25/3/08
The Alleged Dichotomy Between Positive and Negative Duties of Justice1
Elizabeth Ashford
ea10@st-and.ac.uk
Liberty rights are uncontroversially held to be universal human rights. Equally
uncontroversially, there can be 'special' welfare rights, grounded in special acts or special
relationships. But there has been considerable dispute over whether welfare rights can be
general human rights, held by every human being simply in virtue of their humanity.
On the standard view of the duties imposed by rights, negative duties are taken to be
perfect and general, and to be stringent duties of justice that correspond to human rights.
Positive duties, by contrast, are held to be either imperfect or special. If they are imperfect
then they are held not to be duties of justice. Accordingly, positive duties are held to be
duties of justice only if they are perfect, special duties. This leads to the view that positive
duties can correspond only to special rights, that arise in the context of a network of
institutional reciprocal special relationships, rather than to human rights possessed by every
person simply in virtue of their humanity.
Onora O’Neill has offered a particularly sophisticated and influential Kantian
defence of this claim that welfare rights are special rights that depend on institutional
structures for their existence. She argues that from the duty-bearers’ perspective, welfare
rights, which she takes to impose primarily positive duties, are deeply problematic in the
absence of such institutional structures, in a way that liberty rights, which she takes to
impose primarily negative, perfect duties, are not.
Henry Shue, on the other hand, has given several powerful arguments against
drawing a sharp distinction between welfare rights and liberty rights on the basis of the
duties they impose. First, he argues that both welfare rights and liberty rights impose both
positive and negative duties and so cannot plausibly be divided into “positive rights” and
“negative rights”, respectively. Second, he suggests that the standard dichotomies between
1
I am grateful to Charles Beitz, Rowan Cruft, Katrin Flitschuh, Pablo Gilabert, Robert
Goodin, Jens Timmernann and Leif Wenar for extremely helpful comments on previous
drafts.
1
positive and negative duties themselves are overly rigid and schematic.2 In particular, he
argues that positive duties of justice can be perfect, through being institutionally specified
and allocated, and that such perfect, positive duties need not be special.3 He also suggests
that there is not a fundamental distinction between positive and negative duties per se,
arguing that generalisations are not available “at the level of abstraction represented by the
concepts of positive and negative duties”4. Shue’s third main line of argument against a
general distinction between welfare rights and liberty right is that the enjoyment of the right
to subsistence needs to be established securely before the objects of any other rights can be
secured. He concludes from this that if we acknowledge any rights we must acknowledge
the right to subsistence as a basic, human right.
I will here explore a further aspect of the interdependence of the right to subsistence
and certain negative rights. I argue that even if it were conceptually possible to secure
liberty rights in the absence of securing the right to subsistence by strictly enforcing a
prohibition on contracts involving forgoing the objects of negative rights in exchange for
subsistence, doing so cannot be plausibly held to be in the interests of the right-holder. I
then argue that it follows from this interdependence that unless institutional structures are in
place that have guaranteed the right to subsistence, the negative duties imposed by certain
liberty rights may in fact be imperfect in nature. I focus on the right against child labour,
which, I argue, O’Neill’s own Kantian account of rights acknowledges as a general, negative
right, that imposes primarily perfect, negative duties not to coerce. I argue that unless the
right to subsistence has been institutionally secured, the right against child labour is more
credibly seen as primarily imposing imperfect duties. As I argue, to take the duties imposed
by the right against child labour to be perfect duties that can be identified independently of
what institutional structures are in place gives insufficient weight to the interests of the
right-holder.
Accordingly, I argue that imperfect duties can be general duties of justice, and that in
the case of rights that O’Neill takes to be negative, as well as in the case of welfare rights,
the role of institutions may not be plausibly taken to be to enforce antecedently specified
Shue, ‘Mediating Duties’, Ethics 98 (1988): 687-704.
‘Mediating Duties’, p 704.
4
Shue, ‘Solidarity Among Strangers and the Right to Food’, in Aiken and LaFollette (eds),
World Hunger and Morality, p. 122.
2
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obligations. Rather, it is only plausible to take the duties imposed by the right against child
labour to share the features of perfect duties if institutional structures are in place that have
secured the right to subsistence. I therefore hope to reinforce from a different angle Shue’s
argument about the interdependence of the right to subsistence and liberty rights, and, in so
doing, to reinforce at the same time his arguments against there being a fundamental moral
distinction between liberty rights and welfare rights, and between positive and negative
duties themselves.
I begin by analysing the Kantian rationale for the claim that duties of justice must be
perfect in nature, and that positive duties, unlike negative duties, cannot be general duties of
justice. In section two I turn to Onora O’Neill’s defence of this claim and of the distinction
she takes it to ground between liberty rights and welfare rights, and examine her rejoinder to
Shue’s rejection of this distinction. In section three I analyse the nature of the
interdependence of the right to subsistence and liberty rights. In section four, I examine
O’Neill’s account of the perfect, negative duty not to coerce, and argue that it follows from
this account that child labour constitutes coercion. In section five, I argue that because of
the interdependence of the right against child labour and the right to subsistence, then unless
the right to subsistence has been secured the right against child labour is more plausibly seen
as imposing imperfect duties.
1. A Kantian account of the dichotomies between positive and negative duties.
Positive duties are duties to take steps to aid the victim, whereas negative duties are duties
“not to do things”, that is, duties to refrain from interfering with the victim in various ways. 5
The distinction between perfect and imperfect duties is central to Kant’s moral philosophy,
and I will follow his account of these terms. There are two central features of perfect duties.
