Post date: Mar 8, 2017 8:29:29 PM
[These are some lecture notes I circulate for my introductory ethics course, from a module on care ethics. Posting for International Women's Day. The stuff up front is recommended media for context.]
Julia A. White and Joan C. Tronto, “Political Practices of Care: Needs and Rights,” Ratio Juris 17.4 (2004), 425-453, especially 431-451.
Virginia Held, “Feminist Transformations of Moral Theory,” Philosophy and Phenomenological Research 50 Supplement (1990), 321-344, especially 337-344.
Roderick T. Long, “Why Libertarians Believe There Is Only One Right” (praxeology.net, 2013)
The ethical concept that is most central and fundamental to modern Western democracies is the concept of a right. The Constitution of the United States of America contains, as its first ten amendments, a Bill of Rights constraining the exercise of power by the federal government. Perhaps the most famous is the first, securing a right to freedom of speech:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Gitlow v New York (1925) extended this right as constraining the exercise of power by state and local governments, as well, and began the process of incorporating other rights into state and local laws. Prior to such incorporation, however, citizens of the United States lacked any legal recourse against state laws prohibiting or restricting their speech. This is because the Bill of Rights describes political rights, and political rights exist only insofar as governments deem them to exist.
Political rights have no moral force. Just because a government declares that people have certain rights, it does not follow that we ought—morally speaking—respect those rights. Similarly, just because a government denies that people have certain rights, it does not follow that we ought not—morally speaking—respect those rights anyway. But there is a category of rights that has ethical relevance. This is known variously as human or natural rights.
Human rights are rights that exist by virtue of nature.[1] They exist prior to political rights, and governments are ethical insofar as they acknowledge all and only human rights as political rights. Human rights are rights we retain no matter where or when we live, no matter what governments acknowledge or deny.
Human rights carry moral force, because each human right consists of a moral obligation and a moral permission, and because these moral states are directed against other persons. For example, my human right to free speech imposes an obligation on others to restrain from abridging my speech; and it gives permission to me, or to someone acting on my behalf, to forcibly compel others to restrain from abridging my speech. More generally,
X’s having a right against Y comprises both an obligation component and a permissibility component: the obligation on Y’s part to treat X in a certain manner, and the permissibility, on the part of X or of someone acting on X’s behalf, of forcibly compelling Y to treat X in that manner.[2]
Scholars typically divide human rights into two classes, negative and positive. Negative rights include all and only those human rights that restrain others by limiting their permissible actions against rights-holders, and that provide rights-holders with claims for recompense against those who transgress those restraints. Positive rights, by contrast, include all and only those human rights that provide rights-holders with claims against others for goods or services, regardless of whether those others are guilty of any transgression.
Paradigmatic negative rights include human rights to life and liberty, freedom from slavery and degrading punishment, freedom to own property, and freedom of religious worship. Paradigmatic positive rights include human rights to paid holidays, to free elementary education, and to health (defined as a state of complete physical, mental, and social well-being).[3]
There is widespread agreement among scholars that protecting and promoting only negative rights is inadequate for meeting human needs for survival, health, and proper functioning. Some lack resources to secure basic food, shelter, medical care, as well as skills and capacities to remedy such lack. Think here of young children, people with chronic and severe disabilities, elderly folk who are destitute (perhaps despite having lived frugally and worked hard in their youth), people who cannot find adequate employment despite sincere efforts. These people are vulnerable, lacking power of their own to meet their needs, and requiring help from others to do so.
If the only human rights are negative rights, vulnerable persons have exactly three options: receive charity from others with their consent (in the form of handouts or prison benefits), steal from others without their consent, or die.[4] If, however, some human rights are positive rights, vulnerable persons have rights to receive charity from others even without their consent: for those with the needed resources have obligations to provide needed charity; and it is permissible for the vulnerable, or for government acting on their behalf, to coerce those charitable provisions by force if necessary.[5]
The United Nations’ Universal Declaration of Human Rights enshrines the notion that human rights encompass not only negative rights to life, liberty, and property but also positive rights to food, shelter, and medical care.
Article 25: 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.
Socially-oriented European democracies tend to embrace this inclusive approach to rights, as do so-called neoliberals and “bleeding heart” (or welfarist) libertarians.[6] One argument for doing so involves the idea that helping people in need renders aggressive force on their behalf permissible; another, the idea that valuing negative rights presupposes the value of having power to enjoy those rights. We need not pursue these arguments. Two points suffice.
First, “classical” libertarians typically deny the existence of positive human rights. According to Roderick Long, for instance, we have a negative human right to be free from aggression. That right can be trumped by the rights of others to be free from our aggression—for example, our being detained by police for silencing another’s public speech does not violate our right to be free from aggression, because our action initiated an aggression by violating the other’s right to free speech. However, positive rights, were they to exist, would authorize others to initiate aggression against us, thereby violating our fundamental right to be free from aggression.
