Liberty and equality have turned out in the last hundred years or so to be twin concepts, building, however, a pair nearly as conflict-laden and possibly doomed – as in the case of ‘real socialism’ in the former Soviet bloc – as the Cain-Abel brotherhood. They have competed and still compete for primacy in liberalism and liberal democracy, with liberty in the forefront as long as liberation from the totalitarian regimes of the twentieth century was the leading theme in politics and later, since 1989, retreating because of two factors: the end of the Soviet Union with its liberating effects, which have made freedom something taken for granted and no longer exciting for more and more people around the world, and the involvement of freedom in neoliberalism, an ideology very effective in changing things in favour of a deregulated capitalism, but also passionately despised around the world because of the inequality it fostered. Stimulated by some new peak in inequality as well as by new scholarly inquiries into it, equality seems, at the time of writing, to be the temporary winner of the competition.
What we have just seen is a brief description of the Zeitgeist rather than a philosophical investigation of the two concepts, which we will first describe separately before looking into their relationships. Beginning with liberty we will first clarify this notion into its two fundamental meanings (§1), then deal with equality and its justification, egalitarianism (§2), while the subject of rights (§3) and specifically the problem of their universality (§4) will occupy the second half of this chapter.
Some sixty years after first entering the philosophical stage through Isaiah Berlin’s inaugural lecture at Oxford University, the odd couple negative and positive liberty still represents the most usual, though not necessarily the best approach to this field. I call them an odd couple in as much as the two poles seem at times to merge into one another, while at other times they look like irreconcilable extremes, making people doubtful about the wisdom of their distinction.
Negative liberty is easily understood as freedom from – while its twin comes with a different preposition: freedom to. Freedom from what? From interference within our own realm of action, is the plain answer. Interference can come from two sources: other persons in their private capacity or from public authorities. Other private persons could be the neighbours who are so noisy that they deprive me of sleep, thus interfering in my life activities; or they can be the owners of a heavily polluting plant that deprives me of clean air, thus interfering with my health. My liberty is, in these cases, protected by the ordinary (case or statutory) law of the country and the courts. Constitutional law instead is expected to protect my liberty against interference by public authority overpassing its competence and unlawfully limiting my freedom of speech or movement or ownership; on this level a dispute, whether or not my basic liberties have been violated, can come before a constitutional court, granted we are considering a country governed under the rule of law. In countries in which the rule of law is infringed upon, or nearly non-existent, interference or rather oppression by the ruling leader or bureaucracy or party threatens negative liberty on a daily basis, and the ‘fight for freedom’ is truly a fight for it. On the whole, the philosophy of negative liberty answers the question: how much government should we accept? This is a typical modern question, as room for it was opened first by Christianity, in particular by Augustine, then by the Lutheran Reformation, the Renaissance and the Enlightenment – disparate that these doctrines may have been, they shared a focus on subjectivity and interiority, the venture point from which government and politics are to be assessed.
Coming back to the conceptual level, it is clear that interference is a notion that needs differentiation: lawful and unlawful interference for example are opposite rather than different, while liberty is a concept that seeks qualification. It is indeed clear that unlimited liberty for all (as lack of both external constraints set by the law and internal prohibitions stemming from internalised norms) would unleash Hobbes’s bellum omnium contra omnes, make the state of nature perpetual and civil coexistence impossible. Liberty must be limited, but by the force of what principle? We can exercise our liberty – is a first answer – only as far as its effects do not interfere with others’ liberty, as the noisy neighbour or the polluting plant owner do with their behaviour. This reciprocity is the pillar not just of civilised relations among private people, but also of the range of state intervention in the field of those relationships: as long as they do not harm each other, the state should refrain from interfering in the web of relationships among them, and only step in for the sake of civil peace or the orderly execution of contracts, lest conflicts lead to private violence and revenge. This is not as uncontested as it may seem to be: it is easy to acknowledge the principle, but recognising the harm done and making public authorities act on this has, in many cases, required a long period of discussion and struggle. So was the case with polluting plants, or with the noxious interference of the excessive workday length on the workers’ health in early capitalism, or more recently in sweatshops located in developing countries. More regulations and more trials in courts became necessary in this way. This has led neoliberals to lament the excessive interference of the state in the free private management of industries. Workers and unions have not been as energetic in making clear that at stake was and is also their liberty to not have their health and life conditions interfered with by the industrialists’ less than responsible handling of noxious side effects or externalities of their business. This is not to justify all possible regulations issued by the public authority, since excessively detailed norms pretend too much (and can nonetheless hardly pre-figure all possible cases that may occur in the future) and successive negotiations between stakeholders can bring about more adequate solutions, once the principles are held firm. Administrative bodies have an innate tendency to overregulate, parliaments and governments are not sufficiently able and willing to correct this tendency, which can sometimes bring discredit to the principles. In a word, negative liberties are built upon acts of abstention to interfere (to legislate, to regulate, to intervene coercively) by the state, whenever interference is not essential to the preservation of the polity as framework for the citizens’ peaceful coexistence – ne cives ad arma veniant/in order not to let citizens resort to arms, as the Romans said. This basic version of negative liberty is political liberalism’s own view, and can live regardless of what actor makes the law – whether a democratic parliament or an enlightened prince, as Kant still saw it.
