Amartya Sen on human rights in The Idea of Justice

I

Sen’s approach to questions about human rights is of great interest and importance for a number of reasons.

(1) The first is his insistence that statements about the existence, content and scope of human rights are misconstrued if they are thought to be statements about the rights to which recognition is given by law, whether domestic or international. They must be regarded, rather, as ethical statements: human rights must be seen as an important sub-class of moral rights and consequently as rights that may or may not be embodied in any particular system of law. Because there is sometimes misunderstanding – even controversy – about the relationship in which various familiar human rights declarations stand to familiar bodies of law, domestic or international, Sen is rightly insistent that questions about the existence, content and scope of human rights cannot be settled by brisk appeal to – or even by painstakingly careful exegesis of – the documents that embody such declarations. Thus, accurate recital (even if backed by authoritative scholarly interpretation) of the most fundamental of the rights set out in various well-known declarations ³ must be seen to be powerless to establish that any of these rights is a ‘human right’.

(2) An important consequence of Sen’s view of statements about human rights as embodying ethical or moral claims is his brilliantly concise dismissal of the historically influential attempt by Jeremy Bentham to reject the ‘rights of man’ celebrated by French revolutionaries in 1789 – human rights, in effect – because they are not ‘legal’ rights.

It is easy to see that Bentham’s rejection of the idea of natural ‘rights of man’ depends entirely on the rhetoric of privileged use of the term ‘right.’ ⁴

(3) Sen has also eloquently championed the view – against, for example, H. L. A. Hart’s contention in his famous paper ‘Are There Any Natural Rights?’ ⁵ – that human rights (even when they are correctly regarded as non-legal rights) ought not to be conceived as rights that are simply awaiting transformation into legal rights.

Whereas Bentham saw rights as a ‘child of law,’ Hart’s view takes the form of seeing human rights as, in effect, parents of law: they motivate specific legislations. ⁶

(5) Sen has been a particularly effective critic of the view that ‘Asian values’ are at odds with the (allegedly) ‘western’ values embedded in the doctrine of human rights. ⁹ He has mounted a two-pronged critique of this view. On the one hand, he has pointed out that there have been non-western thinkers who have championed such allegedly ‘western’ rights as freedom of conscience and freedom of religion. A notable example is the Indian Emperor Ashoka who, in the third century BC – a full millennium and a half before Europe tore itself apart in its notorious wars of religion – ‘argued against intolerance and in favor of the understanding that even when one social or religious sect of people find themselves opposed to other ones, “other sects should be duly honored in every way on all occasions”’. ¹⁰ On the other hand, he has reminded us of how (relatively) recently the rights embodied in doctrines of human rights have been so much as recognized in the West – no earlier, arguably, than the European Enlightenment in the 18^th century – and also of how frequently (in their management of domestic affairs, in their dealings with other countries, and in the long and ugly history of European colonialism) western countries have flouted these rights. Moreover, authoritarian approaches to the structuring of society – approaches that stress the importance of social discipline in disregard of the so-called ‘rights’ of individuals ¹¹ – have been as common historically in the West as in such Asian countries as India and China.

(6) Affirmation of the existence of human rights goes hand-in-hand with recognition of the obligations that must be discharged if the rights are to be effectively protected. Sen has contributed impressively to specification of the sense in which a defensible account of human rights must be able to identify the obligations that can be ‘correlated’ with human rights. He has shown that the doctrine of the ‘correlativity of rights and obligations’, in its application to human rights, does not require all the obligations generated by rights to be (what Kant called) ‘perfect’ obligations. It is not necessary for the determinate content of all the correlative obligations to be precisely specifiable in advance: it need not always be specifiable in advance either who the individuals are who have the obligations or what precisely the content of their obligations is. There are of course some readily identifiable ‘perfect’ obligations that are generated by human rights. It is clear, for example, that the right not to be tortured imposes on everyone a precisely specifiable obligation – the obligation not to torture anyone. However, in addition to such perfect obligations, human rights generate an assortment of ‘imperfect’ obligations. In these cases the precise content of the obligations cannot be specified in advance and the individuals ¹² who have these obligations cannot be identified in advance. It is only in particular situations that determinate obligations can be specified and the obligation-bearers will be those who happen to be well-positioned to protect threatened human rights through the discharge of these obligations. Sen has been able to demonstrate – in the course of criticizing Onora O’Neill’s claim that there cannot be genuine human rights that do not generate ‘perfect’ obligations ¹³ – not only that such putative ‘social’ rights as rights to welfare can survive as ‘human rights’ in face of this challenge but also that, if O’Neill’s criterion for the exclusion of putative human rights were to be adopted, even the most fundamental of the rights human beings have (for example, the right not to be assaulted or killed) would not qualify as bona fide human rights. ¹⁴

