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Journal of Human Development and Capabilities: A Multi-Disciplinary Journal for People-Centered Development
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The Idea of Justice: Sens Treatment of Human Rights


Polly Vizard
a a

Social Exclusion, London School of Economics and Political Science, UK Version of record first published: 17 Nov 2010

To cite this article: Polly Vizard (2010): The Idea of Justice: Sens Treatment of Human Rights , Journal of Human Development and Capabilities: A Multi-Disciplinary Journal for People-Centered Development, 11:4, 615-621 To link to this article: http://dx.doi.org/10.1080/19452829.2010.520977

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Journal of Human Development and Capabilities Vol. 11, No. 4, November 2010

The Idea of Justice: Sens Treatment of Human Rights


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POLLY VIZARD Polly Vizard is a Research Fellow at the Centre for the Analysis of Social Exclusion, London School of Economics and Political Science, UK
Journal 10.1080/19452829.2010.520977 CJHD_A_520977.sgm 1945-2829 Original Taylor 2010 0 4 11 p.a.vizard@lse.ac.uk PollyVizard 00000November & and of Article Francis Human (print)/1945-2837 FrancisDevelopment 2010 (online) and Capabilities

In taking forward the poverty and human rights agenda, a key challenge is to establish the international legal responsibility of a range of actors and to apportion and specify the corresponding duties as real, enforceable claims. Yet a number of Sens writings on human rights have highlighted the distinction between moral rights and legal rights and have concentrated on the formeremphasizing the role of human rights beyond the legislative route. One is led to ask: does Sens treatment of human rights focus on the ethical demands of justice whilst downgrading or neglecting the role of legal codification? I believe that this interpretation is incorrect. Sens treatment of human rights in The Idea of Justice (Sen, 2009, Chapter 17) provides a clarification. The chapter opens with a discussion of the importance of the legislative route, and the UK Human Rights Act is invoked as an exemplar. Yet this discussion is notably brief. Chapter 17 rapidly moves on to address foundational questions in ethics. What are the ethical grounds of human rights-based claims, and what is their legitimate reach? Do economic and social rights fall within the scope of legitimate human rights-based claims? And what is the nature of the correlative obligations? Before turning to these main chapter themes, it is worth pausing to clarify that, far from neglecting the role of codification, Sens broader research agenda provides a body of theory and evidence based on the instrumental role of legal rights in promoting both equity and efficiency. The pivotal role of civil and political rights in overall processes of capability expansion is a key finding with applications in a range of contexts from the Indian Famine of 1947, through contemporary food shortages in Rajasthan, to protection during periods of economic downturn. The protective role of legal rights (including civil and political rights, such as a free press, and democratic forms of government) in strengthening accountability in public servicesby increasing voice, coordinating de-centralized information and providing an additional source of counter-veiling poweris another recurring theme (for example, Sen 1999a, 1999b; Drze and Sen, 1989, 2002; Drze, 2004).
ISSN 1945-2829 print/ISSN 1945-2837 online/10/040615-07 2010 United Nations Development Programme DOI: 10.1080/19452829.2010.520977

P. Vizard Chapter 17 of The Idea of Justice, however, focuses on a series of foundational issues rather than on this broader research agenda. The role of freedom in the development of a theory of justice is a central and overarching book themeand in Chapter 17 this theme is applied as a basis for thinking about human rights. Sens theory of human rights appears to be a freedomfocused one. Those freedoms that achieve a threshold level of social importance can constitute the grounds of human-rights based claims. The corresponding obligations on others are not in Sens view limited to obligations to respect the human rights of others (i.e. to a prohibition on violation). Rather, these obligations extend to obligations on others to defend and support human rights. This argument has echoes of the Dewey Lectures, where Sen argued that minimal demands of well-being (in the form of basic functionings, e.g. not to be hungry), and of well-being freedom (in the form of minimal capabilities, e.g. having the means of avoiding hunger) can be viewed as rights that command attention and call for support (1985, p. 217). The advantages of thinking about human rights in a consequence-sensitive way are also highlighted. Human rights (and underlying freedoms) are associated with correlative obligations on others to respect, defend and support human rights through a system of consequence-sensitive links. Again, the argument here follows that set out in earlier contributions (see, for example, Sen, 2000). Freedom-focused theories of human rights have both their supporters and their critics in the recent wave of literature on human rights in philosophy. This body of literature represents an important departure from previous approacheswith a new willingness to take the idea of human rights seriously and to identify a class of human rights for which secure foundations can be identified. Some contributions emphasize the functional role of human rights practice in the contemporary worldfor example, in the formulation of a law of peoples, justifying the limits of sovereignty and triggering external intervention (for example, Rawls, 1999; Beitz, 2009). Others highlight the need for a more adequate justification of human rights grounded in ethical values. Griffin (2008) attempts one such accountwith human rights justified in terms of personhood and minimal conditions of normative agency. He appears to justify a broader list of human rights than that contemplated by Rawls. Yet even Griffins account remains overly restrictive in important respects. Tasioulas (2009) concludes that it may be necessary to develop a plural interest-focused (rather than a freedom-focused) theory of human rights in order to overcome these limitations.1 Tasioulas also raises the legitimate question of how Sens Idea of Justice relates to the new wave of thinking about human rights in philosophy. I have argued elsewhere that Sens focus on the protection and promotion of freedom provides a natural language for capturing and characterizing the practice of human rights in the contemporary world (Vizard, 2006). In addition, Chapter 17 has important insights for the search for a more adequate justification of human rights grounded in ethical values. Sen avoids the limitations of more restrictive freedom-based approaches by developing a characterization of 616