The first is that perfect duties are exceptionless duties that strictly bind agents’ conduct at all
I am following Jeff McMahan’s account of the distinction between positive and negative
duties, according to which negative duties are duties not to initiate the threat to the victim,
whereas positive duties are duties not to allow a pre-existing threat to continue. McMahan,
‘Killing, Letting Die, and Withdrawing Aid’, Ethics 103 (1993): 250-79.
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times. With the possible exception of potentially catastrophic circumstances, perfect duties
should always be complied with. As Thomas Hill helpfully puts it, perfect duties have the
form “‘Always one ought…’ or ‘One must never’”, whereas imperfect duties have the form
“‘sometimes, to some extent, one ought’”.6 As Hill emphasises, the scope of perfect duties
contains implicit qualifications that accommodate the force of other moral considerations.
Perfect duties themselves, though, can and should be completely fulfilled in all
circumstances. The second feature of perfect duties is that they are fully delineated: they
have a clearly defined content, and they are owed by specific agents to specific recipients.
Imperfect duties, by contrast, allow the agent latitude over both the content and the recipient
of the duty.
The third dichotomy is between special and general duties. As Shue puts it, a special
duty is owed to particular individuals “because of an act, event, or relationship of which a
causal or historical account can be given”. By contrast, “If it is general, it is owed on some
ground independent of specific acts, events, and relationships, such as the mere fact that the
parties involved are human beings.”7 The duties that correspond to human rights that each
person possesses simply in virtue of their humanity are, therefore, general duties.
Kant divides duties into perfect duties of justice and imperfect duties of virtue, and
holds that negative duties are perfect duties of justice, whereas positive duties, unless they
are special, are imperfect duties of virtue. I will now analyse a Kantian rationale for the way
in which each of the two principal features of perfect duties may be held to underlie the
claim that duties of justice must be perfect.
First, it may be held that only exceptionless duties can capture the special force of
rights, namely, that they can and should be honoured in all circumstances. If the duties of
justice that correspond to rights are perfect, it follow that their corresponding duties should
always be complied with. There is no need to engage in weighing up of different persons’
interests in order to decide whether or not to honour a particular right in a particular
situation. As Nagel points out {REF}, only negative rights to non-interference can be
universally honoured in all circumstances. If rights are taken to impose positive duties, then
different persons’ rights may need to be weighed against each other in order to decide what
Thomas E. Hill, Jr., “Meeting Needs and Doing Favour”, reprinted in his Human Welfare
and Moral Worth (Oxford and New York: Oxford University Press, 2002), p. 204.
7
ibid., p. 688.
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conduct is required in a particular case. On this view, then, the special force of negative
rights is that they can and should be honoured in all circumstances. Accordingly, the
primary and most important moral rights are negative rights.
Second, it may be held that in order for a duty to be a duty of justice corresponding
to a right, the right-holder must be entitled to claim the performance of a specific duty by a
specific agent that would realise that individual’s right. Since perfect duties are fully
delineated, it is possible to specify the agent(s) responsible for realising a particular
individual’s right and the precise content of that agent’s duty. On this view, positive duties
can be duties of justice only if they are special, because only then are they owed by a
specific agent to a specific recipient and their content is fully defined. Positive rights, then,
can be special rights but cannot be general basic rights held by every human being simply in
virtue of their humanity. This is the basis of O’Neill’s influential argument that welfare
rights are special rights that depend on institutional structures for their existence, rather than
human rights owed to every person independently of whether or not such rights are
institutionally recognised, to which I now turn.
2. Onora O’Neill’s account of the distinction between welfare rights and liberty rights.
O’Neill’s general line of argument against a rights-based approach to poverty relief is that it
such an approach is recipient-focused, and can as a result end up with an inadequate account
of the perspective of agency – of who ought to do what to remedy the plight of the poor.
She argues that it is an advantage of the Kantian approach that it is agent-focused.
She points out that welfare rights require institutional structures to specify the
corresponding duties of aid and allocate responsibility for fulfilling them to particular agents
and agencies. Without such institutional structures, positive duties are imperfect in nature.
She then argues that such imperfect duties cannot correspond to rights. Given that imperfect
positive duties allow the agent latitude over the content and the recipient of the duty, a
particular destitute individual in need cannot demand of any particular agent (or agency) the
performance of a specific obligation of aid that would realise that individual’s alleged
welfare right. The destitute individual therefore cannot identify the addressee(s) of the right.
5
Likewise, if that individual is not helped, she cannot identify the perpetrator(s) of her
alleged right’s violation, where the perpetrator is the agent (or agents) specifically
responsible for a specific individual’s rights violation. In such circumstances, O’Neill
argues, welfare rights are not genuine rights.
Much writing and rhetoric on rights heedlessly proclaims…welfare rights…, without
showing what connects each presumed right-holder to some specific obligation-bearers.
… Some advocates of universal economic, social and cultural rights go no further than to
emphasize that they can be institutionalized, which is true. But the point of difference is
that they must be institutionalized: if they are not there is no right. 8
She concludes that welfare rights come into existence only once the corresponding
duties have been institutionally specified and distributed; they exist only within a network of
special relationships defined by institutions that link specific duty-bearers with specific
right-holders. These duties can be distributed in such a way that the welfare rights are
universally held. However, such rights are still not human rights owed to every human
being as such simply in virtue of their humanity, because they depend for their existence on
the institutionally defined network of special relationships between duty-bearers and rightholders. They are therefore strictly speaking, she argues, still special rights.
