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WHEN SUBSISTENCE RIGHTS ARE JUST CLAIMS AND THIS IS UNJUST

  • Alejandra Mancilla (a1)

Abstract:

Most of the liberal moral and political debate concerning global poverty has focused on the duties of justice or assistance that the well-off have toward the needy. In this essay, I show how rights-based theories in particular have unanimously understood subsistence rights just (and only) as claims, where all it means to have a claim—following Hohfeld—is that others have a duty toward us. This narrow interpretation of subsistence rights has led to a glaring omission; namely, there has been no careful examination of what the rights-holders themselves may do to realize the object of their rights. Furthermore, in the few cases where this question gets posed, rights are again understood just (and only) as claims, but this time of an Austinian kind: rights-holders are limited to the performance of speech-acts like demanding, pleading, and entreating to make noncompliers fulfill their duties. I suggest that this approach betrays the original spirit of subsistence rights as individual moral powers delineating a sovereign sphere of action. More seriously, it is unjust to the rights-holders themselves, to the extent that many of the actions they undertake to realize the objects of their rights fall off the radar of moral analysis.

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I am grateful to Robert Huseby, Andreas Føllesdal, Alfonso Donoso, and Kim Angell for written feedback on previous drafts of this essay, as well as to Christel Fricke for sustained discussion of these issues. I also thank the participants at the International Political and Legal Seminar at Pluricourts, the Practical Philosophy Workshop, and the workshop on my book, “The Right of Necessity,” at the University of Oslo, as well as the other contributors to this volume. For their thorough and constructive comments, as well as for their encouragement, I am especially indebted to Bas van der Vossen, David Schmidtz, and an anonymous reviewer at Social Philosophy and Policy.

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1 Singer, Peter, “Famine, Affluence, and Morality,” Philosophy and Public Affairs 1, no. 3 (1972): 229–43.

2 For a view as demanding as Singer’s, see Unger, Peter, Living High and Letting Die (New York: Oxford University Press, 1996). For a more moderate version of the duty to assist, see Cullity, Garrett, The Moral Demands of Affluence (New York: Clarendon Press, 2004).

3 See, respectively, Shue, Henry, Basic Rights: Subsistence, Affluence, and American Foreign Policy, 2nd ed. (Princeton, NJ: Princeton University Press, 1996); and Thomas Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms, 2nd ed. (Malden, MA: Polity Press, 2008).

4 Singer himself has become one of the main advocates of “Effective Altruism,” the slogan of which is “using reason and evidence to do the most good.” (https://www.effectivealtruism.org/peter-singer-ted/) See also MacAskill, William, Doing Good Better: How Effective Altruism Can Help You Make a Difference (London: Gotham, 2015).

5 On the relevance of physical proximity for moral duties, see Kamm, Frances, “Faminine Ethics: The Problem of Distance in Morality and Singer’s Ethical Theory,” in Jamieson, Dale, ed., Singer and His Critics (Oxford: Blackwell Publishing, 1999), 162208; and Binder, Constanze and Heilman, Conrad, “Duty and Distance,” in Journal of Value Inquiry 51, no. 3 (2017): 547–61. On duties of assistance under generalized noncompliance, see Murphy, Liam B., “The Demands of Beneficence,” Philosophy and Public Affairs 22, no. 4 (1993): 267–92.

6 See, respectively, O’Neill, Onora, “Rights, Obligations and Needs,” in Brock, Gillian, ed., Necessary Goods (Lanham, MD: Rowman and Littlefield, 1998), 95112; and James, Susan, “Rights as Enforceable Claims,” Proceedings of the Aristotelian Society, Supplementary Volumes 103 (2003): 133–47.

7 On unduly stretching the notion of harm, see Barry, Christian and Øverland, Gerhard, “The Feasible Alternatives Thesis: Kicking Away the Livelihoods of the Global Poor,” Politics, Philosophy, and Economics 11, no. 1 (2012): 97119. On the controversial empirical assumptions, see Risse, Matthias, “Do We Owe the Global Poor Assistance or Rectification?Ethics and International Affairs 19, no. 1 (2005): 918.

