runs the risk of becoming dependent on the private charity of others. And Kant is very clear on charity: it is a duty of 1

2 virtue. As such, the charitable person is left with considerable room for maneuvering. This does not mean that we are permitted to exempt ourselves from this duty to assist others, but it does mean that we are allowed to limit one maxim of duty by another (MS 6:390). In practice this means, for example, that if both a family member and a stranger are in need of my help, I am allowed to give precedence to my duty of beneficence toward my family member (if my means prevent me from helping both). As a consequence, the poor person thus becomes subject to the choice of those who have money to spare for charitable acts, given that how much the charitable person gives to whom is entirely discretionary (Ripstein 274). Such dependence on the whims of private charity amounts to a violation of the one innate right to be independent of the choice of others. A solution to such dependence would be to say that the indigents can actually claim aid, not as a favor done to them, but as a matter of rights. For the mentioned scholars, the rights granted even go beyond mere subsistence. In order to avoid becoming dependent on the choice of others, one must also be able to assert one s rights, against both private persons and the state. Ripstein, for instance, holds that we must therefore also acknowledge a right to education, as the safeguarding of one s right to independence from the choice of another demands both literacy and civic education (Ripstein 293). But we need not further consider these other rights. It is enough to say that one can provide an argument for a human right to subsistence based on the one innate right. II The Argument from the Corresponding Duties It is one thing to provide a declaration of human rights (including subsistence rights); it is quite another to clarify and allocate the duties to which these rights give rise. I argue that once we do take the standpoint of the duties involved in realizing such a right, the thesis that Kant allows for a human right to subsistence becomes doubtful. In order to make this claim, I would first like to consider the key-concepts involved here: How does Kant speak of right and duty? In the Introduction to the Metaphysics of Morals Kant defines duty as that action to which someone is bound. (MS 6:222). A duty is thus a specific action that one is bound (verbunden) to perform. Correlatively, Kant understands rights to be (moral) capacities for putting others under obligations (i.e. as a lawful basis, titulum, 2

3 for doing so) (MS 6:237). In the Vorarbeiten to the Doctrine of Right Kant repeatedly stresses this point. My having a right against another person corresponds to a debt on his or her part (VARL 23:344). As is the case with debts as well, duties limit one s possibilities of action; the debt must first be paid off. Accordingly, Kant argues that having a duty entails having one s freedom of choice limited by a law: The very concept of duty is already the concept of a necessitation (constraint [Zwang]) of free choice through the law (MS 6:379). This law may be of either a moral or a legal nature. In the case of the former, my freedom of choice must be limited by free self-constraint, in which case we speak of duties of virtue. In the case of a juridical law, my freedom of choice is instead limited by the right of another, in which case we speak of duties of Right. Thus, in the case of a duty of Right there corresponds a right of another to coerce someone (MS 6:383), whereas duties of virtue do not give rise to any such correlative rights on the part of others. In the legal sphere duties correlate with rights to coerce (today we would speak of claim rights), whereas in the ethical sphere this is not the case; ethics only recognizes duty. Another distinction Kant employs is that between perfect and imperfect duties. Firstly, perfect duties are determinate. Who bears the duty, what the content of the duty is and for whom the duty-bearer must perform it, all this is clearly determined in the case of perfect duties. By contrast, if one of these points remains indeterminate we have to do with an imperfect duty. Thus, when either the duty-bearer has not been identified, the content of the duty has not been specified (leaving the duty-bearer with a measure of latitude concerning the manner in which she will fulfill her duty), or the person for whom the duty must be performed has not been singled out, then the duty in question is imperfect. Secondly, as a consequence of their determinateness, perfect duties (at least the perfect duties to others) are claimable: the right-holder can identify the duty-bearer(s) and claim the performance of a specific duty from her. In the case of imperfect duties, instead, it is not clear how to pair up right-holders and dutybearers, nor what the content of the duties is precisely. Though in Kant s work duties of right and duties of virtue are not always strictly synonymous with perfect and imperfect duties respectively (duty not lie, e.g., is a perfect duty of virtue, as is the duty of respect), Kant does seem to exclude the possibility of imperfect duties of justice. As I understand it, we could summarize Kant s view of duties of Right as follows: if there is a right, then there is a Rechtspflicht, the performance of which is owed to the right-holder and the non- 3

