Human Rights

By Derrick Rivera,2015-03-03 19:25
51 views 0
Human rights are international moral and legal norms that aspire to protect all people everywhere from severe political, legal, and social abuses. Examples of human rights are the right to freedom of religion, the right to a fair trial when charged with a crime, the right not to be tortured, and the right to engage in political activity. These rights exist in morality and in law at the national and international levels. They are addressed primarily to governments, requiring compliance and enforcement. The main source of the contemporary conception of human rights is the Universal Declaration of Human Rights (United Nations, 1948b) and the many human rights documents and treaties that have followed in its wake.

    Human Rights

    1James W. Nickel


    Human rights are international moral and legal norms that aspire to protect all people everywhere from severe political, legal, and social abuses. Examples of human rights are the right to freedom of religion, the right to a fair trial when charged with a crime, the right not to be tortured, and the right to engage in political activity. These rights exist in morality and in law at the national and international levels. They are addressed primarily to governments, requiring compliance and enforcement. The main source of the contemporary conception of human rights is the Universal Declaration of Human Rights (United Nations, 1948b) and the many human rights documents and treaties that have followed in its wake.

    1;The General Idea of Human Rights

    The Universal Declaration of Human Rights (UDHR; United Nations 1948b) sets out a list of

    over two dozen specific human rights that countries should respect and protect. We may group these specific rights into six or more families: security rights that protect people against crimes

    such as murder, massacre, torture, and rape; liberty rights that protect freedoms in areas such as

    belief, expression, association, assembly, and movement; political rights that protect the liberty to

    participate in politics through actions such as communicating, assembling, protesting, voting, and serving in public office; due process rights that protect against abuses of the legal system such as

    imprisonment without trial, secret trials, and excessive punishments; equality rights that guarantee

    equal citizenship, equality before the law, and nondiscrimination; and welfare rights (or

    "economic and social rights") that require provision of education to all children and protections against severe poverty and starvation. Another family that might be included is group rights. The

    UDHR does not include group rights, but subsequent treaties do. Group rights include protections of ethnic groups against genocide and the ownership by countries of their national territories and resources.

    The general idea of human rights can be explained by setting out some defining features. It answers the question of what human rights are with a general description of the concept rather than a list of specific rights. Two people can have the same general idea of human rights even though they disagree about whether some particular rights are human rights.

    1 Jim Nickel has published widely in philosophy and law journals. He joined the faculty at ASU College of Law in 2003 after 21 years as Professor of Philosophy at the University of Colorado, Boulder. Nickel has been a visiting professor at the UC Berkeley School of Law (Boalt Hall) and at the University of Utah. At the University of Colorado Nickel served as Director of the Center for Values and Social Policy from 1982-88 and as Chair of the Philosophy Department from 1992-1996. Nickel has received many fellowships including a National Endowment for the Humanities Fellowship, a Rockefeller Foundation Humanities Fellowship, an ACLS Fellowship, and a National Humanities Center Fellowship. In fall 2004 he was a Visiting Fellow at Corpus Christi College, Oxford University. Nickel was recently awarded the Philosophical Quarterly's 2004 essay prize for his paper, "Poverty and Rights."

    Human rights are political norms dealing mainly with how people should be treated by their governments and institutions. They are not ordinary moral norms applying mainly to

    interpersonal conduct (such as prohibitions of lying and violence). As Thomas Pogge puts it, "to engage human rights, conduct must be in some sense official" . But we must be careful here since some rights, such as rights against racial and sexual discrimination are primarily concerned to regulate private behavior. Still, governments are directed in two ways by rights against discrimination. They forbid governments to discriminate in their actions and policies, and they impose duties on governments to prohibit and discourage both private and public forms of discrimination.

    Second, human rights exist as moral and/or legal rights. A human right can exist as a shared

    norm of actual human moralities, as a justified moral norm supported by strong reasons, as a legal right at the national level (here it might be referred to as a "civil" or "constitutional" right), or as a legal right within international law. The aspiration of the human rights movement is that all human rights will come to exist in all four ways.