8 Hohfeld, Wesley Newcomb, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning,” The Yale Law Journal 23, no. 1 (1913): 1659, 33.

9 I discuss a few exceptions below.

10 As opposed to statements, speech-acts are, according to Austin, utterances that have some performative function in language and communication: Austin, J. L., How to Do Things with Words, 2nd ed. (Oxford: Clarendon Press, 1975), 67.

11 Shue, Basic Rights, 19, 13.

12 Ibid., 52.

13 Pogge, World Poverty and Human Rights, 52 (his emphasis).

14 Ibid., 18–23, 159–72, and 224 ff.

15 Elizabeth Ashford, “Duties Imposed by the Human Right to Basic Necessities,” in Pogge, Thomas, ed., Freedom from Poverty as a Human Right (Oxford: Oxford University Press, 2007), 183218.

16 Onora O’Neill, “Rights, Obligations, and Needs,” 98.

17 James, “Rights as Enforceable Claims,” 142.

18 See, for example, Lippert-Rasmussen, Kasper, “Global Injustice and Redistributive Wars,” Law, Ethics, and Philosophy (LEAP) 1, no. 1 (2013): 65–86, at 67. Cécile Fabre acknowledges that this is methodologically inadequate, but still uses the labels of rich and poor to describe countries “for the sake of stylistic convenience”: Fabre, Cécile, Cosmopolitan War (Oxford: Oxford University Press, 2012), 101.

19 Young, Iris Marion, “Responsibility and Global Justice: A Social Connection Model,” Social Philosophy and Policy 23, no. 1 (2006): 102–30.

20 Fabre, Cosmopolitan War, 117.

21 Bas van der Vossen and Jason Brennan have criticized the famous analogy used by Singer forty years ago for a similar reason, namely, for comparing the global poor with children drowning in a pond and waiting to be rescued. A more accurate analogy, they contend, is that they are “people, perfectly capable of swimming and rescuing themselves, who are trapped in a pond surrounded by fences keeping them from escaping on their own initiative”: Vossen, Bas van der and Brennan, Jason, In Defense of Openness: Why Global Freedom Is the Humane Solution to Global Poverty (New York: Oxford University Press, 2018), 158.

22 Shue, Basic Rights, 14–15, quoting Joel Feinberg, Social Philosophy (Englewood Cliffs, NJ: Prentice-Hall, 1973), 58–59, my emphasis.

23 Pogge, World Poverty and Human Rights, 53, 70, my emphasis.

24 Ashford, “Duties Imposed by the Human Right to Basic Necessities,” 185, 210, and 210–11, my emphasis.

25 When discussing hypothetical consent arguments like Rawls’s to justify the basic structure of society, Shue admits that it would be extremely unfair to frame a system where the deprived are prevented from stealing, and yet are provided with no alternative to access the essentials of subsistence. Under those circumstances, “[o]ne alternative to agreement on principles of justice is to reserve to oneself the option of taking by stealth or force, if necessary, one’s vital necessities. I am not saying that this alternative is clearly more rational but only that it is not clearly less rational”: Shue, Basic Rights, 128. Unfortunately, Shue neither elaborates this idea, nor says much on what the actual (rather than the hypothetical) needy may do under similar circumstances.

26 Exercitives and behabitives are what Austin labeled “explicit performative verbs.” By this he meant verbs with an illocutionary force, that is, verbs that produced an effect in being said, due to some established convention. Typical in legal contexts, exercitives refer to the giving of a decision regarding a certain course of action. For example, in filling offices and appointments; in orders, sentences, and annulments; in conducting business, and in talking about [legal] rights, claims, accusations: Austin, How to Do Things with Words, 157. Behabitives, meanwhile, express a reaction to other people’s behavior, past or present: Austin, How to Do Things with Words, 149 ff.

