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.
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’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.
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.