She argues that traditional political rights by contrast, which she takes to impose
primarily negative duties, are genuine even in the absence of institutional structures, on the
ground that that such rights do not require institutional structures to specify and allocate
their corresponding negative duties. Independently of the institutional structures in place,
she argues, it is possible to identify the agent(s) responsible for realising particular
claimant’s rights, and when these rights are violated it is easy (in principle at least, though
there may be practical difficulties) to identify the perpetrator – that is, the agent specifically
responsible for that victim’s rights violation.
I will now consider O’Neill’s rejoinder to Shue’s argument that liberty rights impose
positive as well as negative duties. Shue’s argument is based on the claim that traditional
liberty rights must impose positive duties to protect people against violations of these rights,
8
Onora O’Neill, Towards Justice and Virtue (New York: Cambridge 1996), pp. 131-32.
6
if people are to actually enjoy reasonably secure access to the objects of the rights. As he
points out, these positive duties need to be primarily implemented via social institutions, in
just the same way as the positive duties of aid imposed by the right to subsistence. For
example, guaranteeing the right not to be assaulted to a reasonable level of certainty requires
that expensive institutional measures are implemented such as setting up and maintaining a
police force, monitoring the police to ensure they are not themselves responsible for
violations of the right, and so on.9
O’Neill’s response is that while these positive duties are needed in order to enforce
these rights and so protect people against violations of them, the primary duties these rights
impose – the duties the violation of which itself constitutes a rights violation – are perfect,
negative duties, which are fully specified and allocated independently of what institutional
structures are in place. {Ref: Hunger, Needs and Rights, 76-77} While it is true that
negative rights require that institutional measures be implemented in order for people to
have security against violations of these rights, this institutionalisation is a response to the
problem of enforcing the rights. The primary duties themselves are perfect in nature – that
is, they are fully delineated independently of the institutional structures that are in place –
and the role of those institutional structures is simply to enforce them. By contrast, the
primary duties imposed by welfare rights are positive duties that rely on institutional
structures in order to be specified and allocated.
For example, the positive duties to protect people against torture right by
implementing institutional measures to monitor and enforce the right are back-up or default
duties, to protect people against violations of the primary negative duty not to torture. The
positive duties are therefore secondary duties, the role of which is to enforce compliance
with the primary duty not to engage in torture. This primary duty is fully specified prior to
the institutionalisation of the right; we antecedently know exactly who owes what negative
duty to whom: everyone owes the duty to refrain from torture to everyone else.
By contrast, in the case of welfare rights, prior to their institutionalisation it is completely
indeterminate against whom and to what a particular would-be right-holder has a claim.
Along similar lines, she might argue that Shue’s argument about the interdependence
of the right to subsistence and liberty rights also overlooks the difference between these
9
Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, 2nd edn.
(Princeton: Princeton University Press, 1996).
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rights from the duty-bearer's perspective. Accordingly, she might agree that from the
perspective of the right-holder what matters is indeed whether the object of the right is
actually enjoyed. Moreover, she stresses, as Shue does, that unless persons have secure
access to basic necessities, they are “overwhelmingly vulnerable to coercion and deception”.
Nevertheless, she might argue, from the perspective of agency there is still an important
difference between the right to subsistence and liberty rights: that while lack of subsistence
makes people highly vulnerable to violations of negative rights, these violations themselves
can still be specified independently of what institutional structures are in place. For example,
while the destitute are extremely vulnerable to violations of their right not to be assaulted,
the perpetrators of such violations can be identified in the absence of institutional structures.
By contrast, in the case of welfare rights, unless institutional structures are in place “there is
systematic unclarity about whether one can speak of violators”.10 In short, in the case of
liberty rights, the role of institutional structures is to enforce antecedently specified duties.
In the case of welfare rights, by contrast, institutional structures are needed to specify and
allocate the primary duties the rights impose.
This, then, is O’Neill’s general line of response to Shue’s first two arguments: from
the perspective of the recipient, what matters is whether the object of the right is actually
advanced and protected, which requires the fulfilment of positive duties. From the
perspective of agency, however, welfare rights are deeply problematic in the absence of
institutional structures, in a way that liberty rights (such as the right not to be assaulted) are
not.
I will now explore the nature of the interdependence of the right to subsistence and
liberty rights. In the following sections I will argue that it follows from this that unless the
right to subsistence has been institutionally secured, the duties imposed by rights that
O’Neill’s own Kantian account takes to be negative, and to impose perfect duties that can be
identified independently of the institutional structures in place, are more plausibly taken to
be imperfect in nature. I will argue that the implausibility of O’Neill’s Kantian account of
these duties as perfect in nature lies precisely with the fact that it is agent-focused and gives
insufficient weight to the interests of the right-holders.
10
O’Neill, Towards Justice and Virtue, p. 132.
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3. The nature of the interdependence of the right to subsistence and liberty rights.
Shue argues that the enjoyment of the right to subsistence is essential to the enjoyment of
any other right. He takes rights to be claims that the object of the right be guaranteed to a
reasonable level of security, and argues that until the right to subsistence has been securely
established, persons cannot enjoy reasonably secure access to the objects of any other rights,
including traditional liberty rights. Establishing a right to a reasonable level of security
involves protecting the object of the right against standard threats. Lack of subsistence, or a
threatened lack, is one of the most common and severe threats to the enjoyment of other
rights. First, adequate nutrition is a precondition for enjoyment of any rights involving
rational autonomous activity. Second unless continued enjoyment of subsistence has been
guaranteed, people are liable to coercion and intimidation through threats of deprivation
“which can paralyse a person and prevent the exercise of any other rights as surely as actual
protein or calorie deficiencies can”.
