Criticisms of Shue

Class notes for 10 April

Main points

Wellman and O’Neill are more sympathetic to positive or welfare rights than Cranston is but they are equally skeptical of them.

O’Neill provides the criteria for determining whether putative rights are genuine. She hold that they have to be claimable and waivable. Wellman gives the arguments that seem to show welfare rights can’t meet them.

John didn’t think that the Wellman-O’Neill tag team laid a glove on putative welfare rights. He didn’t think they had shown that these proposed rights are too indeterminate to count. Suzie agreed. She thought it was obvious that the relevant requirement is to do one’s fair share; Wellman’s two alternatives are implausible, in her opinion. David, Dan, and I were more impressed.

There were other objections as well.

Objection: all rights are that way

This is Shue’s basic point. Even security rights require positive steps and positive requirements have all the problems that Wellman identified for welfare rights.

Taylor added a twist. O’Neill maintains there is a significant difference between being able to claim or waive a right, on the one hand, and the being able to enforce it, on the other. There is such a thing as being able to claim and waive security rights without institutions but there are no such thing as welfare rights without institutions. She conceded that security rights require institutions for their enforcement, but denied that this was relevant on the grounds that claimability and waivability are all that matter.

Taylor denied the last sentence. He asked why claimability and waivability matter in the absence of enforcement. And that’s a darn good question.

I added an even more dramatic point that I claimed to have derived from Thomas Hobbes. It goes roughly like this.

  1. Everyone has the right to act in ways necessary for self-preservation. [Moral assumption]
  2. Everyone poses a greater threat to everyone else without organized security than they would with organized security. [Empirical assumption]
  3. People have much broader permission to attack others without organized security than they would have with organized security. [By 1 and 2]
  4. Whenever A is permitted to attack B, B lacks the right against being attacked by A. [By the definition of a claim right]
  5. Therefore, people have fewer rights against being attacked without organized security than they would have have with organized security. [By 3 and 4]

If Hobbes is right, er, correct, then even the much vaunted “liberty rights” depend on social institutions too.


Is waivability (is that even a word?) essential to rights? It might well be the distinguishing feature of rights, that is, the thing that prevents them from being redundant with duties. But I don’t think it’s obvious that it’s an essential feature of all rights. Maybe some rights simply are redundant with duties. That strikes me as being true of some of the most basic human rights: the rights against murder, assault, and mayhem.

At the very least, I think that it’s conceivable that these rights are not inalienable. More boldly, I think that the ability to waive the corresponding duties is peripheral to our reasons for valuing these rights. We value and enforce them because we think it’s important that people not be beaten or tortured. We don’t do so to give people the ability to choose to be tortured as they wish.

Let me go on about that for a moment. We might well have an economic system that allowed people to trade these rights for other considerations. We might let poor people sell themselves to be tortured to death by rich sadists. Why would anyone do that? Well, they might do it if the rich person would pay their families enough for needed medical care, housing, or the like. We could have a system of contract law that regulated and enforced the relevant agreements. We don’t. Why? Because we think contracts like that are sickening. We try to stop them when we can and we refuse to enforce them.

In short, enabling trades is not the point of some rights. It is the point of others. Inalienable property rights would make little sense, for instance. It’s no accident that many of the fine points about rights have been developed in the context of property law.

John and Jay

John dug in his heels. All rights are alienable, you have to have the liberty to choose whether to exercise it or not.

Jay said that the right to sell yourself into slavery would be an exception: it involves giving up all of your other rights.

I think that the natural reply for John would be that there’s nothing wrong with that. Someone selling himself into slavery is simply alienating all of his rights. That’s consistent with what John believes.

Jay’s sensible points

Don’t take the heading to mean that Jay’s points are not generally sensible. Far from it. But he made two points that, in the context of this discussion, were unusually sensible.

First, the assumption that no state has enough resources to address basic welfare rights is probably false. Consider how much the war in Iraq costs per day. As Taylor noted, “that’s a lot of band-aids.”

Second, welfare rights are naturally thought of as addressed to the state. The fact that this makes them unlike the negative part of security rights just makes them different. It doesn’t follow that this difference matters.