A further, specifically democratic development considers interference by the state to be justified only if the citizens themselves have made the law by universal suffrage and representative government. This is an advanced (Rousseauian) version of negative liberty as autonomy.1 It opens up the question: is all democratic legislation, as such, respectful of our freedom? The liberal as well as the liberal-democratic answer is negative. Being passed by a democratic legislature does not guarantee the full preservation of freedom from interference; constitutional safeguards as enacted by constitutional courts and public opinion constitute a higher tribunal of liberty. This argument has analogy with the point made in Chapter 5, which held that so-called substantial democracy can by no means replace formal democracy.
From a democratic and also a socialist point of view, the priority and irreplaceable character of negative liberty has been criticised for noting that a person in a state or condition of poverty or destitution or illiteracy can draw no advantage from it because s/he is not able to make sense of her/his freedom of speech or right to vote, freedom from want being her/his first and foremost interest, which can be met not by having some formal rights recognised, but only by economic and social policies changing her/his life conditions. The truth contained in this criticism has been the presupposition for the shift from the liberal-democratic state to the liberal and social democracies of the mid twentieth century, whose present fiscal and financial crisis may therefore put at risk their attitude towards liberty as well. On the theoretical level, however, to say that negative liberties are nil without social policies making them enjoyable is different from – and less founded than – maintaining that those liberties remain essential as a principle, but need to be accompanied by conditions that make them effective. It must further be noted that freedom of speech, assembly and unionizing is the necessary condition for the social rights of the weaker members of society to be protected – as the history of workers’ movements around the globe shows. By the way, ‘to be a necessary condition for’ is not identical with ‘to be instrumental to’: an instrumentalist justification of liberty would diminish and endanger it.
Some of these issues, such as democracy and the conditions for making liberty effective, lead us to liberty’s second version: positive liberty, or liberty to be or to become something. In other words, to build a family with a decent standard of living, or to become a scientist, or to enter one’s own country’s Olympic team; in the political field, to build, along with others, a successful party or to make new legislation pass the parliamentary vote. It is the liberty to successfully develop one’s own life plan, be it individual or collective in nature. This entails some problematic aspects, as the history of doctrines on liberty shows.
First, if promoting positive liberty is regarded as something society or the polity owes to its members, institutions are charged with the obligation to provide the conditions for life plans to be implemented. This is costly, the more those conditions are identified with policies enhancing the income of those interested – though there are other ways to act on the conditions, as we shall see in the equality section when speaking of equal opportunities. It can be as costly as to require raising heavily the level of public debt, to the detriment of future generations. Also, setting up a system of social rights, also known as entitlements, requires expanding the administrative apparatus and putting under its authority many aspects of the citizens’ private life, which at the end of the day may lead to intrusion and infringe on their negative freedom. This is not to say that developing one’s own positive liberty has well to remain in the hands of the individuals, according to their ability to score better than others in the social competition – as conservative liberalism would have it. Yet the public promotion of this liberty must carefully weigh the different interests at stake and find a balance between its own progressive intention and the perverse side effects. The first step is to discriminate between what can be acknowledged as a legitimate goal of self-realisation the state should contribute to (say, to go to university) and what it cannot (to be taught the art of origami).
Another doubt is linked to some doctrines of positive liberty that sees self-realisation as a process in which a better or authentic or spiritual Self determines the way to go, in opposition to its own lower levels such as those dominated by passions or shortsighted interests. As the individual problem of a split Self, this can be left to moral philosophy, but its translation into the political realm can become ugly. The French Jacobins wanted the people to learn how to live according to virtue, the Bolsheviks in the Russian Revolution or the Red Guards in China’s Cultural Revolution or the genocidal Khmer Rouges in the Cambodia of the 1970s wanted to strip ‘bourgeois’ layers of the populace of their corrupt and egoistic traits – often eliminating peoples and bad traits alike. The effects of the translation range from paternalism to totalitarianism and terror. The opposite of it is to make the frustrated needs and life plans of the underprivileged layers of society interact with each other and the political leadership, in a reciprocal learning process that leads to public policies effectively freeing the energy of those layers towards the attainment of better life conditions and more political participation – as the workers’ movement did in many countries, at best in Europe before the First and after the Second World War.
