13 Legal Rights, Moral Rights, and International Human Rights
1. International human rights (IHR) need to be justified. Why? Because they authorize intervention in the internal affairs of a state; they limit state sovereignty (as Buchanan says). Assuming that state sovereignty has some value, then anything that threatens to violate state sovereignty needs to be justified. In (more or less) the same way, inteference with an individual person’s liberty needs justification. (This is true even in the case of paternalistic interference (for the person’s own good). It would be good for you (probably?) if we outlawed the sale of cigarettes, but perhaps that would interfere with your liberty in ways that cannot be justified.)
2. IHR are, by definition, legal rights (assuming that there is such a thing as international law). As legal rights, they give states the legal right to intervene in the internal affairs of other states (up to and sometimes including military intervention).
But are these legal rights justified (we are talking about moral justification). Opponents of capital punishment (and abortion) admit that the state (and individuals) now have the legal right to carry out executions (and to have abortions), but they think that those legal rights should not exist. They are not morally justified. Abolitionists prior to the Civil War thought that slavery should be outlawed everywhere in the US. People should not have a legal right to own other people. The legal right to own slaves was morally unjustified. (Can moral rights be [morally] unjustified? I don’t think that makes any sense. If something is a moral right, then it is [morally] justified. But of course we might disagree about whether it is morally justified, and thus about whether it is a moral right, and thus about whether it should be a legal right.)
3. We might all agree that there is a moral right not to be tortured (whether the right is absolute or not is another question), and we might all agree that everyone has a right against being enslaved. And I suspect that we all agree that these moral rights should be legally protected: there should be laws against torture and slavery. We should have legal rights against being tortured and enslaved. And maybe we all agree that there not only are but there also should be international legal rights against torture and slavery. So we agree that slavery and torture violate an IHR–an ILHR (an international legal human right). (I will use IHR and IHLR interchangeably.)
(In many countries, the usual way to enforce moral rights–not all moral rights, but some) is by turning them into legal rights. We could rely upon social pressure, but that is probably not sufficient to protect people’s right not to be killed, kidnaped, stolen from, etc. But sometimes legalization is not justified because, e.g., the cost is not worth the benefit. Having a legal system (with cops, judges, jails, etc.) is expensive.)
4. But now we get to some hard(er) questions. Can all ILHR be justified by appeal to antecedently existing moral rights (or what Buchanan calls moral human rights [MHR])? Is being a MHR necessary for being an ILHR? Is being a MHR sufficient for being an ILHR (that is, if X is a MHR, is that a good reason for it to be made into an ILHR)?
(Note: we don’t think that something being morally wrong is necessary for it to be illegal. There is nothing incoherent in thinking that extramarital sex is morally wrong, but it should not be illegal. Or fishing without a license. Or driving without insurance. Nor do we think that being immoral is sufficient for making it illegal. Lying to your mother is usually wrong, but should it be illegal? Breaking promises is usually wrong, but should it be illegal? (To both questions, the answer is, sometimes, ‘yes’–when there is a contract, or when it is perjury.)
5. Two of the most important challenges to the existence of ILHR are the claim that they are parochial, and the denial that there are any universally valid rights (moral or legal). Related to these challenges is the fear of human rights inflation (Harvard Law professor Mary Ann Glendon is probably the leading defender of the claim about rights-inflation. See her book, Rights Talk: The Impoverishment of Political Discourse (1993). Amazon says: “Political speech in the United States is undergoing a crisis. Glendon's acclaimed book traces the evolution of the strident language of rights in America and shows how it has captured the nation's devotion to individualism and liberty, but omitted the American traditions of hospitality and care for the community.” She also wrote the acclaimed (Buchanan constantly cites it) A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (2001). You can get it on Amazon for a real good price. Like I did.) She was former US Ambassador to the Holy See. Among her particular interests are religious liberty (I am guessing that in the Masterpiece Cake shop case, she is on the side of the cake shop. We can ask: is there an ILHR to freedom of religion? Does it include the right to refuse service to gays and lesbians? If so, does that mean there is no IHR against discrimination based on sex and race? Or does the IHR against sex discrimination not include a right against discrimination based on sexual orientation? What about gender identity?
(The moral of this story: there is not only moral disagreement between societies or cultures–the fact of cultural diversity–but also within societies. Americans are not in agreement about the morality of same sex marriage, or abortion, or the right to health care. Or capital punishment. Or spanking. When rights conflict, what should we do? Just vote? What about the rights of minorities?)
6. Setting Glendon aside, the fear of human rights inflation might rest on the suspicion that many of the ILHR do not have any corresponding MHR. It is relatively hard to deny the existence of moral rights against torture and slavery, but what about (this is everyone’s favorite whipping boy, or favorite ‘whipping right’) “the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay” (UDHR, Art. 24)? My uncle was a dairy farmer in Wisconsin. Did he get paid vacations? Did the cows say: “Hey, John, go on down to Madison for the weekend. Don’t worry about us. We don’t need to be milked every day.”
Is there a human right to form and join trade unions (and to strike!) (UDHR, Art 23(4); ICESCR, Art. 8)?
Is there a human right not to be “subjected . . . to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks” (UDHR Art. 12)?
What if the attacks are justified? What about freedom of speech? See UDHR and ICCPR 19.2: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” It goes on:
19.3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others.
A right to your reputation? You might remember back in the 1990s Emory University historian Deborah Lipstadt accused famous historian David Irving of being a Holocaust denier. He sued her for libel (in England, where it is easier to prove libel than in the US). Lipstadt could have avoided the trial by not going back to England; instead, he took Irving to court in England and won. I think we have to say that Lipstadt damaged his reputation (among most people). But it was true: he was a Holocaust denier. (I recommend the movie Denial about the trial (starring Rachel Weisz).
Is there a human right to health care? It is not included in the UDHR or either of the two main covenants.
Should it be? How could you argue that it should be included?
7. Stepping back, let’s ask whether there is a MHR to health care, or to paid vacations, or to join a trade union, or 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 and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other
lack of livelihood in circumstances beyond his control” (UDHR Art 25), or a right to an education (Art 25) (which seems to imply a right to the existence of schools),
8. What are we asking when we ask whether something is a MHR? What makes something a MHR? One answer is that MHR are what used to be called ‘natural rights’–the rights one would have in the hypothetical state of nature. In that sense, they are pre-institutional.
Many of the rights in the UDHR and the two covenants cannot be pre-institutional rights. Examples:
Art 21: “(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.”
Art 6: ”Everyone has the right to recognition everywhere as a person before the law”
Art 7: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”
Art 16: “Men and women of full age .... have the right to marry and found a family ....” (Does this include the right of men to marry men and women to marry women?
IN SHORT, these rights don’t make sense if we are thinking about a “state of nature” prior to government and a legal system–as pre-institutional or pre-political. I even think that our First Amendment rights are rights against our government: the government may not abridge those rights. It is not talking about private individuals. So it is not saying that Antifa cannot shout down a racist speaker. Racist speakers may have a moral right to freedom of speech, but so does Antifa.
And the freedom to marry has to be a legal right insofar as we think of marriage as a legal institution that brings all kinds of legal benefits and liabilities. In some states, as soon as you marry, your spouse owns half of your property. That is why there are prenuptial agreements.
9. If you accept the Orthodox or Mirroring View of IHR, then the fact that some IHR lack a corresponding MHR that specifies the content of the IHR should be troubling. If there is no MHR to marry, or to an education, then how can it be a human IHR? Aren’t human rights the rights that people have simply by virtue of their humanity (because,. As Donoho says, they were born)? And that is what a natural right is. Rights we are born with. They are inalienable. Perhaps God-given.
