Of sweatshops and subsistence: Habermas on human rights

Ethics and Global Politics

Volumn 2, Issue 3, 2009, Pages 193-217

  Ingram, David ^a  

^a LOYOLA UNIVERSITY CHICAGO   (United States)

Author keywords

Capabilities; Habermas; Human rights; Nussbaum; Pogge; Subsistence; Sweatshop; Women; Young

Indexed keywords

EID: 77951660213     PISSN: 16544951     EISSN: 16546369     Source Type: Journal    
DOI: 10.3402/egp.v2i3.2045     Document Type: Article

References (43)

1. Jürgen Habermas, The Post-National Constellation: Political Essays (Cambridge, MA: MIT, 2001), 120
2. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA: MIT, 1996), 174
3. Jürgen Habermas, The Divided West (Cambridge: Polity, 2006), 79-80, 139-43, 177-78
4. See Iris Young, 'Responsibility, Connection, and Global Labor Justice,' in Global Challenges: War, Self-Determination, and Responsibility for Justice (Cambridge: Polity, 2007), 159-86
5. Jürgen Habermas, The Divided West, 186
6. Jürgen Habermas, Between Facts and Norms, 123
7. Jürgen Habermas, The Post-National Constellation, 125. Habermas makes this assertion in response to a complaint made by the signatories to the 1993 Bangkok Declaration, represented by Taiwan, China, Malaysia, and Singapore. This complaint questions the priority of rights over duties and, more importantly, the priority of civil and political rights over social and cultural rights. Reversing the Western privileging of classical, civil, and political human rights, the signatories to the Declaration argued that postponing classical, civil, and political human rights for the sake of satisfying material needs is justifiable for two reasons: first, civil and political freedom is not as important to starving persons as subsistence and therefore the former must be consequent upon the latter. Second, civil and political freedom may obstruct economic progress by generating social conflict. Habermas neither denies that classical individual freedoms associated with modern capitalist conceptions of property and market exchange, as well as civil and political liberties, can cause the disintegration of traditional collectivist societies; nor does he dispute the fact that severely impoverished persons lack material resources and capabilities that enable them to enjoy classical, civil, and political rights. Rather than refute these objections to the Western conception and ranking of human rights, he notes that no country undergoing capitalist modernization can fail to institutionalize this legal conception of human rights. The unavoidable legal institutionalization of classical property rights and market freedoms that signatory nations to the Bangkok Declaration have already undertaken sets in motion an irrepressible demand for civil and political freedom. Free people demand not only efficient government but legitimate government. Furthermore, the pre-requisites for democratic legitimation counterbalance the egoistic individualism unleashed by these rights; for they presuppose a high degree of solidarity among citizens who recognize themselves as masters of their own collective fate. It is this democratic equality that obligates citizens to guarantee everyone an equal right to subsistence in matters of education, health, security, and welfare.
8. Jürgen Habermas, The Inclusion of the Other: Studies in Political Theory (Cambridge: Polity, 1999), 109
9. In Jürgen Habermas's opinion, this error follows from conceiving moral reasoning monologically. If, following Kant, we imagine that moral reasoning requires abstracting from contingent material interests (such as interests in health, education, and welfare) and identifying with a pure 'rational will' that is given within each of us as a matter of preestablished harmony, then we must also imagine that the main rational interest each of us possesses in common with others is our interest in protecting our negative freedom as individuals against interference from others.
10. Jürgen Habermas, Justification and Application: Remarks on Discourse Ethics (Cambridge, MA: MIT, 1993), 64
11. Traditionally it has been supposed that our negative duty to refrain from harming or constraining others is unconditional in comparison to our positive duty to (say) provide needy persons with the material resources necessary for leading a minimally decent life. For Kant, the latter duties are 'imperfect' in that individuals are permitted to exercise a wide degree of discretion as to when and to whom (and how much) they lend assistance, depending on their capacity to give aid. Furthermore, it has been argued that, while negative duties are determinate in what they command and unambiguous with regard to whom-the command against killing other persons is unquestioningly addressed to each of us-positive duties are not. For example, who is responsible for fulfilling our positive duty to aid starving people? And by what positive measures should it be fulfilled-famine relief, developmental assistance, elimination of incentives that produce corrupt regimes that rob from their own people, redistribution of social product, transformation of global capitalism, or some combination of the above? Habermas argues that differences between negative and positive duties diminish once we realize that, from a discourse