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Sens Treatment of Human Rights freedom as a complex and pluralist concept involving irreducible elements that relate to both process and opportunity set out in earlier work (for example, Sen, 2002, pp. 913 and 583695; 2004; 2005, pp. 152153). The process aspect of freedom concentrates on immunity from interference and autonomy, whereas the opportunity aspect of freedom relates to the central and valuable things in life that people can actually do and be (i.e. their capabilities). The characterization of human rights set out in Chapter 17 also has this dual aspect. The class of process freedoms (such as freedom from arbitrary interference) and the class of opportunity freedoms (including basic capabilities) can provide the grounds of human rights-based claims when they achieve the threshold level of social importance. Social importance is not, however, the only element of the threshold test discussed in Chapter 17. Sen is also concerned with the feasibility of the obligations that could bring about the realization of valued freedoms; and in the second part of Chapter 17, the obligations perspective is examined in detail. Sens proposals for extending the reach of a theory of human rights to cover the class of imperfect obligations (the general obligations of those in a position to help) are not new. Nevertheless, these proposals remain distinctive within the new wave of philosophical literature on human rights. I have argued elsewhere that they make a significant contribution to the international poverty and human rights agenda (Vizard, 2006). ONeills (1996) rejection of economic and social rights as human rights is discussed by Sen in Chapter 17 (as it has been in earlier work). According to ONeill, imperfect obligations such as the general obligations to relieve poverty, hunger and starvation are not associated with counter-party human rights. This position has its basis in Kants division of the doctrine of duties in general into the system of the Doctrine of Right (Ius) and the system of the Doctrine of Virtue (Ethica). Kant locates imperfect obligations within the ambit of the Doctrine of Virtue. They are mapped to wide obligations that specify the ends of action with a degree of latitude in relation to the actions that duty-holders are required to perform (Kant, 1991 [1785], pp. 8486; 1996 [1797], pp. 23, 3132, 152156, 168169). ONeill in turn interprets this degree of latitude as precluding the level of determinacy that is necessary for enforceable claims of justice. Imperfect obligations, such as the general obligations to relieve poverty, hunger and starvation are obligations of virtue rather than obligations of justice. They lack the specificity required to establish counterparty human rights (ONeill, 1986; 1996, pp. 128141). In Chapter 17, Sen challenges ONeills position. He comments that loosely specified obligations must not be confused with no obligations at all (Sen, 2009, p. 374). His alternative treatment is distinctive in that it extends the reach of the idea of human rights to cover the class of imperfect obligations. There are two key elements here. First, Sen links the general obligations of those in a position to help to counter-party moral rights. Second, principles of reasonableness are invoked as a basis for evaluating practical action. Although Sen does not make the connection, Kant referred to the need to develop and apply subordinate principles of judgement such as principles 617

