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Habermas on the human right to subsistence

David Ingram - 23 ottobre 2008 Every year 18 million of the earth's six billion inhabitants die from lacking means of subsistence. We who live in developed nations typically blame this catastrophe on drought, overpopulation, resource mismanagement, corrupt government, and other local factors, thereby relieving ourselves of any responsibility for this crime [...]

 

David Ingram

 

 

Every year 18 million of the earth's six billion inhabitants die from lacking means of subsistence. We who live in developed nations typically blame this catastrophe on drought, overpopulation, resource mismanagement, corrupt government, and other local factors, thereby relieving ourselves of any responsibility for this crime. At the same time, we do not hesitate to invoke the language of human rights in condemning this state of affairs. Either we do so in the name of moral progress – as when we say, following the United Nations Universal Declaration of Human Rights, that the world has fallen short of achieving an aspiration essential to civilized humanity; or we do so in the name of moral offense, as when we condemn selected government officials for having committed acts of genocide, ethnic cleansing, and the like. One might ponder whether either of these two senses of human rights – as aspirations for measuring moral progress or as claims against government officials for failing to discharge their duties to their citizens – generates a moral discourse sufficient for coming to terms with globalization. In particular, one wonders whether they adequately respond to the fact that we are dealing with the imposition of impersonal social structures and institutions that prevent the poor from freely accessing their means of subsistence.

Many Marxists would deny that they do, and for two reasons. Aside from rejecting human rights discourse as ideology, Marxists generally assume that capitalists will be compelled by the state that protects their long-term interests to assure the basic subsistence of their workers. But Marxism is ambivalent on this point, since subsistence needs and basic capabilities are only accidentally and perversely fulfilled by the exchange values of a market economy[1]. Furthermore, if Marx is correct, rights are not mere ideology since the freedom and equality they falsely posit are genuine universal aspirations. In the words of Horkheimer, rights “express a critique of conditions that imperatively call for change”. Therefore given the failure of today’s capitalist economy to guarantee even basic subsistence for over a billion of this planet’s inhabitants, it's worthwhile asking whether critical theory can avail itself of the language of human rights in a way that takes us beyond human aspirations and indictments of gross official wrong doing.

In answering this challenge, I turn to the discourse theoretical account of human rights developed by Jurgen Habermas. Although Habermas does not talk about a human right to subsistence as such, his critique of neo-liberal human rights regimes that restrict human rights to “negative liberties of citizens who acquire an 'immediate' status vis-a-vis the global economy”[2], combined with his scathing indictment of global poverty and inequality, would seem to compel acknowledgment of this right somewhere in his theory. And indeed, he does mention as basic “rights to the provision of living conditions that are socially, technologically, and ecologically safeguarded”[3]. But, as he explains elsewhere, these rights are to be understood as derivative of classical liberal and political rights:

 

From a normative standpoint, according to “priority” to social and cultural rights basic rights does not make sense for the simple reason that such rights only serve to secure the “fair value” [as Rawls puts it] of liberal and political basic rights, that is, the factual presuppositions for the equal opportunity to exercise individual rights[4].


In other words, a right to demand provision of living conditions that are socially safeguarded is to be understood as a right that persons living within liberal and democratic orders can demand of society as a necessary condition for exercising equal civil and political rights. As such, the right to subsistence as it is presented here is not to be understood as a universal human right that applies to just anyone, no matter what kind of society they happen to live in, but is rather to be understood as a less universal and subsidiary political right aimed at safeguarding the egalitarian solidarity without which citizenship in any liberal, democratic society would be unthinkable.

I shall argue that there are several difficulties with conceiving a right to subsistence as derivative of liberal democratic rights in this sense. First, such a right imposes only a positive duty on society to provide assistance, which is normally thought to be weaker than a negative duty to refrain from causing harm. But the injustice of a system that deprives persons of free access to subsistence indicts that system and those who contribute to maintaining it for failing in their negative duties towards those persons. Second, the strength of positive duties varies in proportion to our solidarity with whom we feel duty-bound. Although ties of global friendship might be extended to the point where we feel a positive duty to assist “burdened societies” (as John Rawls argues), Habermas himself notes that our solidarity with strangers is primarily ignited by violations of their negative freedom. We feel outrage – and accordingly demand international intervention - when a government deliberately sets out to starve to death some significant portion of its citizenry. We feel only discomfort and resignation when people starve for lack of assistance owing to the seemingly insurmountable costs of providing it. 

Having said that, I shall argue that Habermas's correlation of a basic right to subsistence with a positive duty to assist by redistributing wealth does not exhaust resources within his discourse theoretical account that might be used to develop a stronger, negative duty to desist from harm. These resources include, first, an institutional account of human rights that sees human rights as claims against structures that are imposed on persons against their will; second, an account of classical liberal rights, including the right to property, that have “intrinsic value” apart from “their instrumental value for democratic will formation,” and third, a deconstruction of the distinction between negative and positive duties that conceives some positive duties of distributive justice as flowing from negative duties. Having appropriated these resources for developing a stronger right to subsistence, it still remains an open question whether, contrary to Habermas, we must also regard human rights in a non-juridical way, as moral aspirations and claims that are directed against inhumane structures no matter their legal status. In keeping with the dialectical conception of thought and social reality elaborated by critical theorists, I do not propose a complete and fully coherent concept of human rights; nor do I suggest a family of unrelated or overlapping uses of that expression. I do propose, however, that our understanding of human rights encompasses a number of different ideas that need to be affirmed under that concept, institutional as well as interactional, juridical as well as moral, minimal as well as maximal.

