HUMAN NEEDS AND JUSTICE: THE CASE AGAINST REALISM

ANJA MATWIJKIW*

Abstract: Contrasting idealism and realism, the author of this article attempts to secure at

least one component of distributive justice, namely recognition of rights grounded on basic

needs in terms of rights stricto sensu. In the case of realism, this objective is defeated before-

hand for reasons that link the position with the doctrine of logical correlativity. By choosing

this strategy, however, exponents of realism are doing themselves a disservice. The case

against realism includes a criticism on the basis of its own premises, with a view to facilita-

ting corrections of the analysis of the relevant subset of economic/social human rights. It will

appear that the theoretical disintegration of realism boils down to one and the same problem:

the absence of a distinction between rights-recognition and rights-protection.

Keywords: Claim-rights, justice, ethics, idealism, logic, ideology, economics, realism.

A. INTRODUCTION

Although a non-skeptical pro-rights philosopher, I readily admit that rights do not exhaust the

domain of justice. There is more to justice than rights. Other considerations may outweigh

rights in circumstances where political disagreement has caused a crisis of legality, thus mak-

ing rights non-trumps. Following Jeremy Waldron, I concede that justice typically demands

majoritarian decision-making procedures that can settle the issue of which rights there are or

ought to be without a priori limits on the outcome.

At the same time, I realize that this is a

potentially radical position, which is consistent with a no-rights declaration.

Such a risk is,

however, unacceptable in the case of basic need-rights. To deny these is to permit people to go

without the things that are necessary for their proper functioning and, more importantly for

Dr. Anja Matwijkiw Ph.D. (Cambridge University, UK) and Assistant Professor of Philosophy at

Indiana University Northwest, USA. Email: [email protected].

Jeremy Waldron: Law and Disagreement (1

ed., Oxford: Clarendon Press 1999) 303.

As pointed out by James W. Nickel, rights can be rendered non-trumps through non-compliance,

which affects their fulfillment or enforcement. On the other hand, a no-rights declaration entails non-

existence or non-conferment so as to say that (alleged) rights are rendered null and void. Analytically,

therefore, the notion of non-trumps can be subsumed under rights-protection, be it primary protection

(cf. fulfillment) or secondary protection (cf. enforcement), whereas a no-rights declaration is the out-

come of a decision at the level of rights-recognition (cf. conferment). See James W. Nickel: Making

Sense of Human Rights. Philosophical Reflections on the Universal Declaration of Human Rights (1

ed., Berkeley: University of California Press 1987) 16-19.

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the sake of philosophical argument, to invoke certain premises that neither substantiate, nor

warrant the implied loss of rights. The error in question is made by the type of theorists who

swear allegiance to realism. Very briefly, this is the position whereby economics determine

norms, including legal rights. While I intend to show that there is an irreversible leap from the

logical to the ideological in the case of realism, I also want, in one sense at least, to give the

realists as much credit as I can by providing a careful account of the principles that guide their

procedures for rights-recognition. That said, my main hypothesis, namely that realism is a

position that cannot escape theoretical disintegration, is also complemented by a preliminary

defense of basic need-rights as candidates for the class of legal claim-rights. Given that claim-

rights are ascribed status as rights stricto sensu, the contrast with realism can hardly be made

any sharper. Furthermore, the principles I advance presuppose rather than cancel the distinc-

tion between rights-recognition and rights-protection. The last-mentioned points to a key dif-

ference between realism and the alternative position, which is best described as idealism. This

is particularly so because – being anchored in ethics or morality – the implied principles serve

as checks and balances on the legitimacy of legal, political and economic decision-making

procedures.

While the next two sections present the main framework for the pro-rights hypothesis, the

most dangerous challenge, namely the one that exponents of realism pose, will be discussed

later. If basic need-rights can be disqualified, idealism fails. However, if idealism can rescue

basic need-rights in terms of claim-rights, realism is defeated as a consequence.

B. IDEALISM

1. BASIC NEEDS

On the premises of idealism, basic need-rights, which belong to the core of economic and

social human rights, are real in one important sense. This is to say that they exist, in the first

instance, as fundamental moral rights; and that they, because of the nature of the interests

involved, ought to be made legal claim-rights. The force of the term “ought” is not diminished

by references to the exclusive place in the (rights-)hierarchy that is reserved for claim-rights

as rights stricto sensu and, for the same reason, as rights per excellence. To the contrary. It is

because claim-rights occupy the place that makes them primary carriers of the meaning and

role of rights that rights stricto sensu are well-suited for the purpose of match-making.

Note that I use Joel Feinberg’s criteria for no-rights, to denote either mere claims which, unlike

claim-rights, have no correlative duties; or demands which, unlike claims, have no moral basis in desert;

or ideal directives which are morally justified principles that contain no potential as rights stricto sensu,

that is, claim-rights; or prima facie rights which are both weaker or lower than claim-rights and which

are expresis verbis conditional on the circumstances. See Joel Feinberg: Social Philosophy (1

ed., New

Jersey: Prentice-Hall, Inc 1973) 68-75, 84-88.

David Wiggins: Needs, Values, Truth (3

ed., Oxford: Clarendon Press 1998) 10.

Idem.

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If the relevant subset of economic and social human rights arguably enables the holders

to remain in the image of the species, this is the strongest possible support. But, while the pro-

rights hypothesis aims at legalization as a goal, claim-rights per se cannot be reduced to the

outcome of codification. Claim-rights transcend the legal sphere. Furthermore, it is the con-

ceptual and normative features from moral claim-rights that are used as a model for their legal

counterpart. The line of reasoning that characterizes the idealists’ position is one that relies on

moral principles as the ultimate sources of basic need-rights. However, in so far as basic needs

can be said to be co-founders of rights, it is paramount to first give an account of the needs

themselves. For this purpose, I draw on some of the insights from David Wiggins who uses the

logic of extensionality to define a singular notion of needs and, furthermore, differentiate

needs from wants.

Concerning basic needs, these constitute absolute cum objective and universal facts.

such, they are knowable by their own possessors, i.e., human beings. Furthermore, basic

needs delineate a realm of necessities that apply independently of any beliefs about the status

of the needs in question. By putting the criteria for credentials-checking on a formula, the

ontological and epistemological parameters can be further explicated as follows.

If X is a basic need, then X is something which the need-holder, Y, cannot be or do with-

out, without at the same time, suffering serious harm (cf. the harm condition). Furthermore,

it holds that (if X is a basic need, then) X is something which Y, or anybody else for that mat-

ter, is unable to change by changing the way he thinks or feels about X (cf. the immunity con-

dition).

It is not possible to un-need X just through choosing to believe (per Waldron, to hold

the view) that, e.g., “X is a myth.”

In the light of this, it is unproblematic to claim that the general norm for humanity encom-

passes all the things that the majority of the members of homo sapiens cannot be or do with-

out simply because they are who they are. Paradigms include nutritious food, clean water,

unpolluted air, sleep and similar physiological needs.

Other examples, which qualify as

needs that are just as basic, belong to the class of what might be called developmental human

needs.

For example, most human beings are born with the capacity to develop into rational

and autonomous agents – which is what is commonly taken to be part of the concept of the

adult – and, consequently, children and adolescents have a need to receive the things that facil-

In international law, no human right to sleep or other necessities that are indisputable, for exam-

ple, excretion or, to accommodate Johan Galtung’s approach, to public facilities that grant people easy,

free and unhindered access in the case of (urgent) need, has been recognized. By the same token, there

exists no qualified human right to unpolluted air or, for that matter, clean water. This suggests a need for

legal reform. See Johan Galtung: Human Rights in Another Key (Oxford: Polity Press 1994).

The developmental needs have a higher degree of generality than those which characterize some

elderly people, such as the need for a walking stick, a wheelchair, etc. The last-mentioned could be called

third age needs since they apply to the late stages of life. Contrary to developmental needs, however,

these depend upon a wide range of societal and individual factors (work conditions, life style, environ-

ment, etc.) and, for the same reason, they must be relativized in accordance with the same factors. This

is not the case with developmental needs. They apply to everybody everywhere, that is, every child or

adolescent regardless of time, place and circumstances. That granted, it is possible to talk about “special

needs” for younger members of the species. If so, the terminology presupposes a disability.

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itate the process that places them within the norm, such as nurture, training and education.

The truth about humanity is that its members cannot function properly qua human

beings, unless their basic needs are met. If these needs are not met, proper functioning will

either be impaired temporarily or discontinued entirely, resulting in death. In both cases, the

dysfunction constitutes serious harm.