I think the idea of ‘natural rights’ has, at least historically, been tied to the idea of ‘natural laws,’ and that idea has largely fallen out of fashion (among secular philosophers). It lives on in the Roman Catholic Church. For more on the natural law tradition, https://plato.stanford.edu/entries/natural-law-ethics/
10. Defenders of the Political or Practical Conception of human rights reject the idea that IHR must be grounded in MHR or natural rights. But this means that they need to find another way to justify IHR, given that IHR justify interference in state sovereignty.
11. Let us accept what seems uncontroversially true, namely, that for every MHR, whether a negative right (a right to an act of omission–like a right not to be killed or kidnaped) or a positive right (a right to an act of commission–like a right to an education) there are three corresponding duties. Drawing on what Henry Shue says in BASIC RIGHTS (p. 52 in the Revised Edition), they are:
(1) Duties to avoid depriving; (2) Duties to protect from deprivation; and (3) Duties to aid the deprived.
Thus, referring to the (basic) right to security, he says there are three corresponding duties:
(1) Duties not to eliminate a person’s security–duties to avoid depriving.
(2) Duties to protect people against deprivation of security by other people–duties to protect from deprivation.
(3) Duties to provide for the security of those unable to provide for their own security–duties to aid the deprived.
And referring to the (basic) right to subsistence, he says there are again, three corresponding duties:
(1) Duties to avoid eliminating a person’s only available means of subsistence–duties to avoid depriving. (2) Duties to protect people against deprivation of the only available means of subsistence–duties to protect from deprivation.
(3) Duties to provide for the subsistence of those unable to provide for their own–duties to aid the deprived.
12. Suppose I have a right to subsistence. Who has the correlative duties? Well, everyone has the negative duty not to deprive me of my only available means of subsistence (e.g., don’t burn my crops or poison my cows). But suppose I lose my crops in a drought or a fire. Who has the positive duty to aid me? My neighbors might be willing to help, but they also might have lost their cops to the drought or fire. And, in any case, they probably cannot provide enough assistance.
Or consider (2) in each case: who has the duty to protect against deprivation? Some small towns still have volunteer fire departments, but for the most part we pay people to fight our fires. And to provide for our security (police departments; the military). And to educate our children (and ourselves)–teachers. And to protect battered children–CPS.
Why is this the best way to do it? First, because it is a lot more convenient. Suppose you belong to a volunteer fire department and you get called to fight a fire when you are in the middle of taking the LSAT or the bar exam. Second, volunteers are probably not as competent as professional. Third, we can (try to) make sure everyone contributes their ‘fair share’ if we pay for these services via taxation.
Suppose there is a MHR to, say, free elementary education. Who has the corresponding duty? Probably not the parents: they already have a job (perhaps as fire fighters) and, besides, they have forgotten all the world history they learned in fourth grade. Plus, they never understood the New Math. Do the neighbors? Aren’t they already busy with their own lives? And why would they have the duty?
13. Buchanan’s point is that MHR are limited by the need to assign correlative duties (especially beyond the initial negative duty). Suppose a child falls into a pond and is in danger of drowning (and the kid’s parents are nowhere to be seen). I think that the child has a moral right to be rescued by anyone who is able to rescue the kid, and who can do so without undue risk or cost (what is ‘undue’ can be a hard question).
So far, so good. But, what if, after saving that kid, another one falls in (whom I can easily rescue)? I ought to rescue that kid, too. But what about a third child, and a fourth child, etc.? It would be unfair to expect one individual to carry out an endless number of rescues, especially if there are others who could chip in (but they would rather do something else). But if we hire people–lifeguards, EMT--to rescue people, then everyone can, at a small financial cost (paying the professionals) do what they would rather do (like finish the LSAT). Or continue binge watching “Little House on the Prairie.”
14. Buchanan’s point, then, is that people can have legal rights even if they do not have a pre-existing moral right. Jack has a moral right to X only if it is reasonable to impose a corresponding duty upon Jill (and Jane, and Tom, Dick, and Harry, as well as Louise and Thelma). I do think that I have a duty to rescue Jack (this is usually called the “duty of rescue”) if he is drowning and I can rescue him without undue cost or risk to myself. But I have no moral duty to hang out by the pond waiting to rescue anyone who happens to fall in. But it makes sense in some cases (if lots of people swim in the pond, or lake) for the city to hire a lifeguard who has the duty to rescue anyone in danger of drowning. In that case, swimmers do have a right–a legal right–to be rescued–by the lifeguard.
(As we shall see below, Buchanan would say that people have a very strong interest in not drowning.) But that interest does not give rise to a corresponding duty beyond the ‘duty of rescue.’ But it is sufficient to justify hiring lifeguards who then have a (legal) duty to rescue drowning swimmers. (I suppose that lifeguards also have a moral duty to rescue drowning swimmers because they have accepted the legal duty by taking the job. It is kind of like the moral duty to keep your promises (or do what you legally contracted to do.)
15. Let’s focus on the (alleged) right to health (and health care) to illustrate of how Buchanan argues for IHR that do not ‘mirror’ antecedently existing moral rights.
Do individuals have a MHR to health (or health care)? If there is a moral right to health (care), then there have to be corresponding duty-holders. I suppose there might be a right to emergency medical care (like performing the Heimlich maneuver on someone who is choking), but, beyond that, I am skeptical. Is there a moral right to the kind of care a trained EMT can provide? If so, then does each of us have a duty to get that training? I don’t think so. (Looking on-line, I saw that one course requires 136 hours of classroom training and tuition is $1600.) In short, if there is a moral right to health (care), then it must be a very minimal right (the duties it imposes on other people cannot be very demanding at all.)
(Question: Why does Buchanan refer to a legal right to health instead of merely health care? Answer: because the right to health includes not only “access to healthcare but also the provision of other conditions that are important for health, such as public health measures” (Heart of Human Rights 162).
And other things like unpolluted air and water. In any case, the right to health is not the right to be healthy.)
But, argues Buchanan, the absence of a robust MHR to health (care) does not show that there cannot be a legal right to health (care), or that it cannot be an IHR.
No individual’s interest in health is morally sufficient to justify the great costs that such large-scale policies entail and the significant restrictions on many individuals’ liberty that they would inevitably require. If there is a moral right to health, it is narrower in scope--it has a less extensive set of correlative duties–than a reasonable legal right to health (Heart of Human Rights 61).
Two points. First, if there can be legal rights that do not mirror antecedently existing moral rights, then the legal right can be more expansive than the moral right could be. There can be a legal right to more than, say, the Heimlich maneuver. And that is because, second, a legal right to health that is more expansive than any moral right to health will also be more expensive than the corresponding moral right could be, but the greater cost can be fairly distributed. If there is a legal right to an adequate health care system, the cost can be spread across the entire population (as in a single-payer system) and no one is required to pay an unreasonable amount (unless the system is flawed). And if there is a legal right to an adequate health care system, then there is no objection to imposing on each of us a legal duty to pay for it. Nor is anyone unfairly burdened in fulfilling the legal right to health care. For the most part, health care is provided by professionals: they are paid for their services. (Perhaps some are overpaid.)