4 fulfillment of which constitutes a wrong (Feinberg: violation of one s rights, an injustice). If, therefore, a duty may be weighed against a different duty, or the agent may freely choose which aspect of the duty to fulfill without committing a wrong, then the duty in question cannot be a duty of Right, but must instead be taken to be a duty of virtue. Now, keeping these general definitions of duties and rights in mind, let us consider the consequences for a possible human right to an adequate standard of living. Starting, as most contemporary accounts of justice and human rights do, by individuating our rights does not yet tell us how these rights are to be fulfilled. This problem is particularly acute in the case of subsistence rights. A comparison with classical liberty rights will illustrate this problem. The right not to be tortured, for example, is a universal right. We possess this right against all others and all institutions. Onora O Neill refers to such rights as doubly universal: all have the right to not be tortured, which places duties of forbearance on everyone else. In the case of subsistence rights, by contrast, it is not clear who bears the duty to fulfill the human right to subsistence of person p unless some kind of institutionalization has taken place whereby every right-holder is coupled to one or more duty-bearers. My duty that arises from the subsistence needs of others must therefore be understood to be an imperfect duty and is therefore not a duty of Right, so long as it remains unclear what exactly I ought to do for whom. Over two thousand years ago Cicero briefly summarized the problem of our duties to the needy by observing that the resources of the individual are limited, whereas there is a numberless crowd of those in need of them (Cicero I 52). Throughout the history of practical philosophy such thoughts have led to the conclusion that our duties to the needy are greatly underdetermined (and potentially overdemanding) and I would argue that the argument still stands. The positive duties corresponding to subsistence rights, in contrast to the negative duties that correspond to liberty rights, require resources (such as time and money) in order to be fulfilled. Because of this need of expenditure, it is not possible for each of us to individually help each person in need of aid. We must therefore choose whom we aid. Yet, unless there is a special relation, as between parents and children (in which case, however, we have to do with a special, not with a human right), it is unclear whom one should 4

5 help. Such duties of aid thus leave the duty-bearer with a certain leeway. We have quite some latitude in deciding whom we will help and in what way we will help them. Our duties of aid, arising from the subsistence needs of others, do thus not appear to prescribe specific actions (who must do what for whom), but rather certain maxims for action; they prescribe us to act in the light of certain ends. Whom one decides to aid and how one decides to aid her is therefore largely at the agent s discretion. From this train of thought, it follows that the duties arising from subsistence needs are imperfect and therefore duties of virtue. Hence their performance is not claimable: an individual in need of assistance is unable to single out which persons bear the duty of assisting her specifically. If it is unclear to her who bears the duty corresponding to her rights, then it becomes impossible for her to claim those rights. Where should she lodge her claim? Genuine rights, however, must be claimable; they are rights to coerce someone (MS 6:383), as Kant says. We may therefore conclude that prior to the setting up of some institutional scheme (think of welfare systems, health care programs, social housing projects, etc.) there is no human right to the provision of subsistence goods. For before such constructions are in place we cannot fully know who owes what to whom regarding subsistence rights. Whereas in a welfare system, for instance, this is clear: we all have a duty to pay taxes, which subsequently are used by the state in order to provide welfare to citizens in need. We may all, furthermore, claim such assistance as a right. But in the absence of such institutions, which both clearly specify the content of the duties correlative with the right in question and identify the agents who are to perform these duties, the right cannot be held to exist. So long the duties concerning subsistence needs have not been clarified and allocated, they remain imperfect and therefore duties of virtue, which, Kant holds, do not have any corresponding rights. I believe that from Kant s understanding of duties and rights, this conclusion necessarily follows: that in the absence of institutions subsistence needs do not give rise to human rights. Many will argue, however, that Kant s presupposition is mistaken. They will argue that it is not a necessary precondition of a right to be determinate and claimable. Instead, all that is needed for the existence of a right is the duty-grounding nature of a particular interest that the right is meant to protect. This is also known as the interest theory of rights (Raz, Tasioulas, etc.). 5

6 Here, we ought to ask these critics if they realize the implications of rejecting claimability as existence condition of human rights. Most accounts of rights, including Kant s, maintain that by not performing a duty correlative to a right, one has not merely acted wrongfully, but one has in fact wronged the rightholder(s). By rejecting claimability, however, one in fact rejects the idea that a right-holder necessarily has a claim on those bearing the corresponding duties and, consequently, the idea that she is wronged when the duties corresponding to her right are not performed. For if she cannot claim the performance of the correlative duties, if she does not even know from whom she could claim such performance, in what sense can she then be wronged by their non-fulfillment? Who exactly has wronged her? We therefore have reason to doubt the tenability of an argument that is opposed to claimability as existence condition for rights, but that at the same time wishes to assert that the holder of a right is wronged when the correlative duty is not performed. III Conclusion In short, if we are to retain the view that having a right consists in exercising control over another (that is, in being able to claim the performance of the correlative duty from another), then we must conclude, on a Kantian account, that in the absence of allocating institutions there is no human right to subsistence. Consequently, the duties to aid are to be viewed as duties of virtue, rather than duties of Right. If having a right is to mean more than a moral appeal to unknown others, if we want more than mere manifesto rights, then we need to stick to the idea that possessing a right requires the ability to claim the performance of duties from identifiable others. 6