    Third, human rights are numerous (several dozen) rather than few. John Locke's rights to life,

    liberty, and property were few and abstract, but human rights as we know them today address specific problems (e.g., guaranteeing fair trials, ending slavery, ensuring the availability of education, preventing genocide.) They protect people against familiar abuses of fundamental human interests. Because many concern contemporary institutions and problems they are not

    transhistorical. One could formulate human rights abstractly or conditionally to make them transhistorical, but the fact remains that the formulations in contemporary human rights documents are neither abstract nor conditional. They presuppose criminal trials, governments funded by income taxes, and formal systems of education.

    Fourth, human rights are minimal standards. They are concerned with avoiding the terrible

    rather than with achieving the best. Their focus is protecting minimally good lives for all people. Henry Shue suggests that human rights concern the "lower limits on tolerable human conduct" rather than "great aspirations and exalted ideals". As minimal standards they leave most legal and policy matters open to democratic decision-making at the national and local levels. This allows them to accommodate a great deal of cultural and institutional variation.

    Fifth, human rights are international norms covering all countries and all people living today.

    They are the sorts of norms that are appropriately recommended to all countries. International law plays a crucial role in giving human rights global reach. We can say that human rights are

    universal provided that we recognize that some rights, such as the right to vote, are held only by adult citizens; that some human rights documents focus on vulnerable groups such as children, women, and indigenous peoples; and that some rights, such as the right against genocide, are group rights.

    Sixth, human rights are high-priority norms. As Maurice Cranston put it "A…test of a human

    right…is the test of paramount importance." "A human right is something of which no one may be deprived without a grave affront to justice". This does not mean, however, that we should take human rights to be absolute. As James Griffin says, human rights should be understood as "resistant to trade-offs, but not too resistant". The high priority of human rights needs support from a plausible connection with fundamental human interests or powerful normative considerations.

    Seventh, human rights have robust justifications that apply everywhere and support their

    high priority. Without this they cannot withstand cultural diversity and national sovereignty. Robust justifications are powerful but need not be understood as ones that are irresistible.

    Eighth, human rights are rights, but not necessarily in a strict sense. As rights they have

    several features. One is that they have rightholders -- a person or agency having a particular right. Broadly, the rightholders of human rights are all people living today. More precisely, they are sometimes all people, sometimes all citizens of countries, sometimes all members of groups with particular vulnerabilities (women, children, racial and religious minorities, indigenous peoples), and sometimes all ethnic groups (as with rights against genocide.) Another feature of rights is that they focus on a freedom, protection, status, or benefit. A right is always to something which is the

    focus of the rightholders' interest. Rights also have addressees who are assigned duties or

    responsibilities. A person's human rights are not primarily rights against the United Nations or other international bodies; they primarily impose obligations on the government of the country in which the person resides or is located. The human rights of a citizen of Belgium are mainly addressed to his government. International agencies, and the governments of countries other than one's own, are secondary or "backup" addressees. International human rights organizations provide encouragement, assistance, and sometimes criticism to states in order to assist them in fulfilling their duties. The duties associated with human rights typically require actions involving respect, protection, facilitation, and provision. Finally, rights are usually mandatory in the sense

    of imposing duties on their addressees, but they sometimes do little more than declare high-priority goals and assign responsibility for their progressive realization. For example, the International Covenant on Economic, Social, and Cultural Rights, which covers rights to basic human needs such as food, clothing, housing, and education, commits its signatories to "take the maximum of...available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant…." It is possible to argue, of course, that goal-like rights are not real rights, but it may be better to recognize that they compromise a weaker or looser notion of a right.

    Having set out a general idea of human rights with eight elements, it is useful to consider three other candidates which I think should be rejected. The first is the claim that all human rights are negative rights, in the sense that they only require governments to refrain from doing things. On this view, human rights never require governments to take positive steps such as protecting and providing. This claim is not compatible with the attractive view that one of the main jobs of governments is to protect people's rights by creating a system of criminal law and of legal property rights. The European Convention on Human Rights incorporates this view when it says that "Everyone's right to life shall be protected by law" (Article 2.1). And the UN Torture Convention (United Nations 1984) imposes the requirement that "Each State Party shall ensure that all acts of torture are offences under its criminal law" (Article 4.1).

