Libertarians and Health as a Human Right

Negative and Positive Rights

Negative rights are essentially the right to non-interference in one’s endeavours to secure one’s needs and wants while positive rights are the right to have at least some of one’s needs and wants provided by a social group, government, or other agency. Negative rights are rights to liberty, and libertarians claim that only negative rights can be defended or protected, and entitlements are gained only through the just acquisition of goods. In this framework, a clean environment and humane means for earning a living are goods

that must be acquired through an individual’s free exercise of will or initiative. Libertarians claim that no one has an obligation to provide these goods, although it might be nice if some sympathetic and well-meaning individuals desire to do so of their own initiative (i.e., they claim it is supererogatory, morally good but not morally required). 

It is difficult to establish the ontological status of human rights, especially without an appeal to some right-granting divinity who has endowed humans with special rights or else simply by claiming that humans are entitled to natural rights derived from nature. Ronald Dworkin, for example, proposes the following: “Individuals have rights when, for some reason, a collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or to do, or not a sufficient justification for imposing some loss or injury upon them.” While his definition offers no specific rights, he notes an advantage of his formulation is that “it does not suppose that rights have some metaphysical character, and the theory defended . . . departs from older theories that do rely on that supposition.” Rights are, then, a matter of agreement of what people should be granted or permitted the freedom to do. These rights, subsequently, create obligations on others. Arguments for negative rights are secular but also difficult to defend ontologically. It would be nice if rights, like planets or viruses could be empirically verified, but it is hard to imagine someone “discovering” a human right.  

In the absence of empirical discovery, we may rely on consensus. If we achieve a level of agreement on a moral law, we may then work together to establish legal codes to enforce such moral laws. In giving examples of moral laws, many find it hard to imagine that any rational person would object to a normative code prohibiting wanton murder. While there may be bizarre outliers, we assume that everyone would want some protection from being murdered. This shared impulse motivates a disgust with and opposition to socially sanctioned murder. In the same vein, we may proffer a theory of rights that claims all individuals in full possession of their faculties will desire the ability to make choices for themselves while recognizing that their choices may be limited by preventing them from limiting the choices of others.  As a result, murder is prohibited by law with severe penalties, and virtually no one objects to legal prohibitions against murder. 

Even without empirical verification, though, most people in the West recognize the existence of negative rights. While popularity of a moral theory is certainly not a way to determine the legitimacy of any moral claim, negative rights have achieved a level of respect in my culture that positive rights do not enjoy. Because rights imply attendant obligations, individuals are less likely to agree to the existence of positive rights, especially if they feel they will be called upon to grant entitlements to others. If I can defend a right to a healthful environment and health care in the language of libertarians as negative rights, I increase my chance of achieving greater consensus in the United States. I do not claim, however, that the right to autonomy or even to be left alone is held universally across all cultures. Some cultures may feel that individual rights should be set aside for the collective good. Western political theory, economics, policy, and law is built on the assumption that liberty should be maximized, and any productive examination of rights in the United States should proceed with this assumption in mind. In fact, even John Rawls, a frequent target of libertarians, insisted that a just society would promote the greatest liberty compatible with equal liberty for all. Therefore, I will proceed by examining the implications of assuming that negative rights exist and must be honored and defended. It is possible that many positive rights, or entitlements, rejected by libertarians may be justified on grounds accepted by libertarians, especially if they flow from violations of liberty. 

Libertarian Defense of Negative Rights and Rejection of Positive Rights

Libertarians claim that negative rights entail only negative obligations, requiring nothing of individuals but to leave others to their own devices; however, they claim that negative rights often entail positive duties such as the duties to provide security and legal remedies. It is useful to identify such instances where libertarians would likely agree that even negative rights require positive duties. Given that some positive duties such as providing a police force and national defense are entailed in libertarian claims, it seems reasonable to suggest that further positive obligations should be considered. To put it more strongly, if the libertarian conception of human rights is applied consistently, victims of human rights abuses have acquired a staggering list of entitlements required merely to redress the harm they have endured (see chapter 3 for examples).

In arguing against the claim that one would be doing something bad by not saving a child drowning in a shallow pond by simply getting on one’s knees and pulling the child out of the water, Joshua Katz responds by saying, “If the force of the argument rests entirely on intuition, my competing intuition that I am entitled to do as I wish with my property, including my body, is just as valid.” Most non-libertarians will find the statement that one is not obligated to save a drowning child at no real cost to oneself rather shocking, but the libertarian claim really is this extreme. 

Robert Nozick, who offers a more nuanced argument than that of Joshua Katz, is one of the most often cited philosophers defending the libertarian view. Nozick describes the required level of ethical obligations to include “rules and principles mandating respecting another (adult) person’s life and autonomy, forbidding murder and enslavement, restricting interference with a person’s domain of choice, and issuing in a more general set of (what have been termed negative) rights.” As discussed in Chapter One, Nozick goes on to describe three higher levels of ethics: ethics of responsibility, ethics of caring, and the ethics of light. Nozick believes the higher levels of ethics must never be enforced by a state or even by social disapproval of individuals. Within Nozick’s framework, any well-off individual is free to provide any benefit whatsoever to anyone at any time so long as its provision is based on a free choice. He sees most instances of unequal distribution of income as the result of free choice. 

One problem with this conception of liberty is that some people lack basic resources as a result of factors unrelated to their own free choices. Some are hampered in their pursuit of essential goods by bad luck such as natural disasters or impaired health while others are hampered by acts of injustice such as theft, assault, and so on. For a libertarian such as Nozick, someone’s bad luck may be tragic, but it imposes no obligation on others to change the situation. If someone (Nozick suggests a famous basketball player) has more assets as a result of superior talent, physical fitness, and drive, there can be no defensible reason to require this person to give away assets gained as a result of superior talent or hard work. In this example, gaps in income result from free choices made by some people paying their income for the privilege of seeing another individual perform, placing no obligation on the performer to correct or mitigate the resulting income gap. Of course, in reality, people who pay to see basketball games tend to have the resources to meet their basic needs for survival. Others lack resources because their property was stolen from them. In such cases, Nozick would claim the property should be returned as the victim’s liberty has been violated. Ensuring that people are protected from assault or theft imposes a duty on us to provide law enforcement, courts, and jails or other means of deterring or limiting criminal behavior. Nozick acknowledges that it is the role of government to ensure basic security. Libertarians focus on security in terms of police forces and national defense to protect against theft and invasion while remaining obstinately indifferent to security from loss of resources due to environmental destruction and abusive trade practices. 

Even with his limited conception of security, Nozick appears to run into trouble, when considering the case of historical injustice. If someone is descended from a well-off family whose fortunes were plundered by thieves in a previous generation, it seems clear that this person deserves repayment of the family fortune (e.g., descendants of Jews trying to recover from European museums artwork stolen by Nazis). Even when there is no theft of property, an injustice occurs when poverty is the result of the denial of basic liberties as in the case of slavery. Slaves are denied the ability to participate in trade for mutual benefit, and their resulting poverty is passed from generation to generation. In his earlier work, Anarchy, State, and Utopia, Nozick asks, “If past injustice has shaped present holdings in various ways, some identifiable and some not, what now, if anything, ought to be done to rectify these injustices?” He does not answer the question, says there is no theory to address this problem, and declines to provide one. In a footnote, he says, “If the principle of rectification of violations of the first two principles yields more than one description of holdings, then some sort of choice must be made as to which of these is to be realised. Perhaps the sort of considerations about distributive justice and equality that I argue against play a legitimate role in this subsidiary choice.” Although this would appear to be a substantial problem for his theory, Nozick declines to provide a theoretical response to the question he has raised, at least in Anarchy, State, and Utopia. 

In Invariances, he gives a slightly more robust description of historical distributions of wealth, although nagging problems remain. In this book, Nozick conceives of cooperation to mutual benefit as the core of ethical demands for society, saying his view “makes mandatory the widest voluntary cooperation to mutual benefit; it makes only that mandatory; and it (in general) prohibits interactions that are not to mutual benefit, unless these are entered into voluntarily by all parties.” The preceding quotation makes the use of “voluntary” and “mandatory” seem nearly incoherent, but, being charitable, we can assume that each person is obligated to expand the circle of cooperation without dictating specific choices one must make. In Nozick’s conception, it is possible to imagine two groups who have not interacted in the past; one group may be newly arrived immigrants with fewer resources than members of a socially prominent native group. Nozick notes that initial exchanges will leave wide disparities between the incomes of the two groups as a result of the unequal starting positions for the people in each group. Over time, though, each group has the possibility of gaining more resources and engaging in more equal exchanges. Each exchange is just so long as no group is involuntarily left worse off. He says, “The new distribution need only surpass what each got under the old distributions for cooperation to be mutually beneficial.” In this description, Nozick adds a troubling note parenthetically. He notes, “Because African Americans were brought to the United States in slavery and subject to strong caste restrictions afterward, their subsequent history, unfortunately, has been different.” His comments in both books seem to leave open the possibility that reparation payments for slavery or some other form of compensation is demanded by his theory. If he believes such reparation is demanded, he does not explicitly state it. 

Besides the problem of rectifying the injustice of slavery, Nozick’s view raises other problems. If one group of people has no resources at all and faces starvation, any goods given to them would make them better off. Such people are ripe for extreme forms of exploitation. For example, one might promise to provide a small supply of food for a person in exchange for 16 hours per day of labor in dangerous conditions. While this condition is arguably an improvement over starving to death (some may even disagree with this), I argue that such exploitation is unethical and deserving of social disapproval and prohibition. Before an individual can enter into voluntary cooperation for mutual benefit, that individual must have his or her basic needs met for true negotiation to be possible. 

Nozick’s discussions of historical injustice are of particular importance. In his earlier work, he fails to provide an account of how historical injustices should be addressed, and his later accounts provide such a gradual resolution that many victims will never see any benefit from their new participation in an economic system that has benefitted others for generations.  Nozick rejects any state-imposed redistribution of wealth, but implies that past injustices must be redressed. If much of the poverty we see in contemporary society is the result of past discrimination, then it would seem that Nozick is obligated to support exactly the kind of redistribution of wealth that he is arguing against in the example of the basketball player. If it is no longer possible to identify each past injustice with certainty, this should motivate us to make general allowances for all of the worst off in society, and this would, indeed, require a patterned distribution such as that favored by John Rawls. At a minimum, the least advantaged members of society must be lifted to a position where it is possible for them to reject offers that are harmful to their health or well-being (this would prevent, for example, people selling their own organs under dangerous conditions because they see it as their only hope for survival). 

Theft as a Negative Right of the Poor 

A number of theorists have attempted to take libertarian assumptions and use them to show that economic inequality is unjust even based on libertarian principles. Some attempt to view the existence of inequality itself as a violation of the negative rights of the poor, but this approach fails to address libertarians on the assumptions they accept. Libertarians will not accept responsibility to address any inequality or suffering they did not themselves cause. For this reason, the best approach is to show that inequality stems from basic violations of rights that are the responsibility of both producers and consumers operating in an unjust system. In the next section, I will work through a few of the most common arguments for rectification, ending with the strongest argument, which is put forth by Thomas Pogge. 

For some, the existence of economic inequality in itself is evidence of injustice that legitimately gives the poor the right to extract wealth from the affluent. For example, James Sterba challenges libertarian notions of rights in his book, Justice for Here and Now by claiming the poor have a right to steal from the rich. Sterba begins this discussion by recognising that libertarians feel it is the privilege of the rich to do with their resources as they please, without interference from the poor or anyone else. However, he notes that we could claim that the poor have a negative right to take the basic resources they need from the rich without interference. In so doing, he blurs the distinction between negative and positive rights, but he acknowledges that libertarians would reject the claim that these statements of negative rights are equal. His claim, then, is that there must be some way to distinguish between competing liberties (in this case the liberty of the rich to keep what they have acquired and the liberty of the poor to take what they need). He first notes that it is not reasonable to require someone to do something the person is incapable of doing (for example, he says that being in a coma prevents one from having any other obligations, as those obligations are impossible to fulfill.) In addition to actions that are impossible, he makes a more controversial claim that it is unreasonable to make certain demands of certain people. 