 

Interactional v. Institutional Theories of Human Rights

 

One of the distinctive features of Habermas's discourse theory of human rights is that it conceives human rights in institutional rather than in interactional terms. Following Thomas Pogge's definition, let us say that human rights conceived interactionally are claims made by one person against another person[5]. As such, they impose correlative duties on persons to either positively assist or negatively refrain from harming others.

At one end of the interactional rights spectrum, a libertarian theory of human rights asserts that a public official P is not failing in his negative duty to person Q who is subject to his control so long as P's official conduct causes Q no harm by intentionally violating Q's moral or legal right to access some basic good. If P acts otherwise then he has failed in his duty by violating Q's right. Suppose a leader of a local Janjaweed militia in Darfur prevents a resident from gaining free access to her water supply by stealing her water. The leader of the militia and the Sudanese government that sanctions such behavior fails in their negative duty toward this woman and can be said to violate her right to subsistence. By contrast, if an impersonal economic structure permits the World Bank to loan Bolivia money on condition that Bolivia sell off its public water rights to private multinationals in ways that threaten to deprive residents of Cochabamba and El Alto of free access to water, no personal harm has been done to these residents and we cannot say that their right to subsistence has been violated[6].

According to the libertarian conception of human rights, the economic structure is not responsible for harming these residents because this conception regards responsibility in terms of a personal model of liability. This model defines harms as deviations from a normal background of conventionally sanctioned hazards that are causally traceable to the discrete actions of individual wrongdoers. However, in the water privatization case, the harm is not caused by the deviant actions of a discrete class of persons; it is rather caused by the all-too normal hazards generated by these conventions. 

At the other end of the interactive rights spectrum, a utilitarian theory of human rights asserts that a public official P is not failing in his positive duty to Q so long as P helps Q gain access to her water up to the point where P sacrifices resources possessing value comparable to the value of Q's accessing her water. Suppose official P helps Q to the point where he begins to sacrifice resources possessing comparable value, thereby subjecting himself and his subordinates to a greatly diminished life. He must do so if he is not to violate Q's right to subsistence. Conversely, suppose that P simply has no resources to help Q access her water because he has used his resources to help R access her water. Now imagine once again that a World Bank loan that requires the privatization of water rights is the source of Q's lack of water. Although Q is denied access to her water by the aforementioned loan, her human right to subsistence has not been violated by anything that official P or any other government official has done, since they were only discharging their office according to domestic laws and international conventions.

Libertarian and utilitarian theories of human rights present us with opposed visions of our moral and legal responsibilities with respect to upholding human rights. The libertarian theory presents a minimalist view, which assigns public officers sole responsibility for upholding human rights, a responsibility which they fulfill simply by not obstructing their exercise. The utilitarian theory represents a maximalist view, which assigns responsibility for upholding human rights to everyone who has the power and means to do so. As Peter Singer notes in his famous essay on famine relief, this responsibility may require even those who are modestly well-off to transfer large portions of their wealth to the less well-off in accordance with calculations of marginal utility[7].

Despite their differences, both libertarian and utilitarian versions of the interactional theory of human rights share certain features. First, they see the failure to uphold human rights as stemming directly from personal acts or omissions to act. Second, they see this failure as a rights violation; i.e., as an actual deprivation of some basic good to some person. These two features indicate the fundamental weakness of the interactional approach. Far from being personal, deprivation of basic resources has one of its principal sources in global institutional structures and, more specifically, in the unintended side effects of these structures. Furthermore, these effects harm people in different degrees. What's important is not that a person has actually been deprived of a basic good but that her access to it has been rendered insecure. In the water privatization case, we might want to say that Q's access to her water – her human right to water – no longer corresponded to a socially guaranteed claim. Privatization may not have directly deprived Q of water. Perhaps she was one of the lucky ones who could afford – at least for the time being – to pay the higher rates. Nonetheless, Q's right to subsistence was no longer securely exercised; it may not have been violated but it was also not respected and protected.

Who is responsible for this lack of respect? Certainly Bolivia's leaders and the CEOs of Bechtel and Suez. But also everyone who contributes to upholding the background structures, the global economic institutions, that permitted these actors to privatize a basic human resource. Unfortunately, the interactional notion of human rights cannot conceive of responsibility for harm in terms of what Iris Young calls social connectedness. In contrast to the model of personal liability, responsibility that flows from social connection also accrues to persons living in developed countries who benefit from, depend upon, and contribute to upholding (however unintentionally) global economic institutions that harm the poor[8]

An institutional view of human rights, by contrast, can conceive of Q's right to subsistence as having been unintentionally and indirectly diminished in this manner. Q’s right to subsistence was diminished by the institutions of global capitalism: trade agreements and international lending institutions that reflect the unfair bargaining leverage of wealthy multinationals, banks, and nations; unjust monopolies over resources; and structural constraints that force – and conventions that allow – government officials to sell their nation's resources[9].

