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The Universal Scope of Positive Duties Correlative to Human Rights

Published online by Cambridge University Press:  05 February 2018

MARINELLA CAPRIATI
MARINELLA CAPRIATI*
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Abstract

Negative duties are duties not to perform an action, while positive duties are duties to perform an action. This article focuses on the question of who holds the positive duties correlative to human rights. I start by outlining the Universal Scope Thesis, which holds that these duties fall on everyone. In its support, I present an argument by analogy: positive and negative duties correlative to human rights perform the same function; correlative negative duties are generally thought to be universal; by analogy, we have reason to think that positive duties are held by everyone. I then consider three disanalogies that challenge the above argument. To address these worries, I introduce the notion of ‘aggregative duties’ – duties that can only be adequately grasped when we focus on the aggregate effect of the actions and omissions of different agents. This framework allows me to refine the initial thesis and address the objections.

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Article
Information
Utilitas , Volume 30 , Issue 3 , September 2018 , pp. 355 - 378
Copyright
Copyright © Cambridge University Press 2018 

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References

1 Raz, J., The Morality of Freedom (Oxford, 1986), p. 166Google Scholar.

2 See also MacCormick, N., Legal Right and Social Democracy (Oxford, 1982)Google Scholar; Waldron, J., Collected Papers 1981–1991 (Cambridge, 1993)Google Scholar. A competing analysis of the relation between rights and their correlative duties holds that they stand in a relation of mutual entailment. See Hohfeld, W., Fundamental Legal Conceptions, ed. Cook, W. (New Haven, 1919)Google Scholar and Kramer, M. (ed.), Rights, Wrongs and Responsibilities (London, 2001)CrossRefGoogle Scholar.

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5 Ashford, E., ‘The Duties Imposed by the Human Right to Basic Necessities’, Freedom from Poverty as a Human Right: Who Owes What to the Very Poor?, ed. Pogge, T. (Oxford, 2007), pp. 183–218Google Scholar. However, the institutional account would be able to claim that a human-right violation occurred, if the relevant institution did not adequately protect right-holders.

6 Ashford, ‘Duties Imposed’; Caney, S., ‘Global Poverty and Human Rights: the Case for Positive Duties’, Freedom from Poverty as a Human Right: Who Owes What to the Very Poor?, ed. Pogge, T. (Oxford, 2007), pp. 275–302Google Scholar.

7 See List, C. and Pettit, P., Group Agency: The Possibility, Design, and Status of Corporate Agents (Oxford 2011)CrossRefGoogle Scholar as examples of the first approach; Gilbert, M., ‘Who's to Blame? Collective Moral Responsibility and its Implications for Group Members’, Midwest Studies in Philosophy 30.1 (2006), pp. 94–114;CrossRefGoogle Scholar Bratman, M., ‘Shared Cooperative Activity’, Philosophical Review 101.2 (1992), pp. 327–41CrossRefGoogle Scholar, for an example of the second.

8 See Lawford-Smith, H., ‘The Feasibility of Collectives' Actions’, Australasian Journal of Philosophy 90.3 (2012), pp. 453–67CrossRefGoogle Scholar, and Collins, S., ‘Collectives' Duties and Collectivisation Duties’, Australasian Journal of Philosophy 91.2 (2013), pp. 231–48.CrossRefGoogle Scholar This position is not, however, unchallenged. In an influential article, for example, Virginia Held argued that a group that does not satisfy the conditions for agency can in some cases be held responsible; see Held, V., ‘Can a Random Collection of Individuals Be Morally Responsible?’, Journal of Philosophy 67.14 (1970), pp. 471–81CrossRefGoogle Scholar. This is the case when its members have a shared end, the action required by each individual is obvious, and each individual is required to act in a way that is responsive to other members. An account on similar lines has recently been defended by Schwenkenbecher, A., ‘Joint Duties and Global Moral Obligations’, Ratio 26.3 (2013), pp. 310–28.CrossRefGoogle Scholar I follow Lawford-Smith in thinking that those duties are best described as individual duties: responsiveness is a property of individuals and its normative implications can be accounted for without attributing duties to groups that do not satisfy conditions of agency, see Lawford-Smith, H., ‘What “We”?’, Journal of Social Ontology 1.2 (2015), pp. 225–50Google Scholar.