theoretic perspective, the most basic duty inscribed in the moral point of view is not the duty to leave others alone but the duty to respect their integrity as fellow participants in a communicative community structured in accordance with justice and solidarity. This duty entails not only a negative duty to refrain from harming and constraining others but a positive duty to treat others with equal respect. Even Kant's list of negative duties, such as the duty not to lie, retains a positive valence insofar as we are commanded to keep our promises and to tell the truth (Justification and Application, 66_7). Second, Habermas notes that the unconditional nature of negative duties is largely heuristic and not conceptual, since even norms that command negative duties at best possess prima facie (conditional) validity until they are applied to concrete circumstances. The command forbidding killing, for example, admits of exceptions in cases involving justified self-defense. Indeed, when the question of their positive enforcement arises, negative duties can be just as indeterminate as positive duties in what they prescribe. Persons not only have a right not to be interfered with, but they have this right as a claim against the rest of us, a claim we are obligated to positively guarantee. Questions about how to best guarantee this negative right raise pragmatic questions about who should be responsible for doing so and by what means. The need to safeguard populations from terrorist attacks shows that the law enforcement measures and agencies best equipped for implementing security rights are costly and controversial to the point of being quite indeterminate (Justification and Application, 64).
12. Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, 2nd ed. (Princeton, NJ: Princeton University Press, 1996).
13. Shue criticized Rawls's earlier neglect of a human right to subsistence (which Rawls later rectified in The Law of Peoples) by arguing that subsistence and security rights were essential to realizing any right whatsoever. According to Shue, rights are reasonable demands made on others to provide socially guaranteed protection against standard threats on one's self-esteem as a human being (Basic Rights, 31). Just as subsistence-deprived persons are more vulnerable to coercive threats on their freedom and person, so too persons who are threatened with coercion are less free to access subsistence. (During the Central American Wars from the seventies through the midnineties, it was not failure to provide foreign aid that contributed to worsening poverty in the region but rather the kind of aid that was given-in the form of US military hardware- which increased the insecurity of workers and peasants exponentially in the face of government-sponsored oppression and genocide.) Although Shue maintained that political rights were almost as basic as security and subsistence rights, he allowed that it was theoretically conceivable that a benevolent dictator might guarantee the latter. Furthermore, Shue denied that cultural rights-the right to culture in general or the right to a particular culture-were as basic as rights to subsistence and security. However, in the second edition of Basic Rights, Shue allowed that access to education might be necessary for defending and securing basic rights. Following Habermas and Thomas Pogge (against Rawls), I would insist that liberal democratic rights are equally basic; following Kymlicka, I would argue that cultural rights-and not just the right to education-are also basic, since an essential part of one's self-esteem, identity, and capacity for strong value judgment and choice (in the sense articulated by Charles Taylor and other communitarians) is freedom to practice the cultural folkways that one has inherited or chosen.
14. For a defense of these claims see David Ingram, Group Rights: Recognizing Equality and Difference (Lawrence, KS: University Press of Kansas, 2002), chap. 12
15. David Ingram, Rights, Democracy, and Fulfillment in the Era of Identity Politics: Principled Compromises in a Compromised World (Lanham, MD: Rowman & Littlefield, 2004), chap. 6 and 7.
16. See Henry Shue, Basic Rights, 74_5, 117_8, 163
17. Will Kymlicka, Liberalism, Community, and Culture (Oxford: Oxford University Press, 1989)
18. Jürgen Habermas, Truth and Justification (Cambridge, MA: MIT, 2003), chap. 6.
19. Martha Nussbaum captures the distinction between rights as claims for minimally decent treatment and rights as aspirations in her distinction between basic capabilities, which are innate potentials, and combined capabilities, which are fully mature capabilities that possess the additional environmental supports and 'social bases' to develop further
20. See Martha Nussbaum, Women and Human Development (Cambridge: Cambridge University Press, 2000), 6ff
21. Martha Nussbaum, Women and Human Development, 150, no. 83. Nussbaum doesn't deny the value of a clarifying procedure-such as inclusive, fair, and uninhibited rational discourse-for adducing (basic) substantive rights and capabilities; she just thinks that the design of such a procedure must itself depend upon a tacit appeal to our intuitive understanding of (basic) substantive rights and capabilities. The circular relationship between intuitive substantive 'fixed judgments' and our qualifying procedures of rational deliberation is precisely what Rawls had in mind in introducing the notion of 'reflective equilibrium.'