Of course, an institutional human right to subsistence may also take the form of a claim against global institutions authorized to provide positive assistance. Yet such a claim would be comparatively weak, especially if those to whom assistance were owed were perceived to be no more socially connected to us than aliens living on another planet. The poor may rightfully demand subsistence from their government, but if their government is poor or non-functional, to what global institutions can they turn to demand assistance? Indeed the question arises: Why should there even be institutions that help foreigners living abroad when our first duty of assistance is to our fellow kinsmen?

A stronger institutional human right to subsistence must therefore begin with the fact of global connectedness and the corresponding idea that the affluent are benefited by institutions that harm the poor. The right to subsistence is first and foremost a claim against global institutions to not harm (or interfere with) the poor in their free pursuit of subsistence; for our negative duties to strangers are at least as strong as our negative duties to compatriots. If it can be shown that global institutions such as the ones mentioned above are the main causes of radical inequality and poverty, then we who live in the rich and powerful democracies that uphold and benefit from them are failing in our negative duty to refrain from harming others. Our duty to refrain from harming them goes beyond a minimal libertarian duty by requiring us to take political action in changing the global economic order; it may also require public and private acts of compensatory redistributive justice. These acts of reparation may be considerable, but they are arguably less maximal than the costs affluent people would assume under a utilitarian account.

Habermas clearly believes that global institutions are unjust in this sense. Furthermore, as we shall now see, his discourse theoretical account of human rights is institutional rather than interactional. The only remaining question is whether he conceives the human right to subsistence as entailing a corresponding institutional duty to assist in providing aid or to desist in causing harm. Only if he conceives it as entailing a corresponding negative duty to desist from causing harm can he argue that unjust global institutions diminish human rights to the point of requiring global intervention[10].       

              

Habermas's Discourse Theory of Human Rights

 

Several striking features stand out in Habermas's account of human rights. First, unlike most philosophers, Habermas rejects the view that human rights are a subspecies of moral rights. In his opinion, they are legal rights, albeit ones that possess universal validity. Second and related, Habermas denies that human rights need a moral grounding in human nature or reason. Instead, he insists that they are essentially linked to the formal and functional prerequisites of modern legal systems. This is not to say that their raison d'etre is exclusively functional, since they evolved in response to universal experiences of oppression (BFN: 191). To that extent they do indeed possess a uniquely moral rationale. Third, like all legal rights, human rights must be the outcome of democratic political processes that lend them the quasi-statutory form associated with relatively well-defined laws that can guide behavior in predictable ways. Habermas's discourse theory of law and democracy explains how the specific content of such rights must be politically negotiated in fair and fully inclusive dialog such that all affected by them could freely and rationally consent to them as being in the mutual interest of everyone.  

Although we are only now developing the international legal institutions which might someday evolve into a global democratic human rights regime, Habermas believes that the contours of such an evolution are visible in the English and American constitutional traditions. Looking back at these traditions, Habermas notes that some of our human rights trace their genealogy and justification back to those civil liberties that guarantee the very freedom of speech and association without which the basic laws and constitutions that ground democratic institutions could not have acquired legitimacy in their own turn. In other words, such human rights are functionally justified by the moral necessity, within modern society, to link legality to democratic legitimacy as much as they are by the functional necessity of guaranteeing democracy through legal right. In short, they institute the communicative conditions necessary for progressive “will formation.”

This functional argument, however, can explain only those human rights that are directly related to the maintenance of democratic political life, broadly construed. According to Habermas, human rights to private property, personal security, freedom of movement, and indeed all the classical human rights that originally occupied the attention of liberal social contract theorists during the age of monarchy, are more directly related to the “grammar of the legal code” (PC: 117-18). Here again, we find Habermas deviating sharply from the natural law morality that guided these theorists. These classical human rights, Habermas tells us, do not “have [their] origins in morality, but rather bear the imprint of individual liberties, hence of a specifically juridical concept”[11]. More precisely, such rights function primarily as permissions to act without fear of government constraint. What duties they impose fall primarily on those responsible for upholding the law and not on private citizens.  

Taken in conjunction with the rise of modern individualism and moral accountability, they permit citizens freedom to act in ways that conform to the limits of modern life, namely, with the expectation that their own freedom as well as that of their compatriots will be limited according to a predictable, well-defined and publicized rule. Of course, this functional explanation of classical human rights in terms of the imperatives of market economies and administrative orders does not preclude the fact that such rights also historically have a moral warrant referring to universal experiences of tyranny and oppression (BFN: 191).

