LEAP 6 2018

LAW, ETHICS AND PHILOSOPHY

LEAP
FRANK DIETRICH
MARIANO GARRETA LECLERQ
SALADIN MECKLED-GARCIA
JULIO MONTERO 
LETICIA MORALES
EDUARDO RIVERA-LÓPEZ
CYNTHIA A. STARK





LEAP
Law, Ethics and Philosophy



Law, Ethics and Philosophy (LEAP) 
Online ISSN: 2341-1465

LEAP is a peer-reviewed, open access international journal dedicated to 
work in ethics, legal theory, and social and political philosophy. It welcomes 
clear, rigorous and original submissions that address concrete issues of 
public concern as well as more abstract theoretical questions. It also has 
the distinctive aims of (a) fostering work drawing on a variety of disciplines 
within the social and natural sciences, including biology, economics, 
history, and psychology; and (b) promoting dialogue between the 
Anglophone and non-Anglophone worlds.

We invite submissions of articles up to 10,000 words, discussion notes up to 
6,000 words, and replies and exchanges not exceeding 3,000 words. Please 
send an anonymized version of the submission, along with a cover letter, 
to:leap.journal@upf.edu. All published submissions will have undergone 
blind review, and the journal will notify authors of submitted pieces about 
the progress of their submission within six weeks.

Although LEAP accepts exclusively submissions in English, the journal 
strongly encourages submissions from authors who also write in languages 
other than English, and will always strive to ensure that their work is 
assessed on the basis of its content and not primarily its mode of expression. 
Where necessary the editorial process provides authors with guidance 
regarding matters of English style. The journal is published by Pompeu 
Fabra University and hosted by RACO, the Catalan repository of open 
access journals (http://raco.cat/index.php/leap)Enquiries regarding the 
journal may be directed to: leap.journal@upf.edu.

mailto:%20leap.journal%40upf.edu?subject=
http://raco.cat/index.php/leap
mailto:%20leap.journal%40upf.edu?subject=


LEAP
Law, Ethics and Philosophy

Vol. 6
2018



Editorial Board

Editors

Paul Bou-Habib, University of Essex 
Paula Casal, ICREA & Pompeu Fabra University
Iñigo González-Ricoy, University of Barcelona
José Luis Martí, Pompeu Fabra University

Serena Olsaretti, ICREA & Pompeu Fabra University
Hugo Seleme, National University of Córdoba, 

Argentina
Andrew Williams, ICREA & Pompeu Fabra University.

Associate Editors

Ingvild Almås, Norwegian School of Economics
Samantha Besson, Fribourg University
Jordi Ferrer, University of Girona
Ernesto Garzón Valdés, Johannes Gutenberg 

University, Mainz
Cristina Lafont, Northwestern University

Genoveva Martí, ICREA & University of Barcelona
Lukas Meyer, University of Graz
José Juan Moreso, Pompeu Fabra University
Félix Ovejero, University of Barcelona
Zofia Stemplowska, University of Oxford

Editorial Board

Aulis Aarnio, Tampere University
Lucy Allais, University of the Witwatersrand
Elizabeth Anderson, University of Michigan
Richard Arneson, University of California, San 

Diego
Gustaf Arrhenius, Stockholm University
Michael Baurmann, University of Düsseldorf
Juan Carlos Bayón, Autonomous University, 

Madrid
Carmen Bevia, Autonomous University, 

Barcelona
David Bilchitz, South African Institute for 

Advanced Constitutional, Public, Human 
Rights, and International Law

Geoffrey Brennan, University of North Carolina 
at Chapel Hill

Ian Carter, University of Pavia
Joseph Chan, University of Hong Kong
Thomas Christiano, University of Arizona
Bruno Celano, University of Palermo
Antony Duff, University of Minnesota
John Ferejohn, New York University
Víctor Ferreres, Pompeu Fabra University
Roberto Gargarella, University of Buenos Aires
Robert Goodin, Australian National University
Axel Gosseries, University of Louvain
Lori Gruen, Wesleyan University
Riccardo Guastini, Genova University
Alon Harel, Hebrew University of Jerusalem