With this in mind, he notes that the rich are capable of sacrificing some of their wealth to ensure the survival of the poor, but it is impossible for the poor to live without the basic necessities for survival. As a result, the poor have a legitimate claim against the rich, but the rich have no legitimate reason for refusing to aid the poor. Rather than simply giving away money, the rich may provide assistance to the poor, by offering them employment, and he claims the poor are obligated to take advantage of any opportunity to work. Thus, the obligation of the rich to sacrifice their wealth is reduced as the opportunities for fruitful work are increased. Sterba attempts to confound the common arguments of libertarians, who often claim that altruism is good but not obligatory. He claims that when the poor are prevented from taking surplus wealth from the rich, they are being forced to be altruistic in the sense that they are sacrificing their well being for the benefit of the rich. Since any social arrangement requires either the rich or the poor to be altruistic and to sacrifice a degree of liberty, the libertarian ideal cannot be achieved. As such, Sterba claims society should be arranged so that the poor either have opportunities to work to provide for themselves or the rich should sacrifice some of their liberty to hoard excess wealth in order to provide for the basic needs of the poor. Of course, libertarians do not view it as an act of altruism when the poor do not take wealth from them as the poor have only a right to keep what they have earned for themselves. 

If the poor do indeed have a right to the wealth of the rich and can be empowered to claim it, it is unlikely they will feel altruistic to the privileged classes.  In his conclusion, he puts quotation marks around the words “negative” and “positive,” and suggests that the rich and poor can work out what is morally right in a libertarian framework. He concludes:

In such societies where basic human rights have been denied, certain criminally disobedient acts thereby become morally permissible, and existing legal authorities have no right to punish them. Rather than punishment, the appropriate corrective in such cases is to make the changes required to guarantee just those basic human rights, which have been denied. 

Here Sterba’s argument changes from a demand for altruism to a response to violations of basic rights. The claim that human rights have been denied in the past and demands rectification is empirical (see chapter 3) and needs no argument from altruism. The simpler argument is simply that poverty results from human rights violations and demands rectification. The poor have no negative right to take resources from the rich that resulted from hard work and free choices, but the poor do have the right to demand redistributions when inequality in wealth is the result of unequal treatment under laws of the past or from simple abuses of their own liberty in the past. In contrast to Sterba, my claim is that economic inequality grows out of human rights violations, giving the poor the right to demand resources from the affluent. 

For the millions in the world who are starving to death, the liberty to take what they need from the affluent for basic survival can never be more than a thought experiment. Only more powerful citizens of the world have the ability to guarantee their basic needs are met. Meeting their needs, then, requires recognition of a past injustice that must be redressed, creating a positive obligation to help them. Of course, for those who cannot fight for their own survival, those of us who can are obligated to do what we can to ensure their basic needs are met. Further, those who cause harm that results in starvation and disease are specifically obligated to provide remedies; simply ceasing to do further harm will hardly achieve a just state of affairs. The poor have the right to reclaim the resources they require for survival when their condition arises from unjust circumstances, which arise from violations of autonomy. Those who are robbed of their ability to participate in beneficial cooperation by disease, disability, or bad luck have no option to cooperate and make particular demands on those who are well off. For those robbed of any autonomy, negative liberty is of no value. Restoring a minimum level of autonomy in the form of positive liberty is a basic requirement for even a minimally just society. 

Positive Duties of Negative Rights

In his essay titled “Enforcing Economic and Social Rights,” Osvaldo Guariglia points out that although negative and positive rights and duties are assumed to have corresponding negative and positive obligations, all rights, whether negative or positive, entail positive duties. He quotes Henry Shue to argue that negative and positive rights are grounded in parallel arguments and that without guarantees of subsistence, no other rights at all can be exercised. Those who are unable to subsist are unable to exercise any sort of autonomy and are reduced to the status of things or resources for the well off. Any interest in liberty requires lifting to a level of subsistence at the least. Therefore, guaranteeing positive rights is essential to providing protection for negative rights. In addition, rights and duties are not neatly corresponding by kind (negative and positive). Often, negative rights entail positive duties. While citizens have a negative right to be left alone and secure in their freedom from assault, he says, “public agents and judges have a special positive duty to protect and ensure people’s security and integrity.” Similarly, state actors and individual citizens have a negative duty to refrain from any actions that will harm the worst off. He notes that everyone must share the duty to ensure the security of the state and refrain from actions that harm the worst off, such as degrading water or soil or engaging in corruption. Of course, participation in a social system that privileges some individuals over others would harm the worst off. Rather than arguing that social and economic rights are negative rights, Guariglia claims there is an interdependence between positive and negative rights that prevents one from being privileged over the other. This claim is problematic as not everyone living below a level of subsistence is a victim of a rights violation, or at least it is possible to imagine someone who has chosen to reduce himself or herself to the status of object. Having the ability to exercise autonomy is not a requirement to do so. Of course, individuals who truly reduce themselves to the status of objects are either extremely rare or nonexistent. People in such a position generally do not participate in economic cooperation because they are denied the opportunity. Guaranteeing this opportunity is demanded by a respect only for their negative rights to exercise their own autonomy to live according to their own choices. Rather than interdependence between positive and negative rights, negative rights themselves carry positive obligations. 

While the poorest members of society share in an obligation to protect overall security by refraining from actions that harm others and taking positive actions to ensure that others are free to exercise their liberty to the greatest extent possible, the poorest must also be protected from harm and limits on their exercise of freedom. Economic and social rights are essential to the overall security of society. Even if we accept a libertarian framework, the full exercise of negative rights demands positive duties we must all share. 

Similarly, Onora O’Neill’s essay, “Lifeboat,” examines the distinction between killing someone (violating their negative right to be left alone) and letting someone die (not fulfilling a positive duty, if one exists, to provide assistance). She begins by assuming that persons have a right not to be killed and a corresponding duty not to kill, and she make no assumptions beyond this. She also notes that there are exceptions to the prohibition of killing and the right to be left alive. Killing is justified in cases of self-defense and unavoidable killing. An unavoidable killing might occur when someone steps in front of a train after it is too late for the operator to stop the train. Given these assumptions, she argues that if several people are on a lifeboat that has sufficient supplies to enable everyone onboard to survive until rescued, anyone who denies supplies to any passenger of the lifeboat is killing that person. In other words, failure to provide the basic needs for survival is tantamount to murder. In this way, a negative right to not be harmed entails a positive duty to provide essential supplies. She recognizes various situations where it might be justified to kill one passenger. If the lifeboat is well equipped, it is justified to kill someone who is threatening to jettison supplies and cause the deaths of other passengers. On an underequipped lifeboat, decisions must be made about which passengers might be allowed to die, but her primary concerns are with a lifeboat with just enough supplies to sustain the lives of all the passengers on board. 

The lifeboat may not be a perfect metaphor for the earth, as O’Neill acknowledges, but her metaphor raises questions for the situation we now face on earth. Writing in the 1990s, libertarian Jan Narveson rejected the comparison of the earth to a lifeboat by declaring that the earth has plenty of resources to support many more people than live on it. He did not feel the situation would change in the foreseeable future, and he claimed that the writers of the 1970s and 1980s were filled with unjustified visions of gloom and doom. Indeed, it has been proven that the earth had greater resources than anticipated and food yields have exceeded some predictions. However, with one-fifth of the world’s population living in extreme poverty, the world is indeed living in a crisis that Narveson did not predict. O’Neill’s prescient vision, on the other hand, speaks to us in the 21st century as extraction of resources and production of food require increasingly dangerous and extreme measures (extreme subsea drilling and factory farming, for example). O’Neill imagines that each individual on the lifeboat has an equal right to the supplies, but people on earth claim property rights that they feel entitle them to consume resources even when others are denied. Further, some people on earth are enabled to consume more only by denying resources to others. The wealthy consume, but the burden of their consumption rests on the backs of the poor. Denying individuals the resources necessary for basic survival is killing, and this claim echoes Locke’s proviso that acquisition of property is only acceptable when one leaves enough and as good of any given resource. Claims on property by some over others would have to be justified, and this is sometimes difficult, especially when people use the resources of distant countries without sharing the benefits with those who live in those countries. Unequal distribution can result, as previously noted, from bad luck or from injustice. If people are unable to access health care because their resources have been stolen, they are victims of injustice even according to the most ardent libertarian arguments. However, even if they are victims of bad luck, O’Neill provides a way of conceptualising their suffering as harm done to them by those who have the resources to save them. She avoids distinguishing between negative and positive acts, saying, “Such attempts seem unpromising since any act has multiple descriptions of which some will be negative and others positive.” Nonetheless, withholding resources is a familiar example of a “negative” act in the literature on rights and duties. By labelling denial of resources as a positive act of killing, O’Neill reframes one of the central tenets of the libertarian argument. She shows that it is not only possible to view entitlements as the products of negative rights, but she also shows that refusal to aid the poor can be seen as a positive act of violence. Rather than completely rejecting a theory based in liberty, however, she could recall Locke’s claim that it is unjust to take resources without leaving plenty for others. While her example is designed to compete with libertarian descriptions, it is not necessary to demonstrate the injustice of taking so many resources that others are harmed. 

Thomas Pogge has attempted to provide a robust and thorough defence of social and economic rights while not denying the minimalist claims of libertarians. In fact, he says he agrees with libertarians that the distinction between causing poverty and failing to prevent it is morally significant. He says, “Thus, I invoke and explicate both human rights and justice for the limited purpose of supporting negative duties, that is, duties not to harm that impose specific minimal constraints . . . on conduct that worsens the situation of others.” He argues that poverty and inequality in the world have not resulted from benign neglect but from harmful actions of the world’s affluent populations. In order to fulfil our negative duty not to harm, then, we must actively work to change social institutions that unjustly harm the poor.  Similar to arguments discussed above, he claims that negative rights entail positive duties to prevent harm.

Pogge claims that it is essential to separate human rights from claims to legal rights. His arguments are pragmatic, in the common sense of the term. He points out that sometimes a right is fulfilled even in the absence of legal codification. As an example, he says that if everyone in a given society has access to enough food, a legal guarantee of access to food is not needed. On the other hand, legal guarantee of methods to redress abuses of employers is of little value to those who lack the means to hire lawyers or otherwise pursue redress for abusive treatment. 

Pogge sees human rights as a progression from natural law to natural rights to human rights. Each progression entails a narrowing of content, but it is the content of human rights and their attendant obligations that are of interest here. First, human rights are secular and, therefore, can be shared by humans of different faiths. Second, human rights are political rather than metaphysical. Third, human rights apply to humans and only humans. Finally, human rights are claims only against certain actors. The final point is the least clear. In his view, to promote human rights is to create an institutional order that protects human rights. He says his conception of human rights derives from the fact that humans have basic human needs that give rise to “weighty moral demands” and that each need is the “object of a human right.” Given the staggering number of people who die as a result of extreme poverty, “weighty” seems an understatement.  

Given his stated agreement with libertarian arguments for negative duties, Pogge is obliged to respond to libertarian critiques of social and economic rights. He begins his response with a claim that a right to some good means that society should be organized so that each person has access to that good. For most libertarians, it would be enough for each individual to refrain from doing anything to block access to any available good; it would not require that individuals make an active effort to guarantee access. For Pogge, this does not mean that any particular individual is responsible for providing the good as in the form of an entitlement, but that all individuals, collectively, are responsible for creating social arrangements that ensure secure access to the good for everyone. 

Pogge claims that his conception of human rights does not violate libertarianism’s tenet that human rights entail only negative duties. Rather, he claims that the human rights of others require us to refrain from helping to sustain any social order that denies rights to others; for example, we are prohibited from supporting institutions in which “blacks are enslaved, women disenfranchised, or servants mistreated.” Those who participate in the current arrangement by benefiting from injustice as traders, workers, or even consumers without actively working to eliminate injustice are sustaining the social order. Those whose rights are denied have a claim not against everyone but only against those who actively participate in an unjust social order. If individuals cooperate in such a social order, they are obligated to compensate by protecting victims or working for reform. 

Responding to the claim that social and economic rights are mere “manifesto rights,” Pogge says they are rights that are not realised, leave unclear who should guarantee them, and cannot reasonably be met. He gives the example of the “right” to a happy love life. As no one can guarantee a happy love life, this is a manifesto right, but he thinks it can be reformulated as a legitimate rights claim. If we see that cultural biases and taboos prevent people from securing a happy love life that would otherwise be possible, then we have an obligation to remove those barriers, and the right to a happy love life is reconceived as a right to live in a society with no obvious obstacles to achieving a happy love life. 

