These problems can be remedied, it seems, by adding essential reference to specific addressees and burdens to our conception of a full fledged right. This is what the entitlement-plus theory does. It holds that a right cannot be constituted by an entitlement alone, that moral or legal norms directing the behavior of the addressees are essential to the existence of moral or legal rights and must be added to an entitlement to constitute a right.
A version of the entitlement-plus theory of rights is put forward by Joel Feinberg, who makes a useful distinction between claims-to benefits and claims-against parties to supply those benefits (Feinberg 1973). A claim-to is what I call an entitlement, and a claim-against is the “plus” that can be added to an entitlement. Feinberg’s position is that a full-fledged claim right is a union of a valid claim-to and a valid claim-against. He allows, however, that rights in a weaker, “manifesto,” sense can be constituted by a claim to or entitlement alone. Feinberg’s approach makes clear that justifying a right requires one to justify not only an entitlement, or claim to but also a claim against, that is, the burdens that the right will impose on at least one other party.
The entitlement-plus theory fits well with the traditional view that rights are simply duties seen from the perspective of one who stands to benefit from their performance. In this view the difference between Jones's right against Smith and Smith's duty to Jones is mainly the difference between the active and the passive voice. From Smith’s perspective the normative relation is a duty and from Jones’s perspective it is a right, but the relation is really the same. This traditional view seems to assume (1) that all rights are claim rights and (2) that rights can be constituted by a single norm, such as a duty to a particular person.
Both assumptions are dubious. Rights are typically constituted by liberties, immunities, and powers, as well as by claims to what one is due. For example, the right to rebel against oppressive governments, much emphasized by Locke and Jefferson, seems primarily to be a liberty right, meaning that a person does no wrong in revolting against oppressive governments. As David Lyons points out, the right to freedom of speech in U.S. constitutional law is mainly an immunity right; it deprives Congress of the power to pass laws abridging freedom of speech and thus makes people immune to such laws (Lyons 1970). The truth here, which is skewed by equating rights and duties, is that a meaningful right must imply some normative direction of the conduct of its addressees. This direction can be achieved not only by addressee duties but also by addressee disabilities and liabilities (Hohfeld 1964).
The second assumption, that a right can be constituted by a single duty to some person, fares no better. Consider an example that clearly has a duty at its center. Smith borrows money from Jones by signing an agreement to repay at a certain time, and thus Smith has a duty to repay and Jones has a right to repayment. Jones's right consists not only of Smith's duty but also of Jones's immunity against Smith's unilateral cancellation of the duty to repay. Jones's right probably also includes liberties and powers to extend the due date, forgive the loan, demand payment on the due date, and sue if Smith falls to repay. This example illustrates that rights are often families of Hohfeldian relations, not single relations as the equation of rights with duties suggests (Hohfeld 1964).
Clearly, formulations of the entitlements plus theory should avoid suggesting that what needs to be added to an entitlement to turn it into a moral right is always and only a duty. We should rather say that what needs to be added are norms that direct the conduct of the addressees in ways not fully subject to the addressees’s discretion. I will often refer to the normative disadvantages that do this as “normative burdens.”
The entitlements-plus theory need not require all full-fledged rights to have precisely specified scopes, weights, and addressees. The vocabulary of rights is used in abstract as well as in specific normative discourse, and one cannot expect abstract rights to be fully specified. The description of an abstract right often identifies only key ideas and leaves specific elements to be worked out at the implementation stage. But even when rights are stated abstractly, as they typically are in human rights documents, there must at least be some general idea of what normative burdens are imposed by the right and who will be required to bear them. As we saw in Chapter 1, governments are the primary addressees of human rights.
The entitlement-plus theory has important advantages over the entitlement theory. First, it is a more accurate and penetrating analysis in recognizing an essential feature of rights, the burdens they impose on their addressees, which the entitlement theory leaves out. Its penetration comes from its ability to distinguish rights from high priority goals and to explain how both moral and legal rights are rights. Because entitlement-plus holds that even justified moral rights must generate norms that place burdens on addressees, it sees similar normative structures in all kinds of rights, which makes it easier to see that they are all rights in the same sense. Second, the entitlement-plus theory is non-inflationary in that it denies that mere entitlements are full-fledged rights.