Daniel Hausman, University of Wisconsin-
Madison

János Kis, Central European University
Matthew Kramer, University of Cambridge
David Lefkowitz, University of Richmond
Kasper Lippert-Rasmussen, Aarhus University
Frank Lovett, Washington University in St. Louis
Stephen Macedo, Princeton University
Jeff McMahan, Rutgers University
Jane Mansbridge, Harvard University
Adèle Mercier, Queens University, Ontario
Liam Murphy, New York University
Ingmar Persson, University of Gothenburg
Philip Pettit, Princeton University
Thomas Pogge, Yale University
Wlodek Rabinowicz, Lund University
Joseph Raz, Columbia University
Debra Satz, Stanford University
Julian Savulescu, University of Oxford
Seana Shiffrin, University of California, Los 

Angeles
Anna Stilz, Princeton University
Victor Tadros, University of Warwick
Larry Temkin, Rutgers University
Jeffrey Tulis, University of Texas at Austin
Philippe Van Parijs, University of Louvain
Georgia Warnke, University of California, 

Riverside
Ruth Zimmerling, Johannes Gutenberg 

University Mainz

Pompeu Fabra University
 http://www.raco.cat/index.php/LEAP

http://www.raco.cat/index.php/LEAP


CONTENTS

Law, Ethics and Philosophy (LEAP) Vol. 6, 2018
 Page

1. The Presumption of Equality............................................................ 7 
 CYNTHIA A. STARK 

 D OI : 10. 310 0 9/L E A P. 2018.V6.01 

2. Natural Resources, Collective Self-Determination, and Secession ...... 28 
 FRANK DIETRICH 

 D OI : 10. 310 0 9/L E A P. 2018.V6.02

SYMPOSIUM  
ON THE PHILOSOPHY OF SOCIAL AND  

ECONOMIC HUMAN RIGHTS

3. The Philosophy of Social and Economic Human Rights ................. 58 
 JULIO MONTERO 
 D OI : 10. 310 0 9/L E A P. 2018.V6.03

4. Socioeconomic Human Rights, Autonomy and the Cost of Error ....... 64 
 MARIANO GARRETA LECLERCQ 

 D OI : 10. 310 0 9/L E A P. 2018.V6.0 4

5. Social Rights and Deontological Constraints .................................. 76 
 EDUARDO RIVERA-LÓPEZ 

 D OI : 10. 310 0 9/L E A P. 2017.V6.0 5

6. Two (Different) Types of Human Rights Duty .................................. 92 
 SALADIN MECKLED-GARCIA 

 D OI : 10. 310 0 9/L E A P. 2018.V6.0 6

7. The Democratic Case for a Basic Income ......................................... 120 
 LETICIA MORALES 

 D OI : 10. 310 0 9/L E A P. 2018.V6.07



Acknowledgments

This issue of Law, Ethics and Philosophy has been possible thanks to the 
Ministerio de Economía y Competitividad de España (MINECO), the 
Agencia Estatal de Investigación (AEI) and the Fondo Europeo de Desarrollo 
Regional (FEDER), sponsors of Justicia, Legitimidad e Instituciones 
Globales,  DER2016-80471-C2-2-R (AEI/FEDER/UE) (PI1: Paula Casal, PI2: 
José Luís Martí), which has funded the correction, proofreading, copy 
editing, and typesetting of this volume. We also wish to thank Peter Josse 
and Martín Comesaña, respectively, for their proofreading and typesetting 
work.