Pogge argues that his conception of rights can help to give a common language to western countries that emphasize political liberties over economic and social rights and socialist and developing countries that view human rights primarily as economic and social rights. Arguments will persist, of course, over what goods we are obligated to provide based on this idea of human rights, but an argument over what goods must be provided is a step forward from arguments between two competing conceptions of rights. 

Health as a Negative Right

Under any theoretical framework, everyone has a human right to living conditions that are not harmful to health. A Rawlsian conception of justice demands care for the worst off; Utilitarians such as Peter Singer posit that we must all sacrifice to save the poorest people in the world; and the capabilities approach of Martha Nussbaum and Amartya Sen also demand that we do what we can to promote human flourishing. It is libertarians and ethical egoists who are most likely to insist that the affluent have no obligations to the poorest members of society. The attempt to formulate a right to health in libertarian terms is an attempt to respond to libertarians on their own terms. 

In addition, though, the argument from negative rights stresses that for many of the least advantaged people in the world, ill health is the result of injustice. Even Robert Nozick does not deny the obligation to redress harms caused by past injustice. While some of the world’s poor have surely made choices that led to their poverty, many have become poor as the result of victimisation by colonisation, corrupt governments, or greedy corporations. These harms must be redressed. Just as libertarians readily insist that individuals have a right to protection from petty thieves and bullies, a just social order, rooted in libertarian theory, requires protection from institutional abuses of human rights. 

Others have become poor because of bad luck. They may be limited by disability or illness, or they may have had their fortunes destroyed by natural disaster. Libertarians argue that everyone has a right to do with their own body as they please, but disease and disability rob many of the choice to do with their bodies as they please, and their right to act on their will requires a greater commitment from those who are well off. Libertarians are unlikely to agree that they are obligated to restore autonomy to those who have lost it through bad luck, but I would claim that protecting autonomy for victims of bad luck is similar to guaranteeing physical security from crime or assault. We are all at risk of being robbed of our autonomy by disease or bad luck, so we should cooperate to ensure the security of all (in the same way we work together to protect ourselves from invasion). Or course, much of the inequality in the world is the result of simple violations of negative rights as typically conceived by libertarians. At a minimum, we are required to guarantee conditions in which all individuals have the ability to act on their own autonomy, even if their choice is to neglect to exercise their will. In cases of clear violations of rights, libertarians may be forced to give up “their” property to help others as the victims of violations have a rightful claim on the property. In cases of bad luck, libertarians should agree to give up some of their property to ensure security in the same way they give up property to ensure national and personal security.  

Rectification

In 1976, Lawrence Davis published an analysis of Nozick’s entitlement theory focusing on Nozick’s rectification principle. Nozick’s rectification principle states, “The principle of rectification presumably will make use of its best estimate of subjunctive information about what would have occurred . . . if the injustice had not taken place. If the actual description of holdings turns out not to be one of the descriptions yielded by the principle, then one of the descriptions yielded must be realized.” Nozick suggests that we try to determine what would have happened to a victim of a rights violation if the violation had not occurred. In the same way that we might write alternate endings of a movie, we must predict what state someone should be in in the absence of any violations. If they are not so well off, we must restore them to the state they would have otherwise achieved on their own. For example, if someone steals money, they must pay back the money with the interest it would have earned rather than the actual amount stolen. The difficulty of determining how slaves would have fared in the absence of slavery or how indigenous people would have fared in the absence of invasion and conquest prohibits this theory from being realized. This is why other theorists, such as John Rawls, advocate a patterned distribution to compensate for prior harms. The Human Development Approach, of course, rejects a simple distribution of resources and attempts to restore a full range of capabilities for all citizens. 

Even if I benefit from harm to someone, I may not be responsible for rectifying the harm. If I own one of ten rare antique automobiles and some malicious person decides to destroy one of the ten, the value of my automobile may rise dramatically, increasing my net worth significantly. Assuming that I do not participate in an auto-trading syndicate that takes out the competition through destruction or theft and I have no dealings with the responsible person, I am not obligated to redress the wrong done to the owner. In a sense of unity, my fellow car owners and I may decide to provide increased security from auto destruction. We may set up a system of insurance to protect ourselves from any future events, and we may even decide to help this unfortunate victim of this crime recoup some of the loss. Providing relief to the victim, in this case, is supererogatory. If the same situation holds with corporations that do damage to people in other countries, then perhaps we are not responsible for rectifying the injustice.

But this is rarely the case. War in an oil-producing country may cause a spike in the price of oil, which benefits companies in other countries who depend on high oil prices to generate healthy profits. Through no action of their own, these companies benefit from great harm caused to citizens of a war-torn country. It would seem bad form for them to exploit the situation by gouging consumers with burdensome prices, but no one would expect them to intervene to stop the war. 

The more common scenario, however, deals with the externalities of doing business from day to day. Externalities are the costs of business that are not borne by the business itself; rather, they are borne by outside citizens, non-human animals, and the environment. Mining ore from a mountain does damage to the mountain, the runoff may pollute surrounding streams and lakes, and the land may become hazardous even for walkers in the area. If a mining corporation is forced to maintain the mountain in a safe and sustainable manner, the corporation may not be able to compete with other companies who are not forced to do the same. In order to maximize profits and remain competitive, then, companies must try to shift the burden of externalities to others. Frequently, local residents are left to clean up the mess for themselves, which is often impossible. Thus, residents suffer from the loss of land, the loss of clean air and water, and the loss of a safe living environment. 

Any principle of rectification demands that these citizens, who have not chosen their condition, receive reparation to restore their living environment to healthful conditions. While it is impossible to “stop the film” as Nozick suggests, we at least know that if their land had not been damaged, these citizens would live in an area that is not in and of itself a cause of disease and injury. A clean and safe environment becomes a right, then, when citizens suffer from unsafe conditions caused by the actions of others rather than the free choices of the citizens themselves. 

Most corporations will argue, of course, that they had prior agreements to conduct their work of extraction or other harmful activities. They will insist that they acquired the right to conduct their business in such a manner through a just acquisition, according to the principles put forward by libertarians. In such cases, the corporation will argue that they have a legitimate agreement with the property owners, typically the government of a country, to do the harmful work. In such a case, the question is not whether an injustice has occurred, but only who is responsible for rectification. Unfortunately, collusion between governments and corporations happens in most countries, including wealthy countries such as the United States. In such cases, it is against the interests of the corporation, and often of government officials, to protect the rights of individuals who will be affected by externalities.

Rectification requires a collective will and a collective effort. Nozick says victims of injustice should be restored to where they would be if the injustice had not occurred. It is impossible to know where people might be, for example, if slavery had never existed. However, it is possible to look at individuals suffering from disease caused by environmental pollution and know that clean environment would have a better outcome. These individuals have a right to a clean environment and adequate healthcare to treat their illnesses. Rather than looking from the point of injustice forward as Nozick suggests, we can look from current conditions to the past to evaluate whether people have caused their own burdens through free choices. If they have not, Nozick’s libertarian principle of justice demands that all who made free choices to harm others be responsible for reparations and rectification. This would include all businesses and governmental entities that colluded to cause these harms. Further, policies must be put in place to prevent further harms from occurring. In chapter 4, I discuss specific policy proposals aimed at protection of human rights. These include reparation payments; guarantees of free, prior, and informed consent; protection of farmer autonomy; and rules against exploitation in pharmaceutical research. 

Conclusion

Ultimately, the libertarian conceptions for justice based on the inviolability of negative rights or negative liberty do not eliminate positive obligations to create just conditions on the ground. Only if all current conditions resulted from free choices of everyone affected could libertarian arguments free anyone from obligations to help those suffering from disease, poverty, and brutal living conditions. If the world’s least advantaged either chose to live in squalor and disease or had absolutely no contact with the most advantaged, they would make no demands on us (for example, we would not feel obligated to fix problems of poverty and starvation on a newly discovered planet with human-like creatures on it). However, no such planet and no society of self-destructive individuals has been found. The empirical claim that those who suffer are responsible for their own conditions is not supported by historical facts. Rectification will require modifications to the legal system to both repair damage done and prevent further injustice from occurring. These modifications are likely to look similar to suggestions from John Rawls or the Human Development Approach. It is not that all theories of justice say the same things; it is simply that some conditions are so inhumane that no serious theory could hold them to be just.

One argument against intervention is that a free market imposes more restrictive conditions on businesses than government regulation because consumers will not participate in a system that harms them. This rosy view ignores the fact that many who are affected by externalities or even direct harm are not participants in the trading scheme in the first place. Many people in the world are not involved in the race to consume the products transnational corporations are producing. While some may be dispossessed and desiring to enter into trading and economic advancement, others would prefer to simply be left alone on the land that has supported them and their ancestors for centuries. This situation frequently arises when corporations and governments collaborate to exploit the land inhabited by indigenous people. According to the principles of John Locke, of course, those who mix their labor with the land to support themselves thereby own the land. Indigenous people do take the view that they own the land they and their ancestors have lived on and worked to support themselves. The libertarian call for unregulated markets ignores the property rights already held by many indigenous people of the world as defined by libertarians. Their acquisition of the land is based on libertarian principles of just acquisition; denying them their liberty and property rights requires a contradiction of libertarian principles.  Addressing this problem would require all parties to receive “free, prior, and informed consent” from all people affected by business agreements. This would help to ensure that all agreements did actually flow from free choices. Agreements and practices that do not arise from conditions where all parties affected have given such consent violate libertarian principles of liberty and autonomy. 

While many of the victims of injustice do not participate in the legal agreements that affect them, many others do participate in the global trading scheme as consumers and voters without knowledge or awareness of the impact their actions have. Everyone who participates in and benefits from a global economic structure is responsible for ensuring that trading policies and practices are just. The ethical demands do not fall simply on transnational corporations but also on consumers, voters, producers, economists, media, and elected officials. Only coordinated effort can bring about just and humane conditions for all citizens. This does not require great altruism or self-sacrifice; it only requires a recognition that all humans are born with equal moral standing. For libertarians to ignore the moral standing of anyone is to enter into a contradiction. 

This site’s return to ethics

When this site began, it was devoted primarily to discussions of ethics and related topics, but I veered off to more creative projects the last few years after retiring from teaching. I’ve now started a new site for creative writing over at Somebody Famous. This site will return to discussions of ethics and ethical theory. If you are interested in the poetry and stories, please follow me at the new site.

Essay: The Pentomic Army, the Desert, and My Father

[Note: I wrote the following based on the memories of my father, who was in the Pentomic ‘secret’ Army in 1957-58. He served in the signal corps at Fort Huachuca Army Base from 1956-1958. Much of the information here was only recently declassified, so I’ve included links to supporting documents and background reading.]

I hate the desert. Actually, I don’t have any personal animosity toward a topographical feature that is, let’s face it, ethically neutral, but I hate driving through the desert. No, I associate the desert with a childhood filled with seemingly interminable hours trapped in a hot car creeping endlessly through a miserably hot and hostile environment. Hour after hour would pass without a restroom (most important), restaurant (pretty important, too), or gas station (at times critically important enough to cause panic in my young heart). As a child, the desert represented only suffering.

Nonetheless, it seemed every vacation began with the long trek through the desert, beginning in West Texas and passing through New Mexico, Arizona, and Nevada before finally reaching some relief in Southern California. It seemed like no matter where we planned to visit that year, my father would say that the only way to get there from Houston was through the desert. That’s true of many places—Los Angeles, Grand Canyon, Roswell, Taos, Phoenix, San Diego—but did we have to go through the desert to get to the Smoky Mountains?

The truth is my father saw the beauty in that desert, and, to be fair, he’s not the only one. For people who aren’t hot, hungry children with full bladders, the desert can be aesthetically magnificent. My father saw more than beauty in the desert, though; he saw his past. As a child, what did I know of nostalgia?

And if I’m honest, most of his memories of his time in the Army sound more like things you’d want to suppress, so I never quite got the fascination, though in quieter moments I can see beauty in the sand, cacti, and mountains. Fort Huachuca is beautifully placed, after all. You can’t go wrong with mountains anywhere, and my father spent much of his time riding up and down the mountains as a member of the signal corps. 