The definition of basic needs is empirically optimized. It is the closest approximation to

reality. Any alleged need can be tested, respectively, verified or falsified as a fact. For exam-

ple, if five-year-old Fatima is hospitalized in shock on account of diabetes, not administrating

insulin to her will suffice as a test to prove the link between need and harm. Empirically, the

need for insulin stands – regardless of what Fatima or other people believe. Furthermore, both

the type of need in question and the measure for its fulfillment are tied to medical care. It is

insulin that Fatima cannot do without. Christian Scientists would disagree, of course, and

instead propose prayer as the only possible cure for diabetes. While medical scientists may

wish to be open-minded, the limit still has to be drawn by considerations to do with Fatima’s

bodily well-being. Unlike insulin, prayer has not been proven effective. It is true that while

needs are knowable, some may actually be subject to future discovery.

But, the method for

demarcating good and bad scientists will continue to be based on the evidence they provide.

As it happens, empiricism belongs among the most authoritative truth-recognition technolo-

gies in history, according to Felipe Fernández-Armesto.

Regarding types of needs and measures of fulfillment, there is room for trans-categorical

classifications. For example, if eighty-five-year-old Mrs. Smith suffers from dehydration,

providing her with water is tantamount to remedying an imbalance in the human organism

that would occur in anybody whose daily fluid intake drops below a certain amount. The point

is that dying from thirst or, for that matter, starvation is typically not perceived in terms of a

medical diagnosis per se, subject to certain qualifications. If, for example, the cause of being

seriously underweight is bulimia or anorexia nervosa, the affected individual can be

described as a hospital patient rather than, say, a poor person who does not have the money to

buy food. For the same reason, the implied needs and measures would have to be revised so as

to accommodate the relevant pathology. The hospital patient is “sick,” not the poor person.

It is important to note that subjectivism and relativism have no application in the case of

basic human needs. If, say, food were an individual preference subject to choice (cf. subjec-

tivism), people who are starving could save themselves simply by replacing their food pref-

The link between death and serious harm should be qualified. To be human is to be mortal and

therefore death is part of the norm for humanity. For the same reason, it could be argued that third age

needs do not belong to the class of basic human needs. To maintain the opposite is to challenge the final

fate that Mother Nature has built into the natural constitution of everybody everywhere. Even assuming

growing old is, by analogy with growing up, about realizing inherent human potentials, to (eventually)

die is to comply with the norm.

The history of the discovery of needs shows how description is often one step behind reality. In

illustration of this, see Kenneth J. Carpenter: The History of Scurvy & Vitamin C (1

ed., Cambridge:

Cambridge University Press 1988).

Felipe Fernández-Armesto: Truth. A History and a Guide for the Perplexed (1

ed., New York: St.

Martin’s Press 2001) 5-6.

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Wiggins, supra note 3, at 11.

According to Gilbert Harman’s analysis of relativism, people who visit another culture are not

obligated to follow the normative prescriptions that prevail in the relevant place, at least not if the pre-

scriptions refer to conventional morality or ethics as opposed to etiquette. According to his account,

principles deriving from conventional morality bind insiders, not outsiders. See Gilbert Harman: The

Nature of Morality. An Introduction to Ethics (1

ed., New York: Oxford University Press 1977) 112.

erence with a no-food preference, something which they do not have the power to do, being

who they are. Furthermore, if it were true that basic needs vary from one belief system to

another in accordance with time, place and circumstances, then the human species itself must

be shown to vary accordingly. In other words, relativists would have to prove the impossible.

OTHER NEEDS

That granted, there are absolute cum individual needs, as well as absolute cum cultural or

social needs.

Both types of needs are either less basic or non-basic. But, because they com-

ply with the requirements of the functionalistic formula, they should be recognized. In other

words, there are things without which that particular individual cannot function properly

being who he is, just as there are things that constitute necessities for people in order to be able

to function properly qua members of that particular culture or society. For example, it makes

sense to claim that “The musician, Mr. Henderson, needs a new violin (otherwise he will suf-

fer harm in his individual capacity).” Similarly, it is true that “Women in Iran need a head-

scarf ” because that is what the norms of the relevant society prescribe. If women do not cov-

er their head in the public domain, they will not be perceived as being “one of us.”

Instead,

they belong elsewhere.

To accommodate individual and cultural/social needs, absolutism only has to qualify one

aspect. While they apply objectively, they do not apply universally. In other words, individual

and cultural/social needs stand – regardless of what the need-holder/s or, for that matter, all

other people who are either unconventional or complete outsiders think or feel. Consequent-

ly, by testing need-statements as either true or false propositions, disputes can, once again, be

settled on the basis of empiricism.

NEEDS AND WANTS: A GENETIC SIMILARITY

Analytically, all needs contrast with wants – as well as desires and preferences – on the basis

of considerations to do with their status (cf. the systematic aspect) as opposed to their origin

(cf. the genetic aspect). Unlike needs, wants – as well as desires and preferences – come and

go in accordance with the beliefs, opinions or feelings of particular individuals. It follows that

if I want X, then X constitutes a want because I am in favor of having X. This entails that sub-

jectivism applies to the relevant category. As groups are also in a position to determine what

“we want,” relativism too has a pull.

Because wants depend on the beliefs, opinions or feelings of their holders, the immunity

condition is cancelled. Furthermore, want-holders do not suffer harm through non-fulfill-

ment, although they may want X to the extent where it is true for me or for us that “Without X,

harm will follow.” In reality, however, this is not the case. If X constitutes a want, then not hav-

ing X will, at worst, result in frustration, a sort of mental discomfort which can be discontin-

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It is observations of this nature that prompt Fernández-Armesto to declare that relativism is tan-

tamount to majority tyranny. See Fernández-Armesto, supra note 9, at 165-166.

Alan Gewirth, Self-Fulfillment (1

ed., New Jersey: Princeton University Press 1998) 25, 40.

ued by ceasing to (erroneously!) perceive X by analogy with a need. In actual fact, many

wants are so non-hard, if not superfluous, that their holders would be better off if they used

their needs as demarcation criteria for their wants. Such a rational approach would be harm-

reducing in so far as it can be ascertained empirically that people often want things that are

not good for them. If, for example, smokers changed their mind about cigarettes upon learn-

ing the statistics about lung cancer, the resulting (want) conversion would translate into a ben-

efit for humanity.

In the final analysis, choice is the origin of wants. More importantly perhaps, this feature

is shared by needs that apply to that particular individual and/or group. If statements are pure-

ly subjectivist and/or relativist, it holds that “It is true for me that I need X” and/or “It is true

for us that we need X” in spite of the fact that things could be different for me as an individual

and/or for us as a group. This suggests that there are alternatives to the current state of affairs.

The needs do not have to be, they do not describe irrevocable necessities, although the implied

measure of freedom competes with the powerfulness of the majority in the case of relativism.

Unlike individual needs, cultural/social needs involve a numerical factor that one person can-

not rise above unless, that is, he chooses to rebel, to not conform to their way.

However, the

cultural/social needs themselves will continue to exist as long as there is sufficient support

from the group as a whole. If most members decide to dismiss the norms from which the

needs are derived, the world will be transformed, at least in one sense. This is to say that the

change, whether radical or moderate, results in “a new way” that alters the form of existence

within a given culture of society accordingly.

BEST PRACTICES IN TERMS OF BEST DECISIONS

The various need-classifications open up for two main positions pertaining to negotiations

and, per Waldron, settlements. First, advocates of strict universalism argue that if basic and

less basic needs compete, the interest in fulfillment of basic needs should be promoted as a

First Priority (Principle). Having an identity as that particular individual and/or group not

only involves rank-ordering one’s beliefs in accordance with ends (one aspires to) and means

(with which to accomplish the ends), but also capacities.

In other words, if that particular

individual and/or group, be it a culture, a society or a sub-group within a culture or a society,

ignores humanity in the process of defining values, the way that is constructed cannot but fail

in the moral sense, however authentic and unique for that particular individual and/or group.

It follows that subjectivism and/or relativism must be consistent with objectivism/univer -

salism in order to be deemed appropriate. It should be observed that using objectivism/uni -

versalism as a measurement for morality is not something that excludes pragmatic reasoning.