II

While Sen’s approach to questions about human rights has been admirable in all these (and various other) respects, there are a couple of rather central features of the theory of human rights he has advocated that would benefit from clarification and defense.

The first has to do with the central focus of his theory. Paramount importance attaches, according to Sen, to the ‘freedoms’ people must have if their lives are to go well. This focus marks his theory off from at least two ¹⁵ competing theories: Rawls’ theory (with its focus on so-called ‘primary goods’), and Joseph Raz’s version of the familiar ‘interest’ theory. ¹⁶

What seems to be crucial to Sen’s (qualified ¹⁷ ) critique of Raz’s claim that it is the ‘interest’ of the right-holder – paradigmatically – that rights are designed to protect is the assumption that if ‘interest’ is understood as self-interest or as personal well-being, then no room seems to be left for all those rights (including such prototypically ‘liberal’ human rights as the right to freedom of speech, freedom of religion and freedom of conscience) for which the rationale cannot be the advantage, in any form, of the right-holder. Sen cites the example of the anti-war protester whose right to take part in a demonstration against the Iraq war would be misdescribed if the point of exercise of the right – the rationale, consequently, for the right itself – were thought to be protection or promotion of the right-holder’s own interest (or advantage, or well-being). ¹⁸ Precisely because Sen thinks it is a mistake ‘to see human advantage’ as the ‘central concern’ in discussions of ‘freedom in general and agency freedom in particular’, ¹⁹ making the freedom of right-holders the principal focus of his theory of human rights – their freedom, that is, and not (say) their own interest or advantage – enables him to accommodate all those human rights that seem not to be designed, fundamentally, to promote the personal well-being of right-holders.

However, Sen’s objection to the centrality in Rawls’ account of justice (and rights) of so-called ‘primary goods’ ²⁰ seems to be based, not on the importance of distinguishing between the view that right-holders are themselves the principal beneficiaries of the rights they have and the view that some important rights do not have a personal benefit rationale, but rather on what he represents as Rawls’ misplaced emphasis on the mere means to the achievement of the valued ends of life. He writes that ‘while primary goods are, at best, means to the valued ends of human life’, his own approach ‘is particularly concerned with correcting this focus on means’ by directing attention, instead, to ‘the opportunity to fulfill ends and the substantive freedom to achieve those reasoned ends’. ²¹

It is not altogether clear, however, how this contrast is to be interpreted. If we bracket possible differences between Rawls and Sen as to how in this context ‘the valued ends of human life’ are to be understood – if we allow, for example, for the possibility ²² that Rawls may want to go somewhat further than Sen towards accommodating idiosyncratic ‘conceptions of the good’ – there seems to be little difference between (on the one hand, as Rawls puts it) representing so-called primary goods as all-purpose means to the achievement of valued ends and (on the other hand, as Sen would prefer to say) drawing attention to the role played by ‘opportunity’ and ‘substantive freedom’ in the achievement of ‘reasoned ends’. Are not ‘opportunity’ and ‘substantive freedom’ (as Sen understands them) – no less than ‘primary goods’ (as Rawls understands them) – also means to the achievement of the valued ends of human life? There may, of course, be important differences between their respective accounts of the ways in which the ‘means’ to the achievement of valued ends are to be understood – with Rawls (perhaps) conceiving of ‘freedom’ and ‘opportunity’ (two of the most important items in his list of ‘primary goods’) in too formal a way, ²³ and Sen insisting on the importance of people also being in a position (through the abilities they have and the resources they can command) to take full advantage of their ‘freedoms’ and ‘opportunities’ – but these differences do not imply that Rawls is emphasizing mere means to the achievement of the ends of life while Sen is focusing on the ends themselves.