He says in 1957 it took a large truck to haul around all the telecommunication power that you now carry in your pocket. He said they’d drive up the mountain throwing golf balls out the back to see if the equipment could track them as they rolled down. It sounds like a good time, all right, and I always wondered if someone had to retrieve all the golf balls scattered around on the mountains, but he never mentioned having to go gather them up.

My father is a strong-willed man, and I guess he always was, but he was also pretty much law-abiding. You know, in the way most young men are “pretty much” law-abiding. Still, he has often told of his willingness to defy what appeared to be a direct order. This was a time of routine nuclear testing at the Nevada Proving Ground, and most military personnel were expected to support the research efforts, which were generally presented simply as training, not research. 

Now, behind the scenes, a number of agencies were dealing with the problems of nuclear research, which most people assumed to be safe. By 1957, experts behind the scenes had decided that mandatory participation in such research was unethical and probably illegal, but nobody was really telling the men with their boots on the ground. 

I’m not sure if it was a careful analysis of the situation, an intuitive foreshadowing intuition, or just defiant puckishness, but my father just told them outright he wouldn’t be going to the proving ground to watch bombs explode. Although he didn’t go, the equipment he used every day did go, and he thinks that equipment exposed him to radioactive fallout all the same, but he survived while many others did not. A University of Arizona study estimates those tests led to as many as 460,000 premature deaths of Americans, mostly from cancer. 

The US armed forces weren’t doing all those nuclear tests just because they were curious to know how atomic bombs worked; they had active plans to bomb China, Vietnam, Russia, and, most surprisingly, East Berlin. The plan was to drop bombs many times stronger than the ones dropped on Hiroshima and Nagasaki and effectively wipe out targets as large as Beijing and Moscow. It’s worth noting that wiping out East Berlin would have killed most of the people in West Berlin as well. That’s where US military thinking was in 1957.

My father was a member of what he calls the “secret Army,” which was the Pentomic Army, a military division organised specifically to bomb the targets mentioned. The soldiers were specifically trained to carry out nuclear bombing missions, and my father says they had already received orders to report for their missions when the plans were aborted. My father left the Army in 1958, but they almost recalled him during the Cuban Missile Crisis because of his training in nuclear missions. 

I am aware of the slight possibility that my father’s fond memories of his Army days have more to do with what he got up to while on leave than training to drop nukes around the world, but I’ll leave those memories for another time. 

Is There a Negative Right to be a Libertarian?

Libertarians express both human rights and obligations negatively. One is entitled only to pursue one’s own ends and others are obligated only to the extent that they do not interfere with individual autonomy. For libertarians, pursuing one’s own ends is largely a matter of pursuing property as all other rights arise from the acquisition of property. As such, liberty is exercised  through competitive trading. Those who lack the ability, will, or good luck to compete successfully in commercial markets create no obligations on others to bring them aid. Contemporary libertarians in the United States can trace their philosophical roots to John Locke for conceptions of personal liberty and property and to Adam Smith for their ideas of free markets. Contemporary libertarians have misinterpreted or deliberately misapplied the claims of the foundational works.

Classical liberalism holds that the government should not interfere with an individual’s choices or actions in any event other than to protect the security of others. John Locke holds that men (it would be a mistake to claim he meant to include women) are free by nature and roughly equal in a natural state. That being the case, men must enter into agreements with one another that limit their freedom to the extent that they are not free to harm one another. Although not in a literal state of nature, a so-called “state of nature” exists any time men exist with few constraints on their behavior and must create artificial restrictions in order to live cooperatively with others. It is not essential to his theory that men actually once lived in a natural state of freedom and then agreed to form governments; it is only essential that men do form agreements for a greater benefit they will share. He notes that certain monarchs, though not living in the wild, are in such a state of nature as they have relatively equal power and must reach agreements as to how to moderate their own behavior. He says, “All princes and rulers of independent governments all through the world, are in a state of nature, it is plain the world never was, nor ever will be, without numbers of men in that state. I have named all governors of independent communities, whether they are, or are not, in league with others: for it is not every compact that puts an end to the state of nature between men, but only this one of agreeing together mutually to enter into one community, and make one body politic.” In this state, men must agree to negotiate for mutual benefit. This so-called state of nature is similar to the condition transnational corporations find themselves in from time to time. Absent international regulations to guide or restrict their behavior, they make trade agreements amongst themselves to protect their interests.

Their state of nature, of course, does not include all the people, just as the scenario of the princes proposed by Locke did not include all men. This oversight is not insignificant. If the social contract can exclude peasants, women, and others, then it cannot legitimately be claimed to emerge from a state of rough equality in nature. This ability to exclude a wide range of humans from the class of “men” may help to explain how enlightenment traders, influenced by the theories of Locke, could ignore the interests of women, slaves, and foreign nationals, but these traders were ignoring Locke’s full description. Locke specified that even indigenous peoples have a right to what they have legitimately appropriated. He says, “Thus, the Law of reason makes the Deer, that Indian’s who hath killed it.” 

A crucial element of Locke’s theory relates to property. Locke claims that property rights emerge when a man mixes his labor with a resource. Locke acknowledges that God has given to all in common (this need not be taken literally, though it may be), but one must appropriate resources (such as a piece of fruit) to oneself alone in order to eat it. This being the case, Locke argues that surely resources belong to those who took the effort to extract them from the world’s commons. Locke saw the world in need of cultivation in order to improve the lot of humans, but he adds a provision that states, “For this Labour being the unquestionable Property of the Labourer, no Man but he can have a right to what that is once joined to, at least where there is enough, and as good left in common with others.” Locke noted that some may claim injury resulting from the property acquisition of others but declared that the world has more than enough resources for everyone. Still, he specified that it is just to take resources so long as “enough and as good” remain for others.

Man has by nature, then, the right to acquire property through labor and ensure his own survival and further development. No one has the authority to take away this right, and Locke opposed absolute monarchs and other forms of tyranny for this reason. It is impossible to speculate as to how Locke would respond to current resource shortages, the enormity of transnational corporations, or the effects of extreme and pervasive environmental degradation, but Locke assumed that the acquisition of resources left enough for others to acquire resources as well without harming anyone. Furthermore, polluting a stream shared by many in order to extract minerals from nearby soil violates any vision that Locke described or advocated. However, often the problem does not seem to be that developers and corporations feel it is morally acceptable to pollute property held by others. Rather, they do not recognize those sharing the commons to be the rightful property holders. The ability to disregard living and functioning humans as “non-persons” (people without respect for their full autonomy) enables many to proceed without considering their actions to be a source of violation of anyone’s rights. 

Property as the source of “rights” is so essential to libertarian thought that libertarian Murray Rothbard says, “Human rights, when not put in terms of property rights, turn out to be vague and contradictory, causing liberals to weaken those rights on behalf of ‘public policy’ or the ‘public good.’” Rothbard has taken a narrower view of rights than John Locke, but, indeed, basing rights on property makes determining who has any given right a somewhat simpler procedure than attempting to define rights as awarded by nature or the divine, even if the results are disappointing. It is the acquisition of property that grants one the right to speak freely, engage in private activities, or engage with acquaintances of one’s choosing. The person who owns no property is dispossessed of any rights whatsoever other than the right to sell one’s own body in the form of labor or otherwise. On the surface, this appears to be a clear demarcation of who is entitled to what rights, but it ignores even basic realities of the world. When an oil company makes a bargain with a government to drill for oil on a country’s soil, the company assumes the government, not the people who live on the land, has the right to sell the country’s resources. The land was obtained through conquest, not mixing labor with resources, and such acquisitions should be recognized as unjust. Unfortunately, libertarian writers ignore the plight of those whose land, resources, and freedom were stolen from them. 

A second source of inspiration for libertarians (especially politicians and conservative activists) is Adam Smith, who is considered both the father of economics and the father of capitalism itself. Libertarians focus on Smith’s claim that the market moves society towards greater utility (I will add more on Smith and utility in the next section) through the action of an “invisible hand.” This invisible hand, libertarians assume, replaces the need for any form of governmental oversight or regulation, which is not a claim put forth by Smith himself. 

Among more modern libertarians, philosopher Robert Nozick is notable as a colleague and near constant interlocutor for John Rawls, whose theories of social justice remain a formidable force among philosophers and anyone else interested in social justice. Nozick presented his fullest description of his libertarian theory in Anarchy, State, and Utopia. However, his final book, Invariances, includes some revisions and additions to his original theory. Nozick’s theories are powerful and provocative. He challenges those who disagree with him to justify any demand to conflate justice with fairness. For example, he claims it may not be fair that one person is more appealing to potential romantic partners than another person, but this fact alone does not establish injustice. This would only be unjust if the attractive person robbed the unattractive person of the ability to compete for prospective mates. This issue has particular relevance for me as the claim that affluent citizens have no obligations to the disadvantaged rests on the assumption that the wealthy have done nothing to cause the disadvantages of the poor.

A central feature of libertarian claims is the idea that bad luck, tragic as it may be, creates no injustice and no obligations on those with better luck. Nozick, in particular, does assert that unjust acquisitions create a obligation for rectification. If property has been stolen from someone, that person is entitled to reparation or corrective action to ameliorate the person’s degraded position in life. Libertarian writers are quite generous in ascribing the wealth of property owners to hard work and free choices while assigning the blame for poverty to bad luck or lack of initiative. It is largely the failure of libertarians to acknowledge the benefits of privileges enjoyed by the affluent that frustrates meaningful dialogue between libertarians and liberal thinkers. 

Human Development Approach

Amartya Sen and Martha Nussbaum are the most prominent proponents of the Human Development Approach, which is based on the development of human capabilities. From this perspective, justice is realized when individuals have the minimum resources necessary to realize their capabilities to the fullest extent possible, whatever those capabilities may be. The full functioning of individuals is not required; it is only necessary that individuals have the freedom to function as they so desire. Nussbaum says capabilities “are not just the abilities residing inside a person but also the freedoms or opportunities created by a combination of personal abilities and the political, social, and economic environment.” Adults may or may not choose to use their capabilities to fully function, but Nussbaum feels we have an obligation to ensure functioning in children as failure to do so can limit their capabilities later in life. Amartya Sen summarizes the Human Development Approach this way, “The idea of freedom also respects our being free to determine what we want, what we value and ultimately what we decide to choose.” While emphasizing capabilities, this approach rejects measuring social justice in terms of resource allocation, utility, or the negative sense of freedom proffered by libertarians. However, maximizing capabilities is in effect an effort to maximize autonomy of individuals. A libertarian would only be able to accept this theory if an individual is robbed of his or her autonomy (and capabilities) through the actions of others. 

Nussbaum acknowledges Aristotle as the first person to base a theory of social justice on capabilities, noting that Aristotle sought to create a society that maximized human flourishing even if he did not share her egalitarian views. She says, “Aristotle believed that political planners need to understand what human beings require for a flourishing life.” Aristotle wrote his ethics as a guide to help community leaders design an effective society. He strongly opposed the idea that the pursuit of wealth was consistent with virtue or a highly functioning society. In Nussbaum’s words, Aristotle felt “political planning would be utterly debased and deformed were wealth to be understood as an end in itself.” Thus, the capabilities approach, in line with Aristotle, rejects wealth both as a measure of justice and as a motivator to achieve justice. 

For justice to occur, according to the capabilities approach, it may be that some resources must be redirected to the least advantaged, but income distribution alone is not an adequate measure of justice, as it is possible to have income but still lack the conditions that develop the essential capabilities. Nussbaum sees 10 capabilities that are essential to justice: First, is the ability to live until one’s life comes to a natural end. Second is the ability to have good health, nourishment, and shelter. Third is the ability to move freely from place to place secure from bodily assault. Fourth is the ability to use the senses, imagination, and thought. Fifth is the ability to experience a full range of emotions. Sixth is the ability to use practical reason. Seventh is the ability to live in social relationship with others free from discrimination and oppression. Eighth is to live in relation to nature and other species. Ninth is the ability to play and enjoy recreation. Finally, the tenth is the ability to control one’s own environment.