This is just a sketch of the complex relationship between negative and positive liberty. It is important to see their differences and not to let it bloat into an opposition or even dichotomy, in which the one pole rules out the presence of the other. Even interpreting positive liberty as the road to self-realisation, freedom from interference remains its presupposition, because self-realisation under guardianship, rather than autonomy, contradicts the very image of the Self, as this has developed in modern thought from the Renaissance’s ideal of ‘man’ through the journey of Selbstbewußtsein/self-consciousness towards modernity in Hegel’s Phenomenology of Spirit (Hegel 1807) down to important recent reconstructions of the Self’s path (Habermas 1985; Taylor 1989).2
It only remains to note that, while this differentiated concept of liberty claims universal validity – wherever human rights and the rule of law are to be the foundation of the political community, both domestic and international – its philosophical roots lie in Western culture and the primacy it gives to the individual, as mentioned above. Where harmony, social cohesion around the family, and the cultivation of traditions are seen as paramount values, as in the debate of the 1990s on ‘Asian values’, liberty is given little leeway, and an anti-individualistic collectivism prevails. This cannot but weaken the defence of democratic regimes and parties against the authoritarian trends of a capitalism that was imported without passing through a liberal and democratic phase allowing for free debate on its regulation and the protection of workers’ rights.
Equality, which has the appearance of a simple notion, is no less complex than liberty, with which it is closely linked. This author sees little chance of reproducing on a small scale the intricacies of the intense debate that started with the publication of Rawls’s opus magnum in 1971 and found a new peak with the publication of Ronald Dworkin’s Sovereign Virtue: The Theory and Practice of Equality in 2002. It will be necessary to skip some philosophical developments while focusing on the aspects that can be seen as most relevant in a political perspective.
Equality makes its first appearance in the Greek polis, an anti-egalitarian, slave-owning society, in the shape of ἰσονομία/isonomy or equality before the law, a right for sure reserved to the citizens. The equality of all human beings before God, introduced by Christendom, but also present in Judaism and Islam, is a big cultural shift, though it remained socially and politically ineffective – except in Christian charities over the centuries and later in the Christian social movements of the nineteenth and twentieth century. As a social principle, equality pops up in modern revolutions, with radical turns represented by the Diggers in the English Revolution and Gracchus Babeuf’s conspiration pour l’égalité/conspiracy for equality in the French Revolution. Marx was interested in unveiling the inequality hidden in the alleged equal and rightful exchange between capital and wage labour rather than in preaching equality in general; he believed that the equal exchange between compensation and amount of work provided by a single person, a principle characterising the first stage of communist society, would later make room for the formula ‘from each according to his ability, to each according to his needs’ – thus establishing an equal procedure respecting and promoting everybody’s individuality (Marx 1875).
In modern history, inequality worldwide went down from its previous peaks after 1860 and particularly during the Great Depression of 1929, while gathering again momentum after 1977 as a likely side effect of globalisation, which can on the other hand be credited for bringing down inequality among countries. The recent and unmistakable growth of income inequality within countries as well as the disappearance of any alternative economic model like the socialist one may stay in the background of the growing philosophical attention on equality as an ethical (rather than political) guideline for course corrections inside capitalism. It could also be asked if the arguments in favour of equality and redistribution, such as Rawls’s (1999, §11) second principle of justice (difference principle), are not to be seen as a post-festum justification of the social policies launched by the New Deal and heavily under attack since the rise of neoliberalism with all its rhetoric in favour of inequality as a path to wealth. As Hegel wrote in the Preface to his Grundlinien der Philosophie des Rechts/Elements of the Philosophy of Right, ‘When philosophy paints its grey in grey, one form of life has become old, and by means of grey it cannot be rejuvenated, but only known. The owl of Minerva [scil. philosophy] takes its flight only when the shades of night are gathering’ (1821, 8).
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Of all the major differentiations the concept under examination allows for, we shall mention the following: substantive vs. procedural equality; equality of welfare/equality of opportunities/equality of capabilities. The two sets of notions overlap only partially.
Substantive equality places emphasis on the equality of the things that are a matter of redistribution, thus consisting of the possession of a nearly equal amount of the goods that are regarded as relevant to the actor’s social condition. If it has to be exactly the same number, Aristotle at the outset (1301)3 of Book 5, Part 1 of Politics calls it numeric equality in all things, as proposed – he adds – by democrats, while their extreme counterpart, the oligarchs, vow for a likewise complete inequality. Proportional equality means, on the contrary, to treat everybody according to a same principle of fairness such as ‘treat like cases as like’ or ‘whatever the outcome in terms of goods, you will be treated not equally, but with equal respect for your dignity and concerns’.