As it happens, the relevant notion of appropriateness is connected with a requirement for

effectiveness whereby rights-protection should be with a specific view to maximization of

security for humanity. In this manner, pragmatism is in the service of idealism, meaning that

fulfillment or enforcement of rights is based on the assumption that the rights themselves are

what they ought to be. This, in turn, entails a distinction between law and morality. For the

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purpose of democratic legislation, therefore, parties with a direct mandate (cf. elected law-

makers) are duty-bound to see to it that the body of legal norms accords with the principles

that summarize morality in the context of needs and rights.

Exponents of the second position counter-argue that humanity incorporates the cultur-

al/social dimension. For the same reason, the distinction between basic and less basic needs

is misleading. This is to say that the way in which people exist within a group defines human-

ity just as much as the fact that they need food in order to survive. The diversity that results

should be accommodated normatively. Because the legitimacy of a representative democra-

cy depends on acceptance and tolerance as core values, this system secures the foundation for

ethically sustainable interaction. Locally, regionally and nationally, groups must treat each

other accordingly, not stigmatize others as being inferior. The same is true of inter-state rela-

tions. Instead of cultural imperialism, equality should prevail. It is wrong to, for example,

judge others – one has no right thereto. Why? Because others have a (fundamental) right to be

free to be who they are and, as a consequence, to be free from external criticism, censorship

or other attempts to disrupt or interfere with our way, including military intervention. Moral

imperfections do not exist. There is no such thing as a “bad group;” only a “different group.”

It follows that humanism functions as a position that pushes differences to the relativist

extreme. By not only presupposing that each way is a priori morally valid, but also that the

sum total of differences adds to the good of the world, the extreme becomes indistinguishable

from radical pluralism.

For the same reason, the regulations and limits that objec-

tivism/universalism formulate have no pull unless, of course, the mindsets of different people

in different places happen to coincide

In principle, the prescriptive carte blanche is also granted individuals. To avoid oppres-

sion, liberty should be distributed to each and every individual, perhaps with the exception of

those who are unable to function as norm-givers in self-regarding matters, e.g., children. If so,

the position is consistent with traditional liberalism, as formulated by John Stuart Mill.

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On Len Doyal and Ian Gough’s account, radical pluralism is primarily an instrument for reform,

that is, for democratization of the system. See Len Doyal & Ian Gough: A Theory of Human Need (1

ed., New York: The Guilford Press 1991) 17.

John Stuart Mill: On Liberty and Other Essays (John Gray ed.) (1

ed., Oxford: Oxford Univer-

sity Press 1991) 104-128.

On Mill’s premises, people who lack rationality and autonomy are not subjects of liberalism, mean-

ing that they do not have the capacity to function as norm-givers in self-regarding matter. In this case,

liberalism is replaced by paternalism.

Concerning consideration or respect for others, traditional liberalism imposes two limits on the capa-

ble individual’s liberty or freedom to act. If the individual’s action (1) deprives others of their equal free-

dom or (2) inflicts harm on others, that same action falls outside the realm of that which is permissible.

As for the transition from acceptance and tolerance for groups to acceptance and tolerance for indi-

viduals as norm-givers, it should be noted that because it is difficult to determine what it takes to con-

stitute a group (two individuals, three, more?), the distinction between relativism and subjectivism may

not be sharp and significant. The point is that relativism may collapse into subjectivism.

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2. RIGHTS

Consulting international law, radical pluralists can point to a list of human rights that, in their

own view, support their interpretation and approach, ranging from group-rights to national

sovereignty and self-determination, to rights to freedom of association, freedom of thought,

conscience and religion, and to hold opinions without interference.

From the point of view of idealism, resorting to the law as a means of criticism of moral-

ity is an unacceptable strategy, which is also precluded by modern and moderate versions of

legal positivism.

The fact that international law confers rights that accord with subjec-

tivism/relativism does not prove that basic need-rights are pseudo-rights or, alternatively, of

secondary importance. Furthermore, the same law secures rights-recognition for several of

the things that previously were listed as basic needs, including food and medical care, sub-

suming these under respectively the right (of everyone) to an adequate standard of living and

the right (of everyone) to the enjoyment of the highest attainable standard of physical and

mental health. This makes it necessary to describe international law as a mix or combination

of objectivism/universalism and subjectivism/relativism, in essence, of social/economic and

civil/political human rights. However, the point is not about description. Rather, the point is

that irrespective of what the law says, the needs that belong under objectivism/universalism

should be treated as foundational platforms for rights-conversions. A law with civil/political

rights but without economic/social rights is inadequate even in circumstances of consensus

among the majority of the states parties that have the political power to ratify or accede to

international treaties. What matters – for rights – is morality. If theorists refer to customary

international law in order to substantiate the thesis that morality too is just a majority issue,

idealists would oppose this by pointing to the fact that the implied morality is of a conven-

tional type, one that is ultimately based on the notion of normal state practice, that is, the way

that most states act in the real world. On the premises of idealism, the entire international

community may act in a way whereby, for example, (it is true for all of us that) “Torture is per-

missible,” and yet each and every state is still obligated to abstain from torture if this practice

violates certain principles that are required by morality; and it does.

As a component of idealism, humanism derives its values from moral principles that

mediate the relationship between needs and rights. Furthermore, the principles make the

human rights terminology indispensable.

Basic needs, so it holds, are co-founders of fundamental cum human rights in that the

Harm Principle links these facts (cf. reality) with norms (cf. morality).

Because the argu-

ment is not directly from needs (from what “is”) to rights (to what “ought” to be), there is no

risk of committing the so-called naturalistic fallacy.

At the same time, it is true to say that

Herbert L. A. Hart: The Concept of Law (1

ed., Oxford: Clarendon Press 1961) 163, 181.

In traditional liberalism, the Harm Principle is a norm that functions to limit freedom of action

in relation to others. See supra note 15.

For a philosophically thought-provoking account of the “is-ought” problem as one that can be

resolved by considerations to do with the logical structure of action, see Alan Gewirth: Reason and

Morality (1

ed., Chicago: The University of Chicago Press 1978) 16, 102.

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harm functions as a bridge-concept to the extent that it helps give direction to morality. The

general norm for humanity, viewed as a factual norm, delivers the materials that are common

to our species. In and of itself, it does not prescribe conduct or behavior. Normativity in the

strict sense does not enter into the equation until morality is treated as something that deter-

mines humanity as a value. Furthermore, when idealists claim that basic need-rights are real,

the term “real” is primarily used to invoke the substance of the moral reasoning behind rights,

as will be detailed below.

CREDENTIALS-CHECKING

Theoretically, it is the opposite of harm which forms an integral part of the definition of

rights. This is to say that in order for something to count as a right the object of this must, as a

necessary condition, constitute a benefit. Using Neil MacCormick’s word, “a law which is

conceived as conferring on members of class C a right to treatment T, is envisaged as advanc-

ing the interests of each and every member of C on the supposition that T is (normally) a good

for each and every member of C.”

It should be observed that the qualifying term “normally” has no bearing on the question

of logical consistency. If X has a recognized right to receive a bag of peanuts, X, being aller-

gic to peanuts, will experience the enjoyment of the right involved as a source of potentially

serious harm rather than a benefit. In all normal circumstances, however, the right to a bag of

peanuts counts as a benefit – especially if there is no other way of meeting people’s basic need

for proteins.

However, the notion of a benefit is not a sufficient condition. If and only if the object pro-

motes the good of the intended recipient as an end in himself, is it correct to state that X’s right

to T has been established. This point is crucial.

To determine whether benefits create entitlements, one particular question must be

answered in the affirmative: will the benefits be provided or delivered for the right reason? In

the context of basic needs, it holds that the interest in well-being must be promoted without,

at the same time, reducing that same well-being to a means merely for other individuals or for

social utility. Without such respect, construed along the lines of Immanuel Kant’s philosophy,

there can be no rights.

Slaves receive food, water, shelter and clothes, but not for their own

Neil MacCormick: Legal Right and Social Democracy. Essays in Legal and Political Philosophy

ed., Oxford: Clarendon press 1982) 164.

The Respect Principle is identical with Immanuel Kant’s categorical imperative.

On analysis, there are three formulations of the categorical imperative: (1) “Act only in accordance

with that maxim through which you can at the same time will that it become a universal law; (2) “So act

that you use humanity, whether in your own person or in the person of any other, always at the same time

as an end, never merely as a means;” and (3) “So act that you think of yourself as legislating universal

laws through your maxims.” According to Christine M. Korsgaard, the three formulations “are equiva-

lent.” They can be referred to as, respectively the Principle or, per Korsgaard, Formula of Universal Law,

the Principle/Formula of Humanity, and the Principle/Formula of Autonomy or the Kingdom of Ends.