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10 Tasioulas, ‘Moral Reality’. For an interactional account of duties correlative to human rights that assumes duties are claimable see Collins, S., ‘The Claims and Duties of Socio-Economic Human Rights’, Philosophical Quarterly 66.265 (2016), pp. 701–22CrossRefGoogle Scholar.

11 The ‘ought implies can’ dictum is not unchallenged, see e.g. Sinnott-Armstrong, W., ‘“Ought” conversationally implies “can”’, Philosophical Review 93.2 (1984), pp. 249–61.CrossRefGoogle Scholar I shall, however, assume it holds for the purpose of this article. Feasibility is the subject of a large literature – see, among others, Raikka, J., ‘The Feasibility Condition in Political Theory’, The Journal of Political Philosophy (1998), pp. 27–40;CrossRefGoogle Scholar Estlund, D., ‘Human Nature and the Limits (If Any) of Political Philosophy’, Philosophy and Public Affairs 39 (2011), pp. 207–37CrossRefGoogle Scholar; Southwood, N., ‘Does “Ought” Imply “Feasible”?’, Philosophy and Public Affairs 44.1 (2016), pp. 7–45CrossRefGoogle Scholar; Southwood, N. and Wiens, D., ‘“Actual” Does Not Imply “Feasible”’, Philosophical Studies 173.11 (2016), pp. 3037–60;CrossRefGoogle Scholar Gilabert, P. and Lawford-Smith, H., ‘Political Feasibility: A Conceptual Exploration’, Political Studies 60.4 (2012), pp. 809–25;CrossRefGoogle Scholar Lawford-Smith, ‘Feasibility of Collectives' Actions’. I endorse the distinction between ‘binary’ and ‘scalar’ feasibility outlined in Gilabert and Lawford-Smith, ‘Political Feasibility’ and Lawford-Smith, ‘Feasibility of Collectives’ Actions’. Binary feasibility concerns allowing and ruling out outcomes on the basis that they can or cannot be achieved. Scalar feasibility concerns how likely an outcome is to obtain. For the purpose of this article, I focus on ‘binary’ feasibility: I do so because this is the concept of feasibility employed when discussing existence conditions of rights. While a discussion of scalar feasibility would provide a fuller account of the framework outlined, I am unable to include it in this article due to space limitations.

12 For other arguments against the thesis that claimability, as conceived by O'Neill, is an existence condition of rights, see Ashford, E., ‘The Inadequacy of our Traditional Conception of the Duties Imposed by Human Rights’, Canadian Journal of Law and Jurisprudence 19.2 (2006), pp. 217–35;CrossRefGoogle Scholar Griffin, J., On Human Rights (Oxford 2008)CrossRefGoogle Scholar; Etinson, A., ‘Human Rights, Claimability and the Uses of Abstraction’, Utilitas 25.4 (2013), pp. 463–86.CrossRefGoogle Scholar See Appendix for more detail on O'Neill's argument.

13 Shue, H., Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (Princeton, 1996)Google Scholar.

14 For a treatment of the moral significance of the difference between acts and omissions, see Foot, P., ‘The Problem of Abortion and the Doctrine of Double Effect’, Oxford Review 5 (1967), pp. 5–15Google Scholar; Foot, P., ‘Morality as a System of Hypothetical Imperatives’, Philosophical Review 81.3 (1972), pp. 305–16;CrossRefGoogle Scholar Foot, P., ‘Morality, Action and Outcome’, Morality and Objectivity, ed. Honderich, T. (London, 1985)Google Scholar, pp. 23–38; Thomson, J. J., ‘Killing, Letting Die, and the Trolley Problem’, The Monist 59.2 (1976), pp. 204–17CrossRefGoogle ScholarPubMed; Lichtenberg, J., ‘The Moral Equivalence of Action and Omission’, Canadian Journal of Philosophy 12.1 (1982), pp. 19–36CrossRefGoogle Scholar; McMahan, J., ‘Killing, Letting Die, and Withdrawing Aid’, Ethics 103.2 (1993), pp. 250–79CrossRefGoogle ScholarPubMed.

15 Simon Caney holds this position in Caney, ‘Global Poverty’.

16 O'Neill, O., Faces of Hunger: An Essay on Poverty, Justice, and Development (London, 1986)Google Scholar; Shue, Basic Rights. As I pointed out above, O'Neill holds that the claimability of the correlative duties is a condition for the existence of rights: she would therefore not accept the starting assumptions of this article. I consider her objections here because the worries she presses stand independently of the assumptions she endorses.