27 Pratt, Mary Louise, “Ideology and Speech-Act Theory,” Poetics Today 7, no. 1 (1986): 5972, at 68.

28 Ruth Lister, Poverty (Cambridge: Polity Press, 2004), 152.

29 Ibid., 153, 171.

30 Austin, How to Do Things with Words, 14.

31 Ibid., 26.

32 Ibid., 107–8.

33 Global initiatives like the World Social Forum, Via Campesina and ATTAC are examples of groups that have engaged in active protesting against what they take to be an unjust economic system imposed upon them. As I explain below, however, they represent only one way (and the least frequent) through which rights-holders seek to realize their rights.

34 See note 26 supra.

35 Hohfeld, “Some Fundamental Legal Conceptions,” 32.

36 Naraya, Deepa, Patel, Raj, Schafft, Kai, Rademacher, Anne, and Koch-Schulte, Sarah, eds., Voices of the Poor: Can Anyone Hear Us? (New York: Oxford University Press, 2000).

37 O’Neill, Onora, Bounds of Justice (Cambridge: Cambridge University Press, 2000), 100.

38 O’Neill, “Rights, Obligations and Needs,” 105.

39 Deveaux, Monique, “The Global Poor as Agents of Justice,” Journal of Moral Philosophy 12 (2015): 125–50, 144–45. See also Deveaux, Monique, “Poor-Led Social Movements and Global Justice,” Political Theory (2018): 128.

40 Lister, Poverty, 149ff.

41 Grotius, Hugo, The Rights of War and Peace, 3 vols. (Indianapolis, IN: Liberty Fund, 2005), I.I.4, 138.

42 O’Neill, Bounds of Justice, 101.

43 Alejandra Mancilla, “What We Own Before Property: Hugo Grotius and the Suum,Grotiana 36, no 1 (2015): 63–77. The idea of the suum can easily be seen as grounding contemporary theories of self-ownership. Although this is not the place to develop a comparison, I would say, however, that there is at least one obvious difference between the two. While the stereotype version of self-ownership theories recognizes only negative rights and duties and is therefore criticized as picturing a society formed by self-sustaining moral atoms, those who theorized the suum saw the individual as inextricably enmeshed with others and, therefore, as having to respond not just negatively, but also positively to them.

44 Mancilla, Alejandra, “Samuel Pufendorf and the Right of Necessity,” Aporia 3 (2012), 4764.

45 Pufendorf, Samuel, The Whole Duty of Man, According to the Law of Nature, ed. Hunter, Ian and Saunders, David (Indianapolis, IN: Liberty Fund, 2003), V.23, 90.

46 Confusingly, Pufendorf sometimes calls this the right to self-preservation, even though it is only one part of the more encompassing right.

47 Regarding the right of self-defense in civil society, those subject to the civil power may “use violence in the defense of themselves, when the time and place will not admit of any application to the magistrate for his assistance in repelling such injuries by which a man’s life may be hazarded, or some other most valuable good which can never be repaired, may be manifestly endangered” (Ibid.,V.16, 84). Regarding the right of necessity: “If a man, not through his own fault, happen to be in extreme want of victuals and clothes necessary to preserve him from the cold, and cannot procure them from those who are wealthy and have great store, either by intreaties, or by offering their value, or by proposing to do work equivalent; he may, without being chargeable with theft or rapine, furnish his necessities out of their abundance, either by force or secretly, especially if he do so with a design to pay the price, as soon as he shall have an opportunity”: Ibid. V.30, 93.

48 Pufendorf, Samuel, Of the Law of Nature and Nations , ed. Barbeyrac, Jean de, 4th ed. (London: J. Walthoe, 1729), II.VI.5, 207.

49 If a government has not made any provisions to guarantee that its subjects will be able to fulfill their subsistence rights, and there are no other means for the person to fulfill them, Pufendorf asks rhetorically, “must he therefore perish with famine? Or can any human institution bind me with such a force, that in case another man neglects his duty towards me, I must rather die, than recede a little from the ordinary and the regular way of acting?” His answer is negative: Ibid., II.VI.5, 207. Regarding the right of necessity of strangers: “It is left on the power of all states, to take such measures about the admission of strangers, as they think convenient; those being ever excepted, who are driven on the coast by necessity, or by any cause that deserves pity and compassion”: Ibid., III.III.9, 245.