22. Pogge, Shue, and Waldron note that human rights duties generally fall into three broad categories (in decreasing order of strength): duties to avoid harming a person in the enjoyment of a human right; duties to protect against other persons and institutions from harming a person in the enjoyment of a human right; and duties to aid a person who is deprived of the secure enjoyment of human rights, whether through human failure or through purely natural causes. As Pogge notes, our first-wave duty to avoid harming strangers is at least as strong as our duty to avoid harming consociates (indeed, our duty to repair harm done to strangers may even be greater than our duty to do the same with respect to consociates). Conversely, our second and third-wave duty to protect and aid may be greater with respect to consociates than with strangers. That said, the relative strength of our duties is largely conditioned by situational features, including the resources, capabilities, and opportunities we have for realistically effecting relief and, last but not least, our psychological capacities and accumulated debt to others (assuming that it is unjust that between two persons who are equally placed one has aided more than another).
23. See, Henry Shue, Basic Rights, 165
24. Thomas Pogge, World Poverty and Human Rights (London: Polity, 2002), 132
25. and Waldron, Liberal Rights: Collected Papers, 1981_1991 (Cambridge: Cambridge University Press, 1993), 25
26. Peter Singer, 'Famine, Affluence, and Morality', Philosophy and Public Affairs 1 (1972): 229-43
27. Pogge cites a number of harmful legal institutions that are imposed on the poor without their consent. Some of them are unfair trade agreements that permit wealthy nations to protect their domestic industries with tariffs and subsidies while denying these same privileges to the poor (thereby enabling wealthy countries to weaken the domestic economies of poorer countries by 'dumping' their discounted exports on their markets) (World Poverty and Human Rights, 16). Others include conventions of international law that bestow legitimacy on dictators in resource-rich impoverished nations so that these criminals can sell their nation's resources at discounted rates to developed countries or use them as collateral for borrowing and purchasing, among other things, the military hardware that keeps them in power (in other words, contrary to an 'explanatory nationalism' that would pin the blame for corruption-induced poverty on poor people, it is really the governments of wealthy countries who benefit the most from discounted resources who conspire with military dictators in overthrowing democratic regimes) (World Poverty and Human Rights, 22-3).
28. Although Pogge also implicates the policies imposed by economic institutions such as the WTO, IMF, WB, OECD in causing poverty, he expressly distances himself from a Left critique of capitalism and its structures, arguing that eliminating poverty needn't require a drastic overthrow of the current system (World Poverty and Human Rights, 24)
29. Whether this view is adopted on grounds of expediency or principle remains unclear (in a personal exchange with the author, Pogge allowed that capitalism may indeed be an unjust and ecologically catastrophic system)
30. Pogge's alternative institutional set contains a complex mix of legal, political, and economic institutions. Pogge believes that ending the system of protective tariffs and subsidies alone would generate a transfer of $700 billion in exchange to developing countries-$400 billion more than the $300 billion required to eliminate severe poverty (World Poverty and Human Rights, 18).
31. He also proposes the democratization of the world-the delegitimation of corrupt dictatorships-through international military intervention and/or a system of disincentives (ending the international resource and loan privileges, for instance). Implementing this system would require setting up an international Democracy Panel as well as an International Democratic Loan Guarantee Fund (World Poverty and Human Rights, 155-67).
32. Finally, Pogge proposes a Global Resources Dividend (GRD) generated from taxes imposed on resources whose extraction is easily monitored and whose consumption is ecologically destructive. A $2 per barrel tax imposed on the extractors of crude oil alone (which would be passed down to the consumers in the form of a 5-cent increase in the cost of a gallon of petrol) would presumably generate 18% of the initial high-end cost required to eliminate poverty. This initial fund Pogge contends, would raise 67 times as much money as is now spent by all developing countries together in satisfying basic subsistence needs ($4.65 billion) without requiring any alteration of the current economic system. The GRD would also have to backed up by trade and loan sanctions and disbursements of the dividend would have to be closely monitored (and perhaps implemented) by NGOs, the UN, or other international agencies to insure that it goes to the neediest (World Poverty and Human Rights, 205-8).