John Rawls and the Social Contract

Nussbaum, Sen, and Nozick all spend considerable time discussing the theories of Rawls. Fairness and the notion of an ideal social contract are central features of Rawls’s theory. He tries to imagine the conditions necessary for a society that all rational members would agree to join. He rejects Utilitarianism as it fails in this first test of justice, potentially sacrificing the happiness of a few for the benefits of the majority. Violations of individuals for the greater good violate their dignity on Kantian grounds, which Rawls finds unacceptable. Rawls claims justice is achieved when a given society emphasizes fairness, liberty, and opportunity.

Rawls does agree with Mill and the libertarians that liberty must be maximized in a just society, but he, apparently, rejects the close association libertarians make between liberty and property. In order to achieve a fair distribution of resources, Rawls suggests ensuring equal opportunity for all but with special protection for the least advantaged. On Rawls’s view, income disparities are just only to the extent that they benefit the least advantaged. He says, “Assuming the framework of institutions required by equal liberty and fair equality of opportunity, the higher expectations of those better situated are just if and only if they work as part of a scheme which improves the expectations of the least advantaged members of society.” By creating an educated and talented pool of citizens, unacceptable economic disparities between the most and least well off will be impossible. While he does not demand equality, Rawls seeks a distribution of resources such that, “Society is not so divided that one fairly small sector controls the preponderance of productive resources.” Rawls advocates a redistribution of resources through taxation to create a safety net for the least advantaged. Libertarians consider this redistribution unjust and coercive as they closely correlate property and liberty. 

Ironically, those who advocate the Human Development Approach also find Rawls’s connection of property and justice to be objectionable. Nussbaum and Sen point out that raw data regarding income or property cannot give a full picture of justice in society. If individuals do not have the liberty to pursue their own goals because of discrimination, poor health, or lack of education, justice is not possible, even if income increases. Further Nussbaum notes that Rawls does not adequately address justice for the disabled, members of foreign societies, or non-human animals. Further, Nussbaum and Sen both insist that resource allocation alone cannot adequately address the needs of individuals; true human flourishing requires a diversity of abilities that cannot be reduced to a single measure. Despite these criticisms, Rawls, Nussbaum, and Sen share concern for the least advantaged. The Human Development Approach is more of an expansion of Rawls’s goals than a repudiation of his overall theory.

Varieties of Liberty

In one way or another, all the competing theories I have discussed so far place a high value on liberty. Libertarians hold that a lack of coercion is the only condition necessary for just conditions to prevail. Rawls wants the greatest liberty compatible with equal liberty for all but places some restraints on liberty to the extent that the well off must sacrifice some of their liberty (to the extent that liberty really equals property) in order to preserve the greater good for everyone concerned. Finally, the capabilities approach holds that liberty is a sufficient measure of justice only when individuals have the necessary abilities to make free choices not limited by poor education, health, or lack of opportunity. 

Isaiah Berlin noticed that discussions of liberty often become confused, as liberty seems to imply at least two distinct meanings.  In what Berlin identifies as the “negative” concept of liberty, an individual is free so long as no one interferes with him or her. Berlin denies that this amounts to any kind of justice, saying, “To offer political rights, or safeguards against intervention by the State, to men who are half-naked, illiterate, underfed and diseased is to mock their condition; they need medical help or education before they can understand, or make use of, an increase in their freedom.” He notes that it offends liberals that some should enjoy greater liberty because they have exploited others. The positive concept of liberty, in contrast, is the freedom for an individual to choose what to become and to be self-directed. He cautions that liberty cannot be the sole value of society as simply maximizing liberty is not possible. He says, “The extent of a man’s, or a people’s, liberty to choose to live as he or they desire must be weighted against the claims of many other values, of which equality, or justice, or happiness, or security, or public order are perhaps the most obvious examples.”

Berlin helps us to understand how the libertarians’ focus on negative liberty fails to engage those who are more concerned with positive liberties such as advocates for the capabilities approach. One way of resolving the disagreement would be to challenge the distinction between positive and negative liberty, essentially undoing the work of Berlin. I prefer a more modest approach; my claim is that when positive liberty is lacking, in many, cases, it is the result of suppression of individual autonomy in the past. For example, global conquests for natural resources, slavery, war, economic embargoes, and environmental degradation have deprived people of their ability to act in any positive manner. Violations of their negative rights in the past, not their poor choices, have denied individuals of the ability to make positive choices in the present. However, some people have limited liberty as a result of neither violations of their negative rights nor bad choices; rather, their liberty is limited by disability that results only from bad luck. Nussbaum does well to address some of the cases where inadequate positive liberties result from pure bad luck, such as in the case of natural disability or accidents at birth. Shlomi Segall has explored the relationship of luck to justice even further. The case of bad luck presents a particular challenge to both libertarian and social contract theories, and this is one area where the human development approach fills a gap left by both libertarian theory and Rawlsian contract theory. Nonetheless, libertarians, even if they reject concerns of bad luck and disability, cannot ignore the historical causes of inadequate positive freedom such as those resulting from conquests and slavery; in other words, direct violations of negative freedom and rights result in injustice, regardless of which theory is applied. Ultimately, promoting human capabilities is a matter of rectifying historical injustice, not a matter of providing charity to the least advantaged. 

As mentioned briefly above, Nozick’s “Marriage Lottery” (not his term) provides a test case. Nozick imagines 26 men and 26 women who want to get married to a partner of the opposite sex. Each of the men and each of the women can be ranked from A to Z based on desirability. As a matter of free choice, the most desirable man and the most desirable woman have the greatest number of choices of potential, willing partners. The less desirable one is, the fewer choices one has. Further, as choices diminish they also become less desirable so that the least desirable man and the least desirable woman have no other choice than to choose each other or forgo marriage altogether. Nozick claims that the less desirable men and women have fewer choices (decreased liberty) but that no injustice occurs, as the more desirable partners did nothing to rob them of their liberties. Nozick’s example ignores the causes of desirability or the lack of it in marriage partners. 

I will suggest that partners are most desirable when they are in good health, fairly affluent, and, of course, physically attractive. Some of these conditions may be a result of pure luck through genetics, and others may be a result of poor choices that lead to poor health or poverty, but Nozick ignores the impact of willful acts of harm that result in poor health and poverty for others. If Mr. X and Ms. X rank at the bottom of potential marriage partners because their family wealth was stolen from their ancestors by the ancestors of Mr. B and Ms. B or their health was destroyed by pollution from Mr. A’s family factory, then the X’s have a claim against the A’s and the B’s in the list. Sorting out the complexities of this injustice would be impossible on a case-by-case basis, but libertarians must concede, in order to be consistent, that efforts should be made to prevent such injustices from occurring. In order to ensure that individual autonomy and economic liberty, regulation, whether social or legal, must protect individual opportunities to pursue health, economic engagement, and well-being. Further, recognizing the effect past injustice has had on the economic standing and capabilities of oppressed groups, corrective action is required to restore individuals to full standing and autonomy. 

Ideal and Non-Ideal Theories

Utopian visions, no matter how unrealistic, serve a purpose. By imagining an ideal state we can better distinguish which features of our world are consistent with an ideal state, which are inconsistent but unavoidable, and which are inconsistent and alterable. Descriptions vary, but the ideal state generally exists with an absence of suffering, although some theodicists note the need for suffering in order to appreciate the good. Arguments in defense of suffering aside, heavenly descriptions of perfect bliss do not include pain and suffering. In this ideal state, problems of social justice do not arise. David Hume notes that if nature had managed to meet every imaginable human need, “every other social virtue would flourish, and receive tenfold increase; but the cautious, jealous virtue of justice would never once have been dreamed of.”

An ideal theory of social justice does not attempt to respond to conditions on the ground, but begins with a focus on what can be accomplished from scratch. Beginning with an empty theory, one might assume what can be achieved under what Rawls refers to as “favorable circumstances.” Under these circumstances, the ideal theory is a conception of justice in a well-ordered society with strict compliance to moral demands of the theory. Once an ideal theory is established, Rawls claims we can begin to work on the details of a non-ideal theory to address what principles should be adopted under “less happy” conditions of the world we now inhabit. We must judge how just any society is by how it compares to the ideal theory of justice, but non-ideal theory must be invoked when “natural limitations” make the ideal unattainable. Deriving the principles of an ideal theory is challenging, but sorting through all the natural limitations on ideal justice is unending as new conditions constantly arise as in times of natural disasters and civil unrest. 

Working from an ideal state of affairs down to a non-ideal theory is certainly constructive, but it is also possible to approach the problem from the bottom up. One can imagine, in a sense, “perfect” or “ideal” injustice and begin to derive the most expedient methods to relieve the agony of such conditions, imagining the elimination of the most egregious forms of injustice until a more just state is achieved. This is something of a negative project, beginning with a negative state and working to its elimination. The advantage of this approach is that it enables us to focus on the greatest abuses of justice and begin to develop a non-ideal theory to improve the lives of the most desperate people in the world. Societies can be measured not by how they fall short of the idea but by how they rise above the negative ideal. This is similar to Arthur Schopenhauer’s approach to the problem of good and evil. Against the conception that evil is the absence of pain (such as suggested by Augustine, although Schopenhauer takes aim at Leibniz rather than Augustine), Schopenhauer says, 

I know of no greater absurdity than that of most metaphysical systems that declare evil to be something negative; whereas it is precisely that which is positive and makes itself felt. On the other hand, that which is good, in other words, all happiness and satisfaction, is negative, that is, the mere elimination of a desire and the ending of pain. 

By conceiving of justice as the absence of injustice, we are able to focus more narrowly on the most egregious forms of injustice and work toward an ideal state through the systematic elimination of positive harm. This negative approach to justice cannot do all the work required to achieve a just state; it only addresses the most immediate demands of current circumstances. It is important to replace a leaky roof on the house you are occupying, but it may be essential to extinguish the fire in the main living area of the house first. 

The other advantage of the negative approach to justice is that it confronts perpetrators of injustice on their own terms. For example, Ruth Faden and Madison Powers attempt to develop a theory of social justice that combines theory with empirical data regarding the interplay between social and economic relationships with health and other aspects of well-being. They argue that considerations of justice must be viewed holistically rather than in discrete spheres. They assert that philosophical reflection alone can never provide a robust account of justice. Only through empirical research, they insist, can actions promoting justice be fully informed. They summarize their conclusion saying, 

Our hope is that progress in social justice, public health, and health policy can be made by integrating a number of strands of philosophical reflection, political theory, social science theory, and social and biomedical research in ways that piggy-back on the accomplishments of a variety of contributors from multiple disciplines and intellectual traditions.” 

Surely they are correct that data and interdisciplinary efforts are needed to develop sound policy to promote justice in health and heath care. 

While some may agree that a truly just society looks different from what now exists and that making the effort to bring about better conditions is good, they may also argue that efforts to improve global human functioning are supererogatory and may be left to those heroic individuals who wish to undertake more effort than can ever be required. This is not to agree that such efforts are supererogatory but only to focus on conditions that result from actions that cause direct and identifiable harm. 

A negative approach answers the arguments of libertarians on their own terms with the aim of hoisting them on their own petard. Libertarian theorists in the United States and Europe argue that attempts to regulate trade and global markets amount to violations of liberty for those engaged in global business. Attempts to alleviate poverty, they say, violate the liberty of some individuals in order to grant entitlements to others who have not earned them. Their arguments stand only if they have gained their wealth and relative power without benefitting from the human rights violations of others. Regulating or modifying global trade is not a matter of shifting resources from the deserving to the undeserving; instead, it is a matter of restoring the ability of victims of human rights abuses to act autonomously. For example, Jan Narveson claims we only need to help others if their condition is our fault. Narveson assumes that starvation is a product of bad luck and corrupt foreign governments and not the result of interaction with western institutions and corporations. Even if it were true that starvation is the product of bad luck, many justice theorists would reject Narveson’s claim that starvation makes no moral demands on the affluent. Shlomi Segall encapsulates the view of so-called “luck egalitarians” by saying, “It is unjust for individuals to be worse off than others due to outcomes that it would have been unreasonable to expect them to avoid.” Segall advocates giving priority to those who are worse off but bear no responsibility for their condition. My approach here is more lenient than Segall’s. On my view, priority will go to those who are not only not responsible for their situation but for those who would be in a much better situation without deliberate outside interference. I suggest this only in order to stay close to a libertarian ideal and follow it to its natural conclusions. 