    A second claim to be rejected is that human rights are inalienable. Inalienability does not

    mean that rights are absolute or can never be overridden by other considerations. To say that a right is inalienable means that its holder cannot lose it temporarily or permanently by bad conduct or by voluntarily giving it up. I doubt that all human rights are inalienable in this sense. If we believe in imprisonment for legal crimes, then people's rights to freedom of movement can be forfeited temporarily or permanently by just convictions of serious crimes. And the right to

    freedom of movement can be voluntarily alienated by a person who makes a lifelong commitment to live in a monastery. Human rights are not inalienable but they are hard to lose.

    Third, I think we should reject John Rawls' proposal in The Law of Peoples that by definition

    human rights define where legitimate toleration of other countries ends. Rawls says that human

    rights "specify limits to a regime's internal autonomy" and that "their fulfillment is sufficient to exclude justified and forceful intervention by other peoples, for example, by diplomatic and economic sanctions, or in grave cases by military force".

    It is a grave oversimplification to suggest that there is a line defined by human rights where national sovereignty ends. There is no need to deny that human rights are helpful in identifying the limits of justifiable toleration, but there are several reasons to doubt that they simply define that boundary. First, the "fulfillment" of human rights is a very vague idea. No country fully satisfies human rights; all countries have significant human rights problems. Some countries have large human rights problems, and many have massive problems ("gross violations of human rights"). Beyond this, the responsibility of the current government of a country for these problems also varies. The main responsibility may belong to the previous government and the current government may be taking reasonable steps to move towards greater compliance.

    Further, defining human rights as norms that set the bounds of toleration requires restricting human rights to only a few fundamental rights. Rawls suggests the following list: "the right to life (to the means of subsistence and security); to liberty (to freedom from slavery, serfdom, and forced occupation, and to a sufficient measure of liberty of conscience to ensure freedom of religion and thought); to property (personal property); and to formal equality as pressed by the rules of natural justice (that is, that similar cases be treated similarly)". As Rawls recognizes this list leaves out most freedoms, rights of political participation, equality rights, and welfare rights. Leaving out any protection for equality and democracy is a high price to pay for assigning human rights the role of setting the bounds of tolerance, and we can accommodate Rawls' underlying idea without paying it. The underlying idea is that countries with massive violations of the most important human rights are not to be tolerated -- particularly when the notion of toleration implies, as Rawls thinks it does, full and equal membership in good standing in the community of nations. But to use this idea we do not need to follow Rawls in equating human rights with some radically stripped down list of human rights. Instead we can develop a doctrine -- which is needed for other purposes anyway -- of which human rights are the most important. Massive violations of the most fundamental rights can then be used as grounds for non-tolerance.

    2. The Existence of Human Rights

    The most obvious way in which human rights exist is as norms of national and international law created by enactment and judicial decisions. At the international level, human rights norms exist because of treaties that have turned them into international law. For example, the human right not to be held in slavery or servitude in Article 4 of ECHR and in Article 8 of ICCPR exists because these treaties enact it at the international level. At the national level, human rights norms exist because they have through enactment, judicial decision, or custom become part of a country's law. For example, the right against slavery exists in the United States because the Thirteenth Amendment to the US Constitution prohibits slavery and servitude. When rights are embedded in international law we speak of them as human rights; but when they are enacted in national law we

    more frequently describe them as civil or constitutional rights. As this illustrates, it is possible for a right to exist within more than one normative system at the same time. The human rights movement aspires to see its international norms enacted in the constitutions and laws of countries around the world.