Given the elasticity of the notion of freedom in its many ordinary applications – and given the uses to which Sen himself wishes to put the notion – there may, of course, be no conflict between the way in which freedom provides the principal focus for his theory of human rights when this theory is contrasted with Rawls’ and the way in which (when his approach is contrasted with Raz’s view) focusing on the freedoms human rights protect is taken to be significantly different from emphasizing the role human rights play in promoting the interest or personal well-being of right-holders. Nevertheless, it would help to clarify the intended force of the claim that human rights should be seen primarily as freedom-protecting devices if the relevant uses of the notion of freedom and their interconnections could be specified.

Even if it is made clear what makes Sen’s freedom-focused account of human rights distinctive, there is a second – also freedom-related – area in which his principal thesis about what is involved in the justification of contested claims about the existence, content and scope of particular human rights seems to call for amplification. As Sen clearly recognizes, not all the freedoms to which individuals attach some degree of importance – that is, not all the freedoms that would contribute in some way to enhancing the quality of their lives – are freedoms to which human beings can lay claim as a matter of right. As he himself makes the point:

For a freedom to be included as part of a human right it clearly must be important enough to provide reasons for others to pay serious attention to it. ²⁴

Both of these conditions need to be amplified a good deal for it to be clear just how the freedoms to be protected by human rights are distinguished from freedoms that do not qualify for inclusion ‘within the spectrum of human rights’.

Are we to understand, for example, that a freedom has ‘ethical importance’ for the individual who values it because of the indispensability of the role it plays in facilitating the living of a worthwhile life? If so, it will be important to determine not only how, in this context, the ‘living of a worthwhile life’ is to be conceived – and it seems clear that for Sen it involves more than the sort of life that makes it possible for ‘personal well-being’ to be achieved – but also whether the freedoms in question are merely essential means to the living of a worthwhile life or also (at least sometimes) integral parts of such a life.

As for the second condition, it too raises difficult questions. For one thing, even when specific freedoms are identified whose ‘realization’ can be ‘influenced’ by others (perhaps through the adoption of ‘social policies’ of certain sorts), we need to be able to determine whether ‘others’ have an obligation (perhaps through the social policies they help to sponsor) to set about securing the ‘realization’ of these freedoms. Sen recognizes that this is the crucial normative question that the doctrine of human rights raises. He dubs it the question of the ‘viability’ of human rights, and this question is glossed, in turn, as the question about how we are to ‘judge the acceptability of claims to human rights and assess the challenges they may face’. ²⁶ His answer, for the most part, seems to be a merely procedural answer. The answer is to be sought – and, he hopes, agreement about the answer can (at least often) be secured – through ‘an interactive process of critical scrutiny with open impartiality (including being open to information coming inter alia from other societies and to arguments coming from far as well as near), which allows disputations on the content and reach of putative human rights’. ²⁷ Several chapters of The Idea of Justice are devoted to setting out in detail what is involved in this process of ‘public reasoning and open impartiality’. ²⁸

Sen provides an impressive case for the general role that ‘open and informed scrutiny’ in the public domain can play in diminishing disagreement about the defensibility of potentially controversial claims ²⁹ and it may also be reasonable to share his confidence that ‘ethical claims’ (including those, more specifically, that have to do with the existence, content and scope of at least certain human rights) are to be counted among these – whenever they too survive the recommended processes of impartial assessment. It is tempting to wonder, however, whether a merely procedural account of the processes involved – a merely procedural account, consequently, of the rationale for human rights – can be adequate. Indeed it is surely plausible to argue that when statements about human rights survive ‘uncurbed critical scrutiny’, this is attributable, at least in part, to a latent consensus about what constitutes a just or fair distribution of the most general conditions that have to obtain (or be brought about) if the living of a worthwhile life is to be a genuine possibility for all human beings. If it can be established – as Sen clearly supposes it can – that human beings must be secured in the enjoyment of certain fundamental freedoms if their lives are to go well, then, since human beings and the circumstances under which they have to live their lives are strikingly similar in certain crucial respects, it would be unjust or unfair for the opportunities these freedoms are designed to guarantee ³⁰ to be made available to only some human beings. A freedom-centered doctrine of human rights of the sort Sen champions is thus indebted for its justification, arguably, to the view that all the members of a just society must be afforded an equal opportunity to live a worthwhile life.