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P. Vizard of reasonableness on the basis of which practical action to promote maxims (ends or goals) could be evaluated and judged.2 Sens argument seems to reflect this idea. His position suggests that even in the context of imperfect obligation the conduct of duty-holders can be evaluated through the development and application of subordinate principles such as reasonable action and reasonable assistance and aid.3 ONeill and others similarly emphasize the importance of the development of subordinate principles of judgement in relation to the fulfilment of imperfect obligation (for example, ONeill, 2002; Wood, 2002). Sens position is distinctive in that the expectations of reasonable behaviour that flow from imperfect obligation are characterized as being associated with counter-party moral rights. His arguments for giving imperfect obligations greater priority are a key area for future work. What, if any, are the implications of Chapter 17 for the international legal agenda on poverty and human rights? Sens emphasis on the distinction between moral and legal rights, and his emphatic focus on moral rights, seems to close down this line of inquiry. Indeed, Sen underlines the fact that the discussion of imperfect obligation in Chapter 17 is concerned with moral rights (not legal rights) and the pivotal role that human rights can play beyond the legislative route. Yet the presumed specificity of legal rights is also queried (albeit in passing). And the French Good Samaritan Lawwhich establishes third-party duties of assistance and aid as legal dutiesis also cited. Having read Chapter 17, one is therefore left with the residual question of whether the idea of imperfect obligation is of importance beyond the ethical domain and can motivate and inform legal as well as moral rights. The lessons that can be drawn from the analysis of the formulation of Article 2 of the International Convention on Economic, Social and Cultural Rights seem to me to be of some importance here. The formulation of this Article is notably general rather than specific in its logical structure. The textual formulation suggests a degree of latitude with regard to the actions that dutyholders are required to perform. The possibility of binding feasibility constraints (e.g. limited resources) is also explicitly acknowledged. Should Article 2 therefore be viewed as being motivated and characterized by the notion of imperfect obligation? If so, can Article 2 be understood as having legal forcewith corresponding counter-party human rights that are enforceable and justiciable? These questions have dogged the history of the implementation of the Covenant, with sceptics suggesting that the specification of the obligations of duty-holders in Article 2 lacks the precision necessary for enforcement and justiciability. The jurisprudence of the South African Constitutional Court takes international thinking forward here in new and innovative ways. Articles 2629 of the Bill of Rights attached to the South African Constitution recognizes a cluster of economic and social rights, and the Court has established the justiciability of these rights in a series of landmark cases.4 The formulation of the corresponding obligations is based on the progressive realization formulation and is of a general rather than a specific nature. Rather than adopting a too 618

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Sens Treatment of Human Rights general to be real approach, the Court has suggested that the actions that are required of duty-holders can be judged on the basis of evaluative criteria based on the notion of reasonableness. In cases where it is not possible to achieve minimum levels of economic and social rights for the entire population, the reasonableness of the conduct of duty-holders can nevertheless be evaluated in the light of the results achieved. The reasoning was outlined in the landmark Treatment Action Campaign Case (building on the Grootboom Case):
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[T]he socio-economic rights of the Constitution should not be construed as entitling everyone to demand that the minimum core be provided to them It is impossible to give everyone access even to a core service immediately. All that is possible, and all that can be expected of the state, is that it act reasonably to provide access to . socio-economic rights on a progressive basis. (Treatment Action Campaign Case, paras 3435)5 Both Sens treatment of imperfect obligation and the South African jurisprudence highlight the pivotal role that subordinate principles of judgement can play when the obligations that correspond to human rights are formulated in a general rather than a specific form. Both point to the need to develop and apply criteria for evaluating the reasonableness of the actions of duty-holders in the light of a general obligation that specifies the ends of action (i.e. a result or goal). The parallels are important and demonstrate that the treatment of human rights in Chapter 17 of The Idea of Justice is of significant importance for the legislative as well as the ethical route.
Acknowledgements The author would like to thank David Clark for comments and the editing of this book review. Errors of interpretation or fact remain with the author. Notes
1 Tasioulas also highlights other limitations of the freedom-based approach. For example, the justification of the human right to be free from torture may require reference to the avoidance of pain; whilst choice-based approaches provide weak foundations for justifying human rights such as freedom from torture when the capacity for choice is limited (for example, in the context of severe mental illness). [T]he doctrine of right has to do only with narrow duties, whereas ethics has to do with wide duties. Hence the doctrine of right, which by its nature must determine duties strictly (precisely), has no more need of general directions (a method) as to how to proceed in judging but ethics, because of the latitude it allows limits imperfect duties, unavoidably leads into questions that call upon judgement to decide how a maxim is to be applied in particular cases, and indeed in such a way that judgement provides another (subordinate) maxim (Kant, 1996 [1797], p. 168). Pogges (2008) development of a theory of poverty and human rights under a minimalist normative assumption appears to avoid appeals to the general obligations of those in a

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position to help and implausible/open-ended positive duties of assistance and aid. Nevertheless, Pogges restrictive approach also delimits the duties that correlate to human rights by making reference to principles of reasonableness. For example, moral responsibility for human rights deficits is assigned when the deficits are reasonably avoidable (p. 26). See, for example, Constitution of the Republic of South Africa [Act 108 of 1996]. Government of the Republic of South Africa and others v Grootboom and others, decided on 4 October 2000, Case CCT 11/00, Constitutional Court of South Africa Grootboom; and Minister of Health and others v Treatment Action Campaign and others, decided on 5 July 2002, Case CCT 9/02. Available online (http://www.constitutionalcourt.org.za). References for the Treatment Action Campaign Case and Grootboom case are provided in note 4.

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References
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Vizard, P. (2006) Poverty and Human Rights: Sens Capability Perspective Examined, Oxford University Press, Oxford. Wood, A. (2002) The Final Form of Kants Practical Philosophy, in M. Timmons (Ed.), Kants Metaphysics of Morals: Interpretative Essays, Oxford University Press, Oxford, pp. 121.

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