In the triad mentioned above, the great divide lies between equality of welfare or positions and the other two. In the former, the goal of society and government is seen as providing everybody, or rather every citizen, with the same degree of wellbeing as based on a less and less unequal portion of material and relational goods. In its roughest version this takes the form of the state’s monetary disbursements to the advantage of the worse-off. There is evidently a problem with the measurement of welfare, which can be done either authoritatively from the top, at the risk of infringing the individual’s autonomy, or referring to preference satisfaction, which creates a delicate problem of either allowing chaos or filtering preferences according to a criterion almost impossible to reach by consensus.
Equality of opportunity presupposes a view of society as a competitive place in which a hierarchy is created according to the results attained by every member. Equality requires giving everybody equal chances of participation, regardless of the family, the place, the class and perhaps even the country one comes from. For this aim, the formal (legal) equality of access to positions in the social hierarchy is not sufficient; it must be made real by an equality of resources that allows for everybody to pursue her or his life plans and possibly climb up the social ladder. The opportunity to access the educational system is the first big equaliser that favours mobility beyond or against the (lesser) chances given by birth. Equal access to health care and social security for the elderly (once one has exited the competition) are – as we already know from the ‘social’ transformation of the state examined in Chapter 4 – the two other pillars of policy aimed at distributing equal opportunities to all citizens regardless of gender, race, ethnic origin, religion and sexual orientation.4 This may include proactive policies targeting discrimination (affirmative action).
This is equality of opportunity in a meritocratic market society as differentiated from, say, a feudal or caste society. Equality can, however, be pushed one or two steps forward, in a shift from moderate to reinforced egalitarianism. The first step imposes on the state and society a duty to correct the inequalities resulting from unfavourable/conditions created by nature (birth defects, genetic diseases, being born in a malarial swamp), especially when compounded by exceptional innate gifts at the other end of the spectrum; the persons hit by cases of ‘brute luck’ are by no means responsible for it, and the attitude to compensate them is called luck egalitarianism. In a second, more radical step, some theorists think that a compensation is due to the worst-off also when their condition results from the choices they made or omitted because these choices were based on unequally distributed skills, for instance cognitive or cultural ones. This background inequality is believed to limit the responsibility for choices connected to it. This can lead in the stronger case to a legal duty for the state to provide aid or in the weaker case to a moral motivation for societal organisations to act benevolently. Behind these perspectives lies the notion of human dignity, which we should never allow to be diminished, and/or the Kantian principle (second formulation of the categorical imperative [1785, 29]) telling us to treat all other human beings as ends in themselves and never as means; both principles sever the recognition of somebody as moral personality from her/his performances in social life.5
Equality of capabilities, granting everybody the freedom to ‘function’ according to one’s own ends, replaces for Amartya Sen (1999) the equality of resources because the latter does not take into account the diversity of the starting conditions among persons, which rather requires unequal resources to be allotted for compensation. Focusing on resources is said to be fetishist, as things (the resources) are believed to possess the social quality of letting people realise their life plans. On the other hand, reconciling public policy decisions with a myriad of individual aims seems to contain the risk of generating, along with a chaotic multiplicity, unbearable costs for public finance.
As with the choice between negative and positive liberty, this book is not arguing towards which of the three main road maps to equality the balance should tip, nor if any of the numerous variations to them can be regarded as an alternative. Let us remark that the equality these doctrines have been talking about is equality inside a standardised highly developed society, and let us add that models of equality, if they are to be taken seriously as compass for policy making, should be thought of in conjunction with their economic and financial feasibility – lest they remain a futile exercise in wishful thinking. It need not be feasible under the presently given circumstances of poorly regulated capitalism; yet normative models targeting inequality should also say which economic and social reforms are capable of making them viable – this happens rarely. In any case, inequality in developing countries – both domestically and in the comparison of GDP (Gross Domestic Product) or HDI (Human Development Index) per capita between poor and rich countries – seems to be a bigger intellectual and moral challenge than, say, choosing between the resources and capabilities approach in highly developed societies. Economists have devoted to this challenge much more attention and research than political philosophers, with more sense of the international dimension and real world dynamics.6 On another count, equality among present and future generations is a question almost completely unknown to the literature, in which only recently this complex of problems has been examined under the heading of intergenerational justice and in the narrow terms of analytical ethics, with little sense for the political context.
But why should we choose equality over inequality? This is far from self-evident, as witnessed by the persistent existence of both doctrines praising the advantages of inequality (to which we will come back later) and practical attitudes favouring inequality such as tax cuts for the rich. Nature, with its very unequal distribution of luck and gifts, does not seem to be a champion for equality; nor does it suggest gender equality, since it gives women the chance of an experience, maternity, that divides them from men. Gender equality has been only recently established by law, which means that its proper venue is not nature but the polity, though many existing polities fail to enforce and even to acknowledge gender equality. Nonetheless, nature contains a basic equalising factor for all human beings: the vulnerability to death and bodily or mental suffering, (we are all equally mortal, even if the actual – not the possible – degree of exposure to suffering is unequal). This, rather than than the ability to form a conception of the good and to shape a life plan as rational beings (Rawls’s fairly thick criterion for being a moral person) seems to be the only – thin but robust – unifying feature of humankind that includes its most destitute members too; an anthropological basis on whose grounds arguments for promoting more equality can develop. If we do not keep the criteria for being recognised as a human being thin, we may be forced by our own standards to exclude people who, handicapped by hunger, poverty and lack of any education, cannot satisfy our ‘civilised’ criteria for rationality and morality.