    Enactment in national and international law is one of the ways in which human rights exist. But many have suggested that this is not the only way. If human rights exist only because of enactment, their availability is contingent on domestic and international political developments. Many people have sought to find a way to support the idea that human rights have roots that are deeper and less subject to human decisions than legal enactment. One version of this idea is that people are born with rights, that human rights are somehow innate or inherent in human beings. One way that a normative status could be inherent in humans is by being God-given. The US Declaration of Independence (1776) claims that people are "endowed by their Creator" with

    natural rights to "life, liberty, and the pursuit of happiness." On this view, God is the supreme lawmaker and enacted some basic human rights.

    Rights plausibly attributed to divine decree must be very general and abstract (life, liberty, etc.) so that they can apply to thousands of years of human history, not just to recent centuries. But contemporary human rights are more numerous and specific (the right to a fair trial, the right to freedom of religion, the right to equality before the law, etc.) Even if people are born with God-given natural rights, we need to explain how we get from those general and abstract rights to the specific rights found in contemporary declarations and treaties. Attributing human rights to God's commands may give them a secure status at the metaphysical level, but in a very diverse world it does not in fact make them practically secure. Billions of people do not believe in the God found in Christianity, Islam, and Judaism. If people do not believe in God, or in the sort of god that prescribes rights, then if you want to base human rights on theological beliefs you must persuade these people of a rights-supporting theological view, which is likely to be even harder than persuading them of human rights. Legal enactment at the national and international levels provides a far more secure status for practical purposes.

    Human rights might also exist independently of legal enactment by being part of actual human moralities. It appears that all human groups have moralities, that is, imperative norms of behavior backed by reasons and values. These moralities contain specific norms (e.g., a prohibition of the intentional murder of an innocent person) and specific values (e.g., valuing human life.) One way in which human rights could exist apart from divine or human enactment is as norms accepted in all or almost all actual human moralities. If almost all human groups have moralities containing norms prohibiting murder, these norms could constitute the human right to life. Human rights can be seen as basic moral norms shared by all or almost all accepted human moralities.

    This view is attractive but filled with difficulties. First, it seems unlikely that the moralities of almost all human groups agree in condemning, say, torture, unfair criminal trials, undemocratic institutions, and discrimination on the basis of race or sex. There is a lot of disagreement among countries and cultures about these matters. Human rights declarations and treaties are intended to change existing norms, not just describe the existing moral consensus. Second, it is far from clear that the shared norms that do exist support rights held by individuals. A group may think that torture is generally a bad thing without holding that all individuals have a high-priority right against being tortured. Third, human rights are mainly about the obligations of governments.

    Ordinary interpersonal moralities often have little to say about what governments should and should not do. This is a matter of political morality, and depends not just on moral principles but also on views of the dangers and capacities of the contemporary state.

    Yet another way of explaining the existence of human rights is to say that they exist in true or justified moralities. On this account, to says that there is a human right against torture is just to say that there are strong reasons for believing that it is almost always wrong to engage in torture. This approach would view the UDHR as attempting to formulate a justified political morality. It was not merely trying to identify a preexisting moral consensus; it was also trying to create a consensus on how governments should behave that was supported by the most plausible moral and practical reasons. This approach requires commitment to the objectivity of moral and practical reasons. It holds that just as there are reliable ways of finding out how the physical world works, or what makes buildings sturdy and durable, there are ways of finding out what individuals may justifiably demand of governments. Even if there is little present agreement on political morality, rational agreement is available to humans if they will commit themselves to open-minded and serious moral and political inquiry. If moral reasons exist independently of human construction, they can when combined with premises about current institutions, problems, and resources generate moral norms different from those currently accepted or enacted. The UDHR seems to proceed on exactly this assumption. One problem with this view is that existence as good reasons seems a rather thin form of existence for human rights. But perhaps we can view this thinness as a practical rather than a theoretical problem, as something to be remedied by the formulation and enactment of legal norms. After all, the best form of existence for human rights would combine robust legal existence with the sort of moral existence that comes from being supported by strong moral and practical reasons.