50 Ibid., II.VI.5, 207.

51 See, for example, Amartya Sen’s illuminating analysis of famines in the twentieth century, none of which were caused by lack of food, but by bad laws and abuse of power: Sen, Amartya, Poverty and Famines: An Essay on Entitlement and Deprivation (Oxford: Clarendon Press, 1981).

52 “[For] how different the case is, when a man falls under such necessity by his own sloth or negligence, and when it comes on him without his fault”: Pufendorf, Of the Law of Nature and Nations, II.VI.6, 208. Pufendorf is especially worried here that, by giving such prerogative to “idle knaves,” the industrious would have to bear an unfair burden.

53 Ibid., II.VI.6, 209.

54 See, for example, Hindle, Steve, “Dependency, Shame, and Belonging: Badging the Deserving Poor, C. 1550–1750,” Cultural and Social History 1, no. 1 (2004): 635.

55 Unfortunately, Pufendorf did not have the chance to get acquainted with Iris Marion Young’s social connection model of responsibility, which recognizes the difficulty, if not plain impossibility, of dividing agents into liable and nonliable in a complex social, political, and economic context. Pufendorf therefore assumes that potential duty-bearers (just like potential rights-holders) are either guilty or innocent. For a criticism of these conditions and a reformed version of the Pufendorfian right of necessity, see Mancilla, Alejandra, The Right of Necessity: Moral Cosmopolitanism and Global Poverty (London: Rowman and Littlefield International, 2016).

56 Here are two statistics to motivate this claim: in spite of the advances to push back poverty in recent decades, in 2015 still 836 million people were living with less than 1.25 USD a day (United Nations, The Millennium Development Goals Report 2015, https://www.un.org/millenniumgoals/2015_MDG_Report/pdf/MDG%202015%20rev%20(July%201).pdf, 4. Furthermore, among those defined as living in “multidimensional poverty,” 689 million are children under the age of eighteen: Sabina Alkire, Christoph Jindra, Gisela Robles, and Ana Vaz, “Children’s Multidimensional Poverty: Disaggregating the Global MPI,” Briefing 46, May 2017, Oxford Poverty and Human Development Initiative, http://www.ophi.org.uk/wp-content/uploads/Brief_46_Child_MPI_2017-1.pdf. The advantage of taking this demanding reading of the right of necessity is that those wishing to relax any of the abovementioned conditions would see the scope of potential claimants extended even further, thus confirming its plausibility.

57 The classic example where the plea of necessity applies is that of the hiker caught in a mountain storm who has to break into someone’s cabin (and maybe even eat some of the groceries) to save himself from the cold: Joel Feinberg, “Voluntary Euthanasia and the Inalienable Right to Life,” Philosophy and Public Affairs 7, no. 2 (1978): 93–123, at 102.

58 Cf. Lord Denning in London Borough of Southwark v. Williams: “If hunger were once allowed to be an excuse for stealing, it would open a door through which all kinds of disorder and lawlessness would pass”: Brudner, Alan, “A Theory of Necessity,” Oxford Journal of Legal Studies 7, no. 3 (1987): 339–68, at 340. Cf. also Waldron, Jeremy, “Why Indigence is Not a Justification,” in Heffernan, Hugh and Kleinig, John, eds., From Social Justice to Criminal Justice (Oxford: Oxford University Press, 2000), 98113.

59 Pufendorf, Of the Law of Nature and Nations, II.VI.6, 208–9.

60 Lister, Poverty, 144. Acts of “everyday resistance” refer to those acts that “require little or no coordination or planning; they often represent a form of individual self-help; and they typically avoid any direct confrontation with authority or with elite norms”: Scott, James C., Weapons of the Weak (New Haven, CT: Yale University Press, 1985), 29.

