Right of Necessity, The: Moral Cosmopolitanism and Global Poverty (Off the Fence: Morality, Politics and Society) - Softcover

Mancilla, Alejandra

Softcover

ISBN 10: 1783485868 ISBN 13: 9781783485864

Publisher: Rowman & Littlefield, 2016

Synopsis

Does recognition of the basic human right to subsistence imply that the needy are morally permitted to take and use other people’s property to get out of their plight? Should we respect the exercise of this right of necessity in a variety of scenarios – from street pickpocketing and petty theft to illegal squatting and encamping? In this concise and accessible book, Alejandra Mancilla addresses these complex and controversial moral questions. The book presents a historical account of the concept of the right of necessity—from the medieval writings of Christian canonists and theologians to seventeenth century natural law theory. The author then goes on to ground this right in a minimal conception of basic human rights, and proposes some necessary and jointly sufficient conditions for its exercise. She confronts the main objections that may be posed against this principle and ultimately concludes that the exercise of this right should be considered as a trigger to secure a minimum threshold of welfare provisions for everyone, everywhere.

About this title

About the Author

Alejandra Mancilla is a postdoctoral researcher at the Centre for the Study of Mind in Nature (CSMN), University of Oslo, Norway. She is the co-editor of Theories of Justice (2012), and her articles have appeared, among others, in the Journal of Political Philosophy, Res Publica, the Journal of Applied Philosophy,and the Critical Review of International Social and Political Philosophy.

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The Right of Necessity

Moral Cosmopolitanism and Global Poverty

By Alejandra Mancilla

Rowman & Littlefield International, Ltd.

Copyright © 2016 Alejandra Mancilla
All rights reserved.

ISBN: 978-1-78348-586-4

Contents

Acknowledgements, xi, 
1 Reviving the Right of Necessity, 1, 
Part I: Historical Accounts of the Right of Necessity, 23, 
2 The Right of Necessity as a Retreat to the Right of Common Use, 25, 
3 The Right of Necessity and the Pull of Self-Preservation, 45, 
Part II: The Right of Necessity and Global Poverty, 63, 
4 Justifying the Right of Necessity, 65, 
5 Content, Form and Conditions, 81, 
6 The Overdemandingness Objection, 97, 
7 The Right of Necessity within Moral Cosmopolitanism, 111, 
Bibliography, 117, 
Index, 123, 

CHAPTER 1

Reviving the Right of Necessity

As I write these lines, in 2015, 836 million people live with less than 1.25 dollars a day. Seven hundred ninety-five million people (that is, one in nine people on earth) do not have enough food to lead a healthy, active life. Seven hundred fifty million people lack access to clean water, and 16,000 children under the age of five die each day due to preventable causes like diarrhoea, malaria and pneumonia. At the same time, wealth inequality worldwide has been on the rise since the 2008 economic crisis. Currently, it is estimated that the richest 1 percent of adult wealth holders now own half of all household wealth, reaching levels not seen for almost a century.

The first four statistics are enough to give a flavour of the scale of world poverty today and the high toll it takes on human lives. The last one, related to global wealth inequality, points to the huge gap between the realities of those in need and those who have resources in abundance. All together, they constitute the raw material from which a growing number of moral and political theorists have posed the question of what moral duties, if any, affluent countries and individuals owe to the poor.

Because of their influence and pervasiveness in this debate, in what follows I focus my analysis on a particular strand of analytic political theorists — namely, moral cosmopolitans. Broadly construed, moral cosmopolitanism aims at diminishing human suffering and at respecting and promoting human rights and justice on a global scale, starting from three assumptions: that individual human beings are the ultimate unit of moral concern (individuality); that this status attaches to every human being equally (universality), and that this status is to be acknowledged by everyone else (generality). Without fear of oversimplifying, I suggest that the answers of moral cosmopolitans to the above question could be classified in two main groups, depending on which kind of duties are emphasised.

On the one hand, what I hereafter call justice cosmopolitans answer the question from a global justice perspective. As Thomas Pogge, one of its most prominent exponents, explains, the focus of this view is 'the causal and moral analysis of the global institutional order against the background of its feasible and reachable alternatives'. To design and redesign international and supranational institutions so that they do not cause insecure access to the objects of basic human rights in a foreseeable and avoidable way is the goal of this position, inspired by Rawls's conception of justice as the first virtue of social institutions. The implication is that those who are better-off under the current global structure, and especially those who have greater influence and bargaining power, have above all negative duties not to support or participate in the creation of global institutional arrangements that uphold injustice, and not to contribute to, or profit from, them.

In Pogge's view, the coercive social institutions that constitute the global order are directly responsible for the unfulfiled human rights of the poor, while all individuals who participate in it are indirect contributors, and should stop being so. It is thus assumed that there is a causal, though indirect, link between the plight of the needy and the actions of all those involved in the imposition of such institutions — where involvement is understood in a broad way.

