In chapter 17, Sen outlines a theory of human rights. He acknowledges that many human rights activists have little patience for philosophical discussions on the nature (and indeed existence) of human rights. He also discusses Jeremy Bentham’s quip that the natural rights are “nonsense on stilts”. Sen insists that if “the idea of human rights … is to command reasoned and sustained loyalty” (356), we must address the skeptics and cynics.
Sen analyzes human rights in terms of their content and their justification (their “viability”) (358). With regard to their content, human rights are moral rights that protect important freedoms and entail social obligations that people promote these freedoms. First, Sen stresses that human rights are moral rights – “really strong ethical pronouncements as to what should be done”. (357) They are not legal rights, though they are often enshrined in legal documents and institutions. (363) Law plays a central role in guaranteeing human rights, but other activities such as education, public monitoring, debate, and protest are also crucial. Indeed, there are cases under which giving human rights legal status may be counterproductive. Fining or jailing men who deny their wives an effective voice in family decisions is probably not the best way to promote women’s equality. (365)
Second, the purpose of human rights is to protect important freedoms. (376-9) As we have seen, Sen’s analysis of freedom includes an “opportunity aspect” and a “process aspect”. The capabilities approach captures the opportunity aspect (capabilities are real opportunities to achieve valuable functionings). (371) But human rights go beyond the capabilities approach in protecting the process according to which achieve these functionings. Two people with access to an identical set of functionings may be in a quite different situation with regard to human rights. For example, the rule of law may guarantee person A’s access valuable functionings, whereas person B may rely on the whim of a benevolent dictator. Leaving aside the fact that dictators generally do a poor job of guaranteeing human rights, many of us also care about how rights are guaranteed.
Sen objects to interest-based accounts of human rights because he thinks they interfere with our intuitions about the importance of freedom. His objection rests on the distinction between people’s “real” interests and the interests they perceive themselves as having. For example, we generally want to protect the human right to free political association, even if people choose to associate with political parties that do not promote their real interests. Sen admits that some interpretations of “interest” incorporate freedom, so some freedom-based and interest-based accounts of human rights converge.
Third, human rights do not protect all freedoms. Rather, they must meet “threshold conditions” of “sufficient social importance to be included as a part of the human rights of that person and correspondingly to generate obligations for others to see how they can help the person to realize those freedoms…” (367) Impartial discussion is needed to determine which rights meet this threshold.
Fourth, human rights entail social obligations. (360) Human rights impose universal ethical reasons for people to prevent their violation, but these reasons do not automatically entail specific actions. Obligations may be perfect, but they are often imperfect and diffuse. We need to ask about the agents’ other obligations, their ability to effectively prevent the violation of the human right, their agent-relative prerogatives, etc.
How does Sen justify a list of human rights and identify the obligations that they entail? On his account, human rights are justified like other ethical claims. To assert a human right is to presume that these claims will meet the standard of “open impartiality” discussed in Chapter 6. Human rights claims that “survive open and informed scrutiny” (385) and “unobstructed discussion” (386) deserve their status – at least until contrary arguments surface. Even if there is widespread agreement about which rights count as human rights, people are bound to disagree about their comparative weight, how they mesh with other ethical considerations, and the structure of the obligations they impose.
Sen is particularly concerned about the justification of second-generation economic and social rights such as the right to subsistence, medical care, and education. (379-85) He discusses two philosophical criticisms of human rights, the “institutionalization critique” and the “feasibility critique”. Onora O’Neill has argued that social, economic, and cultural rights must be institutionalized in a way that clearly identifies obligation-bearers. Human rights without obligation-bearers are not human rights at all. In response, Sen argues that first-generation rights also impose imperfect obligations. For example, citizens have obligations to notify the police when witnessing a crime and the international community has an obligation to act to prevent genocide. Furthermore, O’Neill’s condition that human rights economic, social, and cultural rights must be institutionalized undermines their ability to motivate institutional change.
Similarly, Maurice Cranston argues in his “feasibility” critique that economic and social rights require considerable government action for their realization, something that often cannot be achieved with some countries’ infrastructure and resources. Sen responds by noting that Cranston is mistaken in thinking that first-generation rights simply require that governments and people “leave a man alone.” (384) Maintaining rule of law and social stability is also beyond the means of quite a few governments, but few hold that this discredits their moral force. The proper response to the inability to meet the requirements imposed by a human right is social action.
Like most of the preceding chapters, there are many issues that could be raised, including whether Sen adequately addresses interest-based human rights accounts, fairly rebuts O’Neill and Cranston (and other critics), etc. I’ll conclude with two general questions.
1) Will Sen’s account of human rights satisfy either skeptics or activists? Skeptics are unlikely to be moved by the appeal to reasoned scrutiny and discussion and will still decry the impotence of human rights in the face of realpolitik. Moreover, Sen’s broad treatment of human rights is deflationary, arguably reducing them to important moral rights that have special rhetorical force. His metaphysical modesty and non-committal approach to the actual list of rights may play into the skeptics’ hands who will deny that there is anything particularly special about human rights that lack the sanction of positive law. Sen is a long way from the natural law tradition he discusses in the first part of the chapter. He holds not only that there is a trade-off between human rights – sometimes human rights conflict – but that sometimes other ethical prerogatives or obligations can take precedent over obligations stemming from them.
Similarly, activists will ask how his account supplements their work. We can return to the Preface and ask how the Parisians storming the Bastille, Gandhi or Martin Luther King would view Sen’s account of human rights. Does it help with “the identification of redressable injustice”? (vii) Does it “clarify how we can proceed to address questions of enhancing justice and removing injustice”? (ix) Sen’s account of human rights is in many ways refined common sense. Activists may complain that this doesn’t add much moral clarification or force to their causes.
2) There is a tension between Sen’s pluralism and “assertive incompleteness” and his account of human rights. Recall that Sen argues that impartial discussion may not lead to agreement about just social arrangements, including agreement on the list of human rights and their content. Human rights are moral claims of sufficient social importance that their guarantee entails social duties. Presumably, they should be subject to “plural grounding”. (2) If a human right is sufficiently disputed by reasonable people from a perspective of “open impartiality”, then it should be (tentatively) struck from the pantheon.
My worry is that Sen’s theory of justice may commit him to minimalism about human rights. For example, in the example of the children deciding who receives the flute, Sen seems to consider a libertarian distribution of property reasonable. This would cast doubt on the status of the second-generation rights he defends.