Human rights, then, are “Janus-faced.” Neither morality nor positive law taken separately suffices to account for the dual fact that human rights are universal rights that only emerge within a distinctly modern legal order. The implication Habermas draws from this duality is striking: although particular constitutional democracies succeed well enough in securing the human rights of their own subjects, as long as human rights are not fully incorporated into a cosmopolitan legal order, subjects living outside these democracies will lack their protection (IO:192). Institutionalizing human rights in a cosmopolitan legal order is also necessary to allay the concern, voiced by Carl Schmitt and others, that human rights appeals are but pretexts by which states “morally justify” their self-serving interventions in the domestic affairs of other states (IO:200, 201). In sum, we might say that Habermas rejects a strictly moral interpretation of human rights for being both too weak, because moral rights lack the enforceability of law, and and too strong, because they justify unilateral humanitarian interventions (vigilante justice) unchecked by international legal procedure].

Habermas's theory of human rights is thus institutional in a peculiar, juridical sense. It regards human rights as legal claims that impose correlative legal duties on global human rights institutions for their legitimate interpretation, application and enforcement. Secondarily, it imposes duties on all of us to elect leaders who will work on our behalf to ensure the viability and effectiveness of these institutions. Notwithstanding the cogency of this view, we can imagine human rights being maintained or violated by non-legal institutions as well. As Thomas Pogge and Martha Nussbaum note, oppressive economic system imposed on the poor by tradition rather than by law can certainly be the object of a moral human rights claim, as can a traditional system of patriarchy or racial caste. Not only may such traditional institutions thrive within modern legal institutions that overtly prohibit them – so that addressing a human rights complaint to the legal system is futile – but the remedy for abuse need not – and sometimes should not – always take a legal form. Indeed, as we shall now see, Habermas himself seems to envision the possibility that at least some basic rights that are not integral to the legal form and legitimacy of modern law might be fully secured through institutions that are (correspondingly) not legally regulated. That said, such felicitous occurrences of legally unsanctioned human rights flourishing are undoubtedly rare in today's society.

 

Subsistence as a Human Right

 

How might Habermas's institutional theory of human rights accommodate subsistence as a human right? To answer this question we might begin by looking at his derivation of basic rights and see how central the provision of material well-being is to his overall legal theory. As we shall see, rights that provide for the material well-being of citizens are regarded by him as the least central. Indeed, to the extent that he regards them as important at all, it is primarily in securing, as Rawls puts it, the “fair value” of civil and political liberties that are implicit in the very form and structure of law as such.

Habermas begins by deducing three categories of basic rights that are essential to any modern legal code. First, in modern legal systems rights must take the form of individual liberties, which need not be held equally by all citizens. The normative principle that all citizens must be treated as “equals under the law” first arises from the egalitarian principle of discourse (D). This principle holds that valid norms must be universally acceptable as being in the equal interest of each and everyone, following fair, free, and inclusive discussion. Applied to legal rights, (D) yields the first and most basic category of subjective rights: equal rights to individual liberty, or non-interference in the pursuit of self-chosen ends.

The second category of citizenship rights again follows conceptually from the fact that liberty rights are claims recognized by a legal community. When combined with liberty rights, citizenship rights entail a human right to change one's citizenship status through emigration.

The third category of due process rights captures the fact that legal rights are claims that can be adjudicated and enforced through recognizable legal processes. Taken together, rights to liberty, citizenship, and due process constitute what we mean by a valid legal code. Generated monologically (i.e., by conceptual analysis) the legal code comprises only a set of abstract principles or “unsaturated placeholders” for rights. In order to get a substantively prescriptive bill of rights, members of a constitutional convention need to apply this code to their own political deliberation.

Here the principle of discourse (D) is applied a second time. Whereas it had been used to derive the concept of equal legal rights, it is now used to derive the democratic method by which these rights acquire their precise meaning and legitimacy. Legislation must be democratic in order for it to be accepted by all to whom it applies as normatively binding. 

In sum, although the categorical scheme of rights that limits democracy from the outside is deduced authoritatively from the bare concept of law and equal citizenship, its concrete interpretation and elaboration in the form of a system of prescriptive permissive rights must be adduced democratically. This entails a fourth category of political rights. Here in lies the basis for human rights to speak out, associate, and publish, all of which can be interpreted as negative rights, as well as positive rights to run for public office, elect leaders of one's choice, and vote in elections. In sum, there exists, as Habermas puts it, an “internal relation between human rights and popular sovereignty.”

So far we have accounted for the conceptual connection between modern law and classical, civil, and political human rights. But we have not said anything about a human right to subsistence. A basic right to subsistence is included in Habermas's fifth and final category of basic rights to “the provision of living conditions that are socially, technologically, and ecologically safeguarded, insofar as the current circumstances make this necessary if citizens are to have equal opportunities to utilize the civil rights listed in [the preceding four categories of rights]” (BFN: 123). Whereas Habermas insists that the first four categories of right are “justified absolutely” in relation to the concept of modern law, he observes that the last category of welfare rights – under which we might include subsistence – is justified only “relatively” and contingently.