See Christine M. Korsgaard: “Introduction”, in Immanuel Kant: Groundwork of the Metaphysics of

Morals (Mary Gregor, ed. & trans.) (1

ed., Cambridge: Cambridge University Press 1998) xxii-xxv.

For an elaboration of Kantian respect as an analytical feature of human rights, see Anja Matwijkiw:

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“Rights for the Sake of the Individual as an End in Himself ” (2000) 3-4 Tidsskrift for Rettsvitenskap

[Journal of Legal Science] 738, 757. For an application that is tailored to the right to truth, see Anja

Matwijkiw & Willie Mack: “Making Sense of the Right to Truth in Educational Ethics: Toward a Theo-

ry and Practice that Protect the Fundamental Interests of Adolescent Students” (2007) 2 Intercultural

Human Rights Law Review 329, 354.

In the opinion of Jürgen Habermas, Kant’s philosophy has influenced human rights to the extent

where these can be described as an essentially Kantian project. See Jürgen Habermas: “The Kantian

Project of the Constitutionalization of International Law. Does it Still Have a Chance?”, in Manuel

Escamilla Castillo (ed.): Law and Justice in a Global Society (1

ed., Granada: University of Granada

Press 2005) 115.

Feinberg, supra note 2, at 117. See also William K. Frankena: “Some Beliefs about Justice”, in

Department of Philosophy: University of Kansas (ed.): The Lindley Lecture Series (Lawrence: Univer-

sity of Kansas 1966) 10.

The humanity simpliciter criterion contrasts with the philosophy of Kant, who believes that the

value or worth of individual persons is determined by (humanity in terms of) rationality and autonomy.

See Kant, supra note 20, at 37, 41.

By defining humanity in terms of rationality and autonomy, Kant puts a sign of equation between

(normal) adults and human beings, thus disqualifying children as right-holders, together with adults who

suffer from pathological conditions that impair rationality and autonomy, such as Alzheimer’s Disease. In

doing so, Kant excludes a numerically significant number of people from the moral community.

sake. Instead, they receive such essentials for subsistence so as to enable their masters to take

advantage of them, to exploit them for their own ends.

Disrespect for fellow human beings translates, using moral terms, into a lack of decency.

This, in turn, adversely affects the victims’ dignity on the basis of humanity. Both decency and

dignity have applications that extend beyond the case of slavery. Therefore, human rights

ethics demands compliance with other principles besides the Harm Principle and the Respect

Principle.

At least two additional principles play a role in the transition from needs to rights. One of

these prescribes that “You should not discriminate against others on the basis of facts, traits or

characteristics that the individuals or groups of individuals in question did not have a fair

opportunity to acquire or avoid.” According to this Fair Opportunity Requirement and Princi-

ple, wrongful discrimination and therefore indecent or undignified mistreatment occurs in

those cases where victims can be said to lack the control or power to un-choose the relevant

facts, traits or characteristics in accordance with their own subjectivist or relativist prefer-

ences.

In other words, a serious injustice is done to people who are unable to, as it were,

recreate themselves, but are yet denied respect (on the basis of humanity). For the purpose of

rights-recognition, the point is that the rights that correspond to basic needs must be equal and

universal. Irrespective of the concrete objects of the rights, they are always claims to fairness

on behalf of everybody everywhere. More precisely, they are claims to absolute distributive

justice, as a minimum, at the level where holders of human rights are appointed. It does not

make sense conceptually and normatively to confer or recognize basic need-rights without

using humanity simpliciter as a criterion. Technically, this is to say that the notion of humani-

ty should not be specified by references to other qualities, such as rationality or autonomy.

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Bernard Williams: Morality. An Introduction (Canto ed., Cambridge: Cambridge University

Press 1993) 9-13.

Waldron, supra note 1, at 303-305.

Finally, the Principle of Consideration comes into force in a manner that, in one sense,

logically precedes the Harm Principle, the Respect Principle, and the Fair Opportunity

Requirement and Principle. The reason for this is that the Principle of Consideration commits

agents to be willing to care about other people and, in practice, to at least give everybody

everywhere the same consideration on the basis of important interests or needs.

Without this

consideration, the rest of morality cannot be activated. Because of the content of the principle

itself, morality requires emotionality, as well as a conscience. Without consideration, agents

cannot be expected to embrace decency, respect and dignity as values and, if only indirectly,

merit and desert in the case of the Fair Opportunity Requirement and Principle. Although

agents possess rationality, this will not be enlightened and guided by right reason. And, this is

exactly why credentials-checking for human rights must accommodate the principles that

define the values in question. On the premises of idealism, the sad fact that human rights func-

tion to protect human beings against other human beings is taken into account. Whenever oth-

er people are not willing to extend good treatment to fellow human beings in need, human

rights serve to remind them of their due. Furthermore, fundamental wrong-doing is tanta-

mount to excommunication from humanity. If people choose to violate the Harm principle,

the Respect Principle, the Fair Opportunity Requirement/Principle and the Principle of Con-

sideration, the minimum morality behind human rights, they also choose to no longer remain

in the image of the species. According to idealism, morality is a norm for humanity. The point

is that everybody loses out, the victims as well as the victimizers.

3. A TENTATIVE CONCLUSION

As an antidote to the might makes right dictum, idealism emphasizes the link between morali-

ty and democracy. In a democracy, as construed on the premises of idealism, morality provides

a set of checks and balances which determines the legitimacy of the system. This is not a point

about a value-neutral approach. At the meta-level, democracy is pulled in one particular direc-

tion. When it comes to values, democracy subscribes to partiality, and not impartiality. This

decision cannot be challenged by radical pluralists or liberalists like Waldron. On scrutiny, he is

putting liberalism in the service of capitalism, be it as a national or international arrangement.

However, no negative implications follow, that is, ones that might jeopardize idealism and its

adoption of the First Priority Principle, which is a feature of strict universalism.

More precisely, public discourse of the sort Waldron envisions, in essence, a “noisy sce-

nario” where “everything is up for grabs,”

does not prove that there are no independent (cf.

objective and universal) facts and no moral principles pertaining to basic need-rights which

can, if accommodated in theory, censor idiosyncratic and misguided cum ill-founded opin-

ions of men and women, who may or may not be taking rights seriously. The point is that once

we have acknowledged that rights belong to the domain of justice, we come under certain con-

straints as to how we talk about them, treat them in conceptual analysis, and confer them in the

first place. The more fundamental rights are, the more crucial it is to get rights right. Why?

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Ibid., at 312.

Because, in a context of global economic/social justice, the procedures that are utilized will

decide the destiny of the worst-off, of poor people in poor places, who may not know that

morality extends its norms to them. If people are unaware of that which is owed or due to

them, they are ipso facto at a serious disadvantage in the political processes which Waldron

proposes as procedures for rights-recognition. Adding to the problem, Waldron’s type of

democracy entails a notion of respect which is inextricably linked with people’s capacity to

function as political participants. Consequently, the rule he advocates, namely a revised ver-

sion of popular majoritarianism, is bound to result in moral and, ultimately, legal relationships

that stress, not being human, but instead being up to the task (i.e., to hold and express a view

about rights, to argue for and against opinions, to vote, etc.) as a basis for a reasonable expec-

tation of consideration and inclusion, which is also the principle that “lies at the heart of the

idea of rights.”

It is this conclusion that makes it questionable whether Waldronian democ-

racy qualifies as a proper rule of law.

For idealists, all human beings are subjects of human rights, first and foremost, basic

need-rights. In a democracy that is not reduced to a marketplace of ideas (cf. “everything is up

for grabs”), basic need-rights would be exempt from competition. Instead, this domain would

be regulated as much as is possible by well-founded opinions only. Furthermore, if opinions

in favor of basic need-rights lose out, the very foundation for effective participation in the

political processes is undermined – at least for the worst-off. However, put to the choice, it

appears that Waldron would prefer to accept this outcome (which accords with the might

makes right dictum) rather than address his own lack of consistency.

Be that as it may, there are theorists who oppose idealism by arguing against basic human

need-rights per se. However short the list of basic human needs with corresponding human

rights is, the theorists in question will dismiss it on the basis of the following kind of reason-

ing: “If no X in the real world, then no right to X.” Endorsing this, they subscribe to realism.