LEAP 5 (2017)

The Presumption of Equality*

C Y N T H I A A . STA R K
University of Utah

ABSTRACT

Many distributive egalitarians do not endorse strict equality of goods. 
Rather, they treat an equal division as having a special status such that 
departures from equality must be justified. They claim, then, that an equal 
division is “presumptively” just. Though the idea that equality is 
presumptively just and that departures from it may be just has intuitive 
appeal, making a case for this idea proves difficult. I argue, first, that extant 
“presumption arguments” are unsound. Second, I distill two general 
philosophical morals: luck egalitarians have not adequately defended the 
presumption of equality and they face serious obstacles in doing so; Rawls 
has defended it, but only indirectly via the contract apparatus. This 
approach narrows the presumption’s appeal. Third, I consider and reject 
two alternative ways of understanding the presumption of equality that 
might avoid the problems revealed by my examination of extant views. The 
first appeals to the idea of value pluralism. The second treats the 
presumption as a view about the burden of proof. I conclude, ultimately, 
that it is misleading to think of distributive egalitarianism as typically 
having the form of a presumption argument.

Keywords: equality, distributive justice, Rawls, luck egalitarianism.

D OI : 10. 310 0 9/L E A P. 2018.V6.01

* I am grateful to the following people for helpful feedback on this paper or earlier 
versions of it: Daniel Halliday, Jiewuh Song, Mathias Iser, Darrel Moellendorf, Rainer Forst, 
Catherine Lu, Merton Reglitz, David Rondell, Christian Schemmel, Jahel Queralt Lange, 
Eszter Kollar, Mara Marin, Elizabeth Kahn, Stefan Gosepath, Kit Wellman and Bruce 
Landesman. I am also grateful to my audiences at Goethe University, Washington University 
and the Free University of Berlin where I presented this work. I owe thanks also to the 
London Institute of Philosophy and the Forschungskolleg Humanwissenschaften for 
providing me facilities in which to work on this project and to Jonathon Wolff for the 
conversation that prompted me to write this paper.



8 Cynthia A. Stark 

LEAP 6 (2018)

1. INTRODUCTION

Many distributive egalitarians do not endorse strict equality of goods.1 
Rather, they treat an equal division as having a special status such that 
departures from equality must be justified. They claim, then, that an equal 
division is “presumptively” just. Rawls, for instance, argues that inequalities 
in wealth are just only if they make everyone better off than they would be 
at a “benchmark of equality”. Many luck egalitarians hold that distributive 
equality is the “moral default” and that departures from this default caused 
by brute luck2 are unjust while those produced by choice are just.

Though the idea that equality is presumptively just and that departures 
from it may be just has intuitive appeal, making a case for this idea proves 
difficult. In this paper I first show that extant “presumption arguments”, as 
I shall call them, are unsound. Some of the arguments I canvas are given in 
a critical vein, so not in all instances do I make an original case against the 
presumption. The point of this canvasing is to demonstrate the difficulties 
besetting presumption arguments. Second, I distill two general 
philosophical morals: luck egalitarians have not defended the presumption 
and they face serious obstacles in doing so; Rawls has, but only via the 
contract apparatus, which narrows the presumption’s appeal. Third, I 
consider and reject two alternative ways of understanding the presumption 
of equality that might avoid the problems revealed by my examination of 
extant views. The first appeals to the idea of value pluralism. The second 
treats the presumption as a view about the burden of proof. I conclude that 
it is misleading to think of distributive egalitarianism as typically having 
the form of a presumption argument.

2. GETTING TO AND DEPARTING FROM EQUALITY

Here are the bones of the presumption arguments I will consider:

1. Equality is presumptively just because it eliminates the inf luence of 
luck on distribution. Departures produced by choice are just 
because they hold people responsible for their choices.

2. Equality is presumptively just because it distributes the effects of 
luck equally. Departures produced by choice are just because they 
hold people responsible for their choices.

1  I use “goods” here as a neutral term for whatever distribuenda particular theories 
endorse.

2  Luck egalitarians distinguish between brute luck and option luck. See Dworkin 
(1981: 293). Throughout my discussion, I will use “luck” to mean “brute luck”.



 The Presumption of Equality 9

LEAP 6 (2018)

3. Equality is presumptively just because it is demanded by the equal 
worth of persons. Departures produced by choice are just because 
they hold people responsible for their choices, which is necessary 
for recognizing their capacity for agency.