16. Of course, it is still necessary to justify imposing this legal duty on citizens. A modern medical care system is expensive. Surgeons won’t work for free. But creating (and imposing) legal duties is possible without antecedent moral rights. Buchanan writes:
In some cases, it is morally justifiable to enforce duties the fulfillment of which is necessary for securing morally important public goods, but its being justifiable does not depend on the implausible claim that each individual has an antecedently exiting moral right to the public good. Justifying a legal right may require justifying the enforcement of the correlative legal duties, but the enforcement of legal duties does not require correlative moral rights. . . . Hence, even if one assumes that to justify ILHR one must show that it is justifiable to enforce the duty the right entails, it does not follow that an ILHR is justified only if it is necessary for realizing an antecedently existing moral human [right] (Heart of Human Rights 55-56).
We all have an important (sometimes a life-and-death) interest in having adequate health care, and legal duties can be justified when they promote or safeguard important interests. This is especially true when it is the interests of large numbers of people that are being served. Taxing citizens to pay for federal research on cancer would be hard to justify if only a small number of people died of cancer each year; it is much easier to justify if more than 600,000 die from cancer each year in the US.
17. Having a legal right to health (and not merely a moral right) has an additional advantage:
Having a legal entitlement to health has an additional advantage: If it is funded by a reasonable system of taxation, it can provide assurance to each citizen that all are bearing their fair share in achieving coordinated, effective beneficence. . . . [D]esirability of effective coordinated beneficence and of a fair distribution of the burdens of providing it provide a strong argument for a legal entitlement to health (Heart of Human Rights 163).
The idea of assurance is important. One of Buchanan’s most important points is that legal duties can avoid the assurance problem whereas merely moral duties cannot.
To justify a moral right, one must show that the corresponding duties exist, that is, that someone has the duties in question or, on some theories of rights, one must at least show that it would be justifiable to impose the duties on someone. But whether an individual, A, has a moral duty, D, to do X, and whether it is justifiable to require A to do X (to impose the duty on him) can depend on whether A has reasonable assurance that others are going to fulfill that duty. Without this assurance, it may be unfair to require A to do X. If D is merely a moral duty, then A may not have that assurance, in which case he will not have the duty and it will not be justifiable to impose that duty on him; consequently, there will be no duty and hence no right. But if D is a legal duty and enforceable as such, then A will have the needed assurance and hence it will be justifiable to require him to do X. What one has a duty to do, absent reciprocity on the part of others, can be less than what one has a duty to do, given reasonable assurance of their reciprocating. Because the law can provide reasonable assurance of reciprocity, legal duties, and hence legal rights, can be more robust than moral rights. That is another reason why the law can be a more effective mechanism for achieving moral ends if it does not restrict itself to giving legal form and enforcement to preexisting moral rights (Heart of Human Rights 66).
If doctors had to depend upon patients voluntarily paying for their care, few people would become doctors. And patients would be inclined to be free riders–to let others pay for the cost of the system if they could refuse to pay and still be treated. Indeed, if I lacked assurance that others would pay their fair share, why should I pay my fair share? (It would seem I am being a sucker.) (In European cities, you don’t have to show a ticket to get on the bus or subway. (It’s great.) So why not ride for free? Why not let other people pay the cost of the transit system? Answer: transit police do random spot checks to see if you have a ticket. If not, you have a pay a fine on the spot–around $75-100. That goes a long way to solving the free rider problem, toward assuring me that others are not taking advantage of my willingness to pay. And to giving me a sufficient reason to buy a ticket.)
18. More generally:
The modern welfare state can be seen as a device for achieving efficient, coordinate beneficence, for achieving a fair distribution of the costs of doing so, and, to the extent that it is democratic, for providing a public forum in which informed, rational deliberation about the priorities among human needs and the best means of responding to them can occur. International human rights that includes social and economic rights can then serve the purpose of providing international support for state-centered, collective beneficence projects (Heart of Human Rights 163-164).
19. The same thing is true of education: If there is a MHR to education, who has the correlative duty? The parents? Home schooling is expensive (at least in terms of opportunity costs). And many parents have forgotten what they learned about world history in 10th grade. And they were not taught the New Math at all. Neighbors? But what have they done to justify imposing the duty of them? How can I have a duty to educate the neighbor children? What makes me liable to having that duty? (And is it only my immediate neighbors, or also the ones who live a block or two away? And is it one neighbor kid, or several, or many?)
What would be the content of a MHR to an education? If you are tempted to say that it is the moral right to be literate (able to read and write), my only reply is (as Buchanan says): the IHR to education is a right to much more than literacy. If there is an IHR to education, it cannot be grounded solely in the MHR to literacy.
How, then, can we justify an IHR to education if it does not ‘mirror’ an antecedently existing moral right? Again, Buchanan’s answer is that the legal right is justified by the interests of large numbers of people:
it is legitimate to appeal to broader social benefits in making the case for this right (Heart of Human Rights 61).
Education benefits the recipient of the education, obviously (or we hope it does), but it is also socially beneficial:
having an educated citizenry contributes to economic productivity, which in turn can raise the standard of living, and it is also valuable from the standpoint of deliberative democracy (Heart of Human Rights 61).
We can provide an effective and efficient educational system which meets each person’s educational needs without any one person having to pay more than his or her fair share (however that is determined). Again, there can be a legal right to an education, even if there is not a MHR to an education, because the corresponding positive duties (basically, to teach) can be distributed without anyone being unduly burdened (mostly because teachers are paid to teach). Since everyone is compelled to pay his or her fair share (via taxes), no one can be a free rider. If we relied upon volunteers, many people would be motivated to be free riders.
Recall again what Buchanan says about justifying legal duties by appeal to the benefits they bring to large numbers of people (rather than by appealing to a pre-existing moral right). Having one more citizen with a college degree probably will benefit society only trivially; but having millions of citizens with college degrees will benefit society immensely. The benefit to society is what justifies creating the legal duty to pay for an extensive educational system (via taxes).
20. An education system produces positive externalities. While we usually think about externalities in terms of negative externalities (e.g., pollution), there are also positive externalities. Society in general benefits the more the citizens are educated, and so it is only appropriate that society pay at least part of the cost of the education of their citizens (through public schools and universities), Even if the student benefits more than anyone else from his or her education, that does not imply that the student should pay the full cost of that education (since the student is not the sole beneficiary).
(Here is the first definition that popped up when I googled ‘externalities’: “a side effect or consequence of an industrial or commercial activity that affects other parties without this being reflected in the cost of the goods or services involved, such as the pollination of surrounding crops by bees kept for honey.”)
Pollution is the classic example of a negative (i.e., bad) externality: the factory produces the pollution but does not pay for the cost of getting rid of it). Driving a gasoline powered car produces a negative externality unless the cost of removing the carbon dioxide from the atmosphere has been included in the price of the gasoline. (Has it?) That’s the whole point of a carbon tax–to “internalize the externality”–to make the polluters pay. Education creates positive externalities and the idea of public universities is to partially internalize the externality–to make the citizenry pay at least part of the cost of the good consequences of having educated citizens.
21. Is there a MHR to due process? Buchanan writes:
This category includes a number of rights that both protect individuals from abuses of the legal system (the protective function) and make the legal system an effective resource for them to deploy in pursuing their legitimate interests (the facilitative function). It includes but is not limited to the right to be apprised of the chargers against one in criminal proceedings, the right to a fair trial, the right to legal counsel and representation, and the right to equal access to legal remedies for violations of rights (Heart of Human Rights 159).
I like this explanation from James Nickel (University of Miami Philosophy Dept and Law School):
Greedy and hungry neighbors who will raid, kill, steal, dispossess, kidnap, and rape–pose what I call the First Problem of Insecurity. To protect ourselves from them we create law, property, and government. We enact criminal laws, create courts and jails, and proceed to convict and punish offenders. We thereby solve–or at least ameliorate–the First problem of Insecurity. The system of law and government is dangerous, however, and we still have reason to be fearful, but now our fear is of the government’s predation, corruption, and ineptitude. This is the Second Problem of Insecurity (Making Sense of Human Rights, Second Edition, p. 109).