    3. Which Rights are Human Rights?

    This section discusses the question of which rights belong on lists of human rights. Not every question of social justice or wise governance is a human rights issue. For example, a country could have too much income inequality, inadequate provision for higher education, or no national parks without violating any human rights. Deciding which norms should be counted as human rights is a matter of some difficulty. And there is continuing pressure to expand lists of human rights to include new areas. Many political movements would like to see their main concerns categorized as matters of human rights, since this would publicize, promote, and legitimate their concerns at the international level. A possible result of this is "human rights inflation," the devaluation of human rights caused by producing too much bad human rights currency.

    Human rights are specific and problem-oriented. Historic bills of rights often begin with a list of complaints about the abuses of previous regimes or eras. Bills of rights may have preambles that speak grandly and abstractly of life, liberty, and the inherent dignity of persons, but their lists of rights contain specific norms addressed to familiar political, legal, or economic problems.

    In deciding which specific rights are human rights it is possible to make either too little or too much of international documents such as the UDHR and the ECHR. One makes too little of them by proceeding as if drawing up a list of important rights were a new question, never before

    addressed, and as if there were no practical wisdom to be found in the choices of rights that went into the historic documents. And one makes too much of them by presuming that those documents tell us everything we need to know about human rights. This approach involves a kind of fundamentalism: it holds that if a right is on the official lists of human rights that settles its status as a human right ("If it's in the book that's all I need to know.") But the process of listing human rights in the United Nations and elsewhere was a political process with plenty of imperfections. There is little reason to take international diplomats as the most authoritative guides to which human rights there are. Further, even if a treaty could settle the issue of whether a certain right is a human right within international law, such a treaty cannot settle its weight. It may claim that the right is supported by weighty considerations, but it cannot make this so. If an international treaty enacted a right to visit national parks without charge as a human right, the ratification of that treaty would make free access to national parks a "human right" within international law. But it would not be able to make us believe that the right to visit national parks without charge was sufficiently important to be a real human right.

    Once one takes seriously the question of whether some norms that are now counted as human rights do not merit that status and whether some norms that are not currently accepted as human rights should be upgraded, there are many possible ways to proceed. One approach that should be avoided puts a lot of weight on whether the norm in question really is, or could be, a right in a strict sense. This approach might yield arguments that human rights cannot include children's rights since young children cannot exercise their rights by invoking, claiming, or waiving. This approach begs the question of whether human rights are rights in a strict sense rather than a fairly loose one. The human rights movement and its purposes are not well served by being forced into a narrow conceptual framework. The most basic idea of the human rights movement is not that of a right, but the idea of regulating the behavior of governments through international norms. And when we look at human rights documents we find that they use a variety of normative concepts. Sometimes they speak of rights, as when the UDHR says that "Everyone has the right to freedom of movement…" (Article 13). Sometimes these documents issue prohibitions, as when the UDHR says that "No one shall be subjected to arbitrary arrest, detention, or exile" (Article 9). And at other times they express general principles, as illustrated by the UDHR's declaration that "All are equal before the law…" (Article 7).

    A better way to evaluate a norm that is nominated for the status of human right is to consider whether it is compatible with the general idea of human rights that we find in international human rights documents. If the general idea of human rights suggested above is correct, it requires affirmative answers to questions such as whether this norm could have governments as its primary addressees, whether it ensures that people can have minimally good lives, whether it has high priority, and whether it can be supported by strong reasons that make plausible its universality and high priority.

    The last question plays an especially important role. It leads to further questions such as: First, are very important human interests, values, or norms are protected by the right against common threats? Second, are the duties or responsibilities imposed by the norm on its addressees (such as governments, citizens, or international agencies) ones that are justifiable? And third, does the right make feasible demands? For the right against torture, for example, it is possible to give satisfactory answers to these questions. Torture is all too common even though it is very harmful to people's lives, health, and liberty. Duties to refrain from torture are appropriately imposed on all

    agents, but particularly on governments. Duties to protect people from torture are appropriately imposed on governments and international agencies. And these are duties that most countries are in a position to fulfill. Stopping torture may not be easy, but most countries can do it.

    Questions about which rights are human rights arise in regard to many families of human rights. Discussed below are (1) civil and political rights; (2) economic and social rights; (3) minority and group rights; and (4) environmental rights.