Among these many arguments, what concerns us most here are the political ones. Preventing inequality from surpassing certain limits (which limits depends on the prevailing culture at any given moment) has two effects: it also prevents dissatisfaction, resentment, frustration and hatred from building up to levels engendering civil strife and social conflict from becoming violent or leading to exit behaviour. Yet it also creates better conditions for economic growth, for which high inequality is known to be an obstacle, while under favourable political conditions sustained growth is a factor of social peace and democratic development.
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Underlying all these considerations are two questions that the reader may want to apply as tools capable of clarifying what is contained within doctrines about equality:
This second question, already mentioned in this book with reference to humankind at large or future generations, is becoming again very significant because of a number of factors, from regional instability and war to climate change, which have unleashed mass migrations that are predicted to become a stable factor in future world politics. Most of the principles and proposals mentioned above are indeed focused on the citizens of the rich or relatively rich host countries and need to be rethought in light of the circumstances of mass migration. Otherwise, the notion of citizenship, so far somehow overburdened with the rhetoric of rights and empowerment, risks losing its shine and becoming a keyword of exclusion and division. Its destiny is also overshadowed by its polysemic nature: it means the trove of rights, entitlements and duties connected with being in general citizen of a polity, but also owning the national and exclusive citizenship of a specific country. Finally, in this case globalisation and lethal challenges question or even debunk doctrines that were conceived within the framework of the nation state without paying attention to the limited truth of statements made under this condition.
Equality, we saw, is not an uncontested value, and is for sure more contested than liberty, also because it can, in certain circumstances, collide with liberty. To take it for incontestable while not taking the doubters’ points seriously is a sectarian attitude that does not reinforce the credibility of egalitarianism. Outright opposition to equality is expressed only by Nietzsche and other elitist thinkers who are contrary to it, to democracy and socialism.7 Fascist ideologies built on this elitism, particularly with the cult for the almost superhuman Chief (Duce in Italy, Führer in Germany, Conducator in Romania); racism is one of its sub-types. More influential today is an instrumental defence of inequality as means to produce higher economic efficiency, allegedly to everybody’s advantage: higher wages motivate workers to more productivity, higher profits encourage business owners to more risk-taking and innovation, while more wealth stimulates more investment and job creation in a trickle-down effect – a link rather dissolved by the extreme financialization of the economy. Another, less ideological argument, is concerned with the political and economic costs of egalitarianism: public policies aimed at fostering more equality not just of income, but also in the access to health care and education require the build-up of huge welfare bureaucracies that take much of the citizens’ private life under administrative control and spread uniformity into the tissue of society – though this old-liberal point ‘equality vs. liberty’ has been less and less debated in the last two decades. Yet the economic cost of egalitarian policies remains a crucial issue: the way they have been managed after 1945 have often produced either too many entitlements or too expensive administrations or both, has been increasingly inefficient and has created new inequalities, for example disfavouring the unemployed or uninsured youth. Combined with the fiscal crisis of the state and the rise of public debt, due to the costs of egalitarianism being covered by huge borrowing by the state rather than redistributive policies, these developments have engendered a nearly perfect storm in many countries, particularly in those with unfavourable demographic trends. Does all this announce the end of egalitarianism?
Not necessarily. Once again, the concept must be disassembled into its main versions, which have only one feature in common, that is a preference for equality rather than inequality. Radical egalitarianism, in the sense of pursuing a general equalisation of incomes and positions, a posture that has largely disappeared from literature and politics, is very different from the attitude aimed at containing a further rise in inequality and compensating for the peak already reached. Likewise important in rethinking egalitarianism is the attention to new forms of inequality (say, the digital divide) and the perverse effects of some former measures of equalisation.8
In any of its versions, equality belongs within the field of positive liberty. The moderate version which we briefly sketched avoids the danger of the pervasive, paternalist shape of positive liberty. Another notable characteristic is that equality, the leading value of democracy, is not necessarily in harmony – as frequently mentioned in this book – with liberty, the main virtue of liberalism, and can even collide with it – a tension reproducing the tension that inhabits the very notion of liberty, between its negative and positive versions. Reconciling these several values with each other in the institutions of liberal democracy has been neither an easy task nor a short journey, as it took some 150 years; also the achieved balance is not warranted to stand under the new strains and constraints that are recently (2016–2017) emerging as an unexpected backlash to globalisation. This knowledge seems to be unknown or uninteresting to the populist detractors of present-day democracy.