Still, some will say that the entitlement-plus theory is that it is insufficiently accurate and penetrating because it ignores practices of legal recognition and enforcement and thus fails to emphasize what is practically most important about rights and also fails to mark the very significant difference between legal rights and moral demands. I now turn to this charge, which is central to the third theory of rights.
The Legally Implemented Entitlements Theory
It is often claimed that a “right” is mainly a legal notion, that practices of legal enforcement are central to the existence of rights, and that nonlegal rights are phony rights. To Jeremy Bentham, for example, the idea of rights not created by positive law was nonsense. Bentham might have been willing to allow that entitlements, in the sense defined above, can exist as conclusions to utilitarian arguments and can serve as grounds for wanting corresponding legal rights. But he held that such entitlements are not rights just as “hunger is not bread” (Waldron 1987)
Bentham held that talk of moral and natural rights is politically dangerous and ultimately unintelligible. An advocate of Bentham’s view might point out that when, for example, the right to leave one’s country is not legally recognized, respected, or enforced, we sometimes say that people in that country do not have the right to leave or that this right does not exist there. But this mode of speaking proves nothing. One may mean by these statements that the right to leave is not a legal or effectively implemented right in that country without at all wanting to deny that it exists as an accepted or justified moral right. Indeed, it is precisely to demand reform in cases like these that we may wish to appeal to independently existing moral or human rights.
Bentham viewed appeals to non-legal rights as mere rhetorical ploys: without a court of law to determine who has the right and what it means, talk of rights is merely “a sound to dispute about,” allowing argument from undefended premises. But an appeal to rights is no bar to further argument. Underlying assumptions are always open to challenge. Bentham was eager to settle political questions by appeal to what would maximize utility, but there is no system of courts and judges to answer the question of whether a particular policy maximizes utility. Thus, if we accept Bentham’s premise that a normative concept without an adjudication procedure merely gives us a sound to dispute about, we must conclude that nothing more is given by the principle of utility. Subtract Bentham’s exaggerated claims about the determinacy of his preferred standard, and it becomes clear that Bentham’s attack on the vocabulary of his opponents undermines his own appeals to utility.
As Mill and other utilitarians have insisted, norms justified by utility may constitute moral obligations and rights to which one can appeal whether or not they are already recognized in the legal system. There is likely to be controversy about which rights are justifiable and about the scope and limits of the rights and obligations in question; but that key concepts are open to controversy does not show them to be unintelligible.
A third argument against non-legal rights is that recognition and enforcement are such important features of our paradigm that unenforced rights cannot be said to be rights in the same sense as enforced rights. According to this view, only by saying that non-legal rights are rights in a different or phony sense can we adequately reflect the importance of recognition and enforcement to what rights are all about. But important differences often exist within a single generic category. There are huge differences between small economy cars and giant long distance trucks, but this does not require us to say that they are vehicles in a different sense of “vehicle.”
Although non-inflationary, the equation of all rights with enforced legal rights excludes talk of many important moral rights and severely limits the exportability of the concept of rights. Another disadvantage is that restricting full-fledged rights to legal ones gives important argumentative advantages to defenders of existing social, political, and legal arrangements.
Overview--And a Qualification
Rights are complex norms with rightholders, addressees, scopes, conditions of possession, and weight. It is a mistake to insist that rights have only one distinctive function. By prescribing the availability of a good to rightholders and imposing on the addresses normative burdens that direct their conduct in ways that help make the good in question available, rights serve to confer and protect important freedoms, powers, immunities, protections, opportunities, and benefits. Rights can exist in actual and justified moralities and in national and international legal systems. Legal enforcement is often important to making rights effective, but such enforcement is not essential to the existence of rights.