Implicit in Narveson’s argument is the assumption that if “we,” citizens of western democracies, were to be responsible for suffering from starvation and disease, we would be required to take action to rectify the situation. Rather than recognizing the role affluent nations have played in creating health disparities, however, he denies that they even exist, saying, “They [contemporary philosophers] write as though people by the millions are starving daily. It is of interest to realize that they are, generally speaking, wrong.” Responding to maximalist theories of justice, such as those of Martha Nussbaum and Amartya Sen, Narveson and other libertarians claim that injustice may well exist in developing countries but that such a state creates no obligation on citizens of affluent nations. For purposes of argument, I will accept the libertarian claim that no one is responsible for creating justice in foreign states, so long as affluent nations have no effect on such states. There may be a few isolated and unjust states in the world whose citizens must solve their own problems or hope that someone more powerful will be moved by compassion or otherwise to help them; however, most people in the world will find that their condition is directly affected by the actions of affluent nations.

Trade globalization, beginning with the actions of the British East India Corporation, has proceeded from conquest rather than consensual agreements with individuals in foreign lands. Just acquisitions of land and resources can occur only when free, prior, and informed consent is obtained from all who depend on the resources for their livelihood. This requirement does not apply only in foreign lands, of course, but foreign conquest is an obvious example of violations of individual liberty. The wealth of the United States depends on land and resources once owned by aboriginal people. Further development occurred at the expense of slaves, who were denied control even over their own bodies. Once we have established that affluent nations create the conditions of injustice in developing countries, we are faced with a question of who, precisely, is responsible for correcting the injustice. We may take a position that international organizations are responsible for behaving justly but that individual citizens are exempted from responsibility so long as we do not intentionally inflict harm on others. Peter Unger acknowledges that governments could do much to save the lives of their citizens and that not doing so reflects poorly on them as moral agents, but he asks, “What is the relevance of assessing your own behavior and mine? There isn’t any. For we know full well that, for all the governments will do, each year millions of Third World kids will die from easily preventable causes.” Institutions may create harmful schemes through trade agreements, laws, or practices, but individuals, even if not part of those institutions must not, as Thomas Pogge states, “cooperate in the imposition of a coercive institutional order that avoidably leaves human rights unfulfilled without making reasonable efforts to protect its victims and promote institutional reform.” 

Depending on how we interpret “cooperation” with unjust institutional order, the moral demand Pogge suggests could be extreme. If this requires individuals to refrain from purchasing products that result from unjust institutional arrangements, then moral individuals may themselves become impoverished and diseased. Utilitarians such as Peter Unger and Peter Singer specify that individuals are responsible to help only to the extent that they do not reduce themselves to the same level as those they are helping. For Singer, the stronger version of his theory would require citizens to give until they reach a level of what he calls “marginal utility,” which is “the level at which, by giving more, I would cause as much suffering to myself or my dependents as I would relieve by my gift.” Singer notes that whether we should follow a stronger or weaker version of his theory is purely academic as most affluent nations consider one percent of GNP an acceptable level of foreign aid. The Utilitarian view holds that our obligations are the same to all individuals without regard to country of origin or residence or their level of interaction with us. The responsibility to aid others arises from their suffering and their need rather than from our relation to them. 

Libertarians can see no obligations in cases where we live in isolation from others, but recognize obligations in cases where we make others worse off. While there may be some in the world who are not affected by our actions and policies, Iris Marion Young suggests, “Far better to begin from a more objective stance: there is much injustice in the world and we contribute to its production, and it may seem more than any of us can rectify, even together with others.” The fact that a task is daunting, however, does not relieve us of any moral obligation. Young also rejects the idea that workers suffering from harsh working conditions are responsible for their own condition if they voluntarily accepted their work. She says, “If many workers endure these violations without complaint because they desperately need those earnings, this is a measure of the coercive pressures of their circumstances rather than of their consent.” Young’s claim is not that we are obligated to help others merely because they are human and suffering; her claim is that we are obligated to help them because they are harmed by an unjust system. We cannot escape our responsibility to others at a distance, she says, because, “Affluent people in affluent countries, in particular, participate in the imposition of injustice to the extent that we are the supporters and benefit from a global institutional order that helps cause and perpetuate world poverty and inequality.” Our responsibility, then, is not merely to offer aid but to restructure the institutional order. By my account, a minimal and non-ideal theory demands a radical revision of current institutional policies, agreements, and practices. 

Bioethics and Social Justice

The term bioethics, as conceived by Van Rensselaer Potter, originally comprised concerns for global health, the environment, and sustainability. Rather quickly, however, conversations in bioethics turned primarily to questions of autonomy and focused almost entirely on doctor-patient relationships. Gradually, bioethicists have begun to focus on broader issues in part, surely, because the narrow topics of early bioethics discussions became uninteresting to those participating but also because the reemergence of infectious disease and pandemics, threats from environmental degradation, and global hunger are affecting health in ways that cannot be ignored. Bioethicists now include concerns for both patients and those who are not fortunate enough to have access to healthcare and, therefore, are never able to become patients. Understandably, much debate centers on access to health care. Indeed, those without access to health care have limited freedom and limited capabilities, but I would like to expand the focus on health care to a general concern for a right to health not harmed by the actions of others. I will examine recent commentary from Nussbaum, Sen, and Madison Powers and Ruth Faden.

Martha Nussbaum

Nussbaum has written many works related to capabilities, of course, but it is her Frontiers of Justice that relates most closely to discussions in bioethics.  In this work, Nussbaum attempts to expand on the social contract theories of John Rawls by focusing on capabilities as a foundation of justice, addressing concerns for the disabled, members of other nations, and non-human animals. John Rawls addressed the issues related to nationality somewhat in The Law of Peoples, and he at least mentioned the problem of the disabled in his Theory of Justice. For the most part, Nussbaum is respectful of the theories of Rawls, including his rejection of Utilitarianism to achieve concern for the least advantaged, but she also recognizes the important contributions of Utilitarian writers. In particular, she values the Utilitarian assertion that each life counts for equal consideration. The satisfaction of peasants is of equal concern to the satisfaction of kings. She says, “People who denigrate utilitarianism as cold-hearted or in league with big business often wrongly forget its radical origins.” Perhaps her strongest objection to Utilitarianism is that it does not recognize the effect of  “adaptive preferences.” In other words, some people may stop wanting what they know is out of reach, so they learn to be content within their current social conditions. Nussbaum says, “By defining the social goal in terms of satisfaction of actual preferences, utilitarian approaches thus often reinforce the status quo, which may be very unjust.” Libertarian theories, seeking only to protect individual autonomy and liberty, fail to confront problems of disability that impair autonomous functioning, though Nozick acknowledges that they may be addressed as morality progresses. For example, he says, “Principles might get formulated about behavior toward helpless beings with whom no mutually cooperative interaction is possible (fetuses, animals) or to currently nonexistent beings (future generations).” It is striking that he does not include mental impairment in this example. If we fail to address the needs of those who cannot make independent and mutually beneficial choices, we have failed to secure even minimal justice. 

Nussbaum begins her section on global inequality by saying, “Any theory of justice that proposes political principles defining basic human entitlements ought to be able to confront these inequalities and the challenge they pose, in a world in which the power of the global market and of multinational corporations has considerably eroded the power and autonomy of nations.” In this section, she criticizes social contract theories, but she says she chooses them for their advantages over competing theories such as Utilitarianism. Contract theories rely on cooperation to mutual advantage, but she rejects this as a basis for a theory of global justice. Another obstacle for the theory of social contract is the changing nature of sovereignty. Nussbaum notes, “National sovereignty is under threat from a variety of directions, above all from the influence of multinational corporations and the global economic structure.” Nussbaum instead favors the theory of Grotius, which claims that all entitlements derive from the sociability of the human being. She considers several theories from Rawls, Thomas Pogge, and Onora O’Neill. She finds that it is easy to determine the needs of humans in other countries. Indeed, she has provided a list of them in the beginning of her book. The problem, she says, comes from assessing what duties are borne by what actors. If the answer is that we all have a duty to provide all the people of the world with their minimum needs, then we meet a problem. We cannot have a duty to do what it is impossible for us to do. For example, she says we cannot cure the HIV epidemic in Africa or feed all the poor in India. Rather, she says, we should do what we can to secure the 10 capabilities to all the people of the world. Otherwise, we do not live in a “decent and minimally just world.”

The capabilities approach seeks to secure access to the 10 capabilities she lists throughout the world. Her approach will work in tandem with efforts to secure rights. The advantage of capabilities for measuring justice in a society is that material needs may vary from country to country, so that wealth or even wealth distribution may not give an actual picture of life for the citizens of the country. More important than what people have is what they can do, if they choose to do it. The capabilities approach will emphasize creating access to education, health care, housing, and suitable labor conditions. She notes that these items are not discussed in Rawls’s conception of international justice. 

Nonetheless, she notes that she does privilege capabilities over functioning, while others feel that success in creating a just society should be measured by actual functioning. Still, she says, “My own view is that people should be given ample opportunities to lead a healthy lifestyle, but the choice should be left up to them; they should not be penalized for unhealthy choices.” Nussbaum consistently argues throughout the book that children should be nurtured to fully develop their capabilities. Care and education of children are a necessary component of any theory of justice. She says, “For children . . . functioning may be made the goal in many areas. Thus I have defended compulsory education, compulsory health care, and other aspects of compulsory functioning.” For adults, justice demands only that capabilities are ensured, but Nussbaum sees children as an exception. Without maximizing a child’s functioning, the resulting adult cannot be guaranteed as full a set of capabilities as possible. Consistent with libertarian concerns, Nussbaum is concerned with ensuring autonomy of both individuals and nations, but her aim is to maximize autonomy rather than simply protecting individuals from assaults on their liberty. 

She next turns to her approach for implementing a system of global justice. Knowing that many people have unmet needs forces us to ask who has an obligation to meet their needs. The short answer is that everyone shares the responsibility, but it is unreasonable for any one person to shoulder the burden, which is not to claim that the efforts of individuals do not have a cumulative effect. Nonetheless, Nussbaum turns to the possibility of an institutional approach. It is immediately obvious that a world state could implement the changes necessary to guarantee access to human capabilities, but she immediately rejects this idea as dangerous. Governments serve to keep one another in check in certain ways. A global state would have no such restraints. As a result, she suggests that global institutional structure should be thin and decentralized. She sees a world where governments, non-governmental organizations, and corporations all have an obligation to promote human capabilities. One of her principles for global structure has a particular resonance for this project. Often the actions of states are dictated by transnational corporations who make exploitive business deals with countries that often experience desperate poverty. Nussbaum says, “Multinational corporations have responsibilities for promoting human capabilities in the regions in which they operate.” While Nussbaum is claiming that corporations are obligated to improve capabilities rather than exploiting a lack of capabilities, she could make a stronger case for the moral demand based on a history of corporate actions that diminish the capabilities of people living in such regions. For example, if a corporation takes the land people live on to grow or fish for food and then offers only the opportunity to work in unhealthy and dangerous conditions, then individuals have lost their freedom, health, and security. For trade to be mutually beneficial, corporations are not obligated to promote the greatest capabilities and autonomy possible, but they certainly must not rob individuals of their autonomy, including economic freedom. Martha Nussbaum’s assertion that corporations have an obligation to promote capabilities will probably not resonate with libertarians, but the history of corporate conquest and theft obligates them to repair the capabilities of their victims, not to promote capabilities out of a commitment to creating a more ideal world. 

Amartya Sen

Amartya Sen’s Development as Freedom is also based on capabilities, but he argues that the poorest people will benefit most from development, which requires not only interaction with the market but education, democracy, and individual agency. Like Nussbaum, Sen has expanded the areas of concern explored by John Rawls. Development as Freedom, of course, focuses on global concerns. Some might assume that by development he means only economic development, but for him development means promoting economic development, education, democracy, women’s agency, and human rights. The book is based on lectures Sen gave to the World Bank, which is not a reason for optimism that his goals can be achieved. He states in the preface that the World Bank has not “invariably” been his “favorite organization.” He goes on to say that he offers the book to the general public for discussion that will perhaps motivate people to pursue social change. The book has been so influential that its contribution to social discourse cannot be denied. We can only hope that members of the World Bank will work toward a more just global order. 