The non-fundamental nature of the human right to subsistence is reiterated in a later essay in which Habermas addresses a complaint made by the signatories to the 1993 Bangkok Declaration. This complaint questions the priority of rights over duties and, more importantly, the priority of civil and political rights over social and cultural rights. Reversing the Western privileging of classical, civil, and political human rights, the signatories to the Declaration argued that postponing classical, civil and political human rights for the sake of satisfying material needs is justifiable for two reasons: First, civil and political freedom is not as important to starving persons as subsistence and therefore the former must be consequent upon the latter. Second, civil and political freedom may obstruct economic progress by generating social conflict.

Habermas does not deny that classical freedoms associated with modern capitalist conceptions of property and market exchange, as well as civil and political liberties, can cause social disintegration; nor does he deny the fact that severely impoverished persons lack material resources and capabilities that enable them to enjoy classical, civil, and political rights. Rather than refute these objections to the Western conception and prioritization of human rights, he notes that no country undergoing capitalist modernization can fail to institutionalize this conception. The unavoidable legal institutionalization of classical property rights and market freedoms that signatory nations to the Bangkok Declaration have already undertaken sets in motion an irrepressible demand for civil and political freedom. Free people demand not only efficient government but legitimate government. The prerequisites for democratic legitimation, in turn, presuppose a high degree of solidarity among citizens who recognize themselves as masters of their own collective fate. It is this democratic equality that obligates citizens to guarantee everyone an equal right to subsistence in matters of education, health, security, and welfare. This is what Habermas means when he says that “[f]rom a normative standpoint, according 'priority' to social and cultural basic rights does not make sense for the simple reason that such rights only serve to secure the 'fair value' (Rawls) of liberal and political basic rights, i.e., the factual presuppositions for the equal opportunity to exercise individual rights” (PC: 125).

Four points stand out in this characterization of a right to subsistence. First, the right to subsistence is justified instrumentally, in light of the need to maintain the egalitarian social solidarity requisite for maintaining liberal democracy. Therefore it is not intended to secure a basic threshold of human flourishing applicable to anyone regardless of their political status. It is rather intended as a   principle of distributive justice much in the same way that Rawls's Difference Principle is. In both cases, the contractarian idea of “equal shares for roughly equal contributions” is the driving idea, not the idea of basic human need. Second, as a legal right the right to subsistence is a claim against juridical institutions. It is not a claim against oppressive economic structures or traditional systems of patriarchy and racial caste that have been imposed on the poor by convention. Not only may such structures and systems thrive within modern legal institutions that prohibit them – so that addressing a human rights complaint to the legal system is futile. But when the cause of oppression is tradition, the best remedy may not be legal but pedagogical, through raising of consciousness. Third, the right to subsistence is contingent. In an affluent society in which wealth is already evenly distributed, such a legal guarantee would be unnecessary. Fourth and finally, the right to subsistence is understood as the fulfillment of a positive duty. More precisely, it is a duty to aid those whom we recognize as our compatriots in solidarity. As such, its enforcement cannot be subsumed under the central control of a global human rights agency, whose contributing members are not linked in democratic solidarity. As Habermas puts it, we feel “negative” solidarity with foreigners when they suffer extreme violations of their negative human rights in the course of genocide, ethnic cleansing, and large-scale political oppression. By contrast, our positive solidarity with them is not of the sort that would compel us to transfer our wealth to them (DW:79-80, 177-78, 139-43). Accordingly, Habermas endorses aggressive international intervention in cases of genocide but not in cases of poverty, whose causes are less certain and whose remedies are more controversial.

       

The Negative Duty To Refrain From Harming Others and the Right to Subsistence

 

In sum, Habermas has no place in his theory for a human right to subsistence that applies to persons regardless of their political and legal status. At best, he can insist on such a right only in a derivative sense, as when he criticizes the idea of neo-liberal human rights regimes that restrict human rights to “negative liberties of citizens who acquire an ‘immediate’ status vis-à-vis the global economy” (DW: 186). This criticism, it is true, assumes that positive political rights to democratic self-determination must be considered basic human rights, from which it then follows that a positive right to subsistence must also be met “as a matter of justice.” But this again does not address the human right to subsistence of persons who do not – and for all we know, may never – live in liberal democracy. At best, their right to subsistence can only be met by our weaker positive duty to assist those in need.

Deriving a right to subsistence from liberal and democratic rights is risky business so long as the human rights status of these rights remains a contentious issue. Hence it is not surprising that many   human rights theorists have avoided doing so[12]. Equally risky is deriving a right to subsistence from our weak positive duty to assist those in need, since both the beneficiaries and the amount of benefits given depend on our discretion and caring concern. Another strategy is needed to deal with the subsistence-denying effects of global institutions. This strategy, I believe, is implicit in Habermas's inclusion of a “right to life” among the classical human rights (PC: 125). Insofar as this right prohibits us from harming others in their free pursuit of life, it recognizes no distinction between strangers and compatriots.

