Membership

Operating in an Age of Uncertainty: New Challenges in
Humanitarian and Development Work

Nobel Laureate Amartya Sen Plenary Address
May 19, 2004

I’d first like to say how grateful I am to Yolonda for her very kind remarks. It is really wonderful for me to have the opportunity of speaking at a gathering of people whose work I immensely admire and who represent a galaxy of effort which does so much to make our harsh and ruthless world more tolerable. I feel extremely privileged. I’m also delighted that InterAction is exploring the demands of a rights-based approach to development, which is the subject of my talk. And what the implications of such an approach might be for international NGOs engaged in development. I should warn you, and I was telling my neighbor, that it’s going to be quite a controversial paper, and you can stop me also on the way but there will be a chance for question and answer at the end too, if you can last that long.

The rhetoric of rights is only present in contemporary discussion. The idea is persistently invoked in a great many different contexts. Human rights and protesting against authoritarian abuse, civil rights and demanding basic political freedoms, rights to personal liberties in defending elementary autonomies in private life, economic rights against hunger and deprivation, health rights for medical care, gay and lesbian rights to safeguard freedoms to pursue minority lifestyles, and so on.

Since the concept of rights has a legal origin, it’s useful to begin by recognizing that many of the cases in which the idea of rights is used, and often to great effect, are not matters of legal right at all, but what can broadly be called moral or ethical rights.
To illustrate, if a government is accused of violating some human rights or civil rights, that accusation cannot be answered simply by pointing out that there are no legally established rules in that country guaranteeing those rights. The case for fulfilling these rights, even in the absence of legislation, is seen to be legitimate. It’s not just a matter of law.

This applies particularly to rights that relate to development, such as the right to food or to medicine, or to some basic income. Many, indeed most, countries in the world have few of these developmental claims guaranteed by law. And hardly any country in the world has an adequate legal coverage against all the deprivations that are involved. This raises an immediate question. Should a rights-based approach to development be guided primarily by a law-related perspective? Working – law-related in the broad sense – working either to already establish legislation or to demanding new legislation or at least in thinking in terms of ideal legislation. I would argue against the adequacy of a rights-based approach that is in one way or another woven around actual or proposed or imagined legislation, even though they have their own part. We could do better, I would argue, than confine our guiding principles to legal, or proto-legal, or ideal-legal ideas.

There does, of course, exist a legal connection. Legislation can sometimes help to promote the ethical claims reflected in human rights. And many concerned citizens, and many NGOs – including those represented here – have indeed been much involved in promoting fresh legislation. Also sometimes, our work, and I say ours since I have been associated with Oxfam for a long time as Yolonda kindly mentioned. I was telling my neighbor Peter Bell that my first association with an NGO wasn’t in fact Oxfam; it was with CARE. That was more than 50 years ago when I was still studying. We used to run a night school and some, I think boxes of food, had appeared in wooden cases and the food had gone out, but we used the cases to construct tables for the night school that we were doing in the neighborhood. One of the more enterprising students even did their wooden blackboard holder with a peg in it based entirely on CARE boxes, so that was our first contact.

So I would emphasize “our.” Sometimes our work can also be effectively advanced through better implementation of existing laws or to demanding fresh legislation. That is not in doubt. But there is much more to a rights-based approach than that. Ethical claims can be advanced by many different means, of which legislation, we have to recognize, is only one. We must not, I would argue, seek an approach that is parasitic on law. And given the origin of the idea of rights, that danger of treating it in some sense as being parasitic on law is very strong and you can see it even in standard publications on human rights.