A response that has often been given to Shue’s argument is that it is possible to
guarantee reasonably secure access to objects of liberty rights in the absence of guaranteeing
the right to subsistence, so that the secure enjoyment of the right to subsistence cannot be
said to be literally essential to the secure enjoyment of liberty rights. Shue anticipates one
such objection, that the right not to be tortured could be secured without securing the right to
subsistence through implementing measures to ensure that the duty not to torture was strictly
enforced. As the objection runs, while starvation is undoubtedly terrible, the fact remains
that starvation without torture is better than starvation with torture. Shue’s reply is that
without guaranteed access to subsistence persons could not be said to actually enjoy security
against torture, because they would be vulnerable to being drawn into a bargain (with, say, a
sadistic millionaire) of undergoing torture in exchange for subsistence.
Andrew Cohen’s riposte is that people could be protected against such contracts too,
through enforcing a prohibition on them. This could ensure that each person enjoyed
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freedom from torture to a reasonable level of certainty.11 Similarely, Pogge, in this volume,
argues that negative rights could be secured by ensuring that such contracts were
unavailable.
However, even if it were conceptually possible to guarantee the right not to be
tortured in the absence of guaranteeing the right to subsistence, through enforcing a
prohibition on the torture contract, there is, I suggest, a further crucial respect in which the
two rights are interdependent, which Shue’s torture contract brings out: that unless the right
to subsistence were secured, then the security against torture that were obtained through
such a prohibition would not be of value to the right-holder in the substantive sense of being
actually worth having. At the root of the interdependence between the right to subsistence
and other rights, I suggest, is that the interest in subsistence is so important that it is liable to
outweigh the interests protected by other rights. The reason a prohibition on the torture
contract would be needed in order to guarantee the right against torture in the absence of
securing the right to subsistence is because in such circumstances, entering into such a
contract is likely to be in the overall interests of the destitute individual. This is because the
interest in subsistence is likely to outweigh even the interest in freedom from torture. Thus,
the only way in which the right against torture could be guaranteed in the absence of
securing the right to subsistence would be by prohibiting the destitute from entering into
such a contract (as well as, of course, prohibiting sadistic millionaires from doing so). But
the only reason the destitute would choose to enter such contracts in the first place is that the
damage and suffering caused by lack of subsistence can be even greater than the damage and
suffering caused by torture. This means that securing their right against torture by
preventing such contracts, without at the same time securing their right to subsistence,
would not be of benefit to them, but on the contrary would make them worse off.
Suppose, for example, a mother entered into such a contract with a sadistic
millionaire as the only way of saving her children from dieing of malnutrition, because she
judged the mental agony of watching her children preventably die and the permanent
marring of her life this would cause to be worse than the physical agony and lasting
psychological damage caused by torture, and to be a greater undermining of her autonomy
given that her most central goal was to nurture her children. If she were legally prevented
Andrew I. Cohen, ‘Must Rights Impose Enforceable Positive Duties?’, Journal of Social
Philosophy 35 (2004): 264-276.
11
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from making such a bargain without being given an alternative opportunity to earning a
subsistence income, and her children died as a result, she might reasonably complain that the
legislators had worsened her suffering and degradation. She might also reasonably complain
that they had shown moral hypocrisy, on the ground that they could not claim to have
protected her right not to be tortured out of concern for her interests, given that their actions
had led to her greater suffering and degradation.
I suggest, then, that the interdependence between the right to subsistence and liberty
rights is not simply the fact that lack of right to subsistence makes people more vulnerable to
violations of their liberty rights – a vulnerability that could, in principle at least, be
addressed independently of addressing the destitution. The destitute are particularly
vulnerable to ending up suffering violations of their liberty rights in the course of their
pursuit of subsistence, but the principal reason why they are so vulnerable is that they are
likely to be benefited even by violations of their liberty rights if such violations are in
exchange for subsistence. While it is true that starvation without torture better than
starvation with torture, it is also the case that torture without starvation is likely to be better
than starvation without torture. Whether or not it would in principle be possible to secure
liberty rights by preventing such contracts in the absence of securing the right to subsistence,
the key point, I suggest, is that as long as the right to subsistence remains insecure, some
persons could be made better off by agreeing to such a bargain, whether or not they are in a
position to do so. For these individuals, even if their right against torture could be
guaranteed by prohibiting such bargains, this kind of ‘protection’ would be likely to actually
make them worse off. It follows that if our concern to guarantee liberty rights such as the
right against torture is to be plausibly taken to be grounded in concern for the harm it does to
the right-holder, then this cannot be achieved in the absence of securing the right to
subsistence.
Although the torture contract case is, as Shue notes, a bizarre example, it should be
noted that variations on it are far from uncommon. For example, many of the women who
are abused in the production of films for the most violent end of the hard-core pornography
industry are extremely poor prostitutes, many of them from Latin America. More generally,
many of the women who choose prostitution even in circumstances in which this will expose
them to a high risk of violence is because the alternative is destitution.
11
Furthermore, the torture contract case illustrates an important general point with very
wide ramifications: that given the urgency of the interests protected by the right to
subsistence, even extremely harmful and degrading treatment relative to uncontroversial
baselines, such as torture, may constitute a better option than the alternative option of
continuing to lack a subsistence income. Moreover, the main reason why the sadistic
millionaire contract case is a bizarre example is because the conflict between enjoyment of
subsistence and enjoyment of freedom from torture is so gratuitous, but in many cases, such
as the case I will focus on of the right against child labour, the conflict between enjoyment
of the right and enjoyment of subsistence can be both unavoidable and systemic. As I will
argue, it follows from this that if securing the right against child labour is to be in the
interests of the right-holders then it can only be achieved in conjunction with securing their
right to subsistence. It also follows, I will argue, that until the right to subsistence has been
secured, the right against child labour imposes imperfect duties.
