Abstract
It is a crucial question whether practicalities should have an impact in developing an applicable theory of human rights—and if, how (far) such constraints can be justified. In the course of the non-ideal turn of today’s political philosophy, any entitlements (and social entitlements in particular) stand under the proviso of practical feasibility. It would, after all, be unreasonable to demand something which is, under the given political and economic circumstances, unachievable. Thus, many theorist—particularly those belonging to the liberal camp—begin to question the very idea of social human rights on grounds of practical infeasibility. This new minimalism about human rights motivates an immanent critique arguing that even if we were to proceed from a liberal framework, we would still wind up with a justification of the full list of social human rights. In the first part of this article, I will present the central positions of the debate presented by Amartya Sen, Maurice Cranston and Pablo Gilabert. Initially arguing that a minimalism of human rights on grounds of practical infeasibility alone proves unjustifiable, however, I shall open up two further perspectives, which allow practical infeasibilities to become normatively determinate. Discussing contributions by James Griffin and Charles Beitz, I will defend the thesis that certain feasibility constraints on (social) human rights can be justified on the condition that they are grounded either in a normative idea of the appropriate implementation of these rights or in reflection of the practical function of a theory of human rights.
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Notes
I am grateful to one of the reviewers for asking me to further elaborate my right-based and political understanding of human rights from the outset.
Although I take up this way of questioning from Amartya Sen (2009, 15–18) I do not accept his argument in favor of a comparative theory in its entirety.
For a profound discussion cf. Joshua Cohen (2004).
As a reminder, Art. 25.1 of the Universal Declaration of Human Rights declares that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”
“It is plausible to think”, O’Neill writes, “that rights not to be killed or to speak freely are matched by and require universal obligations not to kill or not to obstruct free speech; but a universal right to food cannot be simply matched by a universal obligation to provide an aliquot morsel of food” (2000, 135.)
With respect to Art. 25 of the UDHR, Thomas Pogge points out that the respective demands “may have quite specific implications in a given social context” (2002, 69). Therefore, since “each member of society, according to his or her means, is to help bring about and sustain a social and economic order within which all have secure access to basic necessities”, social human rights call for “situational specificity” (69). Situational specificity again means that the responsible agent and the appropriate object of a positive duty will become apparent case by case depending on which special relations, liabilities, or authorities are involved (112–116).
In practice, human rights already work as public reasons for political reform and prospective legalisation. As Joel Feinberg (1973, 67) writes, manifesto rights may work as “real claims” directed “upon hypothetical future beings” and this is “a powerful way of expressing the conviction that they ought to be recognized by states as potential rights and consequently as determinants of present aspirations and guides to present policies”.
One of the reviewers rightly reminded me that in most parts of the world political rights and liberties are probably less accepted than social human rights and that the governments of autocratic regimes often argue with the practical infeasibility of implementing them.
One may argue that psychological limits present another subcategory of strict infeasibility. But if I am right in thinking that psychological limits are not fixed in the same way as, say, natural laws we may also argue that they are another group of practical infeasibilities which make a certain course of events unlikely but not impossible once and for all. For a similar distinction cf. Gilabert (2008, 665).
Unsurprisingly, the entitlement to paid-holidays is often the preferred target of this kind of critique. In fact, a fundamental right to recreation without at the same time having to worry about one’s existence presents a very basic claim.
Sen also points out that a constraint from practical infeasibility, if justifiable, would also apply to “liberties, autonomies and even political rights” (2004, 348).
For cases of international justice, Allen Buchanan formulates analogously: “The infeasibility objection wrongly assumes that principles of justice have no useful role to play prior to the point at which they can be implemented. This is not the case. Principles of justice can play a role in helping us to determine what sorts of institutions we need to build in order to be able to achieve justice.” (2000, 713)
Sen was criticised by Benhabib (2008) for not considering the legal form of human rights.
“What we are after are the existence conditions for a human right. Its existence must depend, to some extent, upon the concept’s being determinate enough in sense to yield human rights with enough content for them to be an effective, socially manageable claim on others. […] Practicalities are needed to determine the content of many human rights, and the considerations they introduce may well be special to human life.” (Griffin 2008, 37–38).
And he further clarifies: “Whatever its importance regarded from the perspective of potential beneficiaries and however appropriate it would be as a requirement for domestic institutions, a protection cannot count as a human right if it fails to satisfy a requirement of this kind.” (140)
One may nevertheless object that constraining human rights on grounds of practical feasibility seems to be insensitive to unlikely historical occurrences. For instance, the democratic welfare state must have appeared politically inaccessible only decades before it came into being, often by way of eruptive revolutions or civil wars. However, even though political capabilities and political problems change over time, this is not necessarily an argument against constraints from practical infeasibilities on human rights, but against a historically insensitive conception of human rights. One can coherently hold the view that a reasonable list of human rights extends with new opportunities or unforeseen threats. What human rights will then turn out to be reasonable in the light of practical feasibility is a matter of political judgement and global discourse at a given time.
As advanced by Martha Nussbaum 2007.
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Acknowledgements
In 2010, I had the opportunity to present earlier versions of this paper at the Global Ethics Colloquia in Kassel, at the Third Biennial Conference of the International Global Ethics Association (IGEA) in Bristol, at the workshop on “Current Developments in Practical Philosophy” in Ujué (Spain), at the Workshop on “The Diversity of Human Rights” at the Inter University Center in Dubrovnik, and at the Working Group in Moral Philosophy at Yale. I am grateful to the participants of these talks for many critical comments and helpful suggestions. I also want to thank the Fritz Thyssen Foundation for generously supporting my research and, last but not least, both reviewers of the journal for asking me to clarify my argument in some decisive respects.
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Hahn, H. Justifying Feasibility Constraints on Human Rights. Ethic Theory Moral Prac 15, 143–157 (2012). https://doi.org/10.1007/s10677-011-9275-x
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DOI: https://doi.org/10.1007/s10677-011-9275-x