This is in fact not a new debate. The American Declaration of Independence in 1776 took it to be self-evident that everyone, I quote, “is endowed by the Creator with certain inalienable rights.” And thirteen years later in 1789, the French Declaration, without reference to the Creator I might say, spoke about the rights of man and asserted that men are born free, men, including women in this context, it’s the kind of language people used in those days, men are born and remain free and equal in rights. These are clearly pre-legal claims to be reflected in law, not originating in law. It did not take Jeremy Bentham long in his Anarchical Fallacies – this is a document that was written in 1791, 1792 and published later, that would aim specifically as a blistering attack on the French Rights of Man. It didn’t take Jeremy Bentham long to propose the total dismissal of all such claims precisely because they’re not legally based. Bentham insisted that, and I quote from Bentham, “natural rights is simple nonsense. Natural and inprescriptable rights” – he added an American phrase – “is rhetorical nonsense. Nonsense upon stilts.” I take that to be artificially elevated nonsense. Bentham went on to explain, I quote from Bentham:

“Right, the substantive right is the child of law. From real laws come real rights. But from imaginary laws, from ‘laws of nature,’ [can come only] imaginary rights.”

It’s easy to see that Bentham’s rejection of the natural rights of man depends substantially on the rhetoric of privileged use of the term rights. Seeing it in specifically legal terms. However, insofar as human rights are meant to be primarily ethical claims, pointing to what we owe to each other and what claims we must take seriously, the diagnosis that these claims do not necessarily have legal or institutional force, at least not yet, is, in fact, quite irrelevant.

Indeed, even as Bentham was busy writing down his dismissal of the French Rights of Man in 1791-92, the reach and range of the ethical interpretation of rights was being partially explored by Thomas Paine’s Rights of Man and by Mary Wollstonecraft’s A Vindication of the Rights of Woman with Strictures on Political and Moral Subjects. Both were published at the same time, in 1792, though neither captured Jeremy Bentham’s interest. It should, however, capture ours. Tom Paine was identifying what we would now call “human rights” to guide our public efforts, including efforts to give legal force to them through new legislation. It’s not often recognized that Tom Paine was one of the earliest voices demanding anti-poverty legislation. In Tom Paine’s understanding, these rights were not, as with Bentham, “children of law,” but in fact “parents of law,” providing ground for legislation – a point of view that received support two centuries later from the great Oxford philosopher of jurisprudence, namely Herbert Hart.

Mary Wollstonecraft did something even more radical. She discussed elaborately how women’s legitimate entitlement could be promoted by a variety of processes, of which fresh legislation was only one, and not always the most efficient avenue. The effectiveness of these moral claims, and remember the title of her book, A Vindication of the Rights of Woman with Strictures on Political and Moral Subjects, the practical “vindication” of these rights in addition to their ethical acceptance would depend on a variety of social features, such as actual educational arrangements, public campaign for behavioral modification, for example of sexist behavior and so on. She would not have been in the least surprised that many NGOs have been so effective in helping to protect and advance human rights in economic, social, political, medical and other fields, through channels other than legislation.

In a sense, Mary Wollstonecraft was pointing to ways that provide powerful basis for the work that many non-legislative organizations, including humanitarian and development NGOs try to do, often with very good effect. Indeed, in many ways she could be seen as really the principal theoretical figure in the whole approach to human rights. The United Nations, through the Universal Declaration of Human Rights in 1948 paved the way for many constructive global activities. That Declaration did not give did not give the recognized human rights any legal status. But the effectiveness of recognition has come in other ways. The ways include fresh legislation, which recognition can inspire, this being the parent of law, but also other efforts that are supported and bolstered by the recognition of some foundational claims that globally acknowledge human rights. Also, global NGOs have been involved for a long time in advancing human rights through a variety of means through actual programs in providing medicine or food or by helping to develop economic and social opportunities and through public discussion and advocacy. And through publicizing and criticizing violations, as one of the prize recipients, Zainab from Iraq, mentioned, even talking is courage but talking is one of the ways of promoting human rights, namely to keep the issue in discussion. We have not, and I use the royal “we” for all of us, have not waited for new legislation nor have we chosen to work only to proposing or agitating for new legislation, even though that could be part of the procedure. There is no reason to alter the catholicity of our approach by choosing a human-rights approach to development.