On the other hand, assistance cosmopolitans, as I tag them from now on, emphasise assistance as the main moral duty that the global affluent owe to the global poor. Where justice cosmopolitans trace causal connections between the actions of the wealthy and the plight of the needy in order to ground the duties of the former, assistance cosmopolitans simply look at the jaw-dropping economic and social inequalities in the world today and conclude that those who are in a position to aid are failing to do enough to diminish the total amount of suffering. For Peter Singer, the most prominent assistance cosmopolitan, there are no excuses to go on failing on this duty, especially given at what little cost the better-off could actually make a positive difference. He formulates his argument for an obligation to assist thus: 'If it is in our power to prevent something bad from happening, without sacrificing anything nearly as important, it is wrong not to do so'. Considering, as he claims, that never before has the world seen so many rich people ('there are about a billion living at a level of affluence never previously known except in the courts of kings and nobles'), saving the lives of the more than two billion living in abject poverty is presented as a relatively cheap moral task, and makes it all the more appalling not to do something about it.

Depending on what they think is the minimum morally required from those in a position to help (in terms of money, time and effort), assistance cosmopolitans range from those who demand that agents change their current ways of living dramatically, to those who argue for a more moderate duty to help the poor that is to be balanced against other important moral considerations — for example, personal projects and relationships. In general, assistance cosmopolitans propose that this positive duty to aid should be exercised mainly through governmental and nongovernmental agencies, while some seek the institutionalisation of aid at the supra-national level, via some sort of global taxation.

This is an extremely succinct presentation of the positions of justice and assistance cosmopolitans. It should be enough, however, to restate the point made at the beginning: despite the different justifications offered, both sides focus on what the well-off are doing that has a detrimental impact on the lives of those in need, or on what the well-off are failing to do that would have a beneficial impact on them, and, thence, on the duties derived. Furthermore, even when the suggestion is that the world's rich are violating the human rights of billions, the conclusion is that we, the lucky ones (and, not surprisingly, moral and political theorists always fall on this side of the division), ought to fix the problem by upholding our duties of justice or assistance, or both.

In this book, I focus on the other side of the coin — that is, I focus on what having a human right to subsistence actually and practically means for their holders, and on what actions it allows them to undertake when it remains unfulfiled. That is, my main interest is on what the needy may be morally permitted to do by themselves and for themselves to fulfil or satisfy their basic right to subsistence, given the unjust structures that keep them in a state of deprivation, or given the insufficient assistance they get from those who could easily offer it, or both. This question has been mostly overlooked in the debate so far conducted, where the materially privileged seem also to be the morally anointed to address the plight of the worse-off. Instead of characterising the needy as passive recipients of whatever the wealthy decide to do on their behalf, I thus take them to be agents whose role in a cosmopolitan morality has been insufficiently explored. This analysis is therefore thought of as a necessary complement to the analyses so far advanced.

To look at the issue from this standpoint becomes all the more pressing if one looks at some straightforward figures. Applying Pogge's own estimations, 18 million people die prematurely every year from easily preventable poverty-related causes, representing one-third of all human deaths. If this really constitutes the largest (if not the gravest) human rights violation in the history of humankind, as Pogge contends, and if those who are perpetrating this massive violation persist doing so, it is timely to ask what those whose very self-preservation is endangered may do for themselves in such a scenario. Regarding global assistance, a quick look at the amounts donated to the poor by rich citizens and countries through NGOs and governmental agencies in the last years and at the actual efforts to put in place international and supra-national mechanisms such as a global tax, indicate that the majority of those who ought to aid are failing to do so, or not doing enough, even if this comes at a minimal cost to themselves. In this context, to ask what those in need may do about their plight in the meantime does not seem out of place.

In a nutshell, the answer offered is the following. Starting from the assumption that there is a basic right to subsistence, my claim is that, given three individually necessary and jointly sufficient conditions, a chronically deprived agent has a right of necessity to take, use and/or occupy the material resources required to guarantee her self-preservation, or the means necessary to obtain the latter — where these material resources may include a space to be and to inhabit — even if this means encroaching upon the property of third parties. The conditions are that the need in question is basic, that the person in need does not violate other equally important moral interests to exercise her right, and that it is a last resort. In a hypothetical society where the basic right to subsistence of all individuals is secured under normal circumstances, the exercise of this right would be truly exceptional and mostly confined to one-off emergencies. On the contrary, in the world as it is, where millions suffer from chronic deprivation and where it is at least doubtful that they will exit that state any time soon, the exercise of the right of necessity could turn out to be a much more common occurrence.

The idea of a permissible right of the poor to take someone else's property to get out of their plight is not new, but inspired by medieval and early modern accounts which expand the traditional, narrow understanding of necessity. Since ancient times, necessity was thought to 'break through the ties of all laws' (Seneca was the one to make that claim), and it was used to justify all sorts of otherwise wrongful acts if done in order to survive. For example, throwing the cargo overboard to prevent a ship from sinking, or feeding on human flesh when on the brink of famine. The originality of medieval and early modern theorists resides in that they enlarge the umbrella of necessity to include not only one-off emergencies that were mostly naturally caused but also cases of chronic deprivation that seemed to result from structural inadequacies of the social and institutional context.