4. Equality is presumptively just because it contains no inequalities 
caused by morally arbitrary factors. Departures from equality are 
just when and because they increase everyone’s wealth and 
maximize the wealth of the least wealthy.

5. Equality is presumptively just because it contains no inequalities 
justified by morally arbitrary factors. Departures from equality are 
just when and because they increase everyone’s wealth and 
maximize the wealth of the least wealthy.

6. Equality is presumptively just because it is demanded by the equal 
worth of persons. Departures from equality are just when and 
because they increase everyone’s wealth and maximize the wealth 
of the least wealthy.

Before outlining the arguments listed above, I must explain, in order to 
avert confusion, an idiosyncratic way in which “equality” is sometimes 
used by luck egalitarians. Ronald Dworkin (1981: 285-304), who is arguably 
the father of luck egalitarianism, maintains than an equal division of 
resources is not f latly equal but is, rather, one that meets the “env y test”. 
According to this test, a div ision is equal if no one prefers someone else’s 
bundle of resources – which includes both material goods and natural talents 
– to her own. This division, Dworkin states, ensures that each person pays 
the cost to others of her choices and is, to that extent, just.

One might think that changes over time to such an equal division are 
themselves just whenever people freely engage in production and exchange. 
However, Dworkin argues, this is not the case, for some will confront good 
luck and others bad, in particular with respect to their mental and physical 
powers – some will, luckily, have highly marketable talents and others less 
marketable talents. Because of the inf luence of luck, subsequent 
distributions will not be env y-free. Dworkin argues that those who suffer 
bad luck are owed compensation via a tax and transfer system, which is 
based upon a hypothetical insurance market, the details of which need not 
detain us. The point is that such a system is necessary to ensure that the 
distribution of resources in a market economy remains env y-free and, 
hence, equal and just.

Dworkin’s argument is not a presumption argument because equality 
of resources is not presumptively just on his view – it is just full stop. 
Distributive justice is preserved, he thinks, so long as production and 



10 Cynthia A. Stark 

LEAP 6 (2018)

exchange continually produce distributions that meet the env y test. I 
assume that “equality” in the presumption arguments I discuss below 
refers to f lat equality and not to Dworkinian equality because Dworkinian 
equality is not, by the lights of luck egalitarianism, merely presumptively 
just.

2.1. Eliminating the influence of luck

Susan Hurley (2003: 146-58; see also Eyal 2005) has proposed that luck 
egalitarians endorse the presumption of equality because they believe that 
an equal division eliminates the inf luence of luck on distribution, which is 
required by justice. They then endorse departures from this division that 
are produced by choice alone, as these inequalities hold people responsible 
for their choices, which is also required by justice. But, Hurley notes, this 
argument does not work because an equal division of goods might also be 
a matter of luck. She reasons as follows. If we redistribute equally all the 
goods that people have acquired as a matter of luck, then what share people 
have is still a matter of luck, at least insofar as people do not have the share 
for which they are responsible. It follows that an equal division does not 
extinguish the effects of luck, it merely rearranges them. So, an equal 
division cannot stand as the moral default on the ground that it neutralizes 
the effects of luck.

Suppose that the luck egalitarian can, contra Hurley, found the 
presumption of equality upon the demand to eliminate the inf luence of 
luck on distribution. In this case, the luck egalitarian would, nonetheless, 
not have a sound argument for the presumption of equality.3 This is because 
(re)distributing equally all the goods that people have gotten as a matter of 
luck would not create f lat equality. The resulting distribution would instead 
contain inequalities produced by choice; people’s shares would be 
composed of whatever goods they acquired through their choices and an 
equal portion of the luck-tainted redistributed goods. It is hard to see how 
this division should serve, for the luck egalitarian, (merely) as a moral 
default. By luck egalitarian lights, this division does not require departing 
from since it contains inequalities that are just, namely those caused by 
choice, and (ex hypothesi) it extinguishes the effects of luck. 