In the following section I will argue that O’Neill’s analysis of coercion would take
child labour to be an example of coercion and to impose general perfect duties of justice
corresponding to a negative right. I will also suggest that a more plausible alternative
Kantian approach integrates the perspective of recipience with the perspective of agency
rather than being agent-focused, but that this approach is in tension with holding that
negative duties of justice must necessarily be imperfect.
4. O’Neill’s account of the duty not to coerce
O’Neill focuses on the Universal Law formulation of the Categorical Imperative, according
to which rights are attributed when the maxim of a proposed action cannot be conceived as a
universal law. Contradictions in conception generate perfect duties and corresponding
rights, and these duties are negative. Contradictions in the will, by contrast, generate
imperfect duties, which are duties of virtue as opposed to duties of justice. Positive duties
are imperfect duties of virtue; while we can conceive of a world in which no-one gives aid to
12
those in need, we cannot will such a world. It follows from this formulation (which is, as
O’Neill stresses, agent-focused) that “The central demand of Kantian justice is negative”.12
Much of O’Neill’s work on a Kantian approach to justice focuses on the negative
duty not to coerce, which, in accordance with this first sub-test of the Universal Law
formulation, she takes to be a perfect duty corresponding to a right, since the maxim of
coercing others cannot be conceived as a universal law. She offers a particularly nuanced
and powerful account of coercion according to which, as I now argue, employing child
labourers counts as coercion.13
In some cases of child labour, the coercion involved (by the children’s parents and,
in some cases, by their employers14) is straightforward. Clearly, cases in which the
children’s parents are able but unwilling to support the family, and force their children to go
out to work, constitute coercion. Likewise, cases in which the children’s employers force
them to work (by threat of violence, for example) constitute straightforward coercion. In the
most extreme cases of coercion the child workers are literally enslaved, captive and forced
to work for no pay through threat of violence. It is perfectly plausible that the duty not to
engage in this kind of coercion is perfect in nature.
The cases I wish to focus on, though, are ones that are less clear-cut, in which the
children and their family are so poor that the family relies on the children’s income to
provide the children and perhaps the rest of the family with a subsistence income, and the
children are choosing to work rather than being literally forced to work, given that the
alternative would be destitution. According to O’Neill’s account of coercion, such cases
would still constitute coercion. She rejects as unpromising the standard attempts to
distinguish cases of coercion according to whether they involve threats of harm or offers of
benefit, where the former are held to count as coercion. Such attempts must offer an account
of how to distinguish threats to make someone worse off from offers of making someone
better off by appeal to some relevant baseline position, which will inevitably be
controversial. As O’Neill argues, the same proposal “can often be described equally
O’Neill, Faces of Hunger: An Essay on Poverty, Justice and Development (London: Allen
& Unwin, 1986), 141.
13
O’Neill, “Which are the offers you can’t refuse?”, Bounds of Justice (Cambridge and New
York: Cambridge University Press, 2000), 81-96.
14
In many cases, of course, children have no official employer, but nevertheless spend their
entire days seeking an income, by, for example, collecting and sorting rubbish.
12
13
plausibly either as threatening harm or as offering benefit”.15 In particular, “the capitalist
wage bargain may plausibly be either offer of benefit or threat of harm, and indeed may be
coercive in some but not in other contexts”.16 She also point out that most cases of coercion
do not involve explicit threats but are presented as offers.
The key criterion for whether or not someone is acting under coercion, she argues, is
whether or not their choice of one or other option is a genuine “expression of agency” (89),
and this depends on whether or not the alternative options available to the person are
sustainable. A genuine offer is one that “can be refused”17. By contrast, in cases of
coercion, the ‘offer’ is unrefusable, because the alternative options are unsustainable, so that
the person’s acting is they did was not a genuine exercise of choice.
As O’Neill emphasises, whether or not alternative options are sustainable depends on
the particular vulnerabilities of the person. A particular wage bargain is not coercive if it is
a refusable offer because the worker is in a situation in which refusing it is a genuine option.
However, if the worker is in a vulnerable position in which refusing the offer would lead to
destitution, then the ‘offer’ of the same wage bargain might be coercive:
Set in a second context, the same wage bargain might be an option in a coercive ‘offer’:
if there is no other work and no welfare state, those without other means must comply
with the proffered wage bargain or face destitution.18
An important implication of this is that agents must take care to avoid coercion,
which requires being alert to others’ vulnerabilities:
…agents who seek not to coerce have to make sure that they do not inadvertently make
unrefusable ‘offers’. Any offers they make others must not link options either overtly or
covertly to consequences with which those to whom they make the offer cannot live. …
they will therefore need to take account of others’ strengths ad weaknesses, of their
15
ibid. p. 94.
ibid. p. 95.
17
ibid., p. 90.
18
ibid. p. 95.
16
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specific vulnerabilities and of the actual limits of their capabilities. In particular, they
will have to be alert to the ease with which the weak can be coerced.
This implies that if children are ‘choosing’ to labour because the alternative is
destitution, and would not be willing to labour if it were not for their economic plight, then
this constitutes coercion. The option of refusing the ‘offer’ of employment is not
sustainable, and so the ‘offer’ is unrefusable.