Indeed, some human rights that are worth recognizing are not, it can be argued, and it’s important to argue, good subjects for legislation at all. A point, by the way, which will not come as a surprise at all to Mary Wollstonecraft, indeed, she said as much. For example, recognizing and defending a wife’s moral right to be consulted in family decisions even in a traditionally sexist society may well be extremely important, and can plausibly be seen as a human right. And yet the advocates of this human right, who emphasize correctly its far reaching ethical and political relevance, would quite possibly agree that it is not sensible to make this human right into a coercive legal rule, perhaps with the result that the husband be taken into custody if he were to fail to consult his wife. The necessary social change would have to be brought about in other ways. It is easy to find many examples of such legitimate but not ideally legislated human rights in the field of development. However, the more general point is that whether or not those serious claims are ideally legislated – sometimes they are, sometimes they’re not – there are in any case also other ways of promoting them. And these ways are part and parcel of a rights-based approach to development.

I turn now to three critical questions about the nature of these rights that often arise in using a non-legal approach to rights, one of them particularly in the development field. The first question is called, quite foundational -- what gives importance to human rights? I would argue that the importance of human rights relates to the significance of the freedoms which form the subject matter of these rights: Freedom from hunger, freedom from escapable morbidity or premature mortality and so on. Human rights generate reasons for action for agents who are in a position to help in the safeguarding and promoting of the underlying freedoms.

The induced obligations primarily involve the guilty to give reasonable consideration to the reasons for action and their practical implications. I’ve discussed elsewhere, this actually I developed this approach to material rights in a very long paper called Elemental Material Human Rights, which will be published in Philosophy and Public Affairs in September of this year, in fall, for the journal that’s called Philosophy and Public Affairs, and it should be out in September. So I’ve discussed there, through drawing on a Kantian distinction, how human rights can lead both to “perfect” obligations, in the form of precisely specified duties of particular individuals to organizations, and to “imperfect” obligations in the more general and less strict form of the duty for anyone in the position to help to consider what he or she should do to provide help. The answer to the question, “What duties are correlated with recognized rights?” has to be dealt with at different levels of specification. But this is no embarrassment, since ethical principles often have that feature of leading to some precisely formulated perfect implication, in this case perfect obligation and some imprecisely formulated obligation.

Just to give an example, not from this line and not from development work which we do. If you take a case like, I think her name was Kitty Genovese who was murdered in New York, it must have been forty years ago, she was murdered in full view of 60 or so people who saw it but did nothing to help. The analysis here would be, what is the bad thing that happened, well the primary bad thing that happened of course was that she was killed. The violation of perfect obligation, which is the second bad thing, would be that the person who actually assaulted her and killed her as he violated a precisely formulated obligation not to assault or kill anyone. The third thing was a violation of imperfect obligation, namely to ask what can you do to help, and if sixty people watched it and did nothing to help, there is a failure of imperfect obligations too. They’re linked with each other, they’re distinct, but they’re part of the theory of human rights which one is trying to capture and a similar thing when it comes to development rights.

Second, and this is a question of particular relevance to development efforts, can we include in the domain of human rights those economic or social claims that are not entirely achievable at this time? Does partial non-fulfillability nullify or damage or embarrass putative human rights? There have been many attempts in rights literature, in fact I read at least 10 papers, to keep the idea of human rights confined to so-called “first generation rights,” like liberty and freedom from violation, from violence, without including economic or social claims. This skepticism sometimes takes the form of arguing that unless there are institutions that are adequate to guarantee the complete fulfillment of the right then there is no such right, a point of view that my colleague and brilliant philosopher, but I think mistaken on this point, Onora O’Neill has argued in her book Toward Justice and Virtue.

I believe this argument, common as it is, is wholly mistaken. An unrealized right is a distinct category from a non-right. It is an acknowledged right that is not yet fulfilled, and is not completely fulfillable without some social changes. It is precisely because we see claims of this kind as rights we have particular reasons to try to do what we can to make them realizable. And then we actually realize when necessary through new institutions and new legislation. The usefulness of the acceptance of some rights as legitimate may lie at least partly in inspiring and helping to promote institutional change. It cannot be based on pre-existing institutions.

To this I should add the further point, which seems to be amazingly not recognized, that if a complete guarantee of fulfillment were indeed accepted as a condition for any claim to be seen as a right, then not only the second-generation rights, connected with development, but also first-generation rights connected with liberty and non-interference would be severely compromised. The elementary fact that it is not easy to guarantee complete non-interference in each other’s life and even to insure the absence of violent interference were always clear enough but that realization must be blatantly obvious today after such events as 9/11, or terrorist murders in Bali, or the Madrid train bombing. The first and second-generation rights are not as distinct in terms of fulfillability as some critics of development right have tended to make them.