Exponents of this position maintain to be invoking facts pertaining to fulfillment of rights as

valid reasons for excluding these from the law. Thus presented, realism is a widespread view,

not just among philosophers and legal thinkers, but also among laymen, legislators and politi-

cians. As for thinkers like Waldron, he seems to embrace realism as if it were a self-explana-

tory position that does not require any further defense.

Not a right-wing radical and certainly not a reactionary by any standards, Joel Feinberg’s

version of realism is suitably illustrative. In Feinberg, there is even an element of sympathy

for the case. However, he will not convert basic need-rights into legal claim-rights.

C. REALISM

1. THE NO-RIGHTS DECLARATION

Following Feinberg, the distinction between civil/political and social/economic human rights

is equivalent to the one between, on the one hand, negative and/or positive rights to non-eco-

nomic goods and, on the other hand, positive rights to economic goods. Examples include the

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right not to be tortured and the right to a fair trial (respectively, negative and positive rights to

non-economic goods), and rights to the things specified by articles 22-27 of the UN’s Univer-

sal Declaration of Human Rights, among other things, to work, to free choice of employment,

to rest and leisure, to periodic holidays with pay, to food, clothing, housing, medical care, edu-

cation, to enjoy the arts, and to share in scientific advancement and its benefits (positive rights

to economic goods).

Social/economic human rights are explicitly characterized as “rights” in “the manifesto

sense” by which Feinberg means that they are claims to something which are not also neces-

sarily claims against someone.

The reason for this has to do with the objects of the rights. As

positive rights to economic goods, they are rights to things that can be in scarce supply. This is

true, of course, irrespective of whether they are basic, less basic or non-basic. That granted,

Feinberg has a distinction between necessities and luxuries, which is discordant with the pre-

vious identity between basic and fundamental rights. What counts as “basic needs” varies – so

Feinberg argues – in accordance with the level of material wealth in a given society or nation

state, S. Consequently, there may be basic need-rights to televisions, cars and telephones in the

US while, at the same time, there may not be rights to the essentials for subsistence in Sudan.

In the final analysis, this need-relativization, which affects the corresponding entitlements,

makes impossible a meaningful application of the terminology of human rights. Although

“basic needs” are given a paradigmatic use that overlaps with things like food, medicine, hous-

ing and clothing, the (allegedly) inconstant status of such needs cannot be ignored in a critical

appraisal of realism.

In the moral sphere, Feinberg concedes that (the paradigmatic use of) basic needs ground

actual claims, that is, claims that are justified by the Harm Principle. Owing to this fact, the

claims in question can also be treated as rights because, in the moral sphere, recognition does

not depend on the practical possibility of fulfillment but, on the other hand, on human worth,

understood as an attitude of respect caused by the psychological impact of regarding other

people from the so-called “human point of view.”

If we confer equal and universal human

rights in the moral sphere, then this is because our ability or capacity to experience empathy

has moved us from our own to other people’s “shoes” so as to see them from their own point of

view and, through that mental or cognitive exercise, we come to hold and express “You are

human. Therefore, I respect you!” Needless to say, those who are unwilling to wear other peo-

ple’s shoes remain disrespectful, individuals who subsume differences under the notion of The

Other, the one who is not like me or us. The leap from their immoral attitude to immoral action

or omission of action may be a small one. If deemed worthless, the relevant people’s claims to

fairness or, per MacCormick, good treatment T will be dismissed.

Feinberg never cancels the inverted commas when talking about manifesto “rights”

(inverted commas which are exclusive, it should be added, for this class). Furthermore, asking

the question “which manifesto “rights,” if any, ought to be made legal rights,” Feinberg

invokes the Ought Implies Can Principle for the rights that he takes most seriously, namely

NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:4 (2008) 291

Feinberg, supra note 2, at 64.

Ibid., at 110-112.

Ibid., at 93-94.

Ibid., at 84-85.

NTMR408:M&Rnr4.2003 08-01-09 09:24 Side 291

“ideal rights,” that is, rights that ought to be protected as legal claim-rights.

Applying the

Ought Implies Can Principle, manifesto “rights” can make the transition from actual claims

to claim-rights only if the circumstances C in S are such that there is moderate abundance of

the goods or resources in question. If the level of material wealth is insufficient, say, there is

extreme scarcity, then this means that it is practically impossible to appoint at least one other

person (besides the right-holder) as the party who fulfills the right as a matter of duty. And, if

there is no duty-bearer, then this means, in turn, that it was wrong to assume that there was a

right-holder in the first place. This conclusion follows because Feinberg maintains that the

doctrine of logical correlativity is “unassailable” for the class of legal claim-rights.

On his

own interpretation, the doctrine in question says that in order for A to have a claim-right there

must – as a logically necessary condition – exist at least one other person, B, who has a duty

towards A. Hence, we can derive what might be called the Duty-Principle for Rights. Accord-

ing to this, it holds that “rights(-recognition) if and only if duties.”

In the light of this, we can summarize and formalize realism as a position in the following

manner:

The existence of legal claim-rights is conditional on the existence of other-directed cor-

relative duties (cf. the Duty-Principle for Rights) which are, for their existence, conditional on

the practical possibility of fulfillment of these something which is, again, conditional on the

presence of circumstances C = moderate abundance of the goods or resources in question.

Therefore, only if the circumstances C = moderate abundance, is it practically possible and,

consequently, required by morality to turn manifesto claims into legal claim-rights (cf. the

Ought Implies Can Principle). Realistically speaking, the two principles work together in all

cases where claims qualify as ideal rights.

Such are the official premises for dealing with the question “which manifesto claims, if

any, ought to be made legal claim-rights.” It soon turns out, however, that manifesto claims are

disqualified ab initio as plausible candidates for the class of ideal rights. Given the status of

legal claim-rights, the exclusion is no less than a catastrophe, at least for theorists who attach

importance to social/economic human rights. In the absence of claim-rights, people are

deprived of that which is owed or due to them and, consequently, they can neither expect

decency from others on the ground of desert, nor respect themselves.

This suggests that,

without claim-rights, everything is at stake.

Unfortunately, necessary evils and unhappy facts make it a priori impossible to establish

a link between manifesto claims and rights. According to Feinberg, the real world is such that

(1) there are many places where the goods are in such short supply that it is impossible to pro-

vide them for all who need them. Furthermore, the world is such that (2) the circumstances C

can easily change so that even in places where the goods are not in short supply here and now

at time t, the circumstances may be very different in the near future at time t’, that is, there may

be extreme scarcity at time t’.

292 NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:4 (2008)

Ibid., at 62.

The proposed procedures of rights-conferment are shared by some of the most prominent con-

temporary rights-theorists, e.g., Herbert L.A. Hart, Hillel Steiner and Onora O’Neil to mention a few.

Feinberg, supra note 2, at 58.

Ibid., at 66, 95.

NTMR408:M&Rnr4.2003 08-01-09 09:24 Side 292

The fact that the circumstances C can easily change is sufficient to draw the conclusion

that all manifesto claims, including those that involve basic human needs, do not qualify as

plausible candidates for the class of potential legal claim-rights other things being equal with

respect to moderate abundance in S here and now at time t. Any S, be it a rich or poor place, is

empirically powerless in the sense that it is unable to make predictions and, for that reason, it

cannot give future-oriented and categorical guarantees about fulfillment of rights. The (possi-

ble) risk of failing provision of the goods or resources that are necessary in order to fulfill

basic need-rights, thus inviting (possible) conflicts and exceptions, signifies that manifesto

claims cannot satisfy the condition of absoluteness.

Because negative rights are rights to

things that cannot, by their very nature, be in scare supply (namely omission of action or non-

interference), only civil/political human rights can, realistically speaking, qualify as candi-

dates for the class of ideal rights defined as potential legal claim-rights.

While a claim-rights monopoly for civil/political human rights is unavoidable, this does

not entail that we can now forget about social/economic rights altogether. Two cases serve to

show how manifesto claims create commitments according to the circumstances.

THE CASE OF THE RICH SOCIETY

The first is the case of the Rich Society. On behalf of this, Feinberg does not hesitate to put leg-

islators under an obligation to convert basic need-claims into prima facie rights. In compari-

son to claim-rights, prima facie rights are weaker or lower-ranking rights. Furthermore, as pri-

ma facie rights, basic need-rights are not “honoured in the breach” with apology.