The duty not to coerce is central to O’Neill’s Kantian account of justice. In
accordance with the Universal Law formula, it is a general, perfect, negative duty, owed by
every agent towards everyone else, since the maxim of coercing others cannot be conceived
as a universal law. As we have seen, what is key to the distinction O’Neill draws between
negative duties of justice such as the duty not to coerce, and imperfect duties of aid, is that
the former are fully delineated, perfect duties even in the absence of institutional structures.
Regardless of what institutional structures are in place, we know who owes exactly what
duties to whom. In the case of the duty not to coerce, every agent is under a clear-cut,
exceptionless duty not to coerce anyone else. Institutional structures are needed to enforce
this duty, and so protect people against violations of their right not to be coerced, but they
are not needed to specify and allocate the primary duties imposed by the right not to be
coerced.
Since child labour counts as coercion, on O’Neill’s analysis of duties of justice, then
agents are under a perfect duty not to employ child labourers, and parents are under a perfect
duty not to send their children out to work. Regardless of the circumstances, and, in
particular, of what institutional structures are in place, the content of these duties is clear,
and they strictly binds agents’ conduct at all times. The role of institutions is simply to
enforce these antecedently specified duties, and to remove the chronic poverty that renders
people vulnerable to violations of them.
O’Neill’s interpretation of a Kantian account of justice is, as she stresses, agentfocused. It is worth noting, however, that an alternative Kantian account might not draw a
fundamental distinction between a duty-based and a rights-based approach.19 Kant
Along similar lines, Thomas Pogge argues against O’Neill that there is not a fundamental
distinction between duty-based and rights-based approach, in "O'Neill on Rights and
Duties" in Grazer Philosophische Studien 43 (1992), 233-247.
19
15
explicitly claims that all versions of the Categorical Imperative are expressions of the same
underlying principle, and it can be argued that the Formula of Humanity as an End in Itself
focuses centrally on those at the receiving end of the action.20 It might be argued, then, that
the Categorical Imperative as a whole should not be seen as agent-focused as opposed to
recipient-focused, but rather that it integrates the two perspectives.
Moreover, the contractualist test is a crucial component of Kant’s conception of
justice. Kant describes this test as “the touchstone of justice” and it is, moreover, the basis
of the most prominent neo-Kantian accounts of justice. This test appeals to the “united
will”, and so invokes the contradiction in the will subtest of the Categorical Imperative as
well as the contradiction in conception subtest. In addition, this contradiction in the will
may arise between the wills of different parties to the contract, as well as within the will of a
single member.21 It follows from the contractualist test that a core consideration in
evaluating principles and duties of justice is their impact on different individuals’ basic
interests.22 According to this Kantian approach, then, the right against child labour will be
centrally grounded on the impact child labour has on the developmental interests of the
children: on the fact that child labourers have a stunted childhood, which can have a
permanent affect on their ability to develop their capacities of rational autonomous agency.
However, as I now argue, if we give sufficient weight to these developmental interests, then
it is not plausible to take the duties imposed by the right against child labour to be perfect. I
will therefore suggest that this alternative Kantian account is in tension with taking the
duties imposed by the right against child labour to be perfect.
Charles Jones makes this point in his discussion of O’Neill’s critique of a rights-based
approach, in his Global Justice: Defending Cosmopolitanism (Oxford: Oxford University
Press 1999), pp. 97-98.
21
Pablo Gilabert discusses this in his powerful argument for a Kantian grounding of basic
positive duties of justice in ‘Basic Positive Duties: A Kantian Exploration’ (unpublished
manuscript).
22
I have discussed the nature of the contractualist test more fully in ‘The Demandingness of
Scanlon’s Contractualism’, Ethics 113 (2003): 273-302. In ‘The Duties Imposed by the
Human Right to Basic Necessities’, in Thomas Pogge (ed.) Freedom from Poverty as a
Human Right: Who Owes What to the Very Poor, Oxford: Oxford University Press, 2007),
section…, I discuss a Kantian and Kantian Contractualist approach to duties of justice
specifically. There I argue this approach grounds general, positive duties of basic justice.
What I am arguing here is that it also naturally leads to the claim that some negative duties
of justice are imperfect.
20
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5. The nature of the duties imposed by the right against child labour
The right against child labour is often understood as imposing perfect duties, that is, fully
specified duties not to send one’s children out to work and not to employ child labourers that
can and should be completely fulfilled in all circumstances, independently of the
institutional structures that are in place. Accordingly, the role of social institutions has often
been taken to be simply to enforce these antecedently specified duties: the right against child
labour has been widely acknowledged, and a common response to this acknowledgement
has been to attempt to enforce the duty not to send one’s children out to work or to employ
child labourers through monitoring and punishing violations of this duty, in isolation from
implementing other institutional reforms to tackle the chronic severe poverty that is closely
associated with child labour.
However, in circumstances in which children lack secure access to basic necessities,
and child labour is the only alternative to destitution, it is not plausible to take the duties
imposed by their right against child labour to be perfect in nature. Where the parents of
child labourers require their income in order to provide them with a subsistence income and
really do face the choice between sending them to work or allowing them and the rest of the
family to starve, it is not reasonable to take these parents to be under a perfect duty not to
send their children out to work. Likewise, if the children’s employers would, by ending
their employment, be depriving them of their only realistic chance of attaining a subsistence
income, then it is not plausible that the employers are under a perfect duty not to employ the
children, if this would lead to the children’s starvation. Under such circumstances, the duty
not to send one’s children out to work or to employ child labourers may be outweighed by
the duties to provide the children with or avoid depriving them of a subsistence income.