The political project of creating international standards regulating how governments should treat their citizens and residents can be pursued without using the concept of rights. Indeed, human rights documents do not use exclusively the language of rights. They often issue prohibitions such as "No one shall be subjected to torture or to inhuman or degrading treatment or punishment" (European Convention, Article 3). They sometimes issue requirements such as "Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him (American Convention on Human Rights, Article 7.4). And they sometimes state general normative principles such as "All human beings are born free and equal in dignity and rights..." (UDHR, Article 1). The political goals of the human rights movement are not well served by insisting that all human rights standards need to be formulated as rights. In some areas it may be better to speak of the duties of governments, the requirements of human dignity, or of extremely important political goals. These alternative vocabularies offer both normative and philosophical flexibility. The importance of the concept of rights to the human rights movement can be recognized while avoiding a fetishism of rights.
Making Sense of Human Rights
A general explanation of the concept of a right, like the one in Chapter 2, does not tell us what human rights are. An account of what a right is explains the genus, but we still need an understanding of the particular species, human rights. The explanation of the genus is helpful, however, because it identifies relevant questions. It shows that we need answers to questions such as what topics are covered by human rights, who has human rights, which parties have duties under human rights, how weighty human rights are, and how human rights exist. If we had good answers to these questions, then we would have a general conception of human rights. Questions would remain about the justification, existence, and lists of human rights, but at least we would understand the general idea.
In Chapter 1, human rights were defined as being:
Mandatory norms with rightholders, addressees, and scopes
Universal in the sense of protecting all people
High-priority norms with strong justifications
Not dependent for their existence on recognition by particular governments or on legal enactment at the national level
International standards of evaluation and criticism that are not restricted by national boundaries
Political norms rather than interpersonal standards; their primary addressees are governments
Numerous and specific norms dealing with matters such as security, due process, liberty, equal citizenship, and basic welfare
Minimal standards that constrain rather than replace legislation and policy-making at the national level.
This chapter explains and qualifies these characterizations of human rights. I'll begin by discussing the last.
Human Rights as Minimal Standards for Governments
Human rights are minimal standards for governments and societies that support political criticism and justification at the national and international levels. They aim at avoiding the terrible rather than achieving the best. Henry Shue suggests that human rights specify the "lower limits on tolerable human conduct" rather than "great aspirations and exalted ideals" (Shue 1996). As minimal standards they leave most legal and policy matters open to democratic decision-making at the national and local levels. Minimal standards can accommodate a great deal of cultural and institutional variation. What human rights share is that they all block common threats to a decent or minimally good life for human beings. There are many areas in which these conditions are regularly threatened, and accordingly we need many specific rights to address these threats.
Specific human rights are only as timeless as the specific problems they address. Some human rights problems have been with us for millennia, such as violence related to getting or retaining political power. Others have emerged in the last few centuries with the arrival all over the globe of the modern state with its associated legal, penal, bureaucratic, educational, and economic branches (on the spread of modern political institutions see Morris 2002; see also Donnelly 2003: 92, 117). Human rights deal with security, liberties, fair trials, political participation, equality, basic welfare, war crimes, and perhaps even the natural environment.
There are human rights in different areas such as security rights, fundamental freedoms, and equality rights, because people face severe problems in many areas. Even severe injustice takes many forms. When a widespread human problem is recognized the question of whether its remedy should be conceived as a human right arises. This is not just a political question; there is also the ethical question of whether the problem is serious enough to be a matter of human rights. To answer this question we need to appeal to fundamental values and norms. Discomfort due to hot weather is a widespread human problem, and a right to air conditioning might be proposed as its remedy. But this problem is not serious enough (discomfort does not generally get one into the realm of human rights), and its universal remedy is not feasible enough, to support a universal human right.
We can think of the emergence of a human right as the coming together of the recognition of a problem; the belief that the problem is very severe; and optimism about the possibility of addressing it through social and political action at national and international levels. Judgments about severity are hard to make and the boundary is vague. Still, it is only by insisting that human rights address very severe problems found in most countries that we ensure their high priority and universality.