    4. Economic and Social Rights

    The UDHR included economic and social rights (also called welfare rights) that addressed matters such as education, food, and employment. Their inclusion has been the source of much controversy (Beetham 1995). Economic and social rights are often alleged to be statements of desirable goals but not really rights. The ECHR did not include them (although it was later amended to include the right to education). Instead they were put into a separate treaty, the European Social Charter (Council of Europe 1961). When the United Nations began the process of putting the rights of the UDHR into international law, it followed the model of the European system by treating economic and social standards in a treaty separate from the one dealing with civil and political rights. This treaty, the ICESCR, treated these standards as rights -- albeit rights to be progressively realized. More than 140 countries have ratified this treaty.

    A human rights treaty usually contains three parts: (1) a list of rights; (2) a specification of what the parties are agreeing to do in regard to this list; and (3) a system to monitor and promote compliance with the agreement. The ICESCR's list of rights includes nondiscrimination and equality for women in the economic and social area (Articles 2 and 3), freedom to work and opportunities to work (Article 4), fair pay and decent conditions of work (Article 7), the right to form trade unions and to strike (Article 8), social security (Article 9), special protections for mothers and children (Article 10), the right to adequate food, clothing, and housing (Article 11), the right to basic health services (Article 12), the right to education (Article 13), and the right to participate in cultural life and scientific progress (Article 15).

    Article 2.1 of the ICESCR sets out what the parties commit themselves to do about this list, namely to "take steps, individually and through international assistance and co-operation…to the

    maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant…." In contrast, the ICCPR simply commits its

    signatories to "respect and to ensure to all individuals within its territory…the rights recognized in the present Covenant…" (Article 2.1). The contrast between these two levels of commitment is

    one of the things that has led some people to suspect that economic and social rights are really just goals.

    The system to monitor and promote compliance with the ICESCR is weak since it merely requires participating countries to make periodic reports on measures taken to comply with the treaty. Countries agree "to submit…reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized herein" (Article 16). A committee of experts, created by the Economic and Social Council in 1987, is given the job of looking at the progress reports from the participating countries. This body, the Committee on Economic, Social and Cultural Rights, studies the reports, discusses them with representatives of the governments reporting, and issues interpretive statements (called "General Comments") on the

    requirements of the treaty. Since 1991 it has issued more than a dozen of these interpretive statements. ICESCR has no system for receiving complaints of violations of economic and social rights.

    Why did the ICESCR opt for progressive implementation and thereby treat its rights as being somewhat like goals? The main reason, I think, is that more than half of the world's countries were in no position, in terms of economic, institutional, and human resources, to realize these standards fully or even largely. For many countries, noncompliance due to inability would have been certain if these standards had been treated as immediately binding. We will return to this topic below.

    Opponents of welfare rights often deny them the status of human rights, restricting that standing to civil and political rights. Familiar objections to welfare rights include the following: (1) welfare rights do not serve truly fundamental interests; (2) welfare rights are too burdensome on governments and taxpayers; and (3) welfare rights are not feasible in less-developed countries.

    Let's first address the issue of importance. Human rights, such as rights to freedom from torture or to fair trials in criminal and civil cases, set out minimal but extremely important standards that governments everywhere should meet. One might object that welfare rights do not meet this standard of great importance. Perhaps they identify valuable goods, but not extremely valuable goods. If this objection is that some formulations of welfare rights in international human rights documents are too expansive and go beyond what is necessary to a minimally good life it can be conceded and those formulations rejected. For example, the UDHR included a putative right to holidays with pay (Article 24), and such a right pertains to a good life, not to a minimally good life. It is far from the case, however, that all or most welfare rights pertain to superficial interests. To discuss the issue of importance I will use two welfare rights as examples: the right to an adequate standard of living, and the right to free public education. These rights require governments to try to remedy widespread and serious evils such as hunger and ignorance.