Due process rights are a partial solution to the Second Problem of Insecurity: “They protect us against government.”
Buchanan is hesitant to say that there is a MHR to due process, but, if there is, “it “has a much less demanding set of corresponding duties, because the demanding set of duties we ordinarily associate with the legal right to due process is simply nonjustifiable from a standpoint that grounds duties solely in morally important aspects of the individual right-holder” (Heart of Human Rights 160). (If Indigent Irma is arrested for burglary, and she has a moral right to be represented by a lawyer, who has the moral duty either to represent her pro bono, or to pay for legal counsel for her?)
The legal rights included under the IHR to due process make the most sense when we think of individuals who have been charged with a crime by the state with all of the resources the state has. (If you are charged with a capital crime, you don’t want to put your life in the hands of an overworked public defender.)
22. Is there a MHR to a clean, sustainable atmosphere?
Think about the smog that used to blanket L.A. (Google it if you don’t remember the pictures.) Suppose there is an individual Jack whose emphysema is greatly worsened by the L.A. smog; he can’t make it through the day without his inhaler. Does Jack have a MHR to a breathable atmosphere? Suppose he does. Does his right alone justify spending billions to clean up L.A.’s atmosphere? Probably not. (Suppose we could save one extra life each year by lowering the maximum speed limit from 75mph on the intestate highways down to 65mph? Would saving the extra life justify the disadvantages and costs that would result from lowering the speed limit? Probably not. But if we could save 10,000 lives annually, perhaps it would.)
Would Jack’s right to be able to breathe freely justify requiring all drivers in L.A. to install catalytic converters on their cars (supposing, for the sake of argument, that that would be sufficient to reduce air pollution enough so that Jack could breathe freely)? I doubt it (and Buchanan surely agrees). This is not to deny that Jack has an extremely important interest in being able to breathe freely (and perhaps also a moral right), but his interest or right alone is not sufficient to impose expensive duties on everyone who drives in L.A. (Isn’t that right?)
But the L.A. smog affected the health of millions of Angelenos. That fact is enough to justify legally requiring Angelenos to install catalytic converters on their cars (and to do many other things that were more-or-less costly to reduce the smog). Again, I am only channeling Buchanan:
It is only because the fulfillment of the correlative duties positively impacts the interests of a large number of people that ascription of such extensive, expensive, and liberty-limiting duties is reasonable. But if that is so, then the interests of the individual cannot justify the ascription of the right to him or her, because the right implies the corresponding directed duties. The point is that while the contributions to any particular individual’s interest that fulfillment of the duties that correlate with these rights makes would not warrant the costs and burdens that fulfilling the duties requires, the consequences of the fulfillment of the duties for the population as a whole may be sufficiently good to justify the costs and burdens the hence the imposition of the duties (Heart of Human Rights 62).
The core idea is this: Because the duties that correspond to moral claim-rights are directed, that is, morally owed to the right-holder, they must be solely subject-grounded. That is, to establish the existence of the directed duties and hence of the right it is necessary to make the case that there is something about the right-holder that justifies the assertion that the duties are owed, morally speaking, to him or her. But neither the interests nor the autonomy, nor any other feature of any particular individual is of sufficient moral importance to justify the ascription of the extensive and expensive duties that are correlates of many legal rights, whether domestic or international. To put the point bluntly: no matter who you are, you are not important enough to justify the set of duties that correlate with the panoply of legal rights that constitute the modern rights-respecting welfare state, much less important enough to justify a system of ILHR law that serves to support the welfare state’s system of rights. But the interests and autonomy of large numbers of people like you are important enough. That is why legal rights, whether at the domestic or international level, often do not mirror moral rights. Legal rights can be and are much more expansive in their content than moral rights . . . (Heart of Human Rights 63-64).
To reiterate the point Buchanan is making: the cost of enforcing one person’s moral rights (or interests) may be too great to justify imposing (expensive) duties on many other people. In contrast, Legal duties can be justified whether or not there are pre-existing moral right because they benefit many people.
23. You may have read about the threats posed by climate change. If we don’t changer our evil ways, Miami may go underwater. We all need to cut back on the amount of carbon dioxide we emit into the atmosphere. And methane. And nitrous oxide (https://qz.com/1745204/maps-of-nitrous-oxide-emissions-a-potent-greenhouse-gas/)
If there is a MHR to a sustainable atmosphere, what moral duties do I have? Air travel emits lots of carbon dioxide (how much? It’s complicated: https://www.carbonindependent.org/22.html), so am I duty-bound to stop flying? Driving internal combustion cars emits lots of CO2; am I duty-bound to buy a Tesla? Using electric dryers uses a lot of electricity; if it is produced by coal plants (or even by natural gas, which emits dangerous methane), am I duty-bound to hang my clothes to dry on a clothes line? Eating meat–well, cows produce lots of methane (estimates range from 26-132 gallons per day: see .
https://animals.howstuffworks.com/mammals/methane-cow.htm). Am I duty-bound to give up meat (and eat Impossible Burgers instead)?
It would be good, from an environmental point of view, if I did all of those things. Actually, it would be good if everyone did all of those things. But if I am the only one doing it, then it will make no difference. Before it makes sense for me to do all (or any) of those things, I need the assurance that (millions, or probably billions, of) other people also will. But as long as it is legal to use electric dryers, and to drive a Hummer, and to buy beef, and to fly to Paris, that won’t happen. People will not voluntarily reduce their carbon footprint sufficiently to avoid climate disaster.
Do I have a moral right that you not drive a Hummer (or any gasoline-powered car)? Probably not. Do I have a right that you not eat beef? Probably not. My right is not sufficient to justify your having all of those moral duties or imposing expensive legal duties (like buying a Tesla) on you. But the interests of billions of human beings–their interest in living in a world not suffering from drought, fires, flooding, etc.–that is sufficient to justify imposing the legal duties sufficient to avoid climate disaster.
In short, even if there is no antecedently existing moral right to a clean atmosphere, or a moral right that the temperature of the atmosphere not rise more than 1.5̊ Celsius (those would be weird moral rights), it still makes sense to create–by international law–a legal right to a sustainable atmosphere and to impose legal duties on states to reduce their CO2 (and methane) emissions. How can they do this? By carbon taxes. By adding a tax on gasoline of several dollars per gallon. By making it more expensive to consume greenhouse-gas-emitting sources of energy.
24. Last gasp objection: But doesn’t Buchanan justify violating people’s moral rights by creating legal duties based on the interests of large numbers of people? He raises this worry–the worry that utilitarianism justifies violating people’s rights–by stressing how the Equal Status function prevents it.
I have a simpler rebuttal: Huh? You think people have a moral right to drive a car with an internal combustion engine? You think people have a moral right to use an electric dryer? You think people have a moral right to fly to Paris? (Surely that is an example of rights-inflation if anything is.)
25. To summarize: skepticism about IHR is often based on skepticism that many of the rights included in the UDHR and the two covenants really are rights–that they really are moral rights. Many of the rights cannot be natural rights (rights that people had in the ‘state of nature’) because they presuppose (legal) institutions that did not exist (often by definition) in the state of nature. But if Buchanan is right, then many IHR can be justified as legal rights even if there is no antecedently existing MHR because the legal rights protect important interests of large numbers of people, and those interests are important enough to justify imposing legal duties on other people.