This indicates that to take the right against child labour to impose a perfect duty not
to send one’s children to work and not employ child labourers – that is, a clear-cut, fully
defined duty that can and should be completely fulfilled in all circumstances, regardless of
the social institutions that are in place – gives insufficient weight to the interests of the
children. Moreover, attempts to enforce such a perfect duty in the absence of other
17
institutional reforms to tackle chronic poverty have indeed often led to the children’s
starvation, or to their ending up in an even worse form of work such as prostitution. I
suggest, then, first, that the right against child labour can only be fully realised in
conjunction with ensuring that institutional structures are in place that have guaranteed the
right to subsistence, and, second, that the duties imposed by the right against child labour are
perfect in nature only if such institutional structures are in place.
Before I explicate these claims more fully, I should address a possible Kantian
response to my argument that that the duty not to employ child labourers may be outweighed
by the duty to provide with or avoid depriving of a subsistence income.
i. A possible Kantian response
As I mentioned in section one, Kantians have stressed that while perfect duties of justice
strictly bind agents’ conduct at all times, the scope of such duties has built-in qualifications
(although the perfect duties themselves are exceptionless). It might be argued, then, that one
such qualification that is built into the duty not to employ child labourers is that this duty
does not apply in circumstances in which the alternative is destitution. If so then it is not the
case that the duty not to employ child labourers is outweighed, because its scope is limited
so that it does not apply in circumstances of destitution. On this account, then, there is a
clear-cut, perfect duty not to employ child labourers, and a corresponding clear-cut negative
right, but these do not exist in situations where employing child labourers is the only way for
their family to get by.
However, on O’Neill’s account of the duty not to coerce, it is not plausible to limit
the scope of the right against child labour and its corresponding duties so that these do not
apply in the context of destitution. As she forcefully argues, accepting an option only
because the alternative is destitution counts as coercion, because it is not an exercise of free
choice (since the alternative ‘option’ is unsustainable). Moreover, she stresses that
destitution is precisely the kind of context in which coercion is most likely and agents must
take the greatest care to avoid it.
Turning to the developmental interests of the children, it might be argued that the
rationale for limiting the scope of the right against child labour so that it does not exist in
18
situations of chronic severe poverty is that in this context such a right would not be in the
overall interests of the children, precisely because it conflicts with their greater interest in
subsistence. However, if the right against child labour is grounded on the detrimental
impact this has on the children’s developmental interests, then it is not plausible that it
would no longer exist in situations of destitution. Child labour has the same detrimental
impact on the children in this context as it would have on more affluent children who were
subjected to it. Therefore to deny that the destitute have the same right against child labour
is not compatible with acknowledging their equal moral status. (Moreover, clearly the
destitute have a right not to be tortured, but as we saw earlier, accepting a contract in which
they were tortured might nevertheless be in their overall interests.)
I suggest, then, that if we hold that destitute children ought nevertheless be offered
child labour, it is much more plausible to accept that their right against child labour has been
regrettably overridden than to deny that this right existed in the first place. As I will now
discuss, in this non-ideal world context, the two rights must be weighed up against each
other, and a tragic trade-off is required.
ii. The nature of the interdependence between the duties imposed by the right to subsistence
and the duties imposed by the right against child labour
Children suffering destitution are liable to a conflict between their interest in subsistence and
their interest in freedom from child labour, and the former outweighs the latter. Again, as
with the torture contract case I discussed in section two, at the root of the interdependence
between the two rights is that the interests protected by right to subsistence are so urgent and
basic that forms of treatment that are defined as harms relative to uncontroversial baselines,
and that are the objects of uncontroversial liberty rights, may be better options for the rightholder.
However, there is also a crucial difference with the torture case. The conflict
between enjoyment of subsistence and enjoyment of freedom from torture is entirely
avoidable and gratuitous. The link between the torture and removing the destitution is
purely the result of the deliberate cruelty of the millionaire. The millionaire is therefore
clearly under a perfect duty not to torture. It is thus perfectly plausible to take the duty not
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to torture to be a clear-cut duty that must be complied with at all times, independently of the
economic circumstances of the victim, and, in general, of the institutional structures that are
in place.
By contrast, in the case of the right against child labour, when institutional structures
are in place under which destitution is widespread, the conflict between enjoyment of
subsistence and enjoyment of freedom from child labour may be both unavoidable and
systemic: when these economic conditions obtain the parents and employers of child
labourers may have no feasible alternative way of allowing their children to attain a
subsistence income.
In such circumstances, then, the conflict between the duty not to send one’s children
out to work or to employ child labourers, and the duty to provide the children with or avoid
depriving them of a subsistence income, may be unavoidable. The two rights tragically
clash and the duties imposed by the right against child labour cannot be completely fulfilled
in conjunction with fulfilling the duties imposed by the right to subsistence. If we take the
right against child labour to be grounded on the developmental interests of the children then
the former duties must be outweighed by the latter, given that lack of subsistence has an
even more devastating impact on these interests than does child labour.
Therefore the duties imposed by the right against child labour are not exceptionless
duties that can and should be completely fulfilled in all circumstances. Rather, the right
against child labour can only be realised in conjunction with the right to subsistence and the
duties imposed by the right against child labour can only be completely fulfilled if the
children’s right to subsistence has been realised.