There are two problems, then, with founding the presumption of 
equality on the idea that this will neutralize the inf luence of luck. The first 
is that equalizing the goods gotten by luck does not necessarily eliminate 
the inf luence of luck. The second is that even if it did, equalizing the goods 

3  Though they would have a sound argument for Dworkinian equality, in which 
case, they would not be making an argument for a presumptively just division, but for a just 
division.



 The Presumption of Equality 11

LEAP 6 (2018)

gotten by luck does not produce equality overall.

2.2. Equally distributing the effects of luck

Samuel Freeman (2007: 120-21, 151; see also Vallentyne 2003: 170, 177) has 
defended the luck egalitarian against Hurley’s charge by suggesting that 
the luck egalitarian is justified in demanding that the inf luence of luck be 
equalized. If we assume, he says, that everyone’s natural endowments are 
equally a matter of luck, then a principle of equity requiring us to treat like 
cases alike enjoins us to distribute the goods produced by our natural 
endowments equally rather than to let them fall into the hands of people 
according to their particular talents.4 The default justice of equality is 
founded, then, not upon the aim to neutralize luck, but rather on the 
demand to distribute the effects of luck equally.5

The problem with this amendment is that it does not address the second 
of the two problems identified above. Redistributing the effects of luck 
equally does not produce a f latly equal distribution. It produces one in 
which the goods initially acquired by luck are distributed equally and the 
goods attributable to people’s choices are distributed unequally. And so, 
according to luck egalitarianism, there is no obligation of justice to depart 
from this division.

2.3. Equal moral status and responsibility for one’s choices

Critics of Hurley claim that she proposes the luck neutralizing aim as a 
possible ground for the presumption of equality because she confuses the 
luck egalitarian demand to eliminate the effects of luck on inequality with 
a demand to eliminate the effects of luck on distribution (Vallentyne 2003, 
2006; Lippert-Rasmussen 2005; Cohen 2006; Segall 2012). For luck 
egalitarians, what should be neutralized is not the effects of luck but rather 
the differential effects of luck. It follows that if equality were caused by 
luck, it would not be unjust on that ground. In this sense, equality has a 
special status for luck egalitarians: it is immune from moral condemnation 

4  Presumably this argument would hold mutatis mutandis for other instances of luck 
that tend to affect people’s distributive shares, such as their class position at birth, their 
health, etc.

5  Cohen (2006: 445) holds a similar view, although he does not offer it as an argument 
for an egalitarian default. He says, “[s]uppose…that we could divide goods up into those for 
which people are responsible and those for which they are not responsible. Then…we might 
use only the goods for which people are not responsible as the currency of justice… If it is fair 
for people to keep, before any redistribution is set in train, what and only what they are 
responsible for, because they are responsible for it, then the same conception of fairness also 
requires that the rest be distributed equally, because to distribute otherwise is to benefit 
people in disaccord with their exercises of responsibility”.



12 Cynthia A. Stark 

LEAP 6 (2018)

even if it is caused by luck. Hurley calls this approach “the equality default 
view”, suggesting that this immunity is unfounded.

Kok-Chor Tan (2012: 89-90) counters Hurley’s suggestion by providing a 
sketch of an argument for the presumption of equality and for departing 
from equality on grounds of choice. He reasons as follows: 6

1) Persons have equal moral worth as agents.

2) Therefore, distributive equality is the “moral default”: it is the 
distribution from which departures must be justified.

3) Departures from equality are justified when they are expressions of 
agency.

4) Therefore, departures produced by choice are justified.

5) “Distributive arrangements” that ref lect luck and not choice fail to 
treat people as moral equals.

6) Therefore, distributions that ref lect luck and not choice are 
unjustified.

As it stands, this argument is invalid: given that equality is a distribution 
that ref lects luck (barring very unusual circumstances), it would, by the 
lights of this argument, be unjust and so it cannot be presumptively just. 
However, this version of the argument makes Hurley’s mistake. It treats 
distributions as such, rather than unequal distributions, as susceptible to 
the luck egalitarian criterion. This problem can be solved with the following 
changes:

1) Persons have equal moral worth as agents.