1. International human rights (IHR) need to be justified. Why? Because they authorize intervention in the internal affairs of a state; they limit state sovereignty (as Buchanan says). Assuming that state sovereignty has some value, then anything that threatens to violate state sovereignty needs to be justified. In (more or less) the same way, inteference with an individual person’s liberty needs justification. (This is true even in the case of paternalistic interference (for the person’s own good). It would be good for you (probably?) if we outlawed the sale of cigarettes, but perhaps that would interfere with your liberty in ways that cannot be justified.)
2. IHR are, by definition, legal rights (assuming that there is such a thing as international law). As legal rights, they give states the legal right to intervene in the internal affairs of other states (up to and sometimes including military intervention).
But are these legal rights justified (we are talking about moral justification). Opponents of capital punishment (and abortion) admit that the state (and individuals) now have the legal right to carry out executions (and to have abortions), but they think that those legal rights should not exist. They are not morally justified. Abolitionists prior to the Civil War thought that slavery should be outlawed everywhere in the US. People should not have a legal right to own other people. The legal right to own slaves was morally unjustified. (Can moral rights be [morally] unjustified? I don’t think that makes any sense. If something is a moral right, then it is [morally] justified. But of course we might disagree about whether it is morally justified, and thus about whether it is a moral right, and thus about whether it should be a legal right.)
3. We might all agree that there is a moral right not to be tortured (whether the right is absolute or not is another question), and we might all agree that everyone has a right against being enslaved. And I suspect that we all agree that these moral rights should be legally protected: there should be laws against torture and slavery. We should have legal rights against being tortured and enslaved. And maybe we all agree that there not only are but there also should be international legal rights against torture and slavery. So we agree that slavery and torture violate an IHR–an ILHR (an international legal human right). (I will use IHR and IHLR interchangeably.)
(In many countries, the usual way to enforce moral rights–not all moral rights, but some) is by turning them into legal rights. We could rely upon social pressure, but that is probably not sufficient to protect people’s right not to be killed, kidnaped, stolen from, etc. But sometimes legalization is not justified because, e.g., the cost is not worth the benefit. Having a legal system (with cops, judges, jails, etc.) is expensive.)
4. But now we get to some hard(er) questions. Can all ILHR be justified by appeal to antecedently existing moral rights (or what Buchanan calls moral human rights [MHR])? Is being a MHR necessary for being an ILHR? Is being a MHR sufficient for being an ILHR (that is, if X is a MHR, is that a good reason for it to be made into an ILHR)?
(Note: we don’t think that something being morally wrong is necessary for it to be illegal. There is nothing incoherent in thinking that extramarital sex is morally wrong, but it should not be illegal. Or fishing without a license. Or driving without insurance. Nor do we think that being immoral is sufficient for making it illegal. Lying to your mother is usually wrong, but should it be illegal? Breaking promises is usually wrong, but should it be illegal? (To both questions, the answer is, sometimes, ‘yes’–when there is a contract, or when it is perjury.)
5. Two of the most important challenges to the existence of ILHR are the claim that they are parochial, and the denial that there are any universally valid rights (moral or legal). Related to these challenges is the fear of human rights inflation (Harvard Law professor Mary Ann Glendon is probably the leading defender of the claim about rights-inflation. See her book, Rights Talk: The Impoverishment of Political Discourse (1993). Amazon says: “Political speech in the United States is undergoing a crisis. Glendon's acclaimed book traces the evolution of the strident language of rights in America and shows how it has captured the nation's devotion to individualism and liberty, but omitted the American traditions of hospitality and care for the community.” She also wrote the acclaimed (Buchanan constantly cites it) A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (2001). You can get it on Amazon for a real good price. Like I did.) She was former US Ambassador to the Holy See. Among her particular interests are religious liberty (I am guessing that in the Masterpiece Cake shop case, she is on the side of the cake shop. We can ask: is there an ILHR to freedom of religion? Does it include the right to refuse service to gays and lesbians? If so, does that mean there is no IHR against discrimination based on sex and race? Or does the IHR against sex discrimination not include a right against discrimination based on sexual orientation? What about gender identity?
(The moral of this story: there is not only moral disagreement between societies or cultures–the fact of cultural diversity–but also within societies. Americans are not in agreement about the morality of same sex marriage, or abortion, or the right to health care. Or capital punishment. Or spanking. When rights conflict, what should we do? Just vote? What about the rights of minorities?)
6. Setting Glendon aside, the fear of human rights inflation might rest on the suspicion that many of the ILHR do not have any corresponding MHR. It is relatively hard to deny the existence of moral rights against torture and slavery, but what about (this is everyone’s favorite whipping boy, or favorite ‘whipping right’) “the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay” (UDHR, Art. 24)? My uncle was a dairy farmer in Wisconsin. Did he get paid vacations? Did the cows say: “Hey, John, go on down to Madison for the weekend. Don’t worry about us. We don’t need to be milked every day.”
Is there a human right to form and join trade unions (and to strike!) (UDHR, Art 23(4); ICESCR, Art. 8)?
Is there a human right not to be “subjected . . . to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks” (UDHR Art. 12)?
What if the attacks are justified? What about freedom of speech? See UDHR and ICCPR 19.2: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” It goes on:
19.3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others.
A right to your reputation? You might remember back in the 1990s Emory University historian Deborah Lipstadt accused famous historian David Irving of being a Holocaust denier. He sued her for libel (in England, where it is easier to prove libel than in the US). Lipstadt could have avoided the trial by not going back to England; instead, he took Irving to court in England and won. I think we have to say that Lipstadt damaged his reputation (among most people). But it was true: he was a Holocaust denier. (I recommend the movie Denial about the trial (starring Rachel Weisz).
Is there a human right to health care? It is not included in the UDHR or either of the two main covenants.
Should it be? How could you argue that it should be included?
7. Stepping back, let’s ask whether there is a MHR to health care, or to paid vacations, or to join a trade union, or 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 and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other
lack of livelihood in circumstances beyond his control” (UDHR Art 25), or a right to an education (Art 25) (which seems to imply a right to the existence of schools),
8. What are we asking when we ask whether something is a MHR? What makes something a MHR? One answer is that MHR are what used to be called ‘natural rights’–the rights one would have in the hypothetical state of nature. In that sense, they are pre-institutional.
Many of the rights in the UDHR and the two covenants cannot be pre-institutional rights. Examples:
Art 21: “(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.”
Art 6: ”Everyone has the right to recognition everywhere as a person before the law”
Art 7: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”
Art 16: “Men and women of full age .... have the right to marry and found a family ....” (Does this include the right of men to marry men and women to marry women?
IN SHORT, these rights don’t make sense if we are thinking about a “state of nature” prior to government and a legal system–as pre-institutional or pre-political. I even think that our First Amendment rights are rights against our government: the government may not abridge those rights. It is not talking about private individuals. So it is not saying that Antifa cannot shout down a racist speaker. Racist speakers may have a moral right to freedom of speech, but so does Antifa.
And the freedom to marry has to be a legal right insofar as we think of marriage as a legal institution that brings all kinds of legal benefits and liabilities. In some states, as soon as you marry, your spouse owns half of your property. That is why there are prenuptial agreements.
9. If you accept the Orthodox or Mirroring View of IHR, then the fact that some IHR lack a corresponding MHR that specifies the content of the IHR should be troubling. If there is no MHR to marry, or to an education, then how can it be a human IHR? Aren’t human rights the rights that people have simply by virtue of their humanity (because,. As Donoho says, they were born)? And that is what a natural right is. Rights we are born with. They are inalienable. Perhaps God-given.