In addition, unless the right to subsistence has been secured it may not be possible to
assign responsibility for particular violations of the right against child labour to specific
perpetrators, that is, with agents who can be singled out as specifically responsible for
specific victims’ rights violations. If we were to try to single out such perpetrators, they
would clearly be the children’s parents and employers. However, in such circumstances, I
have argued, it is not plausible to take these agents to be under a strict, exceptionless duty
not to sent their children to work or to employ child labourers. Rather, these individuals
may be largely trapped, since they may be unable to fulfil the duty not to send their children
to work or to employ child labourers without leading to the children’s destitution, and the
reason they are trapped is because of the social institutions in place under with right to
20
subsistence has not been secured. It follows that creating and maintaining social institutions
under which the right to subsistence has been secured is part and parcel of realising the right
against child labour. It also follows that until these social institutions have been brought
about, it is more plausible to take child labour to be largely a structural harm, responsibility
for which is shared (to varying degrees) by all those who share responsibility for the
institutional structures in place, than to try to single out individual agents as specifically
responsible for particular instances of child labour. Therefore in just the same way as with
welfare rights, in specific instances of child labour there may be, in O’Neill’s phrase,
‘systemic unclarity about whether one can speak of violators’.23
Finally, in such circumstances it is also implausible to take the content of the duty
imposed by the right against child labour to be fully delineated. Parents and employers who
have no feasible choice but to send their children out to work or to employ child labourers,
respectively, should, where possible, compensate the children for the harm the labour causes
them. Were parents’ economic condition to change so that they no longer needed to send
their children out to work, they should seek to make up for the mentally and emotionally
stunting impact that child labour has had. Precisely what steps they should take to achieve
this is not fully defined. Moreover, if child labour is in such circumstances largely a
structural harm, then it centrally imposes the duty to bring about institutional reform, and the
task of achieving this is shared by a large number of agents and has not been specified and
allocated among them.
I conclude that if the right to subsistence has not been institutionally secured, then
the duties imposed by the right against child labour share neither of the two principal
features of perfect duties. First, they are not exceptionless. Second, their content is not fully
delineated, and it may not be possible to assign responsibility for a particular instance of
child labour to a specific violator.
If, on the other hand, the right to basic necessities has been secured, then the right
against child labour does impose clearly defined duties not to employ child labourers that
strictly bind agents’ conduct at all times. These duties may function in much the same way
as perfect duties, given that they are fully delineated and that they can and should always be
completely fulfilled. It is important to stress, though, that in one central respect they are not
23
O’Neill, Towards Justice and Virtue, 132.
21
perfect duties in the way in which O’Neill is using the term: they are not duties that strictly
bind agents’ conduct whatever the circumstances, and, in particular, regardless of the
institutional structures that are in place, since the strictness of these duties is contingent on
the fact that social institutions are in place that have secured the right to subsistence.
We can now return to the standard dichotomies between positive and negative duties and
between the rights they are held to correspond to. According to these dichotomies, negative
duties are general duties of justice corresponding to human rights, whereas positive duties
are either general, imperfect duties that are not duties of justice, or are special duties that can
correspond only to special rights. In her defence of this distinction between liberty rights
and welfare rights, O’Neill argues that welfare rights depend on being institutionalised for
their existence, because until their corresponding positive duties have been institutionally
specified and allocated these duties are imperfect in nature. By contrast, she argues that the
institutionalisation of liberty rights is a response to the problem of enforcement of the
antecedently specified negative duties they primarily impose, duties that are specified and
allocated independently of the institutional structures in place.
I have argued that it follows from O’Neill’s powerful account of coercion that child
labour constitutes coercion. O’Neill takes the duty not to coerce to be a perfect, negative
duty of justice. I have also argued, however, that it is not plausible to take the duties impose
by the right against child labour to be perfect, and to take the role of institutions as simply
being to enforce these antecedently specified duties. The interdependence of the right to
subsistence and the right against child labour is deeper than O’Neill’s account of the nature
of duties of justice allows. When persons’ right to subsistence has not been institutionally
secured, this does not simply render them especially vulnerable to being coerced into
forgoing the objects of their liberty rights – coercion that they could in principle be protected
against even in the absence of securing the right to subsistence, through enforcing a
prohibition on such contracts (such as outlawing child labour in isolation from implementing
other institutional reforms to tackle chronic severe poverty). Rather, if securing the right
against child labour is to be plausibly held to be in the interests of the right-holder, it can
only be achieved in conjunction with securing the right to subsistence. Until the right to
subsistence has been secured, the right against child labour imposes imperfect duties. To
take the duties imposed by right against child labour to be perfect duties that ought to be
22
enforced regardless of the institutional structures in place gives insufficient weight to the
interests of the right-holder.
I conclude that duties that O’Neill acknowledges as general, perfect negative duties
of justice and as corresponding to genuine rights, can in fact be imperfect in nature. I
therefore hope to have reinforced Shue’s argument that the standard dichotomies between
positive and negative duties and the rights they are held to correspond to are overly rigid and
schematic. Not only can positive duties be perfect duties of justice without being special, as
Shue shows,24 but in addition, I have argued, general negative duties of justice can be
imperfect. This indicates that imperfect duties can be duties of justice, corresponding to
genuine general rights. It follows both that we should revise our conception of the nature of
negative duties of justice, and that the imperfect nature of positive duties before they have
been institutionally specified and allocated is no reason for denying that these are general
duties of justice that correspond to human rights. In the case of both welfare rights such as
the right to subsistence, and certain liberty rights such as the right against child labour,
institutional reform is one of the principal objectives of the duties corresponding to the right,
but it is not plausibly a precondition for the existence of the right. I also hope to have
reinforced from a different angle Shue’s claim that securing the right to subsistence is
essential to securing all other rights. As I have argued, securing liberty rights in the absence
of securing the right to subsistence, through prohibiting contracts involving forgoing the
objects of such rights in exchange for subsistence, can have a severely detrimental impact on
the interests of the right-holders.
24
Shue, ‘Mediating Duties’, pp. 687-704.
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