The essen-

tial point is that there is no need for apology. If circumstances change from abundance to

scarcity, violations cannot occur because the rights in question are, by definition, conditional

on the practical possibility of their fulfillment. If there is scarcity, they automatically lapse

back into mere claims. For example, if both A and B (allegedly) have a right to an apple and

the circumstances change from two apples to one apple, then the rights-situation changes

accordingly so that it is either A or B who has a right, and if it is A, then nobody has to say “Sor-

ry B! We did not intend to wrong you, but we know we did…” Nobody has to make excuses.

The “entitlement” has ceased to (be strong enough to) entail a duty. The risk of rights-reduc-

tion does not apply to claim-rights because even if the guarantee with which they come were

set aside through conscious choice, the rights would stand in one important sense. This is to

say, the political circumstances may be so that they militate against enforcement, but – in

return as it were – rights are spared from reduction to mere claims in that they are still met with

recognition. It is the last-mentioned characteristic that translates the situation into a violation,

and this always constitutes a serious wrong; a “sacrifice of legality itself, of justice.”

seems, therefore, that realists ascribe value to rights-recognition for its own sake.

A no-rights declaration for civil/political rights remains a possibility, but it would be

deemed unacceptable by Feinberg even if it were signed by all participants of Waldronian

majoritarianism. When it comes to rights, decisions must be made. Agents are forced to be

NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:4 (2008) 293

Ibid., at 87-88.

Ibid., at 75.

Ibid., at 82.

NTMR408:M&Rnr4.2003 08-01-09 09:24 Side 293

selective. More precisely, they have to be realistic. Because the world is the way it is, it would

be absurd to not choose civil/political rights. People cannot do without claim-rights. These

invoke values that are regulated by decency and respect. In one important sense, claim-rights

are necessities. Given that their fulfillment consists in omission of action or non-interference,

there is no good reason to engage in the kind of permissiveness that radical pluralism allows

for. Why? Because this might prove counter-productive. However, the fact that claim-rights

may be deconstructed to formal protections does not prompt Feinberg to check his own posi-

tion for theoretical consistency.

Furthermore, discussing just rights-conferring procedures

and positive rights, the realists require that rights be “modified to be realizable.”

Ultimate-

ly, this means that the theory of human rights must give way to compossibility,

which is the

technical notion for the idea that human rights depend, for their existence, upon the practical

possibility of equal and universal fulfillment in S. Meta-theoretically, the real point is that

economic/social justice is not on the realists’ agenda, not as a security for humanity issue any-

way. This is why a no-rights outcome is not a moral catastrophe by any standards. What is

more, prima-facie rights cannot be trumps; only claim-rights can.

THE CASE OF THE POOR SOCIETY

Feinberg’s second case is the Poor Society. Here the circumstances C = extreme scarcity. In

such a society, basic need-claims can and, consequently, ought to be treated as “ideal direc-

tives,” that is, directives for present legal aspirations and policies addressed to the state and

relevant parties in appropriate positions such as legislators, judges, adjudicators, and moral

agents.

As ideal directives, basic need-claims constitute moral principles that (1) hold for

the world community as a global partnership of nation states, and (2) commit each partner at

home to (a) recognize basic need-claims as morally justified claims and, with this, as poten-

tial (prima facie) legal rights in S, and (b) to do their best for the values and interests involved

Besides the opinion that negative rights are primary because they are negative, what reason is

there for translating the distinction between prima facie rights and claim-rights into one between,

respectively, conditional enforcement and recognition (for prima facie rights) and conditional enforce-

ment and unconditional recognition for claim-rights? If non-interference as a duty can in fact be unful-

fillable, this makes civil/political rights subject to realism.

The distinction between the two classes of rights can also be challenged by pointing to the fact that

claim-rights may come into conflict. Feinberg proposes, as a way out of the implied dilemma, a redefi-

nition of the rights-boundaries by appending exceptive clauses that serve as an “encumbrance.” The con-

ditionality of prima-facie rights, on the other hand, hinges upon the unspecified and open-ended nature

of “more urgent considerations.” That granted, Feinberg’s method does not provide a guarantee against

the occurrence of future conflicts for “there is no reason why the process (of appending exceptive claus-

es) cannot go on indefinitely.” However low the flux factor is, it is constant. The issue is, once again,

about the guarantee which should differentiate claim-rights from all other types of rights. On scrutiny,

the guarantee is very problematic. See Feinberg, supra note 2, at 68-79.

Hillel Steiner: An Essay on Rights (1

ed., Oxford: Blackwell Publishers 1994) 3.

Feinberg, supra note 2, at 202.

Ibid., at 71.

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NTMR408:M&Rnr4.2003 08-01-09 09:24 Side 294

in the claims. In a poor society, the best “will unhappily not be very much.”

Certainly, the

best amounts to nothing in terms of converting claims into legal rights, at least here and now

at time t.

2. HOW REALISTS ERR IN RESPECT TO RIGHTS

On realists’ scheme of things, the question “which human rights, if any, ought to be made legal

claim-rights?” is one which, if dealt with appropriately, invites us to ask “are the goods or

resources available in S to meet the claims in question?” Furthermore, the link between real-

ism and the doctrine of logical correlativity entails that legislation is primarily about duties. If

rights are conferred (by realists) then we can infer, retroactively, that the condition of fulfill-

able duties has already been met.

Theoretically speaking, however, realism is vulnerable to serious criticism on account of

the assumption that the doctrine of logical correlativity is true. In the next paragraphs, I will

show that (1) the link between the doctrine of logical correlativity and realism is not analyti-

cal, and that (2) the result that Feinberg achieves by making the doctrine of logical correlativ-

ity an integral part of realism is completely opposite to the intended one.

Feinberg argues as if the doctrine of logical correlativity commits us to realism. The case

of manifesto claims clearly demonstrates this. On Feinberg’s own account, manifesto claims

constitute an exception to the doctrine of logical correlativity because the practical possibili-

ty of fulfillment of other-directed correlative duties is conditional on C = moderate abun-

dance, something which cannot be guaranteed categorically in S because, again, C can easily

change. This explains their status as claims to something which are not also claims against

someone. But, the exception is no coincidence. More precisely, the exception shows how real-

ism gets in the way of conceptual accuracy.

The doctrine of logical correlativity alone does not say that the existence of claim-rights

is conditional on the practical possibility of fulfillment of other-directed correlative duties.

Furthermore, it does not say that the existence of other-directed correlative duties is condi-

tional on the practical possibility of fulfillment of these, nor that the practical possibility of

fulfillment of duties is conditional on the presence of circumstances C = moderate abun-

dance.

The doctrine of logical correlativity says something about the existence of rights in rela-

tion to the existence of duties. The doctrine says that other-directed duties exist logically pri-

or to correlative claim-rights. That is all it says.

That is enough, though. It is obvious that realists are reading too much into the doctrine.

Setting aside the alleged link between “rights(-recognition) if and only if duties” and the prin-

ciple that outlines the conditions pertaining to duty-fulfillment (cf. Ought Implies Can), the

doctrine of logical correlativity cannot deliver the truth that is otherwise necessary in order for

realism to work as a theory that combines the two principles. This is so regardless of whether

the rights in question belong to people qua citizens of a given society or nation state, S, or

whether they are ones that people have qua their membership of the species.

Ibid., at 72.

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296 NORDISK TIDSSKRIFT FOR MENNESKERETTIGHETER 26:4 (2008)

In his study of national law, MacCormick discovers “at least the possibility” of claim-

rights as logically prior to other-directed duties thereto.

Focusing on his test-case, viz., chil-

dren’s right to be nurtured, cared for, and, if possible, loved, it appears that in order for a given

child, A, to have the right in question there does not have to exist, as a necessary condition, at

least one other person, B, who has a duty towards A. This is to say that A’s right is not something

that can be reduced to be a bare reflex or an adjunct to B’s correlative duty which is, at a deep-

er level, a logical prerequisite for A’s having the right. A does not have the right to be nurtured,

etc. because B has a duty towards A. Rather, B has a duty because A has a legal (or, mutatis

mutandis, moral) right. B’s duty exists because A’s right exists. Hence, the existence of B’s cor-

relative duty is necessarily conditional and consequential upon the existence of A’s right.