2) Therefore, distributive equality is the “moral default”: it is the 
distribution from which departures must be justified.

3) Departures from equality are justified when they are expressions of 
moral agency.

4) Therefore, departures produced by choice are justified.

5) Departures from equality that ref lect luck and not choice fail to 

6  Tan (2012: 89-90) claims that he is not in fact arguing for the egalitarian default. He 
says, “[i]n explicating what I take to be the implicit starting point of luck egalitarianism, that 
of equal moral agency and how that ideal is interpreted to support equal distribution as a 
default independent of luck but subject to choice, I have not provided any argument for it. I 
take this ideal of equal moral agency and its egalitarian entailment to be a basic and starting 
intuition common to most accounts of luck egalitarianism”.



 The Presumption of Equality 13

LEAP 6 (2018)

treat people as moral equals7. 

6) Therefore, departures that ref lect luck and not choice are unjustified.

This version of the argument is valid but not sound. The ultimate reason 
for this is that the same principle that grounds equality also grounds 
departing from equality to inequality caused by choice. So, the argument 
provides no grounds for departing (or not departing, for that matter) from 
equality. To see this, notice that the equal worth of persons does not entail 
distributive equality. In fact, the equal worth of persons is compatible with 
a number of distributions, including a winner-take-all lottery, the division 
that recognizes persons’ rights of self-ownership, and the division in which 
each gets what he deserves. Indeed, Tan’s argument implies that the equal 
worth of persons is also compatible with the ultimately just distribution to 
which he believes we should depart. This is because, given that luck and 
choice exhaust the possible cause-types of inequality, premise 5) entails 
that inequalities caused by choice treat people as moral equals. So, both 
equality and inequality caused by choice have the virtue of treating people 
as moral equals. However, if both distributions recognize persons’ equal 
moral worth, it is not clear, without further argument, why one is merely 
presumptively just while the other is completely or ultimately just.

Perhaps the further argument runs as follows: even though an equal 
division and an unequal division caused by choice both treat people as 
moral equals, the latter has the additional virtue of recognizing people’s 
moral agency. So, an unequal division caused by choice is, in the end, just. 
The problem with this suggestion is that if recognizing people’s agency is a 
distinct virtue from recognizing their moral equality, then it is not clear 
how departures from equality caused by luck fail to recognize people’s 
moral equality, as Tan proposes. Indeed, it turns out that they do this by 
ignoring people’s moral agency. Tan (2012: 89) states, “[f ]or luck egalitarians, 
a distributive arrangement that ref lects not agents’ free decisions and 
choices, but the circumstances that are forced on them, such as their good 
or bad luck, fails to treat them as moral equals”. The manner in which 
departures produced by choice succeed in treating people as moral equals, 
then, is by recognizing their moral agency and the manner in which 
departures produced by luck fail to treat people as moral equals is by 
ignoring their moral agency. So, in the end, that it treats people as moral 
equals is what justifies equality as the default and what justifies departures 

7 Insofar as lotteries treat people as moral equals, this claim is false. Lotteries are 
not, as such, matters of option luck. They are only so if one has a choice about whether to 
enter them. If the state were to distribute the fruits of cooperation, say, each year, by a 
winner-takes-all lottery, the outcome would be a matter of brute luck and it would treat 
people as moral equals insofar as everyone had the same odds of winning.



14 Cynthia A. Stark 

LEAP 6 (2018)

from equality that are traceable to choice. Thus, the puzzle of why 
inequality based upon choice is preferable to equality remains.