    The importance of food and other basic material conditions of life is easy to show. These goods are essential to people's ability to live, function, and flourish. Without adequate access to these goods, interests in life, health, and liberty are endangered and serious illness and death are probable. The connection between having the goods the right guarantees and having a minimally good life is direct and obvious -- something that is not always true with other human rights.

    In the contemporary world lack of access to educational opportunities typically limits (both absolutely and comparatively) people's abilities to participate fully and effectively in the political and economic life of their country. Lack of education increases the likelihood of unemployment and underemployment.

    Another way to support the importance of welfare rights is to show their importance to the full implementation of civil and political rights. If a government succeeds in eliminating hunger and providing education to everyone this promotes people's abilities to know, use, and enjoy their liberties, due process rights, and rights of political participation. This is easiest to see in regard to education. Ignorance is a barrier to the realization of civil and political rights because uneducated people often do not know what rights they have and what they can do to use and defend them. It is also easy to see in the area of democratic participation. Education and a minimum income make it easier for people at the bottom economically to follow politics, participate in political campaigns, and to spend the time and money needed to go to the polls and vote.

    The second objection is that welfare rights are too burdensome. It is very expensive to guarantee to everyone basic education and minimal material conditions of life. Perhaps welfare

    rights are too expensive or burdensome to be justified even in rich countries. Frequently the claim that welfare rights are too burdensome uses other, less controversial human rights as a standard of comparison, and suggests that welfare rights are substantially more burdensome or expensive than liberty rights. Suppose that we use as a basis of comparison liberty rights such as freedom of communication, association, and movement. These rights require both respect and protection from governments. And people cannot be adequately protected in their enjoyment of liberties such as these unless they also have security and due process rights. The costs of liberty, as it were, include the costs of law and criminal justice. Once we see this, liberties start to look a lot more costly. To provide effective liberties to communicate, associate, and move it is not enough for a society to make a prohibition of interference with these activities part of its law and accepted morality. An effective system of provision for these liberties will require a legal scheme that defines personal and property rights and protects these rights against invasions while ensuring due process to those accused of crimes. Providing such legal protection in the form of legislatures, police, courts, and prisons is extremely expensive.

    Further, we should not think of welfare rights as simply giving everyone a free supply of the goods these rights protect. Guarantees of things like food and housing will be intolerably expensive and will undermine productivity if everyone simply receives a free supply. A viable system of welfare rights will require most people to provide these goods for themselves and their families through work as long as they are given the necessary opportunities, education, and infrastructure. Government-implemented welfare rights provide guarantees of availability (or "secure access"), but governments should have to supply the requisite goods in only a small fraction of cases. Note that primary education is often an exception to this since many countries provide free public education irrespective of ability to pay.

    Countries that do not accept and implement welfare rights still have to bear somehow the costs of providing for the needy since these countries -- particularly if they recognize democratic rights of political participation -- are unlikely to find it tolerable to allow sizeable parts of the population to starve and be homeless. If government does not supply food, clothing, and shelter to those unable to provide for themselves, then families, friends, and communities will have to shoulder this burden. It is only in the last century that government-sponsored welfare rights have taken over a substantial part of the burden of providing for the needy. The taxes associated with welfare rights are partial replacements for other burdensome duties, namely the duties of families and communities to provide adequate care for the unemployed, sick, disabled, and aged. Deciding whether to implement welfare rights is not a matter of deciding whether to bear such burdens, but rather of deciding whether to continue with total reliance on a system of informal provision that distributes benefits in a very spotty way and whose costs fall very unevenly on families, friends, and communities.

    Once we recognize that liberty rights are also carry high costs, that intelligent systems of provision for welfare rights supply the requisite goods to people in only a small minority of cases, and that these systems are substitutes for other, more local ways of providing for the needy, the difference between the burdensomeness of liberty rights and the burdensomeness of welfare rights ceases to seem so large.

    Even if the burdens imposed by economic and social rights are not excessive, they might still be wrong to impose on individuals. Libertarians object to welfare rights as requiring impermissible taxation. Nozick, for example, says that "Taxation of earnings from labor is on a

Report this document

For any questions or suggestions please email