MacCormick’s test-case, which concerns basic needs, is very convincing. It does not

make sense to argue, for example, that “the three-month-old baby, Eric, has a right to milk

because his mother has a duty to feed him.” If this were the case, the death of Eric’s mother

would entail that leaving Eric on his own (so that he will perish too) is not a serious wrong –

although the law is designed with a specific view to protecting children from that kind of seri-

ous harm. Even if the parental duty was redefined to include anybody in a position to help, the

procedures of rights-recognition would not change. Eric loses his right if no duty-bearers are

appointed, if the doctrine is true. That granted, it is exactly a universal extension of the duty

which discloses the implied predicament because Eric’s temporary no-right so-called comes

to function as the incentive to look for other people who are suited to stand in locus parentis,

be it a guardian, the state or other parties. In other words, there must be more to rights than

duties, and explanations of this “more” are not consistent with the doctrine of logical correl-

ativity. Consequently, reasoning about rights and duties has to be reversed so that the argu-

ment proceeds from rights to duties. Furthermore, the nature of the relationship between

rights and duties entails a distinction between rights-recognition and rights-protection.

For the purpose of rights-recognition, it does not make a difference if Eric’s mother is

able to fulfill the duty by breastfeeding him, or other people can buy milk, or, if worst comes

to worst, there is no milk or milk substitute available in the world. Even if left without any of

the things that are necessary for his care and nurture, Eric would still maintain his right,

according to MacCormick. In these circumstances, there would not be anybody in a duty-

position because other people can only be required to do that which is practically possible. In

spite of the absence of a duty-bearer and the measures for duty-fulfillment, Eric continues to

have the right to be cared for, nurtured and, if possible, loved. That granted, the existence of

the correlative duty, as derived from the right, is to ensure that Eric is given his due. The duty

is a means for rights-protection and, therefore, it should be imposed as a categorical impera-

tive whenever possible. If the intended beneficiary, Eric, cannot receive the things he is enti-

tled to for his own sake, the situation amounts to a rights-violation. This means that Eric must

be perceived as a victim, but his loss is not comparable, of course, to the no-rights outcome

that realism would cause. On MacCormick’s premises, a victim is not a rightless individual.

Instead, he is somebody whose right has been denied either primary protection (cf. fulfill-

ment) or secondary protection (cf. enforcement), or both. Notwithstanding, something has to

be done to put things right again, to at least try and keep trying in principium ad infinitum, if

MacCormick, supra note 19, at 161.

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International Covenant on Economic, Social and Cultural Rights, GA Res. 2200A (XXI), 21 UN

GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966), 993 UNTS 3, entered into force January 3, 1976

[ICESCR].

Under hard international law, the same notions (the inherent dignity and the human family) are

repeated for civil and political rights. See the International Covenant on Civil and Political Rights, GA

Res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966), 999 UNTS 171,

entered into force March 23, 1976 [ICCPR].

The notion of “the human family” implies that it is impermissible to make contingent facts about

humanity grounds for discrimination. The list of such facts (inter alia, age, sex, I.Q., skin color, race,

social rank, hereditary caste, nationality, language, property, ethnic or cultural origin, religion, political

or other opinion) is a check-list for rights-recognition procedures on the basis of the Fair Opportunity

Requirement and Principle.

ICESCR, supra note 43, at 5.

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nothing can be done here and now at time t. The normative stimulus that the right emits com-

mits other people to balance reality and morality as much as is possible.

Turning to the UN’s method of rights-recognition, it is not just a possibility, but a reality

that hard international law secures the existence of fundamental rights in a manner that clear-

ly breaks the alleged analytical link between claim-rights and other-directed duties correlative

thereto. What is more, the International Covenant on Economic, Social and Cultural Rights

(ICESCR) turns out to be primary proof of the thesis that rights are logically prior to correla-

tive duties.

Following the Preamble to the ICESCR, recognition of social and economic human rights

is unconditional. First conferred, their status as equal, universal and inalienable rights remains

intact regardless of the issue of correlative duties. The emphasis is on the inherent dignity of the

human person in addition to species, that is, membership of “the human family,” and that is tak-

en as necessary and sufficient for the declaration of human rights.

Their existence is not deriv-

ative from any other sources, including real world facts concerning resources and fulfillment.

This does not mean that the UN is ethically indifferent about whether the right-holders receive

the things or goods which the rights entitle them to. To the contrary. The notion of duties plays

a central role in conjunction with rights-protection through its promissory language on behalf

of the states parties. Article 2 in Part II of the ICESCR, for example, states that

Each State Party to the present Covenant undertakes to take steps, individually and

through international assistance and co-operation, especially economic and technical, to

the maximum of its available resources, with a view to achieving progressively the full

realization of the rights recognized in the present Covenant by all appropriate means,

including particularly the adoption of legislative measures.

The steps in question cover all aspects of rights-protection, from implementation into nation-

al law, to enforcement in national as well as international law, and fulfillment. Aiming at full

realization, furthermore, social and economic rights generate obligations to provide individ-

uals with the objects of the relevant rights in accordance with the economic circumstances. If

the goal, that is, actual rights-fulfillment, cannot be realized here and now at time t (and the

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For an account of this notion, see David M. Trubek: “Economic, Social, and Cultural Rights in

the Third World: Human Rights Law and Human Needs Programs”, in Theodor Meron (ed.): Human

Rights in International Law. Legal and Policy Issues (1

ed., Oxford: Clarendon Press 1984) 209.

assumption is that it cannot in many places), human rights generate – in the second instance –

obligations to try to create, step by step and through specific programs, the conditions where-

by it becomes possible to give people that to which the rights are rights to. It is these instru-

mental meta-obligations which are intrinsic to the ICESCR’s notion of programmatic obliga-

tions.

Once the states parties have taken all the steps that are connected with purely means-relat-

ed obligations, they reach the stage where it can be proclaimed that the construction phase is

over or, at least, that it is sufficiently advanced to require that more be done. This is to say that

the states parties can now undertake the task of fulfilling the directly end-related obligations,

which have so far been awaiting the moment for the corresponding rights to be able to release

their full potential legal energy, thus ensuring that people can enjoy their rights. The ideal is

always to be able to enjoy rights in addition to having them. But, being without the objects of

rights does not, as should be clear by now, lower or weaken rights per se. Without rights, fur-

thermore, we would not have good and strong reasons for making claims to a specific treat-

ment from other people, to their actions or omissions. We also have to be realistic, however,

and ask only what is practically possible. According to the UN, rights together with the cir-

cumstances determine which duties there are or ought to be. Thus, the two principles that can

be derived state, respectively, “if rights, then where possible duties” and “duty implies can.”

D. CONCLUSION

1. REALISM AS IDEOLOGY

Having ascertained de jure that the UN disconfirms the doctrine of logical correlativity, the

final parameters for an assessment of realism have been provided.

The situation is both simple and complex. On the one hand, it is necessary to distinguish

between what the doctrine of logical correlativity says and what realism says. Axiomatic “if no

duties, then no rights” dictums, e.g., that claim-rights cease to exist if other-directed correla-

tive duties cannot be fulfilled, because duties cease to exist if they cannot be fulfilled, are

extra-logical. These dictums are not implicit in or derivative from the doctrine of logical cor-

relativity. On the other hand, the doctrine is built into realism so as to give rise to the very same

dictums. As pointed out earlier, realism requires both the Ought Implies Can principle and the

doctrine of logical correlativity (cf. The Duty-Principle for Rights) working together. But,

because the doctrine in question reflects mistaken beliefs about the nature of the relationship

between claim-rights and other-directed correlative duties, especially as documented in inter-

national law, it cannot lend realism authority, weight and credibility. As a matter of fact, real-

ism falls to the ground as a result of asserting, proceeding, relying and depending upon the

assumption that the doctrine of logical correlativity is true.

In conclusion, there is an irreversible leap from the logical to the ideological. The realists’

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answer, therefore, to the question “which rights qualify as plausible candidates for the class of

ideal rights” merely expresses a preference in favor of civil and political human rights. It is a

case of ideology for the sake of ideology. Their version of idealism (cf. ideal rights = potential

legal claim-rights) is tantamount to liberalism.

Furthermore, while using legal rights as a

model, the model itself fails. That is what follows from the analysis of the law. This focuses on

the importance of interests for the purpose of conferring fundamental rights rather than dis-

cretionary and/or remedial powers, which are highlighted by the type of rights-theory that

advocates of liberalism typically swear allegiance to.

In this manner, the realists end up with prima facie basic need-rights which are hardly

rights at all but, on the other hand, momentary gifts or favors, in essence, instances of charity

because the appropriate response if that to which A has a basic need-“right” is forthcoming, is

(according to Feinberg) “I am grateful” and not “I am deserving” or “it is my due” (cf. claim-

rights). Furthermore, if that to which A has a basic human need-“right” is not forthcoming, the

appropriate response is (once again, according to Feinberg) “I am unlucky” and not “I am

indignant” (cf. claim-rights).