Who Has Human Rights?
A simple answer to this question is "Humans!"--all human beings everywhere and at all times. That human rights apply to all people without distinction has been a major theme of the human rights movement. Nevertheless, reflection on the idea that the holders of human rights are simply all people reveals that this answer is both too narrow and too broad. It is too narrow because some human rights are held by artificial or legal persons. The right to religious freedom, for example, is held not just by individuals but also by religious organizations. And the right against genocide is a right of groups. Its job is not to protect individuals against murder and massacre--that work is done by the right to life. Rather it protects groups and their members against attempts to destroy the group. The Genocide Convention defines genocide as killing, harming, preventing births, and transferring children out of the group when those acts are "commited with intent to destroy...a national, ethnical, racial or religious group, as such" (United Nations, 1948a).
The view that human rights are held by all humans at all times is also too broad. First, some rights are held only by adult citizens, not by all persons. The clause of the Civil and Political Covenant dealing with political participation begins not with "Everyone" but with "Every citizen" (United Nations 1966, Article 25). Further, the rights of people who are very young, severely retarded, comatose, or senile are justifiably limited. Although these people have important rights such as life, due process, and freedom from torture, it would be implausible to argue that they have rights to vote, run for political office, or travel freely on their own. These latter rights presuppose a greater degree of rationality and agency than some human beings possess.
Furthermore, some human rights cannot be universal in the strong sense of applying to all humans at all times, because they assert that people are entitled to services tied to relatively recent social and political institutions. Due process rights, for example, presuppose modern legal systems and the institutional safeguards they can offer. Social and economic rights presuppose modern relations of production and the institutions of the redistributive state. My point here is not merely that people living ten thousand years ago would not have thought to demand these rights (assuming that they had the concept of a right) but rather that the scope of these rights can only be defined by reference to institutions that did not then exist (on "embracing temporal relativity" see Tasioulas 2002: 87). Human rights could be formulated in much broader terms to avoid this objection, but the result would be very abstract rights, subject to a variety of interpretations and hence less useful in political criticism and less suitable for legal implementation.
The Addressees of Human Rights
Rights have identifiable addressees--people or agencies who have responsibilities related to the realization of the right. This connection between rights and the assignment of responsibilities is a basis for a frequently voiced question: who bears duties in regard to human rights? On hearing, for example, that people have rights to food and education, one may wonder whether people have duties to try to provide these things out of their own resources.
The primary addressees of human rights are the world's governments. Human rights are not ordinary moral norms applying mainly to interpersonal conduct. Rather they are political norms dealing mainly with how people should be treated by their governments and institutions. The political focus of human rights is very clear in the human rights treaties. The European Convention, for example, requires participating governments to "secure to everyone within their jurisdiction the rights and freedoms defined [in] this convention" (Article 1). It also requires that "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity" (Article 13). This requirement presupposes that governments are often both addressees and violators. The struggle to gain respect for a human right must often attempt both to get the government to restrain its own agencies and officials and to get the government to use its legal powers to restrain others.
If Almeida is a citizen or permanent resident of Brazil, the government of Brazil has the heaviest duties to respect and uphold Almeida's human rights. Brazil has duties not just to refrain from violating Almeida's human rights; it also has duties to uphold them through actions such as implementing them legislatively, protecting them with police work, providing legal remedies in the courts, and providing services such as food assistance. But we should not conclude from this that all of Almeida's rights are against the government of Brazil, or that all of the human rights duties of the Brazilian government are duties to its citizens.
Some of Almeida's human rights are against people and governments in other countries who at least have duties not to kill or imprison him without trial. When Almeida is peacefully standing on the Brazilian side of the Brazil-Bolivia border, a Bolivian police officer standing nearby on the other side of the border has the same human rights duty not to shoot Almeida as he has not to shoot a peaceable Bolivian citizen as she walks along the Bolivian side of the border.