I think the idea of ‘natural rights’ has, at least historically, been tied to the idea of ‘natural laws,’ and that idea has largely fallen out of fashion (among secular philosophers). It lives on in the Roman Catholic Church. For more on the natural law tradition, https://plato.stanford.edu/entries/natural-law-ethics/
10. Defenders of the Political or Practical Conception of human rights reject the idea that IHR must be grounded in MHR or natural rights. But this means that they need to find another way to justify IHR, given that IHR justify interference in state sovereignty.
11. Let us accept what seems uncontroversially true, namely, that for every MHR, whether a negative right (a right to an act of omission–like a right not to be killed or kidnaped) or a positive right (a right to an act of commission–like a right to an education) there are three corresponding duties. Drawing on what Henry Shue says in BASIC RIGHTS (p. 52 in the Revised Edition), they are:
(1) Duties to avoid depriving; (2) Duties to protect from deprivation; and (3) Duties to aid the deprived.
Thus, referring to the (basic) right to security, he says there are three corresponding duties:
(1) Duties not to eliminate a person’s security–duties to avoid depriving.
(2) Duties to protect people against deprivation of security by other people–duties to protect from deprivation.
(3) Duties to provide for the security of those unable to provide for their own security–duties to aid the deprived.
And referring to the (basic) right to subsistence, he says there are again, three corresponding duties:
(1) Duties to avoid eliminating a person’s only available means of subsistence–duties to avoid depriving. (2) Duties to protect people against deprivation of the only available means of subsistence–duties to protect from deprivation.
(3) Duties to provide for the subsistence of those unable to provide for their own–duties to aid the deprived.
12. Suppose I have a right to subsistence. Who has the correlative duties? Well, everyone has the negative duty not to deprive me of my only available means of subsistence (e.g., don’t burn my crops or poison my cows). But suppose I lose my crops in a drought or a fire. Who has the positive duty to aid me? My neighbors might be willing to help, but they also might have lost their cops to the drought or fire. And, in any case, they probably cannot provide enough assistance.
Or consider (2) in each case: who has the duty to protect against deprivation? Some small towns still have volunteer fire departments, but for the most part we pay people to fight our fires. And to provide for our security (police departments; the military). And to educate our children (and ourselves)–teachers. And to protect battered children–CPS.
Why is this the best way to do it? First, because it is a lot more convenient. Suppose you belong to a volunteer fire department and you get called to fight a fire when you are in the middle of taking the LSAT or the bar exam. Second, volunteers are probably not as competent as professional. Third, we can (try to) make sure everyone contributes their ‘fair share’ if we pay for these services via taxation.
Suppose there is a MHR to, say, free elementary education. Who has the corresponding duty? Probably not the parents: they already have a job (perhaps as fire fighters) and, besides, they have forgotten all the world history they learned in fourth grade. Plus, they never understood the New Math. Do the neighbors? Aren’t they already busy with their own lives? And why would they have the duty?
13. Buchanan’s point is that MHR are limited by the need to assign correlative duties (especially beyond the initial negative duty). Suppose a child falls into a pond and is in danger of drowning (and the kid’s parents are nowhere to be seen). I think that the child has a moral right to be rescued by anyone who is able to rescue the kid, and who can do so without undue risk or cost (what is ‘undue’ can be a hard question).
So far, so good. But, what if, after saving that kid, another one falls in (whom I can easily rescue)? I ought to rescue that kid, too. But what about a third child, and a fourth child, etc.? It would be unfair to expect one individual to carry out an endless number of rescues, especially if there are others who could chip in (but they would rather do something else). But if we hire people–lifeguards, EMT--to rescue people, then everyone can, at a small financial cost (paying the professionals) do what they would rather do (like finish the LSAT). Or continue binge watching “Little House on the Prairie.”
14. Buchanan’s point, then, is that people can have legal rights even if they do not have a pre-existing moral right. Jack has a moral right to X only if it is reasonable to impose a corresponding duty upon Jill (and Jane, and Tom, Dick, and Harry, as well as Louise and Thelma). I do think that I have a duty to rescue Jack (this is usually called the “duty of rescue”) if he is drowning and I can rescue him without undue cost or risk to myself. But I have no moral duty to hang out by the pond waiting to rescue anyone who happens to fall in. But it makes sense in some cases (if lots of people swim in the pond, or lake) for the city to hire a lifeguard who has the duty to rescue anyone in danger of drowning. In that case, swimmers do have a right–a legal right–to be rescued–by the lifeguard.
(As we shall see below, Buchanan would say that people have a very strong interest in not drowning.) But that interest does not give rise to a corresponding duty beyond the ‘duty of rescue.’ But it is sufficient to justify hiring lifeguards who then have a (legal) duty to rescue drowning swimmers. (I suppose that lifeguards also have a moral duty to rescue drowning swimmers because they have accepted the legal duty by taking the job. It is kind of like the moral duty to keep your promises (or do what you legally contracted to do.)
15. Let’s focus on the (alleged) right to health (and health care) to illustrate of how Buchanan argues for IHR that do not ‘mirror’ antecedently existing moral rights.
Do individuals have a MHR to health (or health care)? If there is a moral right to health (care), then there have to be corresponding duty-holders. I suppose there might be a right to emergency medical care (like performing the Heimlich maneuver on someone who is choking), but, beyond that, I am skeptical. Is there a moral right to the kind of care a trained EMT can provide? If so, then does each of us have a duty to get that training? I don’t think so. (Looking on-line, I saw that one course requires 136 hours of classroom training and tuition is $1600.) In short, if there is a moral right to health (care), then it must be a very minimal right (the duties it imposes on other people cannot be very demanding at all.)
(Question: Why does Buchanan refer to a legal right to health instead of merely health care? Answer: because the right to health includes not only “access to healthcare but also the provision of other conditions that are important for health, such as public health measures” (Heart of Human Rights 162).
And other things like unpolluted air and water. In any case, the right to health is not the right to be healthy.)
But, argues Buchanan, the absence of a robust MHR to health (care) does not show that there cannot be a legal right to health (care), or that it cannot be an IHR.
No individual’s interest in health is morally sufficient to justify the great costs that such large-scale policies entail and the significant restrictions on many individuals’ liberty that they would inevitably require. If there is a moral right to health, it is narrower in scope--it has a less extensive set of correlative duties–than a reasonable legal right to health (Heart of Human Rights 61).
Two points. First, if there can be legal rights that do not mirror antecedently existing moral rights, then the legal right can be more expansive than the moral right could be. There can be a legal right to more than, say, the Heimlich maneuver. And that is because, second, a legal right to health that is more expansive than any moral right to health will also be more expensive than the corresponding moral right could be, but the greater cost can be fairly distributed. If there is a legal right to an adequate health care system, the cost can be spread across the entire population (as in a single-payer system) and no one is required to pay an unreasonable amount (unless the system is flawed). And if there is a legal right to an adequate health care system, then there is no objection to imposing on each of us a legal duty to pay for it. Nor is anyone unfairly burdened in fulfilling the legal right to health care. For the most part, health care is provided by professionals: they are paid for their services. (Perhaps some are overpaid.)