(One might wonder, at this point, how it is that equality treats people as 
moral equals given that it fails to recognize people’s moral agency due to 
its lacking inequalities caused by choice. I believe the luck egalitarian 
answer must be this: the egalitarian moral default is immune from any 
condemnation that appeals to what causes it: it is not unjust even if caused 
by luck (as we saw above) and it is not unjust even if caused by a failure to 
incorporate choice.8)

To summarize, then, the problem with Tan’s approach is that because 
the same principle grounds both the default and departures from it, there 
is no reason to think of the default as merely presumptively just and 
departures based on choice as just full stop.9

2.4. Morally arbitrary factors and mutual benefit

Another presumption argument can be found in Brian Barry’s interpretation 
of an argument given by John Rawls that G.A. Cohen calls “the Pareto 
argument for inequality”. Cohen contends that this argument, which is not 
only reconstructed but also endorsed by Barry, is in fact internally 
inconsistent (Rawls 1971: 60-75; Barry 1989: 213-34; Cohen 2008: 87-97, 151-
168; see also Cohen 1995 and Shaw 1999).

Some background: Rawls offers the Pareto argument, which is distinct 
from his well-known social contract argument, to support the “difference 
principle”. The difference principle governs the distribution of income and 
wealth and says that only inequalities that benefit everyone and maximize 
the income of the worst off are just. The argument identifies an equal 
division as a presumptively just “benchmark” and states that we should 
depart from this benchmark only when inequalities fulfill the difference 
principle.

Rawls assumes, in this argument, that there may exist strong Pareto 
improvements on equality so that it will be possible to increase the income 
of everyone if inequality is permitted. He assumes this on the ground that 
the sum total of wealth may be greater when inequality is permitted 
because these inequalities provide incentives for people to work more, or 
at harder tasks, than they would under equality. Rawls’s aim in the Pareto 
argument is to single out the difference principle as the Pareto improvement 
on equality that qualifies as just. Though the reasoning is somewhat 

8  For discussion, see Segall (2016: 48-73).
9  A related issue is whether the two “conjuncts” of the luck egalitarian ideal can be 

grounded in the same principle. These are the claims that departures produced by choice 
are just and that departures caused by luck are unjust. See Sher (2014: 2-19).



 The Presumption of Equality 15

LEAP 6 (2018)

murky, it is clear that the idea that people’s natural talents are “arbitrary 
from a moral point of view” and hence should not “improperly inf luence” 
their incomes figures prominently.

According to the Barry/Cohen interpretation, Rawls founds the 
benchmark of equality upon the morally arbitrary status of natural talents 
and he founds the difference principle upon the irrationality of prohibiting 
mutually beneficial inequalities. Rawls’s reasoning for the benchmark, on 
this account, is as follows: inequalities in wealth that have morally arbitrary 
causes – including those caused by differences in natural talent – are 
unjust. Therefore, an equal distribution of wealth is prima facie just.10

Cohen identifies a problem with this inference: a division lacking 
inequalities with morally arbitrary causes will nonetheless contain 
inequalities with morally non-arbitrary causes (which, as Cohen sees it, 
are inequalities caused by choice). So, prohibiting inequalities caused by 
something morally arbitrary does not produce equality. So, it looks like the 
benchmark of equality cannot be grounded on the claim that inequalities 
with morally arbitrary causes are unjust.

 Cohen concludes from this problem with Barry’s reconstruction not 
that the reconstruction is wrong, but that Rawls must hold that differences 
in income caused by choice are not inequalities. So, the benchmark, Cohen 
says, is, for Rawls, not a f latly equal distribution. (As odd as this idea might 
seem to a Rawlsian, the notion that a division containing differences in 
shares produced by choice is an equal division has a precedent in luck 
egalitarianism, as we saw above. This may explain Cohen’s willingness to 
regard Rawls’s benchmark of equality as containing choice-produced 
differences in shares.)

  Rawls reasons further, according to this interpretation, that it would be 
irrational to settle for equality if there exist (strongly) Pareto superior 
unequal distributions – unequal distributions, that is, that benefit 
everyone. Of these distributions, the one that maximizes the income of the 
least well off – who have (again, as this interpretation goes) the strongest 
complaint against inequality – is just. Hence the difference principle is 
just.