Further, people and governments in other countries, along with international organizations, may have back-up responsibilities for Almeida's human rights when the government of Brazil is unwilling or unable to respect or uphold them. The United Nations and the World Bank, for example, may have duties to monitor human rights conditions in Brazil and to promote compliance with human rights.
Because of the failures of many states to respect and uphold the rights of their residents, it is tempting to assign these tasks to international organizations such as the United Nations or to hope that a world federation or government will soon emerge to assume them. International organizations, however, have limited authority and power to enforce rights around the world. And a world federation or government currently seems at best a distant possibility. At present no alternative exists to assigning sovereign states the main responsibility for upholding the rights of their residents. This is a hard saying since many governments are corrupt and weak, and reform and development have proven hard to bring about through outside pressure and assistance.
Saying that governments are the primary addressees of human rights is not the end of the story, however. Individuals also have responsibilities generated by human rights (Hodgson 2003, 85). This view is suggested by the UDHR. Its preamble suggests that human rights have implications for the conduct of individuals when it says that “every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures national and international to secure their universal and effective recognition and observance.” Clearly, the authors of the UDHR believed that both states and individuals have obligations in regard to human rights. If the moral grounds for human rights are substantial enough to override domestic law and justify risks of international conflict, those grounding reasons are also likely to generate obligations for individuals in matters subject to their control.
Further, people participate as individuals in human rights abuses such as racial discrimination, slavery, and political killings. When Article 4 of the UDHR asserts, “No one shall be held in slavery or servitude, slavery and the slave trade shall be prohibited in all their forms,” the main violators of this right are not governments. Slaveholders have generally been individuals, although governments have often supported and institutionalized slavery. The right to freedom from slavery obligates individuals and governments not to hold slaves and further requires governments to pass legislation making slavery illegal.
One approach to explaining how and why citizens share in the duties generated by human rights views the citizens of a country as having ultimate responsibility for the human rights duties of their government. If their government has a duty to respect or implement the right to a fair trial, or a duty to aid poor countries, its citizens share in that duty. They are required as voters, political agents, and taxpayers to try to promote and support their government's compliance with its human rights duties. This principle of shared duty is particularly attractive in democratic societies where the citizens are the ultimate source of political authority. This view makes individuals back-up addressees for the duties of their governments. Thomas Pogge has taken a related but slightly different approach to generating individual duties from human rights that have governments as their primary addressees (Pogge 2002, 67). Pogge emphasizes UDHR Article 28 which says that "Everyone is entitled to a social and international order in which this the rights and freedoms set forth in this Declaration can be fully realized." Pogge sees in this article a plausible norm, namely that both countries and individuals have duties not to be complicit in an international order that unfairly disadvantages poor countries and the people in them.
The complex view of the addressees of human rights sketched above can be illustrated using the right against torture (Nickel 1993a). Duties to refrain from engaging in torture can feasibly be borne and fulfilled by all persons and agencies, so this duty can be addressed to all. An adequate response to people's entitlement not to be tortured also requires finding individuals or institutions that can protect people against torture. The right to protection against torture can be universal without all of the corresponding duties being against everyone, or against some single worldwide agency. What is required is that for every rightholder there be at least one agency with duties to protect that person from torture. This agency will typically be the government of one's country of citizenship or residence. The duty not to torture falls on everyone; the duty to protect against it falls primarily on governments.
There may also be secondary addressees who bear back-up or monitoring responsibilities connected with the right against torture. The people of a country are secondary addressees with respect to fundamental rights. They bear the responsibility of creating and maintaining a social and political order that respects and protects the right to freedom from torture. International institutions such as the United Nations and the World Bank are also secondary addressees. They bear the responsibility of assisting, encouraging, and pressuring governments to refrain from torture and to provide effective protections against torture. If national or international institutions are unable to fulfill this responsibility there is the possibility of reforming them or creating new ones (Shue 1996, 166).