16. Of course, it is still necessary to justify imposing this legal duty on citizens. A modern medical care system is expensive. Surgeons won’t work for free. But creating (and imposing) legal duties is possible without antecedent moral rights. Buchanan writes:
In some cases, it is morally justifiable to enforce duties the fulfillment of which is necessary for securing morally important public goods, but its being justifiable does not depend on the implausible claim that each individual has an antecedently exiting moral right to the public good. Justifying a legal right may require justifying the enforcement of the correlative legal duties, but the enforcement of legal duties does not require correlative moral rights. . . . Hence, even if one assumes that to justify ILHR one must show that it is justifiable to enforce the duty the right entails, it does not follow that an ILHR is justified only if it is necessary for realizing an antecedently existing moral human [right] (Heart of Human Rights 55-56).
We all have an important (sometimes a life-and-death) interest in having adequate health care, and legal duties can be justified when they promote or safeguard important interests. This is especially true when it is the interests of large numbers of people that are being served. Taxing citizens to pay for federal research on cancer would be hard to justify if only a small number of people died of cancer each year; it is much easier to justify if more than 600,000 die from cancer each year in the US.
17. Having a legal right to health (and not merely a moral right) has an additional advantage:
Having a legal entitlement to health has an additional advantage: If it is funded by a reasonable system of taxation, it can provide assurance to each citizen that all are bearing their fair share in achieving coordinated, effective beneficence. . . . [D]esirability of effective coordinated beneficence and of a fair distribution of the burdens of providing it provide a strong argument for a legal entitlement to health (Heart of Human Rights 163).
The idea of assurance is important. One of Buchanan’s most important points is that legal duties can avoid the assurance problem whereas merely moral duties cannot.
To justify a moral right, one must show that the corresponding duties exist, that is, that someone has the duties in question or, on some theories of rights, one must at least show that it would be justifiable to impose the duties on someone. But whether an individual, A, has a moral duty, D, to do X, and whether it is justifiable to require A to do X (to impose the duty on him) can depend on whether A has reasonable assurance that others are going to fulfill that duty. Without this assurance, it may be unfair to require A to do X. If D is merely a moral duty, then A may not have that assurance, in which case he will not have the duty and it will not be justifiable to impose that duty on him; consequently, there will be no duty and hence no right. But if D is a legal duty and enforceable as such, then A will have the needed assurance and hence it will be justifiable to require him to do X. What one has a duty to do, absent reciprocity on the part of others, can be less than what one has a duty to do, given reasonable assurance of their reciprocating. Because the law can provide reasonable assurance of reciprocity, legal duties, and hence legal rights, can be more robust than moral rights. That is another reason why the law can be a more effective mechanism for achieving moral ends if it does not restrict itself to giving legal form and enforcement to preexisting moral rights (Heart of Human Rights 66).
If doctors had to depend upon patients voluntarily paying for their care, few people would become doctors. And patients would be inclined to be free riders–to let others pay for the cost of the system if they could refuse to pay and still be treated. Indeed, if I lacked assurance that others would pay their fair share, why should I pay my fair share? (It would seem I am being a sucker.) (In European cities, you don’t have to show a ticket to get on the bus or subway. (It’s great.) So why not ride for free? Why not let other people pay the cost of the transit system? Answer: transit police do random spot checks to see if you have a ticket. If not, you have a pay a fine on the spot–around $75-100. That goes a long way to solving the free rider problem, toward assuring me that others are not taking advantage of my willingness to pay. And to giving me a sufficient reason to buy a ticket.)
18. More generally:
The modern welfare state can be seen as a device for achieving efficient, coordinate beneficence, for achieving a fair distribution of the costs of doing so, and, to the extent that it is democratic, for providing a public forum in which informed, rational deliberation about the priorities among human needs and the best means of responding to them can occur. International human rights that includes social and economic rights can then serve the purpose of providing international support for state-centered, collective beneficence projects (Heart of Human Rights 163-164).
19. The same thing is true of education: If there is a MHR to education, who has the correlative duty? The parents? Home schooling is expensive (at least in terms of opportunity costs). And many parents have forgotten what they learned about world history in 10th grade. And they were not taught the New Math at all. Neighbors? But what have they done to justify imposing the duty of them? How can I have a duty to educate the neighbor children? What makes me liable to having that duty? (And is it only my immediate neighbors, or also the ones who live a block or two away? And is it one neighbor kid, or several, or many?)
What would be the content of a MHR to an education? If you are tempted to say that it is the moral right to be literate (able to read and write), my only reply is (as Buchanan says): the IHR to education is a right to much more than literacy. If there is an IHR to education, it cannot be grounded solely in the MHR to literacy.
How, then, can we justify an IHR to education if it does not ‘mirror’ an antecedently existing moral right? Again, Buchanan’s answer is that the legal right is justified by the interests of large numbers of people:
it is legitimate to appeal to broader social benefits in making the case for this right (Heart of Human Rights 61).
Education benefits the recipient of the education, obviously (or we hope it does), but it is also socially beneficial:
having an educated citizenry contributes to economic productivity, which in turn can raise the standard of living, and it is also valuable from the standpoint of deliberative democracy (Heart of Human Rights 61).
We can provide an effective and efficient educational system which meets each person’s educational needs without any one person having to pay more than his or her fair share (however that is determined). Again, there can be a legal right to an education, even if there is not a MHR to an education, because the corresponding positive duties (basically, to teach) can be distributed without anyone being unduly burdened (mostly because teachers are paid to teach). Since everyone is compelled to pay his or her fair share (via taxes), no one can be a free rider. If we relied upon volunteers, many people would be motivated to be free riders.
Recall again what Buchanan says about justifying legal duties by appeal to the benefits they bring to large numbers of people (rather than by appealing to a pre-existing moral right). Having one more citizen with a college degree probably will benefit society only trivially; but having millions of citizens with college degrees will benefit society immensely. The benefit to society is what justifies creating the legal duty to pay for an extensive educational system (via taxes).
20. An education system produces positive externalities. While we usually think about externalities in terms of negative externalities (e.g., pollution), there are also positive externalities. Society in general benefits the more the citizens are educated, and so it is only appropriate that society pay at least part of the cost of the education of their citizens (through public schools and universities), Even if the student benefits more than anyone else from his or her education, that does not imply that the student should pay the full cost of that education (since the student is not the sole beneficiary).
(Here is the first definition that popped up when I googled ‘externalities’: “a side effect or consequence of an industrial or commercial activity that affects other parties without this being reflected in the cost of the goods or services involved, such as the pollination of surrounding crops by bees kept for honey.”)
Pollution is the classic example of a negative (i.e., bad) externality: the factory produces the pollution but does not pay for the cost of getting rid of it). Driving a gasoline powered car produces a negative externality unless the cost of removing the carbon dioxide from the atmosphere has been included in the price of the gasoline. (Has it?) That’s the whole point of a carbon tax–to “internalize the externality”–to make the polluters pay. Education creates positive externalities and the idea of public universities is to partially internalize the externality–to make the citizenry pay at least part of the cost of the good consequences of having educated citizens.
21. Is there a MHR to due process? Buchanan writes:
This category includes a number of rights that both protect individuals from abuses of the legal system (the protective function) and make the legal system an effective resource for them to deploy in pursuing their legitimate interests (the facilitative function). It includes but is not limited to the right to be apprised of the chargers against one in criminal proceedings, the right to a fair trial, the right to legal counsel and representation, and the right to equal access to legal remedies for violations of rights (Heart of Human Rights 159).
I like this explanation from James Nickel (University of Miami Philosophy Dept and Law School):
Greedy and hungry neighbors who will raid, kill, steal, dispossess, kidnap, and rape–pose what I call the First Problem of Insecurity. To protect ourselves from them we create law, property, and government. We enact criminal laws, create courts and jails, and proceed to convict and punish offenders. We thereby solve–or at least ameliorate–the First problem of Insecurity. The system of law and government is dangerous, however, and we still have reason to be fearful, but now our fear is of the government’s predation, corruption, and ineptitude. This is the Second Problem of Insecurity (Making Sense of Human Rights, Second Edition, p. 109).