Second, there is a yawning gap between the legislative reality of human rights theory and the lived reality of human rights practice. For example, the South African Constitution is the first in the world to prohibit discrimination against sexual minorities.[7] But “corrective” rape—using sexual violence to “cure and convert” lesbians—is widespread in South Africa, with about 10 new cases every week and only one in 25 offenders convicted of a crime.[8] A member of the Triangle Project, an advocacy group for gay and lesbians in South Africa, describes this gap between law and life: "If you're poor, black, living in a shack, you're at risk of sexual violence, you can't speak and claim your rights."[9]
Consider, also, the United States of America. In May 2015, the United Nations issued a Universal Periodic Review for the United States' human rights record.[10] The review notes areas in which the United States is lacking, such as not guaranteeing human rights to safe drinking water and sanitation or rights to be free from torture and forced labor. It also notes pervasive and persistent gaps between rights enshrined in law and rights as experienced by citizens. For example, the review committee advised the United States to “adopt a national action plan to combat structural racial discrimination." They also issued reprimands for permitting excessive use of force by law enforcement officers, torturing people at Guantanamo prison, and permitting or failing to prosecute various forms of harmful racism such as hate crimes and racially-biased policing tactics. On September 1 2015, the United States State Department issued its response: no concessions will be made, no recommendations followed.
The examples of South Africa and USA show that governments who endorse human rights in the abstract do not always respect those rights in practice. So, quite apart from debates about positive rights among advocates of human rights, there is good reason to at least explore alternative approaches to meeting the needs of vulnerable persons. For if the only human rights are negative, vulnerable persons have no ethical recourse; and even if some human rights are positive, the gap between rights theory and lived reality makes it likely that many with positive rights to help remain unable to claim those rights.
Care ethics offers an alternative to the human rights approach. Care ethics identifies our dependencies upon others, rather than our isolated human natures, as the fundamental source of obligation and responsibility toward others. Whence Carol Gilligan notes,
The truth of relationship ... returns in the rediscovery of connection, in the realization that self and other are interdependent and that life, however valuable in itself, can only be sustained by care in relationships.[11]
Care ethics, accordingly, is a relational ethics, with morality arising from human relationships, rather than an ethics of principle (where morality arises from more abstract considerations).[12]
Care ethics understands needs as sources of obligation rather than objects of negotiation. From a care ethics perspective, when people are hungry, the moral issue is how we ought to meet their need for food rather than whether they have a right to food. When sexual minorities are harassed, the moral issue is how we ought to meet their need for security rather than whether they have a right to equal treatment. When people suffer gun violence at the hands of others, the moral issue is how we ought to meet their need for safety rather than how we ought to balance a right to safety with (say) a right to own and carry weapons.
Care ethics also understands rights as negotiable and optional, from a moral point of view. Care ethics prioritizes responding to need as the fundamental moral value. So respecting rights is valuable only insofar as it does not interfere with responding to need. Hence, insofar as we have moral rights, such as a right to be free from aggression, those rights are derivative rather than fundamental. It follows that, from a care ethics approach, helping people in need renders aggressive force on their behalf permissible—despite “classical” libertarian objections to the contrary.
[1] Most identify human dignity as the source of human rights. See Jürgen Habermas, “The Concept of Human Dignity and the Realistic Utopia of Human Rights,” Metaphilosophy 41.4 (2010), 464-480.
[2] Roderick T. Long, “Why Libertarians Believe There Is Only One Right” (praxeology.net, 2013), 3. Long notes that “the permissibility of enforcing a right does not entail the permissibility of exercising that right. I have the right to publish and distribute Nazi propaganda; it would not be permissible for me to exercise that right, but it would nevertheless be permissible for me, or my agent, to fend off by force anyone who proposed to suppress that right.”
[3] The negative/positive distinction is vague. For example, it is unclear whether rights to clean air and clean water are negative (requiring governments and companies to restrain from pollution) or positive (governments or companies to remove pollution).
[4] Mainstream libertarians tend to agree with this inference. For dissent, see James P. Sterba, “From Liberty to Welfare,” Ethics 105 (1994), 64-98.
[5] See Thomas W. Pogge (ed.), Freedom from Poverty as a Human Right: Who Owes What to the Very Poor? (New York: Oxford University Press, 2007).
[6] See Matt Zwolinski, “Libertarianism and the Welfare State,” in J. Brennan, B. van der Vossen, and D. Schmidtz (eds.), The Routledge Handbook of Libertarianism (Routledge, 2016).
[7] Clause 9.3, ratified 8 May 1996: “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, mental states, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth.”
[8] Roderick Brown, "Corrective Rape in South Africa: A Continuing Plight Despite an International Human Rights Response," Annual Survey of International & Comparative Law 18.1 (2012).
[9] OXFAM, "The Status of Sexual Minorities in Africa," February 2009.
[10] http://www.ohchr.org/EN/HRBodies/UPR/Pages/USSession22.aspx
[11] Gilligan, In a Different Voice, 127. Acknowledging our dependence upon others highlights the semi-mythical status of many libertarian arguments for the priority of (negative) rights. Here, for example, is Tibor Machan’s argument for a fundamental (negative) right to liberty: “Suppose that adult human beings are self-starters—that is, they have the capacity for initiating their conduct; i.e., they are essentially able to spur themselves into action (which would ready them for succeeding on their own at overcoming many challenges and even shortcomings or obstacles that they encounter in their lives). In that case it is the freedom from other person’s intrusiveness within their social lives that serves as the major but also unnecessary block to their flourishing. Once protected in their right to freedom, their own efforts (and some measure of good luck) must make the difference and is expected to, since being free they could address other problems much better than if subjugated by others” (Backing the Founders: The Case for Unalienable Individual Rights,” Libertarian Papers 2.42 (2010), 1-14 at 3). Note the supposition.
[12] See Stephanie Collins, The Core of Care Ethics (New York: Palgrave Macmillan, 2015), 7.