The choice between weaker rights and no-rights is highly objectionable in the case of

basic needs for several reasons. First, the absence of claim-rights automatically cancels the

attitude of respect toward Self and Other. Furthermore, the fact that species really matters con-

ceptually and normatively – according to the UN’s human rights-recognition procedures – is

being ignored by the realists in the legal sphere, who instead focus solely on wealth and mem-

bership of S, that is, nationality and citizenship. Their exclusion of The Other, meaning the

Paradoxically enough, the preference for civil/political rights is defeated by the Choice Theory

of Rights, which advocates of liberalism typically swear allegiance to. Incorporating the doctrine of log-

ical correlativity, the theory says that the holder of a claim-right, X, is a small-scale sovereign who has

(i) a bilateral liberty to waive the primary duty or leave it in existence as he chooses (cf. discretionary

powers). Furthermore, in the typical case, X may (ii) – if the primary duty is breached – enforce the sec-

ondary duty, e.g., by suing for compensation (cf. remedial powers) just as X may (iii) waive the second-

ary duty. See Herbert H. L. Hart: “Bentham on Legal Rights”, in A. W. B. Simpson (ed.): Oxford Essays

in Jurisprudence (1

ed., Oxford: Oxford University Press 1973) 192.

If the Choice Theory of Right were true, some of the most fundamental civil/political rights would

fall outside the domain of rights, in the final analysis, because they imply unwaivable immunities. This

is to say that the right-holders are rendered as powerless as the duty-bearers for the purpose of protect-

ing the important interests of the right-holders. Personal freedom is one example. In this case, the right-

holders are unable to forfeit their own freedom. Technically, they are under an absolute disability just

like the duty-bearers who are not permitted to enslave them.

The alternative to the Choice Theory of Rights, which can be described as a revised version of the

classical Interest Theory of Rights, accommodates unwaivable immunities in terms of rights stricto sen-

su because things like personal freedom normally constitute a benefit for the sake of the intended recip-

ient as an end in himself. Note also that the rights that result match the UN’s procedures for human

rights-recognition in so far as these count as inalienable, in addition to being ascribed the status of equal

and universal rights.

See supra note 46.

Feinberg, supra note 2, at 58-59.

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poor, the stateless and the foreigner from the class of right-holders, is arbitrary because it

depends on contingent and therefore irrelevant characteristics, according to the UN.

Only naively can the realists’ unfair procedures be interpreted as the result of an anachro-

nistic dichotomy between national law and international law. In a world where equal, universal

and inalienable human rights have been on the agenda since 1945, there are no good reasons to

treat S as a hermetically closed system. Separating “us” from “them” serves as an ancillary

strategy for declaring “no-rights… for them!” which is why the realists never get to the point of

discussing economic/social (re)distributive justice, however poor people in other places are.

Talking about this kind of justice is meaningful only on the basis of rights… and rights belong

to people qua members of S. That is the realists’ vicious circle. The implication of this, namely

the withholding of rights from those people who, in one sense, most need them, is not consis-

tent with idealism in the context of objectivism/universalism and humanism.

The way out of the vicious circle is to invoke pure idealism for rights, whereas idealism and

realism can be combined for the purpose of imposing duties that bind the parties against whom

the claims are directed to provide the objects here and now at time t. By doing this, a global

guarantee of rights-recognition can be secured in spite of gross inequalities pertaining to sub-

sistence, inequalities which may or may not be eliminated in the future. The main point is that

human rights ethics is not determined by economics. Furthermore, if agents let ethics come

first, then this introduces a Zero Tolerance Veto in circumstances where political disagreement

arises over whether there ought to be any social and economic rights in the first place.

In the light of this, the question “which rights, if any, can be trumps?” can be answered in

Waldron’s style by stating the following: we all know, being who we are, that unless we set lim-

its on the outcome of our decision-making procedures, then we will have a majority elite in S

= a rich society which will try to get away with as much as is possible – for themselves – by

analogy with the minority elite that often rules in Third World countries. Without basic need-

rights as trumps, the law itself is ultimately at risk. This is a paradox only as long as agents

ignore the fact that fulfillment of basic need-rights is instrumental for the enjoyment of all

other rights, including civil and political rights.

2. AN UNHAPPY ENDING – FOR REALISTS

One rights-theorist, who would support idealism as a position, is Henry Shue. He contributes

to the dispelling of the realists’ myth by showing that material conditionality and, with this,

the issue of which goods can be in scarce supply, is not reserved for the class of

social/economic human rights. It may be possible to avoid violations of, for example, the

rights to personal freedom and physical security through the imposition of other-directed cor-

relative duties of non-interference. It is impossible, however, to secure protection without

imposing duties to provide a wide range of social/economic goods, such as police forces,

criminal courts, lawyers, judges, penitentiaries, guards, etc., goods that cost at least as much

as those required for protection of basic human need-rights. In other words, it is incorrect to

translate the distinction between civil/political and social/economic rights into the one

between negative and positive rights.

Ideally, security for humanity encompasses both civil/political and social/economic

rights, as also argued by Robert Rotberg.

While more progressive liberals can agree to this

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in theory, they nevertheless reconfirm the link between realism and liberalism when

social/economic rights are discussed in relation to duties. For example, Alan Gewirth makes

it hold that freedom and well-being are necessary for agency. However, unlike freedom, well-

being depends, as a right, on the availability of resources.

This seems to suggest that the

error of confusing rights-recognition and rights-protection may “only” be the outcome of an

analytical oversight. If so, the relevant theorists have to rethink the distinction between real

and ideal rights while correcting their credentials-checking for rights.

As for the realists who insist that civil/political rights are primary because they are negative,

there is only one possible conclusion: if sincere, they must face the facts. If they do, they will put

themselves in a better position to promote the rights they deem important enough to protect as

legal claim-rights. Admittedly, this is a real paradox – for them. It seems that realists have to

“choose” between theoretical disintegration from within or negating the part of their position

which makes them who they are in the first place (theorists who insist that civil/political rights

are primary because they are negative). Whichever way they turn, they will get nowhere.

Henry Shue: Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (2

ed., New Jersey:

Princeton University Press 1996) 36-39. For a defense of social/economic human rights in the context

of international criminal law, see Anja Matwijkiw: “A Philosophical Perspective on Rights, Accounta-

bility and Post-Conflict Justice – Setting up the Premises”, in M. Cherif Bassiouni (ed.): Post-Conflict

Justice (1

ed., New York: Transnational Publishers 2002) 155.

Robert I. Rotberg (ed.): When States Fail: Causes and Consequences (1

ed., Washington DC:

Princeton University Press 2004) 1-49.

With security as the parameter whereby the effectiveness of the state’s response to the needs and

interests of the majority of the people is measured, the state that fails is one that tests positive in more or

all of the 15 indicator areas of Rotberg’s Security (for Humanity) Performance Model for Statehood:

(1) The state fails to end the internal violence that results from relative anarchy; (2) the state fails

to secure authority over its own national territory; (3) the state fails to secure a rule of law; (4) the state

fails to secure fundamental civil and political human rights, as well as economic, social and cultural

human rights; (5) the state fails to secure democracy, defined as popular participatory politics and trans-

parency; (6) the state fails to secure a centralized government; (7) the state fails to secure educational

institutions; (8) the sate fails to secure the physical infrastructures; (9) the state fails to secure the struc-

tures for finance, including a central bank; (10) the state fails to secure civil society; (11) the bureau-

cracy carries out the orders of the executive and the state fails to remedy this dependency, which is typ-

ically imposed; (12) the state fails to secure protection against corruption, and is typically implicated in

that same practice: (13) the state fails to secure protection against exploitation and oppression, includ-

ing anomic and opportunistic behaviors, such as child trafficking; (14) the state fails to secure consen-

sus and support from its citizens. The state does not enjoy domestic recognition, that is, the state is gen-

erally perceived as illegitimate; and (15) the state fails to secure national unity on the basis of diversity,

which manifests itself negatively in the form of antagonistic relationships between different groups of

society and which, in turn, explains the relative state of anarchy.

According to Rotberg, and in disagreement with Nicolas van de Walle, the state fails to provide

security partly through inability and partly through will. See ibid., at 14, 29.

Alan Gewirth: Reason and Morality (1

ed., Chicago: Chicago University Press 1978) 63-103,

330-332.

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