Due process rights are a partial solution to the Second Problem of Insecurity: “They protect us against government.”
Buchanan is hesitant to say that there is a MHR to due process, but, if there is, “it “has a much less demanding set of corresponding duties, because the demanding set of duties we ordinarily associate with the legal right to due process is simply nonjustifiable from a standpoint that grounds duties solely in morally important aspects of the individual right-holder” (Heart of Human Rights 160). (If Indigent Irma is arrested for burglary, and she has a moral right to be represented by a lawyer, who has the moral duty either to represent her pro bono, or to pay for legal counsel for her?)
The legal rights included under the IHR to due process make the most sense when we think of individuals who have been charged with a crime by the state with all of the resources the state has. (If you are charged with a capital crime, you don’t want to put your life in the hands of an overworked public defender.)
22. Is there a MHR to a clean, sustainable atmosphere?
Think about the smog that used to blanket L.A. (Google it if you don’t remember the pictures.) Suppose there is an individual Jack whose emphysema is greatly worsened by the L.A. smog; he can’t make it through the day without his inhaler. Does Jack have a MHR to a breathable atmosphere? Suppose he does. Does his right alone justify spending billions to clean up L.A.’s atmosphere? Probably not. (Suppose we could save one extra life each year by lowering the maximum speed limit from 75mph on the intestate highways down to 65mph? Would saving the extra life justify the disadvantages and costs that would result from lowering the speed limit? Probably not. But if we could save 10,000 lives annually, perhaps it would.)
Would Jack’s right to be able to breathe freely justify requiring all drivers in L.A. to install catalytic converters on their cars (supposing, for the sake of argument, that that would be sufficient to reduce air pollution enough so that Jack could breathe freely)? I doubt it (and Buchanan surely agrees). This is not to deny that Jack has an extremely important interest in being able to breathe freely (and perhaps also a moral right), but his interest or right alone is not sufficient to impose expensive duties on everyone who drives in L.A. (Isn’t that right?)
But the L.A. smog affected the health of millions of Angelenos. That fact is enough to justify legally requiring Angelenos to install catalytic converters on their cars (and to do many other things that were more-or-less costly to reduce the smog). Again, I am only channeling Buchanan:
It is only because the fulfillment of the correlative duties positively impacts the interests of a large number of people that ascription of such extensive, expensive, and liberty-limiting duties is reasonable. But if that is so, then the interests of the individual cannot justify the ascription of the right to him or her, because the right implies the corresponding directed duties. The point is that while the contributions to any particular individual’s interest that fulfillment of the duties that correlate with these rights makes would not warrant the costs and burdens that fulfilling the duties requires, the consequences of the fulfillment of the duties for the population as a whole may be sufficiently good to justify the costs and burdens the hence the imposition of the duties (Heart of Human Rights 62).
The core idea is this: Because the duties that correspond to moral claim-rights are directed, that is, morally owed to the right-holder, they must be solely subject-grounded. That is, to establish the existence of the directed duties and hence of the right it is necessary to make the case that there is something about the right-holder that justifies the assertion that the duties are owed, morally speaking, to him or her. But neither the interests nor the autonomy, nor any other feature of any particular individual is of sufficient moral importance to justify the ascription of the extensive and expensive duties that are correlates of many legal rights, whether domestic or international. To put the point bluntly: no matter who you are, you are not important enough to justify the set of duties that correlate with the panoply of legal rights that constitute the modern rights-respecting welfare state, much less important enough to justify a system of ILHR law that serves to support the welfare state’s system of rights. But the interests and autonomy of large numbers of people like you are important enough. That is why legal rights, whether at the domestic or international level, often do not mirror moral rights. Legal rights can be and are much more expansive in their content than moral rights . . . (Heart of Human Rights 63-64).
To reiterate the point Buchanan is making: the cost of enforcing one person’s moral rights (or interests) may be too great to justify imposing (expensive) duties on many other people. In contrast, Legal duties can be justified whether or not there are pre-existing moral right because they benefit many people.
23. You may have read about the threats posed by climate change. If we don’t changer our evil ways, Miami may go underwater. We all need to cut back on the amount of carbon dioxide we emit into the atmosphere. And methane. And nitrous oxide (https://qz.com/1745204/maps-of-nitrous-oxide-emissions-a-potent-greenhouse-gas/)
If there is a MHR to a sustainable atmosphere, what moral duties do I have? Air travel emits lots of carbon dioxide (how much? It’s complicated: https://www.carbonindependent.org/22.html), so am I duty-bound to stop flying? Driving internal combustion cars emits lots of CO2; am I duty-bound to buy a Tesla? Using electric dryers uses a lot of electricity; if it is produced by coal plants (or even by natural gas, which emits dangerous methane), am I duty-bound to hang my clothes to dry on a clothes line? Eating meat–well, cows produce lots of methane (estimates range from 26-132 gallons per day: see .
https://animals.howstuffworks.com/mammals/methane-cow.htm). Am I duty-bound to give up meat (and eat Impossible Burgers instead)?
It would be good, from an environmental point of view, if I did all of those things. Actually, it would be good if everyone did all of those things. But if I am the only one doing it, then it will make no difference. Before it makes sense for me to do all (or any) of those things, I need the assurance that (millions, or probably billions, of) other people also will. But as long as it is legal to use electric dryers, and to drive a Hummer, and to buy beef, and to fly to Paris, that won’t happen. People will not voluntarily reduce their carbon footprint sufficiently to avoid climate disaster.
Do I have a moral right that you not drive a Hummer (or any gasoline-powered car)? Probably not. Do I have a right that you not eat beef? Probably not. My right is not sufficient to justify your having all of those moral duties or imposing expensive legal duties (like buying a Tesla) on you. But the interests of billions of human beings–their interest in living in a world not suffering from drought, fires, flooding, etc.–that is sufficient to justify imposing the legal duties sufficient to avoid climate disaster.
In short, even if there is no antecedently existing moral right to a clean atmosphere, or a moral right that the temperature of the atmosphere not rise more than 1.5̊ Celsius (those would be weird moral rights), it still makes sense to create–by international law–a legal right to a sustainable atmosphere and to impose legal duties on states to reduce their CO2 (and methane) emissions. How can they do this? By carbon taxes. By adding a tax on gasoline of several dollars per gallon. By making it more expensive to consume greenhouse-gas-emitting sources of energy.
24. Last gasp objection: But doesn’t Buchanan justify violating people’s moral rights by creating legal duties based on the interests of large numbers of people? He raises this worry–the worry that utilitarianism justifies violating people’s rights–by stressing how the Equal Status function prevents it.
I have a simpler rebuttal: Huh? You think people have a moral right to drive a car with an internal combustion engine? You think people have a moral right to use an electric dryer? You think people have a moral right to fly to Paris? (Surely that is an example of rights-inflation if anything is.)
25. To summarize: skepticism about IHR is often based on skepticism that many of the rights included in the UDHR and the two covenants really are rights–that they really are moral rights. Many of the rights cannot be natural rights (rights that people had in the ‘state of nature’) because they presuppose (legal) institutions that did not exist (often by definition) in the state of nature. But if Buchanan is right, then many IHR can be justified as legal rights even if there is no antecedently existing MHR because the legal rights protect important interests of large numbers of people, and those interests are important enough to justify imposing legal duties on other people.
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