Two consequences follow from conceiving a human right to subsistence as a Lockean right to life. First, persons have a claim on others to freely access means of subsistence that exist in sufficient abundance. Second, shortfalls in subsistence are mainly to be attributed to the constraints imposed by persons and institutions. Once we suppose that persons have an equal stakeholder claim on accessing the earth's abundant resources, acceptable property structures must be limited to those that “leave enough and as good for others”, proportionate to the satisfaction of everyone’s basic needs. Any economic structure that deviates from this initial egalitarian property right must be consented to by all affected as equally advancing their individual interests, in accordance with the demands of discourse ethics.

Locke justified a monetarized capitalist economy with vastly unequal property holdings on the grounds that even those who owned nothing but their bodies would consent to the relatively higher standard of life they would enjoy as mere wage earners in comparison to their meager subsistence under a more egalitarian condition. In light of the devastating poverty and inequality unleashed by contemporary global capitalism, Locke’s justification stands refuted. As Habermas notes, the neo-liberal trade agreements; unregulated labor zones, development investment policies; and structural readjustment programs that make up today's global capitalist institutions are imposed on the poor without their consent. Furthermore, the extreme disadvantage that the poor have in bargaining leverage reflects a long history of accumulated disadvantage that stems from a past history of brutal colonialization, imperialism, exploitation, expropriation, and slavery. This injustice – perhaps the most sustained systemic violation of a negative duty ever recorded in human history – is further abetted, as Pogge and others have pointed out, by international conventions that allow authoritarian leaders in developing countries the privilege to sell their nation's resources for arms and personal gain and to use these same resources for collateral in borrowing money from international banks. Needless to say, all of this works to the advantage of those who subsidize their extravagant lifestyles by purchasing discounted commodities through the fencing agencies of banks and multinational companies. 

 

Conclusion

 

In conclusion, by interpreting a human right to subsistence as a classical liberal right to life in the Lockean sense, we lose the stronger egalitarian assumptions associated with a positive duty to provide the material conditions requisite for guaranteeing the “fair value” of political liberty. At the same time, we gain the unconditional force of a negative duty that can authorize international human rights interventions in cases where persons are denied secure subsistence through the personal conduct of government officials or the impersonal effects of institutions[13]. To be sure, whether we treat our primary duties as negative or positive, our secondary duties will almost invariably be of a positive nature. As Habermas notes, fulfilling our primary duty to respect the integrity of individuals will require taking positive action - most obviously by creating appropriate social structures, some of which will be juridical[14]. Suffice it to say, it will require electing officials who will change the current structures[15]. Beyond that it may also require supporting unions that empower workers as well as boycotting companies that sell goods made in sweatshops. However we act to change the current system, those who have benefited from oppression have a duty to compensate those who have suffered from it.

Theoretically speaking, developing an adequate comprehension of the human right to subsistence may require jettisoning Habermas's exclusively juridical understanding of human rights. No doubt a juridical understanding captures an important aspect of human rights which has come to the fore in recent international interventions against states that have committed human rights violations (the Dafur and Kosovo interventions illustrating just a few examples that attest to this understanding). These legal interventions remind us that defending human rights is a political, and not merely moral (or personal) obligation. On the other hand, some interventions reveal a non-juridical – and at times non-institutional – aspect. Political efforts to change traditional patterns of gender discrimination through education rather than by legal fiat constitute a non-juridical form of institutional intervention. Yet other interventions evince an interactive notion of human rights, as when the leader of one nation (perhaps in coalition with leaders of other like-minded nations) undertakes to restrain the leader of another country who has wantonly disregarded the humane laws and conventions of his own country. As noted above, this understanding of human rights is sometimes associated with singular feelings of moral indignity that might not be felt equally by all peoples represented in the community of nations – hence evoking the dangers of unilateralism noted by Schmitt. But a morality-based, interactive understanding of human rights ought not to be dismissed, since there are occasions, such as natural catastrophes, when individual persons have a positive duty to assist others in need through donating their own resources, as Singer rightly notes.

Another reason for acknowledging a moral – and in this sense, non-juridical – understanding of human rights is that human rights function as ideal, “maximal” aspirations, or evolving standards of civilization, progress, and critique, independently of their status as “minimal” claims[16]. This latter sense of human rights, which essentially refers to a comprehensive moral conception of human nature and its associated norms of human flourishing and self-realization, resonates deeply within the Aristotelian-Marxist tradition[17]. Even if this tradition can no longer be accepted as providing a straightforward justification (or foundation) for human rights in the metaphysical sense of the term (i.e., as deduced or intuited by “pure reason”), it can specify what human rights are about and why they are important. Simply put, human rights are all about guaranteeing the satisfaction of the most basic human needs as well as the realization of the most central human capabilities. Guaranteeing opportunities to satisfy these needs and realize these capabilities – both material and spiritual – in turn implies a conception of human integrity that makes prioritizing categories of human rights virtually impossible. Basic categories of human rights that protect liberty, security, economic subsistence and social welfare, political participation, legal due process, the integrity of group cultural identity, and equality and non-discrimination are essentially complementary. Although these categories and the distinctive needs and capabilities which they designate are irreducible to one another, so that one category might be more or less fulfilled relative to another category, no category can be minimally guaranteed without the other categories being so guaranteed, and it may be the case that no category can be fully realized without the others being so as well.. Yet appreciating the complementarity of human rights does not preclude other ways of ranking them. As Henry Shue has argued, there will be distinctions between more basic and less basic rights within each category. Thus, in most economic contexts, a right to subsistence will trump a competing right to buy and sell labor, services, and goods as one wishes.