61 Illegal migration has attracted some attention from philosophers lately. See Bertram, Chris, Do States Have the Right to Exclude Immigrants? (London: Polity Press, 2018). As for more general acts of resistance, Simon Caney has recently defended them in response to global injustice. Like Deveaux, however, Caney focuses almost exclusively on coordinated acts brought about by organized collectives and which have a long-term, strategic goal, that is, to bring about a more just state of affairs: Caney, Simon, “Responding to Global Injustice: On the Right of Resistance,” Social Philosophy and Policy 32, no. 1 (2015): 5173.

62 Smith, Adam, The Theory of Moral Sentiments, ed. Macfie, A. L. and Raphael, D. D. (Indianapolis, IN: Liberty Fund, 1982), 9.

63 I take the language of overdemandingness from Jan-Christoph Heilinger, “The Moral Demandingness of Socioeconomic Human Rights,” in Heilinger, Jan-Christoph, and Ernst, Gerhard, eds. The Philosophy of Human Rights Contemporary Controversies (Berlin: De Gruyter, 2012), 185208, 196 ff.

64 For an account of entrepreneurship among the poorest, see Banerjee, Abhijit V. and Duflo, Esther, Poor Economics: A Radical Rethinking of the Way to Fight Global Poverty (London: Penguin Books, 2012). See also Van der Vossen and Brennan, who highlight the importance to protect and respect individuals’ productive rights, that is, their “abilities to provide for themselves, take charge of their lives, and raise their own prospects as well as the prospects of those around them”: Van der Vossen and Brennan, In Defense of Openness, 111.

65 Economist Hernando de Soto remarks that, in 1783, U.S. President George Washington complained about “banditti . . . skimming and disposing of the cream of the country at the expense of the many.” These banditti, De Soto goes on to explain, “were squatters and small illegal entrepreneurs occupying lands they did not own. For the next one hundred years, such squatters battled for legal rights to their land and miners warred over their claims because ownership laws differed from town to town and camp to camp.” In other words, they were criminalized by laws that were preventing them from, rather than letting them, provide for themselves: de Soto, Hernando, The Mystery of Capital (London: Black Swan, 2001), 10.

66 In discussing how justice should evolve in response to changed circumstances, David Schmidtz presents the case of Hinman v. Pacific Air Transport (1936), where a landowner did not want airlines to “trespass” (that is, fly) over his property, and thus sued them, but lost on the grounds that acceding to his claim would have brought all air traffic to a halt. Schmidtz points out that, while the right to say no is at the center of a system of property, “[it] cannot be used as a weapon of mass destruction. The right to say no is supposed to facilitate community, not enable people to hold a community for ransom”: David Schmidtz, “Nonideal Theory: What It Is and What It Needs to Be,” Ethics 121, no. 4 (2011): 772–96, 785. Although the circumstances are very different, a similar reasoning underlies cases of necessity, when saying no to an illegal action by the needy would mean cutting off their only chance to subsist. In Hinman v. Pacific Air Transport, the judge anticipated that what had been unproblematic and therefore unregulated so far (that is, control over airspace) would have to be regulated so that individual landowners may not say no to airplanes flying over their properties. In cases of illegal occupation, squatting, pilfering, and shoplifting by chronically deprived individuals (assuming that the aforementioned conditions are met), one could question the right to say no to the owners of the occupied/taken property on the grounds that only a radically unjust system of property rights could have allowed those situations of necessity to arise in the first place. What needs further defense, then, is the right to say no in a context where the laws themselves do not facilitate community, but hold people (in this case, the poorest) for ransom.

* I am grateful to Robert Huseby, Andreas Føllesdal, Alfonso Donoso, and Kim Angell for written feedback on previous drafts of this essay, as well as to Christel Fricke for sustained discussion of these issues. I also thank the participants at the International Political and Legal Seminar at Pluricourts, the Practical Philosophy Workshop, and the workshop on my book, “The Right of Necessity,” at the University of Oslo, as well as the other contributors to this volume. For their thorough and constructive comments, as well as for their encouragement, I am especially indebted to Bas van der Vossen, David Schmidtz, and an anonymous reviewer at Social Philosophy and Policy.

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WHEN SUBSISTENCE RIGHTS ARE JUST CLAIMS AND THIS IS UNJUST

  • Alejandra Mancilla (a1)

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