Regarding the form of the right, I suggest that it is a liberty in the sense that Judith Jarvis Thomson gives to this term when dissecting Wesley Newcomb Hohfeld's famous typology of rights. A liberty, in this sense, is a privilege compounded with a claim of non-interference against others. In Hohfeldian terminology, if A has a privilege to f (where f is an action), A is free to f — that is, she has no duty not to f. But having a privilege does not entail that A has a claim against other parties to f. In the case in point, if the needy agent merely had a privilege to take, use and/or occupy the resources needed, this would mean that, given certain conditions, she would be morally free to do so. This, however, would not correlate with any duties of the owner of x or any other person for that matter. What is more, the agent's privilege to take, use and/or occupy the resources needed might well collide with the privilege of the owner to defend his property against intruders, needy or not, or with the privilege of any other third parties to impede the agent's actions. This is why it is insufficient to understand the right of necessity as a privilege alone, and why it must be supplemented by a relational claim of non-interference against others, including the owner of the targeted resources. The right of necessity, as I propose to understand it, thus leaves the agent a space of freedom to act which others are duty-bound to respect.

The focus of this book, then, is on the right of necessity as a concrete manifestation of the right to subsistence. Talk of duties is not absent, however, but forms a key part of the discussion. This does not render invalid my initial critique of the cosmopolitan debate on global poverty and its overemphasis on duties talk. Insofar as rights and duties are correlative (that is, insofar as a right is conceptualised as a claim against someone to do or not to do something), rights talk and duties talk go necessarily hand in hand. My point is rather to underline that human rights in general — and the basic right to subsistence in particular — are also action-guiding, contrary to Onora O'Neill's contention that 'those who claim still see themselves within an overall framework of recipience', and that 'they still demand that others act rather than they do so themselves'. Instead of assuming that those bearing the duties are the only ones entitled to take steps towards the universal fulfilment of basic subsistence rights, it is reminded here that basic rights as claims may be actively realised by the individual holders in the last instance, even if this implies breaking the law. In these situations, those bearing the correlative duties fulfil them by not interfering: immediately, for example, by letting the former take what they require without resistance, and by not turning them in to the police, and mediately, by not guarding their property in such a way that is inaccessible for those who may need it.

As I expound in chapter 5, a key distinction to be made is between mediate and immediate duties correlated to the right of necessity and final duties aimed at the universal realisation of the basic right to subsistence. As just mentioned, the former are specific duties not to interfere with the needy agent on the spot, and also general duties not to make one's resources unavailable to those who may claim necessity to them. The latter, meanwhile, include positive duties to protect people from falling into deprivation, and to aid them directly if needed, and above all negative duties not to deprive people of their means available to satisfy their basic needs. Using the right of necessity as a normative compass, these final duties might be ultimately reconceptualised as duties not to create and/or uphold conditions under which people may permissibly claim their right of necessity while being at the same time incapacitated from exercising it, or, positively stated, duties to create conditions under which the exercise of the right of necessity by the chronically deprived eventually disappears.

The acknowledgement that allocating these final duties and complying with them is the crucial step towards eradicating global poverty should not distract us, then, from the fact that those undergoing deprivation may do something about their own situation now, even if their actions turn out to be disruptive for the current state of affairs — actually, a bit of disruption might be exactly what is needed to set agents in motion to comply with their final duties. Moreover, that theoretically empowering the needy to exercise their right will make no difference in practice to many of them (because the resources needed are inaccessible) should not speak against the importance of upholding this right, but rather against an economic system that impedes those lacking the most basic material resources from obtaining them by both legal and illegal means.

These statements constitute the core thesis of this book. They are relatively simple, and the complexity will come, above all, from explicating the main concepts, applying them to contemporary scenarios, and addressing the main objections to the principle and its applications.

THE RIGHT OF NECESSITY AND PROPERTY RIGHTS

In his much quoted essay, 'A Right to Do Wrong', Jeremy Waldron characterises what seems to be a standard belief in contemporary moral theory — namely, that individuals have the right to make certain choices within a certain range where they are not to be interfered with, even if these choices are morally wrong. One of these rights, according to Waldron, is to do with our property what we wish, without external interference, even though we could use it for much worthier ends — more specifically, charitable ends. In his view, the decision of someone who has just won the lottery to spend all his money on champagne and horse races instead of giving it to people who really need it is a sort of wrongdoing that should be tolerated by others, for the sake of protecting the individual's freedom of choice, of paramount importance in liberal moral theory.

(Continues...)

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Edition details

• Publisher: Rowman & Littlefield
• Publication date: 2016
• Language: English
• ISBN 10: 1783485868
• ISBN 13: 9781783485864
• Binding: Paperback
• Number of pages: 140