Habermas, like Rawls, would likely object that any conception of human rights based on a moral conception of human nature violates the pluralistic tenets of political liberalism by sneaking in a comprehensive, metaphysical conception of the human good. In his opinion, such a teleological conception of human nature would not be universally convincing to all human beings. Hence, appealing to this standard of human flourishing as a basis for legal action, critique and reform would amount to imposing a particular, non-shareable ideal on the rest of the world. I find this to be a strange argument from a philosopher who is so convinced that cultures are conversationally open to one another and capable of converging in their agreement on universal moral values. As Martha Nussbaum notes in her critique of Habermas, if human rights can be justified apart from their instrumental value for law and democracy, this is because they intuitively capture basic human needs[18]. Put simply, Habermas’s proceduralism has it exactly backwards. There is no reason to expect that human beings can reach universal consensus on general interests unless they assume, as a regulative idea, that they share a common nature. In that case, the UN's increasing reliance on a revisable and cross-culturally negotiated list of capabilities, rather than Gross National Product (GNP) or average utility, in assessing progress in the achievement of human rights demonstrates a healthy respect for moral realism that first-generation critical theorists also shared, albeit not uncritically, and that Habermas would be good to acknowledge as well.

 

 

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[1] One might define subsistence needs precisely in terms of “a qualitative standard of living” and “actually experienced form of life” that lies outside the market system, in activities that support the market but are not reflected in its prices (such as walking to work and to market, consumption, etc.); resources and activities that lie outside the market (fresh air, growing my own vegetables for personal consumption, etc.); and activities and things that are exchanged through barter and informal exchange, guided by the mutual, non-profitable satisfaction of needs. Because one of the most basic needs is for a sense of stable and secure identity and community over time, subsistence is intrinsically related to sustainability and conservation of local environments. While the social welfare state has been the major guarantor of community against the onslaught of unregulated capitalism, its own Fordist assumptions, which elevated “family wages” by excluding women from the market and consigning them to the home, were intrinsically shattered by the new global economic system. In any case, given the heavily bureaucratic (non-democratic) and interventionist approach of the welfare state – which often counteracts democratic community – it may be necessary to revision the human right to subsistence in non-legal terms, a point which I argue for in this paper. For more about the relationship between subsistence, sustainability, markets, and the welfare state, see Ian Angus, “Subsistence as a Social Right: A Political Ideal for Socialism?” in Studies in Political Economy, No. 65, Summer 2001). 

[2] J. Habermas, The Divided West (Cambridge: Polity Press, 2006), p. 186. Hereafter, DW.

[3] J Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA: MIT, 1996), p. 123. Hereafter, BFN.

[4] J. Habermas, The Post-National Constellation: Political Essays (Cambridge, MA: MIT, 2001), 125. Hereafter, PC.

[5] T. Pogge, World Poverty and Human Rights (Cambridge, Polity Press, 2002), pp. 64ff.

[6] Succumbing to pressure from the World Bank to refinance old debt in order to take out new loans, Bolivia sold Bechtel the rights to Cochabamba's water supply and distribution and passed laws that required the purchasing of licenses in order to collect rain water. Bechtel then proceeded to increase water prices by as much as 200% (equivalent to 1/5th of the average family income). This action sparked five months of rioting that led to the cancellation of the contract barely six months after it had been ratified in 1999. A new law (Ley # 2878) passed in 2004 recognized traditional water rights,, guaranteeing water rights for irrigation and indigenous farming communities. But in that very same year, a second “water war” erupted in El Alto, which had had its water rights sold to the French multinational Suez in 1997. Pegging rates to the dollar, water prices rose 35%. Aguas del Illimani, the private consortium owned by Suez, charged households $445 for installing water service and ended up leaving 200,000 people without service. Water service is crucial, however, since lack of clean water is the chief cause of child morbidity and mortality in Bolivia. In 2002 the UN Commission on Economic, Social, and Cultural Rights declared that “The human right to water is indispensable for leading a life of human dignity. Water and water facilities must be affordable to all.”    

[7] Peter Singer, “Famine, Affluence, and Morality,” Philosophy and Public Affairs 1 (1972): 229-43.

[8] Young illustrates the difference between liability and social connection models of responsibility with reference to the phenomenon of structural injustices, which arise when the unintended and aggregate effect of otherwise intended actions bring about impersonal structures, such as global market systems and their subsidiary institutions, that create unequal opportunities for developing and exercising human capabilities between differently positioned groups of persons. Within the sweatshop institutions emergent in global capitalism, we can distinguish between violations of workers' rights directly caused by individual disregard for minimum wage, workplace safety, and collective bargaining laws – often abetted by government officials – and violations of subsistence rights caused by the lawful and normal operations of a market economy in which sweatshops are forced to operate on a precariously thin margin of profitability in order to meet the demands of multinational retailers and their affluent clients. See I. Young, “Responsibility, Connection, and Global Labor Justice,” in Global Challenges: War, Self-Determination, and Responsibility For Justice (Cambridge: Polity, 2007), pp. 159-86.  