Sen’s argument is so full of information and complexity that it is difficult to discuss it without repeating it point by point. Anyway, the evidence for promoting capabilities is compelling but complicated. For example, Sen points out again and again that famines do not happen under democracies. As examples, he mentions famines in pre-democratic Ireland and China, and claims that no famine has occurred in a country ruled democratically. Sen therefore claims that democracy is essential to preventing famine. At the same time, education reduces fertility and promotes economic development and human freedom. China has provided education, forcefully reduced fertility, and generated impressive economic development all in the absence of democracy. India has a putative democratic government, but education, economic development, and equality of women lag behind China. The comparison of India and China indicates that simply holding elections is not enough to promote a full range of capabilities. Some parts of India, especially Kerala, have been successful in ameliorating the situation, improving education and economic prospects. Other parts of India have had less success, but, despite widespread poverty, he says there have been no Indian famines. 

Amartya Sen did not specifically address people with disabilities in Development as Freedom, but he does address it in The Idea of Justice. He notes that people with disabilities face two related problems: they often have reduced earning potential and simultaneously require more income to maintain an acceptable standard of living. Sen notes that social justice theorists who focus too much attention on income distribution underestimate the level of inequality faced by people with disabilities. In responding to disability, we must consider ways to diminish the incidence of disability and also to diminish the effects of disabilities that exist. Sen accuses Rawls of failing to recognize that people with different circumstances and abilities have different opportunities to convert resources into actual capabilities. Sen also notes that it is essential to make a “focus on functionings and capabilities” a necessary part of thinking of how to set up an institutional structure, rather than leaving it for the legislative stage as Rawls suggests. 

Sen makes a point of distinguishing between theoretical capabilities and what someone is actually able to do. He suggests three possible cases for disabled person A. In case one she is not helped and cannot leave her house. In case two, she is helped by a social security system and people with goodwill and is therefore able to move about freely. In case three, she is assisted by well-paid servants who take care of her needs and enable her to move about freely. He notes that under his capabilities approach, she is free in cases two and three. He emphasizes that it matters what she “is actually capable of doing.” He says that she is also unfree in case two under the “republican” or “neo-Roman” theory that holds that one is free only when no one can eliminate a person’s abilities even when they a want to. In case two, her freedom is what he calls “context dependent,” as it depends on the goodwill of others.

For Sen, economic development is essential for the development of human capabilities, but economic development must come with the cultivation of education, freedom, and democracy. Focus on economic gains alone can actually stunt development of human capabilities. When we talk of human capital, we must see humans more broadly. He says, “It is important to take note . . . of the instrumental role of capabilities expansion in bringing about social change (going well beyond economic change).” As an example, he says that female education reduces fertility rates and improves family relations, public discourse, and child mortality. Sen provides a compelling argument that economic development is necessary to the development of human capabilities, but it must be accompanied by education and expansion of personal freedoms.  In turn, improvements in education and personal freedom enhance the prospects for economic growth and development. 

Powers and Faden

In Social Justice: The Moral Foundation of Public Health and Health Policy, bioethicists Madison Powers and Ruth Faden hope to develop a theory for promoting public health and health policy that gives guidance on how to prioritize the need to redress inequalities.  In contrast to Rawls, they hope to develop a nonideal theory that addresses empirical judgments of inequality. They hope, also, to develop a theory that considers justice in terms that go beyond mere distribution of basic goods. They attempt to assess the justice of social systems by how well they address six dimensions of well-being. The six dimensions of well-being they propose include health, personal security, reasoning, respect, and attachment. Powers and Faden aim to create a theory that will enable us to set priorities for health care in actual practice.

To do so, they look at actual cases of injustice and offer an analysis of how promoting the six dimensions of well-being can help guide policy makers and others in setting priorities for health and health care. Powers and Faden have many points of agreement with Martha Nussbaum and Amartya Sen, but they seek to establish a theory based on actual functioning rather than a capability to function, which is endorsed by Nussbaum and Sen. Nussbaum, of course, acknowledges some circumstances where actual functioning is more important than mere capabilities, especially in the case of children. 

Faden and Powers aim to provide justice for many of the world’s underserved populations. On the question of global justice, Powers and Faden are not entirely silent, but they tend to address justice within national borders rather than across them. They note that health disparities exist between rich and poor countries and demand collective action to rectify the situation. They mention that the life expectancy of a 15-year old boy in Uganda is 20 years shorter than the life expectancy of a 15-year old boy in the United States. They attribute this difference to the poverty of nations or to corrupt governments. They go on to say, “While the severity of poverty in the developing world is of staggering dimensions, poverty is also present in unfortunate abundance in the world’s wealthy nations.” They mention that the World Bank and the International Monetary Fund have forced some countries to dismantle public welfare programs. The model Powers and Faden propose could guide policy considerations on a global scale. It is more difficult for individuals not involved in international trade and global finance to imagine ways to improve global functioning, but the guidelines Powers and Faden present would help to determine how we measure success in eliminating global disparities. Unlike Nussbaum and Sen, however, their theory comes into conflict with libertarian theory as they seek to ensure functioning and not just the ability to function. Nussbaum in particular accepts the libertarian tenet that adult individuals have the right to decide what they will do with their own bodies even if it means choosing to not function at all. 

Conclusion

While I attempt to accept the minimalist claims of the libertarians, I also argue for an approach that is more expansive in its reach than either libertarians or Rawlsian theorists would endorse. My argument is that many, though not all, of the goals of the Human Development Approach and Utilitarianism can be justified through concerns for liberty. The impact of human choices on liberty is much greater than libertarians assume. For libertarians, individual freedom arises from what one owns, and everyone is entitled to a degree of liberty arising from one’s ownership of one’s own body. Even without tangible property, each individual is entitled to make decisions regarding his or her own body and to enter into agreements to sell one’s labor. The libertarian approach assumes that individuals suffering from poverty or disease are responsible for improving their own situation so long as no one has interfered with their exercise of free choice. Based on the assumption that human misery is primarily the result of the victims’ own poor choices and occasional bad luck, libertarians dismiss obligations of the wealthy to the disadvantaged as supererogatory duties at most. More often, libertarians reject the idea that anything needs to be done for the least advantaged. Libertarians do concede, however, that poverty resulting from theft or slavery demands remedy. 

Given their own logic, the state of affairs in the world is made through a series of free exchanges leading to mutual benefit for those involved in the exchange. To assume that the current global distribution of wealth in the world results from free choices and just acquisition ignores the history of the development of Europe and the United States. In The Wealth of Nations, Adam Smith enumerates enterprises that might require special protection from the government. He says, “An ordinary store or counting-house could give little security to the goods of the merchants who trade to the western coast of Africa. To defend them from the barbarous natives, it is necessary that the place where they are deposited, should be, in some measure, fortified.” It does not occur to Smith that the “barbarous natives” are the rightful owners of the resources contained within Africa. Unfortunately, many contemporary traders and neoliberal theorists seem equally blind to the entitlements of indigenous peoples. In examining the meaning of the term “neoliberalism,” Stanley Fish concluded, “Neoliberalism is a pejorative way of referring to a set of economic/political policies based on a strong faith in the beneficent effects of free markets.” Whether neoliberalism is pejorative or not, I take it to be an economic philosophy that sees regulation of markets as a problem and not a solution to global poverty or inequality. I once had sympathetic students express remorse that Africans do not have enough resources to lift their citizens out of poverty. I pointed out that extractive industries make a great deal of profit from resources residing in Africa but that Africans frequently do not control the resources where they live. 

Furthermore, the free choice of empowered traders often have consequences (sometimes referred to as externalities) for those not at the bargaining table. For example, an infinitesimally small number of individuals may deliberately choose a disability or illness, and more have disabilities as a matter of bad luck, but more suffer from the actions of outside parties. Disabilities and illnesses may result from environmental degradation, poorly designed medications, or other forms of mistreatment out of the control of the individual. To be consistent, libertarians must passionately protect the ability of these individuals to make their own choices about their lives. 

Nozick proffers four levels of ethics: respect, responsibility, caring, and light. On his view, only the ethics of respect should be mandatory. The ethics of respect will mandate, “respecting another (adult) person’s life and autonomy, forbidding murder and enslavement, restricting interference with a person’s domain of choice, and issuing in a more general set of (what have been termed) negative rights.” Higher levels of ethics comprise concern for the value of others, compassion and understanding, love for others (ahimsa), and, finally, devotion to truth, beauty, and holiness. Nozick states, “I do not say that the ethics of each higher layer is more obligatory. It is just lovelier, and more elevating.” He fails to consider how devotion to the first level might entail concern for the higher levels. Showing concern for the life and autonomy of the individual requires also a commitment to understanding others and, of course, demands a commitment to truth. Be that as it may, the level of respect requires us to protect the autonomy of individuals by ensuring no one is robbed of the opportunity to live or develop their capabilities by the actions of others. We must also ensure that our free choices do not impair the choices available to others, regardless of whether they are rational adults, children, or adults who may have impaired rationality. Given that some are unable to make free and informed choices, we are obligated to assume they would never choose a life of misery or early death. Failure to protect their basic interests by preventing actions that rob them of a life free from disease and disability violates the first principle of respect.

The problem, of course, is that some individuals have no ability to enter into agreements to promote mutual benefit, and such agreements are the basis for ethics and morality for Nozick. Further, Nussbaum points out that all humans lack this ability at various stages during their lives. Nozick does note that moral progress can occur when “conditions change so that an extension of cooperative coordination to include this group becomes feasible and desirable, in that the previous group of cooperators, or a power subgroup of it, realizes (or believes) that this extension is in its own interests.” In this area, he sees the possibility of concern for animals and fetuses; notably, he does not mention persons with disabilities. 

Although he describes this as moral progress, he does not feel that anyone is obligated to widen the circle of cooperation; it is just nice when someone does. Narveson also has this peculiar view of morality that is not obligatory. Narveson says, “The tendency and desire to do good for others is a virtue. Moreover, it is a moral virtue, for we all have an interest in the general acquisition of this quality.” Like Nozick, Narveson denies that we are obligated to be moral or seek moral progress. Nozick describes the progression to higher levels of ethics by saying, “We then respond to these capacities in others as we respond to valuable things in general, appreciating them, preserving them, nurturing them, protecting them.” While some may not be able to offer anything beneficial in a trading agreement, they are capable of suffering the consequences of the free choices of others. It is not always possible to pinpoint the cause of disabilities, but certainly environmental conditions are often associated with birth defects and disease. Failure to protect individuals from the consequences of irresponsible actions is to rob them of the ability to enter into mutually beneficial agreements. Also, individuals who choose to become parents or even choose actions that result in unintended parenthood must assume responsibility for the wellbeing of their children. However, disease and disability arising from the actions of others entitle both the parents and children to rectification. Because of the lack of specificity in cases of disease and disability, prevention of harm and rectification for past abuses of autonomy will have much in common with the promotion of capabilities that Sen and Nussbaum support.  

This exchange of benefit also applies to persons living in distant parts of the globe, regardless of their capabilities as they are forced to share the earth’s air, water, and minerals with us, regardless of choice. As the quality of the environment affects the ability of individuals to pursue their own choices for a life free from disease and disability, libertarians should strive to protect the air, water, and food quality of the global population. When such goods are privately held, the owners are entitled only to actions that do not affect others who have not chosen the consequences. If I own a bottle of water, I am entitled to contaminate it only to the degree that I do no harm to the water or health of others who have not chosen to participate. This is consistent with the libertarian emphasis on providing security for citizens.

It also recognizes the contribution others have made to our own accumulation of capital and comfort. Choices of consumers and business people in affluent nations, especially through the actions of transnational corporations, force exchanges on individuals without any deliberate choice on their part, which violates the core tenets of libertarianism. Narveson seems to concede this point by saying, “If you live downstream from me, and I decide to dam up the river and divert the water elsewhere, then I have deprived you of your water and must compensate you, by supplying you with the equivalent, or else desist.” Narveson does not go far enough, however. Diverting the water is a one-way exchange where many people give up something of benefit without making a free choice to do so. Addressing the injustice requires more than simply providing something of equal value. If I break into someone’s house and steal all his or her possessions, simply providing something of equal value does not provide redress for the injustice. 

