The Promise of Human Rights. Jamie Mayerfeld
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to subsistence.44 Moreover, since most people are not satisfied with subsistence alone, they will have ample incentive to struggle for higher levels of economic well-being not guaranteed to them as a human right. It is only an extreme view which holds that individuals benefit from the self-reliance learned by struggling to subsist when there is not enough work for everyone or some of the available jobs provide too little to live on. The notion that malnourished children and adults are better treated for having no one come to their assistance is a reductio ad absurdum. And if self-reliance is this important, there is no reason to stop here. Why not let people fight for physical safety as well as economic subsistence? No doubt the necessity of single-handedly fending off attackers may sharpen one’s wits and build up one’s courage, but that is no reason to reinstate the law of the jungle. We lose sight of human rights when self-reliance becomes our ruling ideal.
Why do some Americans resist the idea of socioeconomic rights? One reason is that their education often leads them to think about rights in terms of the U.S. Bill of Rights, the first ten amendments to the Constitution. The Bill of Rights emphasizes civil-political rights to the neglect of socioeconomic rights. Americans often forget that the constitutions of all fifty states establish a right to education. They overlook the fact, too, that socioeconomic rights are enshrined in the Universal Declaration of Human Rights, several international treaties, and an increasing number of national constitutions. Countries whose bills of rights enshrine socioeconomic rights have developed a growing jurisprudence on the legal implications of such rights. Though some theorists deny the practicality of constitutionalized socioeconomic rights, experience is proving them wrong. Courts have articulated interpretive guidelines and principles, and governments have adjusted their policies in response. In Kim Scheppele’s words, “what isn’t supposed to work in theory actually does seem to work in practice.”45
It would be foolish to claim that civil-political and socioeconomic rights are indistinguishable. They are different in several ways. What they have in common is that their acknowledgement is a necessary component of treating one another with respect. If there are any human rights, they include socioeconomic as well as civil-political rights.
Who Is Responsible?
For a harm or deprivation to count as a human rights violation, does it matter who the agent is? If a police officer beats a prisoner in his custody, we would all agree that a human rights violation has occurred. What if a husband beats his wife? What if a hoodlum beats a stranger on the street? Are these human rights violations, too?
There are, broadly speaking, three views. On one view, human rights are claims against governments and their agents only, so that only governments and their agents can violate human rights. On a second view, human rights are claims against institutions more broadly defined, including not only governments but also (for example) insurgencies, criminal organizations, businesses, families, intergovernmental organizations, religious institutions, voluntary associations, and cultural practices, so that all individuals acting as part of an institution can violate human rights. On a third view, human rights are claims not only against governments and other institutions but against individuals in general, so that all persons whether or not they act as part of an institution can violate human rights. We may call these the state-centric,46 the broad institutional,47 and the institutional-and-interpersonal48 conceptions respectively. I shall sometimes refer to “institutional” versus “inclusive” conceptions to contrast the first and second with the third.
I believe that the simplest and most inclusive view is the best one. If we are interested in human rights because we want to protect human beings from grave injuries and indignities, we should recognize that the relevant injuries and indignities may count as human rights violations whether caused by governments, institutions, or individuals. A celebrated quote by Eleanor Roosevelt captures the heart of the matter:
Where, after all, do universal human rights begin? In small places, close to home—so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighborhood he lives in; the school or college he attends; the factory, farm, or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.49
In John Tasioulas’s apt words, “what is in question is not merely a legal-institutional structure, but a human rights ethos that pervades our lives, cutting across boundaries between public and private, society and state.”50
Though institutional conceptions do not (I claim) represent the best understanding of human rights, one can understand their persistent influence in human rights discourse. When international human rights organizations like Amnesty International and Human Rights Watch emerged in the 1960s and 1970s, they limited their efforts according to a rough division-of-labor logic. They would monitor government abuses on the assumption that governments would remain vigilant against ordinary crimes. Only later did human rights organizations recognize the need for a wider focus, given that insurgencies commit human rights atrocities of their own, that women suffer pervasively from violence in their homes and communities, and that national and multinational corporations subject workers to inhuman and degrading conditions. Though it is not plausible to view governments as the sole violators of human rights, we remain partly under the spell of the classic model of human rights activism, understandably so in view of the massive violence and terror that governments continue to unleash.
Another factor is the influence of legal discourse, specifically, our tendency to associate human rights with international human rights treaties and the judicial enforcement of constitutional bills of rights, both of which place primary responsibility on governments. Traditionally, international treaties are addressed to states and assign obligations only to states. Most human rights treaties follow this tradition. A telling example is the Convention on the Elimination of All Forms of Discrimination Against Women. While recognizing that sex discrimination is rooted in cultural prejudices and stereotypes, the treaty assigns the obligation of eliminating harmful prejudices and stereotypes only to states (art. 5). At the same time, when domestic courts enforce constitutional rights provisions, they almost always address their rulings to legislative and executive officials. They do so not only when the immediate agents of the harm are identified as government officials but also when they are identified as nonstate actors. In the latter, so-called horizontal rights cases, it is government officials who are given responsibility for ensuring that the nonstate actors desist from the harm.
Another factor (one that encourages institutional conceptions in general) is that institutions are undeniably important and require our sustained attention. Many scholars properly devote their careers to understanding the ways in which institutions cause or prevent personal harms. Because of the huge importance of institutions, we may feel that we can exert greater leverage—that is, achieve broader and more lasting results—by seeking to improve institutions than by seeking to improve the behavior of individuals as individuals. It is easy to slide from the thought that “institutions are important” to the thought that “institutions alone are important.” But to think that institutions alone are important is to obscure the large role that individual agency plays in our lives.
Why prefer the inclusive conception of human rights? Notice, in the first place, that the state-centric conception produces odd distortions and displacements when nonstate actors are the primary agents of harm. Consider domestic violence against women. On the state-centric conception, we must adopt one of two implausible views—either that no human rights are violated, or that they are violated not by the batterers but by the government agents who fail to take appropriate preventive action. The sad fact is that the state-centric conception of human rights has contributed to the invisibility of violence against women. Note, too, that the state-centric conception encourages the view that government is the solution to our problems. To be sure, sometimes government is the solution, but sometimes it forms only part of the solution or no part of the solution at all; we should not prejudge the question. African NGOs such as Tostan have discovered that female genital cutting (FGC) is more successfully combated through education