Third, if human rights are primarily, this is the third question that is, if human rights are primarily pre-legal or even non-legal claims, what criteria can be used for the ethical vindication of these claims? I would argue that like other ethical claims that it is subjected to public reasoning, the robustness of human rights relates to the idea of “survivability in unobstructed discussion.” The fact that the idea of invoking the idea of human rights has such social and political effects is itself some evidence in the direction of the durability and reach of these claims. But it is possible further to have substantive argument on what priorities we should place on different claims that all have widespread appeal but differ in their importance in terms of human freedom as well as in our ability to make a real difference to their effective realization which is obviously one consideration. To subject claims to human rights to public reasoning is part of the discipline of human rights not a sign of its weakness.

I end with a cross-national point, a trans-national point if you like, linked with the last question. It is often our good, in fact Edmund Burke was one of the first to raise it in criticizing the French Declaration of the Rights of Man, that in a world with much cultural variation, and widely diverse practice, there can be no rights that are universally accepted. If you wanted to base human rights on the intersection of what is already accepted in all countries in the world right now no matter how secluded they are from the rest of the world or no matter how authoritarian or tyrannical the regime is, then this would indeed be a very big problem for the rights-based approach. Instead, partisanship is avoided not so much by taking a conglomeration or intersection of the views respectively held by dominant voices in different societies across the world (including very repressive ones), nor taken by just saying that these are our values and we happen to lead the world and we have to simply accept it, but through an interactive process. In particular, by examining what would survive in public discussion, given a reasonably free flow of information and uncurbed opportunity to discuss different points of view. If Mary Wollstonecraft was a great voice at that time, along with Tom Paine and of course Kant, Adam Smith is I think the biggest voice, not in his economics but more in his sentiment and jurisprudence. Adam Smith’s insistence that ethical scrutiny requires examining moral beliefs from “inter alia” quote, unquote “from a certain distance,” had a direct bearing on the connection of human rights to global public reasoning.

This has three powerful implications. First, contrary to a commonly offered reason for skepticism and rejection the case for human rights cannot be discarded simply by pointing to the fact, when that is the case, that in politically and socially repressive regimes which do not allow public discussion, many of these human rights are not taken seriously at all. Uncurbed critical scrutiny is essential for dismissal no less than it is for defense.

Second, what are taken to be quote unquote “foreign” criticisms often correspond to internal criticism from non-mainstream groups. If, say, Iranian dissidents are imprisoned by an authoritarian regime precisely because of their heterodoxy any suggestion that they should be seen as “ambassadors of Western values” rather than “Iranian dissidents” would only add serious insult to manifest injury.

Third, as Adam Smith pointed out, the values that are dominant are often influenced by prevailing practice, and Adam Smith’s technical analysis is quite wonderful since these things often come up in the context of societies that we don’t think of as being particularly tactful in some ways, so he took the most advanced society, at least in English schoolbooks, namely ancient Greeks. He illustrated this with the support for infanticide, from the support that it received from Athenian intellectuals including Plato and Aristotle, and pointed at how they had become conditioned to accepting it as natural because that’s what they had seen around them. What is needed is critical examination, that he pointed out, with explicit account being taken of how things would look from “a certain distance.” Scrutiny from a “distance” may have something to offer in the assessment of practices as different from each other as the stoning of adulterous women in Taliban’s Afghanistan and the abounding use of capital punishment, sometimes with mass jubilation, in parts of this country. This is the kind of issue that made Smith insist that “the eyes of the rest of mankind” must be invoked to understand whether “a punishment appears equitable.” Unquote.

The point to note here is not whether we are permitted to make cross-boundary scrutiny but that the discipline of critical assessment and moral sentiment, no matter how locally established they are, demands that we view them in a non-parochial perspective. A rights-based approach to development has to take note of the importance of such critical engagement.