Humans may struggle and die for freedom, but they never encounter it in their daily lives, in which they have to do with the concrete forms freedom can take: liberties. Liberties, however, are relevant to the citizen’s life if they are not only collectively asserted, but also translated into legal institutions: rights, of which a core set is regarded as pertaining to all human beings. When acknowledged in the Constitution and implemented in ordinary law, we speak of fundamental rather than human rights. The latter are good for theory, mobilisation and rhetoric, while the former are the politically significant format of rights, the cornerstone of the polity. We are now going to briefly see the history, the conceptual structure and the function of fundamental rights; in the next section their origin and validity will be questioned, their enumeration discussed, then closing with the question of a right to survival for humankind.
Their rise in the eighteenth century was a Copernican revolution in European and American politics, as the view on politics ex parte principis/from the side of the prince or ruler was reversed into a view ex parte civium/from the side of the citizens. The individual and her/his rights substituted the state and the duties it imposed legitimately on the citizens. Modern liberty, as liberty of the individual, replaced ancient liberty, as liberty and sovereignty of the polity, only acting as a member of which the citizen can realise his liberty (women were not citizens).9 Since the American Bill of Rights10 and the French Déclaration des droits de l’homme et du citoyen/Declaration of the Rights of Man and of the Citizen, both issued in 1789, similar normative texts stating the fundamental rights of the citizens have been incorporated into the Constitutions of most states, including the People’s Republic of China and the Democratic People’s Republic of Korea – cases in which one is reminded that words are not always deeds. While the rights of the citizens remain limited to each nation state’s members, with the exception of the European Charter of Fundamental Rights, which is legally binding since 2009 for all EU member states, the rights of man – or human rights, as they are now called in a wording deemed to be less sexist – are only partially enshrined in international treaties and conventions and remain otherwise heralded and supported, but not protected in a legally binding way by the Universal Declaration of Human Rights (UDHR) of 1948 – though this protection was later anchored in the 1967 International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (1966).
Of the several distinctions made in the literature on rights, the most important seems to be the one regarding claim rights and liberty rights. Liberty rights give a person permission to do something: to speak in full freedom, to buy or sell property, to travel wherever s/he likes to. Claim rights allow a person to enjoin another person or body not to do something that can limit her/his/its liberty. In an ideal liberal world, liberty rights (also called privileges) are limited only by the obligation not to infringe upon other people’s liberties. These concepts are a better analytical tool than the usual pair negative vs. positive rights. It must be also noted that in Latin, Romance languages and German, which do not have two different words for right and law, and the collective singular ius/le droit/il diritto/el derecho/das Recht also indicates the totality of norms (the law), both liberty and claim rights are regarded as ‘subjective’ rights, which only in its modern evolution does the legal system acknowledge as belonging to the individual as such.
This last feature is important in order to deny the legitimacy of group rights: the group counts only as a gathering of individuals who share certain characteristics, for example being an ethnic minority and making use of the right of such minorities to be taught also in their native tongue. Granting rights to the group as such would mean depriving members of their autonomy and making them dependent on the will and the whims of the group leaders.11
What is the function of rights? The so-called will theorists intend that they affirm the citizen’s sovereignty over her/his course of action and – in case of claim rights – the duties another citizen or an institution has against her/him (s/he can request them to be implemented or waive them). The background idea is that in exercising one’s own rights, one sees her/his own human dignity, a Kantian concept, respected and realised. In a consequentialist key, interest theorists believe that rights are good for furthering a person’s interest in wellbeing. The two schools of thought differ in their moral philosophy, deontological and utilitarian. In both cases rights are, in legal or political arguments, ‘trump cards’, as Ronald Dworkin (1977) dubbed them, which can overwhelm any other consideration because of their prescriptive strength.
We have now seen that a discourse on rights implies contaminations between moral, legal and political theory; by no means, however, a transportation belt on which rights, dictated by morals, are first found and then go on to shape the law and eventually their execution by political means. The relationships between the single branches of practical philosophy is a little more complex. Rights remain a primarily legal and political concept; and the very notion of moral rights is questionable and should be used with caution or left in the drawer – even if this remark does not imply sharing the outright opposition to the notion of rights found in utilitarianism. For things we as moral agents believe to have ground to claim, this word ‘claim’ seems more appropriate than ‘right’. What normative morality focuses upon are otherwise obligations.