17 Shue, H., ‘Mediating Duties’, Ethics 98.4 (1988), pp. 687–704CrossRefGoogle Scholar.

18 Shue, ‘Mediating Duties’.

19 Among others, see Glover, J. and Scott-Taggart, M. J., ‘It Makes No Difference Whether Or Not I Do It’, Proceedings of the Aristotelian Society, Supplementary Volumes 49 (1975), pp. 171–209CrossRefGoogle Scholar; Parfit, D., Reasons and Persons (Oxford, 1984)Google Scholar; Scheffler, S., Boundaries and Allegiances: Problems of Justice and Responsibility in Liberal Thought (Oxford, 2002)CrossRefGoogle Scholar; Ashford, ‘Inadequacy’; Ashford, ‘Duties Imposed’; Stemplowska, Z., ‘On the Real World Duties imposed on us by Human Rights’, Journal of Social Philosophy 40.4 (2009), pp. 466–87CrossRefGoogle Scholar; Kagan, S., ‘Do I Make a Difference?’, Philosophy and Public Affairs 39.2 (2011), pp. 105–41CrossRefGoogle Scholar; Pinkert, F., ‘What If I Cannot Make a Difference (and Know It)’, Ethics 125.4 (2015), pp. 971–98CrossRefGoogle Scholar.

20 ‘Contribute to killing the fish’ is not a precise characterization; the correct way of describing the situation is rather ‘contributing to bringing about the outcome “the fish are dead”’. I adopt the former formulation for simplicity. In some cases of aggregative duties individuals perform actions harmful in themselves which add up to greater harm; in others, individuals perform actions which make no perceptible difference at all in isolation but, in combination, bring about serious harm. In the first type of case, we need to focus on aggregative harms to grasp the strength and content of the relevant duties; in the second, to grasp their existence. Much literature focuses on specifying the abstract principles that explain why individuals act wrongly in the second type of cases. For some proposed solutions, see Parfit, D., Reasons and Persons (Oxford, 1984)Google Scholar; Glover and Scott-Taggart, ‘It Makes No Difference’; Shrader-Frechette, K., ‘Parfit and Mistakes in Moral Mathematics’, Ethics 98.1 (1987), pp. 50–60CrossRefGoogle Scholar; Otsuka, M., ‘The Paradox of Group Beneficence’, Philosophy and Public Affairs 20.2 (1991), pp. 132–49Google Scholar; Hansson, S. O., ‘The Moral Significance of Indetectable Effects’, Risk: Health, Safety and Environment 10 (1999), pp. 101–8Google Scholar; Graff, D., ‘Phenomenal Continua and the Sorites’, Mind 110.440 (2001), pp. 905–36CrossRefGoogle Scholar; Kagan, ‘Do I Make a Difference?’; K. Spiekermann, ‘Small Impacts and Imperceptible Effects: Causing Harm with Others’, Midwest Studies in Philosophy 38.1 (2014), pp. 75–90; Pinkert, ‘What If’. However, this debate does not challenge the argument made in this article, since all authors assume individuals act wrongly in the circumstances described.

21 The example is a modified version of the one presented in Collins, ‘Collectives’ Duties’.

22 Lichtenberg, J., ‘Negative Duties, Positive Duties, and the “New Harms”’, Ethics 120.3 (2010), pp. 557–78CrossRefGoogle Scholar.

23 Ashford, ‘Inadequacy’.

24 The example of the polluted lake above is a case of additive harm.

25 Parfit, Reasons and Persons.

26 Ashford includes a third type of aggregative harms: indirect harms. These occur when institutions foreseeably or systematically lead to high levels of human rights violations, or themselves constitute a human rights violation (Ashford, ‘Inadequacy’, p. 229). If we ‘invert’ this type of harm to focus on the ‘mirroring’ benefit, we find benefits occurring when institutions foreseeably or systematically lead to high levels of human rights protection, or themselves constitute a human rights protection. These benefits can be captured in terms of the other categories I outline, so I will not consider them as a separate category.