[9] The motives for selling off a nation's resources are often not benign, or intended for the country's good. Resource-rich countries such as Nigeria seem destined to have corrupt rulers who find willing buyers of discounted resources in developed countries who, in turn, are willing to bankroll loans to these same rulers so that they can buy the arms that keep them in power 

[10] Habermas, like Rawls, may be tempted by a minimalist approach to human rights in at least two senses. First, he is inclined to view human rights as legally actionable claims, or potential warrants for external sanction or intervention. Since such sanction and intervention are to be avoided in all but the most egregious rights violations, the list of rights to be enforced must be relatively few in number and in importance. Habermas accordingly mentions genocide (the massive violation of a human right to life perpetrated by a government against some of its own people)) but not starvation caused by global economic systems. Complementary to such enforcement minimalism we find justificatory minimalism, or the exclusion of rights that cannot be justified in principle or by appeal to universal consensus. Again, Habermas's principled insistence that human rights be formally derived from the grammar of modern legal institutions leads him to prioritize classical, civil, and political rights over a right to subsistence, so much so that it remains unclear whether he can accommodate a right to subsistence as a basic human right. For further discussion of human rights minimalism see Alistair Macleod, “Rawls's Narrow Doctrine of Human Rights,” in Rawls's Law of Peoples: A Realistic Utopia? , ed. R. Martin & D. Reidy (Maldon, MA: Blackwell, 2006, pp. 134-49.    

[11] J. Habermas, The Inclusion of the Other: Studies in Political Theory (Cambridge, MA: MIT, 1998, p. 191. Hereafter IO.

[12] See, for example, John Rawls, The Law of Peoples (Harvard, 1999); Martha Nussbaum, Women and Human Development (Cambridge, 2002); Henry Shue, Basic Rights, Subsistence, Affluence, and U.S. Foreign Policy, 2nd Ed. (Princeton, Princeton UP, 1996); and Pogge (idem)

[13] This is not to say that poverty may sometimes be partly caused by the behavior of the victims of poverty themselves. However, even when such local causes are factored into explanations concerning differential rates of poverty between regions and populations, the background institutions that condition and exacerbate poverty are global and institutional.

[14] J. Habermas, Justification and Application: Remarks on Discourse Ethics (Cambridge, MA: MIT, 1993), pp. 60ff.

[15] On this point there is much disagreement. Habermas is opposed to protectionist measures but provides little insight into which changes should be implemented in global economic structures other than making them more democratically transparent and representative of all interests (IO:122) Pogge seems to support eliminating price subsidies and protectionist tariffs that developed countries use to dump their discounted commodities in poor countries even while they exclude imported products from these very same countries (p. 18). Elsewhere, he supports an international ban on purchasing natural resources from undemocratic regimes and extending them loans (146ff). Finally, he and Charles Beitz have supported a tax on the use of natural resources – especially items such as petrolium and coal, whose consumption imposes environmental costs (196ff) – whose proceeds (what Pogge calls a Global Resources Dividend) would be distributed to combat poverty. Alternative measures for increasing domestic production of subsistence goods involve allowing developing countries to reinstate import substitution in place of export production (combined with protective tariffs) and even gradually replacing global capitalism with some form of global market socialism. For an excellent defense of this latter proposal, which I cannot here discuss, see David Schweickart, After Capitalism (Lanham, Md: Rowman & Littlefield, 2002).

[16] Nussbaum captures the distinction between rights as claims for minimally decent treatment and rights as aspirations in her distinction between basic capabilities, which are innate potentials, and combined capabilities, which are fully mature capabilities that possess the additional environmental supports and “social bases” in which to develop further (idem, 96ff).

[17] See Pogge (idem); Nussbaum (idem); and David Luban, “Intervention and Civilization: Some Unhappy Lessons of the Kosovo War,” in Global Justice and Transnational Politics, ed. Pablo de Greiff and Ciaran Cronin (Cambridge, MA: MIT Press, 2002).

[18] Nussbaum (idem), p. 150n.83. Nussbaum doesn't deny the value of a clarifying procedure – such as inclusive, fair, and uninhibited rational discourse – for adducing (basic) substantive rights and capabilities; she just thinks that the design of such a procedure must itself depend upon a tacit appeal to our intuitive understanding of (basic) substantive rights and capabilities. The circular relationship between intuitive substantive “fixed judgements” and our qualifying procedures of rational deliberation is precisely what Rawls had in mind in introducing the notion of “reflective equilibrium.”


A version of this paper was presented as a keynote address to the conference Beyond Reification: Critical Theory and the Challenge of Praxis held at John Cabot University in Rome on May 21

 

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