Where do rights come from? From nature, from the culture that formulated them, from the very logic of the legal system? Could there be a legal system, or the sheer existence of the law be in place if rights, that is the dignity and autonomy of the agents, were not acknowledged? Each of these explanations can contribute something, but we can neither develop all implications nor be conclusive. Suffice it to say that early modernity’s belief in natural rights has almost completely vanished, though some relationship to nature cannot be dropped outright. As mentioned above, the natural vulnerability of any human being to suffering and death, particularly when inflicted by other humans, remains an undeniable lasting fact that requires protection by the polity, if the polity is to make any sense. This holds even more so in the time of man-made lethal challenges, as we will soon see.
This explanation, granted we accept it, covers, however, only the right to life and the right not be hurt, while all other civil, political and social rights cannot be explained but as evolutionary acquisitions achieved by humankind, or parts of it, along the path it has gone down in its development – another development could have generated different rights or even done without them. Given the journey of the West through Christianity, the Renaissance, the Enlightenment, the market economy and capitalism, the role acquired in it by the individual is well understandable. Does this acknowledgement give leeway to a relativism according to which each culture has its own system of rights and principles, which are not transferable except by (colonial, imperial) imposition? The answer is no, for two reasons. First, the market economy supported by highly developed technology is now shaping life in nearly all corners of the planet; it seems therefore only consequential that the institutions born to regulate them and to shield the individual from their misuse find universal expansion, which allows for their adaptation to national circumstances – provided adaptation is not emasculation of the regulations and protections deriving from fundamental rights. It can also be adaptation to new values and requirements within the same culture, as it happened in the West with the critical reinterpretation of fundamental rights by theorists of the emancipation of women and later liberation movements. Second, the particular (Western) origin of a concept or institutions does not, as such, justify a judgement of limited, exclusively particular validity for the values and principles it entails, the merging of origin (or genesis) and validity being a historicist error. This approach sounds as parochial as rejecting any universal significance of Gandhi’s notion of non-violent struggle because it originated in India. On the whole, the universal validity of fundamental rights originated in the legal and political cultures of the West should neither be systematically denied nor blindly accepted, but rather rethought in the framework of a comparison with proposals and requirements stemming from other cultures. The diversity that can now be seen on the benches of international courts should be complemented by a much more intense worldwide conversation among philosophers and legal theorists.
Lastly, we have to briefly remember how to classify human or fundamental rights, though the reader is advised to look at their list and the specifics in the legal system best known to her/him.
For the conceptualization of politics we prefer to speak of:
All these rights are – it is almost needless to say – subject to a non-discrimination clause, maintaining that they are recognised irrespective of gender, race, ethnicity, religion, sexual orientation. Civil rights all imply non-interference by the state, political rights its limited activity (mainly to convene and organise elections), social and environmental rights require an intense and costly engagement by the state, that is by the generality of tax payers, and imply – as we know – bureaucratic enmeshing by public authorities – though its degree can be limited and many people would be worse off without this interference. They are peculiar claim rights, which imply a proactive behaviour rather than abstention on the side of the state. For all these reasons they are mostly seen as not generating obligations for the state that are as binding as civil and political rights; the right to work represents a policy indication in the direction of favouring job creation strategies, but it does not mean that the public authority has to create a job for every unemployed citizen, who has rather to be protected by social security from the consequences of her/his condition. Things are, however, in the midst of change as, for example, lawsuits based on environmental rights for omitted climate policies are now becoming possible in the US with the support of the public trust doctrine, according to which environmental goods are held ‘in trust’ for present and future generations by the government.
This remark leads to a final point that is particularly highlighted in this author’s own research: if it is true that lethal challenges endanger the life of present and future generations, the proclamation of human rights is incomplete or rather lacks foundation if they are not preceded by the recognition of the right of humankind to survival against man-made threats.12 This is a meta-right rather than a right among others because it makes all other rights possible in both senses: it aims at keeping – a not-so-obvious precondition – the future bearers of rights physically alive, and it constitutes the founding act of respect for human dignity, in the absence of which all particular rights would not make morally sense. This right, born out of a new threat, should not simply be declared as a human right, but constitutionalized as a fundamental one, in a procedure that cannot be analysed here. It would thus give more strength to legislation and jurisdiction on climate change.
This last proposal should be seen as an attempt to give human rights a more basic and sturdier foundation as a meta-right rather than as an expansion of the already long list. Inflationary expansion can depreciate the existing rights, as inflation does with the existing currency. Not all legitimate or sensible aspirations or ‘moral rights’ fulfil the requirements for becoming rights. For moral aspirations or obligations to become rights, it takes social or political conflict, with actors willing and capable of engaging in it with a political rather than moral logic. The flood, in the last decades, of human rights argued for in philosophical debates rather than born as an object of political and cultural struggles involving their potential bearers and creating a tissue of solidarity between them, is a step away from politics into a region of uncertain solidity.
1Only in this specific meaning can autonomy be associated with negative liberty. In a more common version autonomy is tied to self-realisation, hence to positive liberty.