At times, we may feel it is hopeless to try to promote education that engenders greater compassion or concern for justice in our society. We hear pernicious and destructive beliefs every day. But Nussbaum provides us with some hope:

Some pernicious sentiments have been undermined over time, by criticism and replacement of the conceptions and beliefs that inform them. Thus, racial hatred and disgust, and even misogynistic hatred and disgust, have certainly diminished in our public culture, through attention to the upbringing of children and their early education. The careful attention to language and imagery that some pejoratively call “political correctness” has an important public purpose, enabling children to see one another as individuals and not as members of stigmatized groups.

Society will never be free of injustice, but Nussbaum reminds us that our efforts are not in vain. Already, social attitudes toward the disabled have changed dramatically, and globalization and improved dissemination of information is forcing residents of affluent countries to consider how we impact people in remote parts of the world. Empirical data refute many of the claims of libertarians; disease and starvation exist in great numbers and are exacerbated by current policies and practices. Action to promote justice and liberty is both required and possible. 

Everybody’s Talking About Bioethics Now #COVID19

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Since this pandemic got rolling, it seems everyone wants to talk about bioethics “trolley problem” quandaries like how to decide which of three dying patients gets the one ventilator on hand or whether it is okay to lock up healthy people to prevent the spread of a deadly virus. All the boring stuff suddenly got real and real fast, but maybe it’s not that interesting.

You should give the ventilators to the people with the best chance of surviving, right? I think that is how triage works. And, oh, was it all right to tell people to turn off their lights when bombers were flying overhead in the middle of the night? Sometimes even the rugged individualists have to work as a group. The problem is that some of our rugged individualists have never really been put in a position to make tough decisions, so they aren’t prepared.

And that gets us to the real ethical issues here. It is really unethical to be unprepared for emergencies. Experts in many fields have been warning of coming pandemics for at least 15 years. Even George. W. Bush, bless his tiny heart, knew he had to prepare for pandemics, and he at least took at stab at it. And the ever financially minded Barack Obama prepared for pandemics and even dealt with one on his watch. His didn’t get quite so out of hand, of course, and no one should have to tell you why.

So, the important ethical decisions were made years ago, and many of them had to do with the most attention-starved principle of bioethics, justice. The failure to prepare for a public health emergency affects everyone, as we now see, but too many people have always seen efforts to protect public health as efforts to protect “people not like me.” This isn’t always a sign of racism; sometimes it is just pure classism. Some people just don’t hate based on skin color, religion, sexuality, or any of that stuff. They hate poor people of all types.

This is also not a matter of choosing between the “economy” and the needs of working people. Preparing for a pandemic would have meant having mechanisms in place for extensive testing, tracing, and isolation that would have prevented the need to shut down almost all business activities. With proper preparation, the world would have suffered but could continue functioning.

And I guess a lot of Americans really were satisfied with their employer-provided health insurance that they are now losing, because it turns out their employers really never valued them as much as they assumed. It would seem that intelligent and hard working people should always be able to get healthcare, and that’s what we’ve been trying to tell you. You can be hardworking and intelligent and also poor, and maybe it is good that more people are learning this rather difficult lesson right now. Maybe it will help in the future.

But public health isn’t all about health insurance, though turning infected people away from a hospital because they can’t pay is certainly not a good way to protect the public from a pandemic. No, protecting the public health, which is really protecting national security (and global security) is about being able to deal with emergencies, which would require not selling off all the equipment you might need. Most homeowners have never used a fire extinguisher, but the ones who used them successfully were pretty happy they had invested in buying one and taken the time to learn how to use it.

So, yes, more than a decade ago, epidemiologists, virologists, climate scientists, public health experts, public health ethicists, and environmentalists were warning that the world was becoming much more hostile. How do we prepare to ensure our own long-term survival isn’t really as much fun as debating who gets the last ventilator, maybe, but it can save many more lives.

And maybe you’re saying there’s no point in going on about this now as it’s too late. What’s done is done, you’re saying, but this ain’t over, folks. One way or the other, COVID19 will be resolved, but other pandemics will follow along with drought, flooding, mass migrations, and a host of other public health crises that aren’t that hard to imagine if you only try. You may think I’m crazy, but I’m not the only one. Plenty of experts in relevant fields are already imagining the worst and best case scenarios. Maybe it’s time to listen to them.

Pandemics, Climate Change and the Threat of Innumeracy

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Among other things, this pandemic has shown the danger of innumeracy. Over the past few weeks, many have tried to minimise the effects of the pandemic by posting blogs and memes listing absolutely accurate statistics that are also terrifying to the specialists tracking the number of infections. Just for example, many people said a fatality rate of 2.0 (or even 1.0) was about the same as that for influenza. Of course, a fatality rate of 2.0, would be 20 times as bad as the seasonal flu, and even 1.0 would be tens times as bad.

Among those posting information to minimise the effect of the pandemic were healthcare providers, including doctors who work with infectious diseases. Doctors trained in medicine and not risk assessment are not better at assessing risk and probabilities than the general population. The 1982 book, Judgment Under Uncertainty: Heuristics and Biases, edited by Daniel Kahneman, Amos Tversky, and Paul Slovic, examined the ability of people, with several chapters devoted to medical professionals including doctors, to assess risk based on probabilities. People in general, including doctors, just aren’t that good at it.

Subsequent research in medicine has shown similar results. Without specific training in assessing risk based on statistics and probabilities, doctors are no better than the general public at making decisions. We all need a more robust understanding of statistics, probabilities, and risk assessment.

It would help us better understand the risk of pandemics, and it may help us better understand the risk posed by climate change. Many people still think it isn’t a big deal to have the average global temperature increase by 1 degree.

Assessing Pandemics

As pandemics go, a virus that produces a lower average mortality rate can have greater overall lethality than a much deadlier virus because of its ability to spread. As Nathan Wolfe puts it in The Viral Storm, “A very deadly epidemic that doesn’t seem to be spreading is less worrying than a nominally deadly pandemic that’s moving at a fast clip.” The fatality rate for Covid-19 is estimated anywhere between 1 and 3.4 percent. For a comparison, Wolfe says the mortality rate for the 1918 epidemic (called the “Spanish” flu), “may be even lower than 2.5 percent, as many deaths were probably caused by secondary bacterial infections.”

Wolfe’s book was published in 2011. Virologists have been warning of the near certainty of future pandemics for many years now. Increased travel, industrial farming methods, loss of habitat for wildlife, and climate change all increase the risk of pandemic in various ways.

Covid-19 may quietly fade away as new cases decrease, or it may become much less deadly to the point that it causes few symptoms, or it may continue to spread rapidly and kill many people. I don’t know what the outcome will be, but I do know we (meaning the human race) must prepare for ongoing pandemics, because they are not going away.

Pandemic, Panic, and Complacency

Crudely, generally, and absolutely not universally, deadlier viruses are easier to contain geographically than milder viruses. Ebola, MERS, and SARS all have much higher mortality rates than Covid-19 and were limited to smaller regions. The obvious reason for this is that sicker people are too sick to spread a virus to the community and the world at large. Covid-19 spreads easily because it appears to be spread in the absence of symptoms and for an extended period of time. People who are infected travel, go to work, go shopping, visit hospitals, and so on.

Quite a few people point out that the mortality rate for Covid-19 may be overstated because an unknown number of people probably contract the virus without ever showing symptoms, so these survivors are not a part of official counts. That’s true, but it is also true that people who have died of pneumonia and other infections may also have had undiagnosed Covid-19. No one knows which group of people is larger, so estimating the mortality rate is still just a guess.

Given that the mortality rate is only a guess, experts have made their best guesses at somewhere between 1.0 and 2.7 percent. The mortality rate for seasonal flu is 0.1 percent. Based on this, Covid-19 will cause from 10 to 27 times more deaths than the flu. 646,000 people die from influenza annually. If Covid-19 reaches a similar saturation, that will mean deaths from 6.5 million to 17.5 million people.

Each year, hospitals and surgeries strain under the burden of treating complications related to seasonal flu. Add a few million cases of pneumonia to the mix, and you have the potential for a fairly daunting problem. Panic doesn’t help anyone, but this is a serious global health event.

Essay: Some Conflicts of Interest Have Little Conflict

Let’s say you make a lot of money in some industry or another, and you’re lucky enough to get an appointment to an agency that regulates that very same industry. Your regulatory decisions could affect your bottom line, and so you have a conflict of interest and you should either be forced to give up your job as a regulator or get rid of all your financial interests in the industry with the provision that you may never acquire financial assets in the industry again. And if you’re a doctor on the payroll of a pharma company, your employment status most definitely affects your medical decisions.

That’s a pretty simple and obvious concept to anyone who doesn’t work in industry. People who work in any given industry tend to think “outsiders” wouldn’t know enough about the industry to regulate it, so of course you’d need someone with major conflicts to understand what really needs to be done. And so it goes.

But other people are described as being conflicted when they really don’t have any conflicts at all. Let’s say you are a researcher, and you apply to a corporation for funding for your research. Congratulations, you now have a huge grant from Megacorp Inc. to fund your lab, materials, research assistants, etc. in hopes of developing new products. You are now just a handsomely rewarded employee of Megacorp Inc. Your only interest is in developing new products for them.

It’s true that some will describe you as conflicted because they think you should be looking out for the public good, but that really isn’t in your job description. You’re just developing products.

And this is why we need public funding for research. So we can demand that researchers we are paying work for the public good and not in the interest of for-profit corporations.

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Essay: A Non-Capitalist Approach to Biomedical Consent

Ask anybody about bioethics in the old days, like forty years ago, and they’ll talk all about autonomy and consent. It was all about how people didn’t have to do what you thought was good for them and how you couldn’t touch patients, even to help them, without it being some kind of battery or something. Everybody talked about all these famous examples where people were treated without wanting to, but most people only go to the doctor when they want and need to get treated. Most people these days only refuse treatment because they can’t afford it.

I’m sure a lot of them can’t afford the treatment but also don’t need it. It’s hard to argue with a doctor about that, though. If you want to feel better, stay healthy, live longer, or whatever; you’re going to listen to the doctor. You are paying the doctor to know more about it than you do. And the doctor may or may not be making money off every service you buy. It’d be good to know who makes money off what, wouldn’t it? It would also be good to know in advance exactly what everything would cost. It would be even better to be able to prepare costs.

In the early days of bioethics, it wasn’t all about costs, because most people could afford their healthcare bills. Money was a concern, of course, but people didn’t panic from fear that their life savings would be wiped out anytime they got sick. It wasn’t at the front of everyone’s mind, so when someone refused treatment, it was because they didn’t want to live longer, didn’t think the treatment worked, or something like that.

But now it’s all about costs. Can a doctor ethically prescribe you treatment knowing you can’t afford it? Can a doctor ethically not tell you about treatments you can’t afford? Should doctors help patients set up Go Fund Me accounts? How can anyone just stand by and let people die because they can’t afford insulin?

In the past, we didn’t notice how much autonomy and consent were tangled up in financial concerns. Most patients didn’t know doctors received so much money from industry. Most patients trusted their doctors, hospitals, and so on to have their best interests in mind, not to be focused on profit front and center. But things have changed, and bioethics can’t afford to have many debates that don’t deal with patients’ ability to access needed care.

So, if you are dealing with public health ethics and planning for pandemics, you might want to consider how many patients will walk around shedding viruses simply because they can’t pay for a visit to the hospital. And if people are forced into quarantine at hospitals, you might want to consider who will get the bill for that. It’s the same with vaccines. At least some people are opposed to vaccines because they think, right or wrong, that they are just being made to create more profit for pharmacy companies, clinics, and doctors. It’s just another way, they think, to get in people’s pockets.

I’m not saying that no one writing in bioethics is dealing with these topics. Great work is being done. What I’m saying is that all work in bioethics must include a discussion of economics and an expressed concern for how access to medicine can be guaranteed for everyone who needs it. You can have lots of detailed and technical disagreements over how much medicine is actually needed and what are the best ways to deliver needed medicine without bankrupting an entire country, but the focus should be on creating a society of healthy, financially secure people. That’s all anyone wants, I think, and anyone who doesn’t want it isn’t really worth my trouble.

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