33. Thomas Pogge, World Poverty and Human Rights, 16
34. David Schweickart, 'Global Poverty: Alternative Perspectives on What We Should Do _ and Why', Journal of Social Philosophy 39, no. 4 (2008): 471-91.
35. IrisYoung, Global Challenges, 183-6
36. It is sometimes maintained that sweatshops are not unjust, because those who work in them do so freely, and in any case do not suffer deprivations of subsistence, and in fact are often able to earn higher wages than they would in production units geared solely toward domestic consumption. Furthermore, it is argued that popular campaigns against workshops are misplaced since raising a subsistence wage will discourage further hiring (perhaps compelling relocation of the industry) and increase inequality. The last 'utilitarian' argument is easy to refute. Since labor costs are a marginal part of total costs (typically less than 6% of the retail price), and increases in labor costs are passed down to consumers in affluent countries, where demand for designer products is relatively inelastic, raising wages significantly will not result in decreasing employment (as studies on minimum wage increases in industrialized societies have amply demonstrated). It is unlikely that industries would relocate to lower-wage zones unless they were guaranteed substantial savings since the difference in wage scales between any two low-wage zones is small (and if they did, so much the better for those 'worse-off' who gain the new jobs). Even if raising wages resulted in laying-off workers, adding to the mass of those already unemployed will not lower their wages, since they are already rock-bottom. Indeed, Keynesians will argue that the increased wages of the employed will spur demand and lead to the creation of new jobs. The justice and human-rights arguments are also defeasible. Structural injustice is simply that: the imposition of structures that provide unequal opportunities for securing access to subsistence and therewith the satisfaction of basic needs and human capabilities. It matters not that those who work in sweatshops do so freely since the injustice (and coercion) in this case stems from a structural diminution of opportunities. While those who work in sweatshops may indeed receive subsistence (and even above subsistence) wages, their access to subsistence is dependent on those who have absolute power over them-their bosses-and is therefore insecure. Moreover, because subsistence itself is relative to increased needs and opportunities for developing capabilities, minimum subsistence wages-especially in industrial sectors-are invariably experienced as sub-subsistence. Hence enjoyment of a human right to subsistence has been impeded.
37. See Iris Young, Global Challenges, 164-7
38. 'Garment Industry Subcontracting and Workers' Rights,' Women Working World Wide, at www.cleanclothes.org
39. Saba Gul Khattak, 'Subcontracted Work and Gender Relations: The Case of Pakistan', in The Hidden Assembly Line: Gender Dynamics of Subcontracted Work in a Global Economy, ed. Radhika Balakrishnan (Bloomfield, CT: Kumarian Press, 2002), 35-62
40. Robert Pollin and Stephanie Luce, The Living Wage: Building a Fair Economy (New York: New Press, 1998)
41. David Schweickart, 'The Wages of Nike/The Wages of Sin: Commentary on Ian Maitland, "The Wages of Nike"' (unpublished ms)
42. See Martha Nussbaum, Women and Human Development, 21-30, 212ff
43. Nussbaum argues that Rawls's ambiguous treatment of the family-as at once a part of the 'basic structure' of society that requires legal regulation and as a quasi-private association that is at best 'indirectly' effected by the law-presumes that the family is entirely a legal construct. In India, where family law is partly defined by religious custom, this makes some sense. However, even here-not to mention in more secular contexts-there remains a 'consensual' aspect of the family that properly falls within the private sphere and which, therefore, is not (and perhaps ought not to be) directly regulated. Private religious institutions, for instance, may well practice forms of gender, racial, and sexual orientation discrimination that are rightly outlawed in the public sphere but which cannot (and ought not) be legally outlawed within these institutional settings, so long as membership within them is consensual and exit options are available (a condition that may not always be met in some practices, such as those of fundamentalist Mormons, who recruit wives into polygamous marriages at a very early age and closely monitor their behavior). That said, these forms of discriminatory relationships may still impede the full enjoyment of human rights by some who have consented to them. While legal intervention may be appropriate remedies for counteracting the coercive pressuring of under-age women into exploitative relationships of dependency and abuse, it may not be for other types of constraint. Nussbaum herself recognizes that some consensual arrangements that adversely impact the full enjoyment of human rights, such as purdah (the seclusion of women from public view practiced by some Muslims), may at best be regulated to prevent the worst abuses while less severe abuses will have to be counteracted through education and consciousness raising (Women and Human Development, 237ff).