2On another, social-psychological key, a fundamental contribution to the theory of the Self was given by George Herbert Mead (1863–1931), in the framework of the so-called Chicago School.
3What these otherwise mysterious numbers mean in quotations from Aristotle is explained at https://en.wikipedia.org/wiki/Bekker_numbering.
4Deepening the full philosophical range of these questions should start at Rawls’s concept of ‘primary goods’, cf. Rawls 1999, §11.
5In this sense, the article by Bernard Williams, The Idea of Equality (1962) remains seminal.
6For evidence, put ‘international inequality’ in a search engine and visit the websites of the World Bank and the International Monetary Fund, among others.
7Friedrich Nietzsche (1844–1900) regarded equality as a lie concocted under the influence of Christianity by inferior people, who organise themselves in herds in order to overpower those who are naturally superior to them. Elite theories in political science (Vilfredo Pareto 1848–1923, Gaetano Mosca 1885–1941, Roberto Michels 1876–1936 and Joseph Schumpeter 1883–1950) have little or nothing in common with this attitude.
8For example, in countries where most universities are funded by the state, the seemingly egalitarian free tuition favours students from affluent families, who could easily come up for it, while making all tax payers, even the less well-off, pay for the education of both well-situated and low-income students.
9This is the core view Benjamin Constant advanced in his famous speech (1819) De la liberté des Anciens comparée à celle des Modernes/The Liberty of the Ancients Compared with That of the Moderns.
10The pre-history of this document goes back to the Magna Carta of 1215 and the English Bill of Rights of 1689.
11Whether or not related to the issue of group rights, the so-called political correctness – particularly as developed in some American universities – appears to be a distortion or even a caricature of human rights protection.
12See Cerutti 2015, in which the constitutional questions mentioned below are also discussed. It is clear that humankind, the community of present and future human beings characterised by being threatened by lethal challenges as seen in Chapter 7, has nothing to do with the notion of a particular, self-confining group, whose rights I have denied above.
Aristotle (350 BCE) Nicomachean Ethics, ebook available at http://classics.mit.edu/Aristotle/nicomachaen.html
Cerutti, Furio (2015) Survival – Humankind’s First Fundamental Right, in ‘Constellations’, 22(1), March, 59–67.
Constant, Benjamin (1819) De la liberté des Anciens comparée à celle des Modernes/The Liberty of the Ancients Compared with that of the Moderns, e-book available at http://oll.libertyfund.org/titles/constant-the-liberty-of-ancients-compared-with-that-of-moderns- 1819
Dworkin, Ronald (1977) Taking Rights Seriously, Cambridge: Harvard University Press.
Dworkin, Ronald (2002) Sovereign Virtue: The Theory and Practice of Equality, Cambridge: Harvard University Press.
Habermas, Jürgen (1981) Theorie des kommunikativen Handelns/Theory of Communicative Action, Boston: Beacon Press, 1984–1987.
Habermas, Jürgen (1985) Der philosophische Diskurs der Moderne/The Philosophical Discourse of Modernity, Cambridge: The MIT Press, 1987.
Hegel, Georg Wilhelm Friedrich (1807) Phänomenologie des Geistes/Phenomenology of Spirit, translated by A.V. Miller, Oxford: Oxford University Press, 1977.
Hegel, Georg Wilhelm Friedrich (1821) Grundlinien der Philosophie des Rechts/Elements of the Philosophy of Right, available at www.marxists.org/reference/archive/hegel/works/pr/philosophy-of-right.pdf (Recht includes both law and right).
Kant, Immanuel (1785) Grundlegung der Metaphysik der Sitten/Groundwork for the Metaphysic of Morals, available at www.earlymoderntexts.com/assets/pdfs/kant1785.pdf
Marx, Karl (1875) Critique of the Gotha Programme, e-book available at www.marxists.org/archive/marx/works/1875/gotha/ch01.htm
Rawls, John (1999) A Theory of Justice, revised edition, Cambridge: Harvard University Press.
Sen, Amartya (1999) Development as Freedom. Oxford: Oxford University Press.
Taylor, Charles (1989) Sources of the Self, Cambridge: Harvard University Press.
Williams, Bernard (1962) The Idea of Equality, in Problems of the Self, Cambridge: Cambridge University Press, 1973, 230–249.
Along with the chapters on liberty (by Mario Ricciardi, 149–160) and equality (by Ian Carter, 161–170) in Besussi, Antonella, ed. (2012) A Companion to Political Philosophy, Farnham: Ashgate, a critical contribution to the two concepts of liberty is:
Carter, Ian (2012) Positive and Negative Liberty, in Stanford Encyclopedia of Philosophy, 2003, available at http://plato.stanford.edu. Updated, 2007, 2012.