27 Combination benefits also plausibly have a harm ‘counterpart’. Consider for instance, a modified version of the factory case, in which the chemicals poured into the river are individually innocuous, but lethal in combination.

28 This thesis is different from the claim that duties deriving from fundamental interests fall on humanity as a whole. The latter thesis is defended in Nussbaum, M., ‘Beyond the Social Contract: Capabilities and Global Justice’, Oxford Development Studies 32.1 (2004), pp. 1–18Google Scholar; Wringe, B., ‘Needs, Rights, and Collective Obligations’, Royal Institute of Philosophy Supplement 80.57 (2005), pp. 187–208CrossRefGoogle Scholar; Wringe, B., ‘From Global Collective Obligations to Institutional Obligations’, Midwest Studies in Philosophy 38.1 (2014), pp. 171–86;CrossRefGoogle Scholar Igneski, V., ‘The Human Right to Subsistence and the Collective Duty to Aid’, Journal of Value Inquiry 51.1 (2017), pp. 33–50.CrossRefGoogle Scholar I explain why I do not find this position compelling in section I above.

29 This is in line with the principle of priority, according to which benefiting people matters more the worse off these people are; see Parfit, D., ‘Equality and Priority’, Ratio 10.3 (1997), pp. 202–21CrossRefGoogle Scholar.

30 See Lichtenberg, ‘Negative Duties’.

31 See Sonderholm, J., ‘World Poverty, Positive Duties, and the Overdemandingness Objection’, Politics, Philosophy and Economics 12.3 (2013), pp. 308–27CrossRefGoogle Scholar, for a review and critique of the strategies adopted in recent literature.

32 Singer, P., ‘Famine, Affluence, and Morality’, Philosophy and Public Affairs 1.3 (1972), pp. 229–43Google Scholar.

33 Murphy, L. B., Moral Demands in Nonideal Theory (Oxford, 2000)Google Scholar.

34 Lichtenberg, ‘Negative Duties’.

35 Wenar, L., ‘Responsibility and Severe Poverty’, Freedom From Poverty as a Human Right: Who Owes What to the Very Poor?, ed. Pogge, T. (Oxford, 2007), pp. 255–75.Google Scholar For another influential version of what I am here calling a ‘Limited Scope Thesis’, see Miller, D., ‘Distributing Responsibilities’, Journal of Political Philosophy 9.4 (2001), pp. 453–71CrossRefGoogle Scholar; Miller, National Responsibility.

36 Wenar only calls the obligation to prevent a basic threat a ‘human right’ when such an obligation steps back up to the level of national government (Wenar, ‘Responsibility’, p. 270). However, he offers a general principle which applies to the scope of all moral duties to protect threats to well-being and this principle therefore also covers positive duties correlative to human rights.

37 Wenar holds that there is another principle that regulates the responsibility for the prevention of threats to basic well-being: the Principle of Compensation, according to which, when one person has harmed another, and the harm to the victim constitutes a continuing threat to their basic well-being, the agent harming the victim has a responsibility to compensate them. Due to lack of space, I will here only focus on the Least Cost Principle, since the points discussed stand regardless of whether the Principle of Compensation is added to the account.

38 Wenar, ‘Responsibility’, p. 258.

39 Wenar, ‘Responsibility’, p. 257.

40 Wenar, ‘Responsibility’, p. 258.

41 O'Neill, O., Towards Justice and Virtue: A Constructive Account of Practical Reasoning (Cambridge, 1996), p. 133CrossRefGoogle Scholar.

42 Tomalty, J., ‘The Force of the Claimability Objection to the Human Right to Subsistence’, Canadian Journal of Philosophy 44.1 (2014), pp. 1–17CrossRefGoogle Scholar, at 4.

43 Tomalty, ‘The Force of the Claimability Objection’.

44 Rainbolt, G., ‘Perfect and Imperfect Obligations’, Philosophical Studies 98.3 (2000), pp. 233–56CrossRefGoogle Scholar.

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46 Etinson, ‘Human Rights’.

47 For helpful comments, I thank David Miller, Elisabeth Ashford, Marco Meyer, Lloyd Chapman, the two anonymous referees from Utilitas, participants to the Nuffield Political Theory Workshop, and especially Cecile Fabre and Thomas Sinclair. Work for this article was supported by grants from the Arts and Humanities Research Council and Lady Margaret Hall College, Oxford.