Cohen maintains that Rawls’s case for the benchmark undermines his 
case for departing from it. If the benchmark is prima facie just on the 
ground that it contains no income inequalities with morally arbitrary 
causes, and if, as Rawls concedes, income differences that maximize the 
income of the least wealthy are caused by differences in natural talent, 

10  This is Cohen’s terminolog y. Rawls himself does not refer to the benchmark of 
equality as “prima facie just”.



16 Cynthia A. Stark 

LEAP 6 (2018)

then the inequalities sanctioned by the difference principle are unjust. In 
other words, if equality is prima facie just on the ground that it is devoid of 
inequalities with morally arbitrary causes, then a Pareto improvement on 
equality that contains inequalities with morally arbitrary causes cannot 
be all things considered just.

Cohen’s observation about Rawls argument is, though, trivial given the 
way in which he sets the argument up. Because differences in shares of 
wealth with morally non-arbitrary causes are, by definition, not 
inequalities, then inequalities are, by definition, differences in shares with 
morally arbitrary causes. So, on Cohen’s account, Rawls’s argument for the 
benchmark amounts to the claim that equality is just because it contains 
no inequalities. Naturally, any departure from the benchmark would be 
unjust on this account. Only if the benchmark is f latly equal and all 
differences in shares, regardless of their cause, count as inequalities, does 
Cohen’s objection have force. For in this case, it would be a substantive 
claim to say that the difference principle is inconsistent with the 
justification for the benchmark on the ground that the difference principle 
allows inequalities that have morally arbitrary causes.

In summary, then, there are two problems with Rawls’s argument as 
Cohen interprets it (via Barry). The first is that eliminating inequalities 
with morally arbitrary causes does not in fact produce equality. The second 
is that if eliminating inequalities with morally arbitrary causes did 
(somehow) produce equality, the ideal justifying equality would be violated 
by departures to the difference principle.

There is a way of avoiding this second problem, Cohen says, but it ends 
up vitiating the case for the benchmark. Suppose we interpret Rawls as 
claiming not that morally arbitrary causes make inequalities unjust but 
that morally arbitrary causes cannot make inequalities just. If this is the 
case, then, departures from the benchmark to the difference principle are 
indeed just: though the inequalities allowed by the difference principle are 
caused by differences in natural talent, they are not justified by their being 
so caused. They are justified by the fact that they maximize the wealth of 
the least wealthy.

However, Cohen argues, this approach provides no ground for the 
benchmark of equality. If what makes a distribution prima facie just is that 
it contains no inequalities justified by their morally arbitrary causes, then 
equality is not the only distribution that can stand as a benchmark. Indeed, 
the principle of utility, Cohen says, can be the benchmark on this account, 
for it justifies inequalities on the ground that they are necessary to 
maximize the sum total of goods. So, on this second reconstruction of the 
Pareto argument, Cohen claims, departures from the benchmark of 



 The Presumption of Equality 17

LEAP 6 (2018)

equality to the difference principle are justified but the benchmark itself is 
not.

However, the problem is not merely that the ideal justifying equality 
does not single out equality as the benchmark, as Cohen observes, it is that 
the difference principle can also qualify as the benchmark since it shares 
the virtue of containing no inequalities justified by the morally arbitrary. 
As Cohen sets up this second version of the Pareto argument, it seems that 
there is no reason to prefer departures from equality to equality, as long as 
those departures contain no inequalities justified by their morally arbitrary 
causes, because it is sufficient for qualifying as just (albeit, prima facie just) 
that a distribution contains no such inequalities.

This would make the problem with the second Pareto argument similar 
to the problem with Tan’s account. On his view, recall, the same principle 
– the equal worth of persons – justifies both equality and departures from 
it and, therefore, there is no reason to see one distribution as presumptively 
just and the other as fully just. On this second Pareto argument, separate 
principles justify equality and inequality: equality is justified by the fact 
that it contains no inequalities justified by something morally arbitrary 
and inequality is justified by the ideal of mutual benefit. Hence it is not as 
clear as it is on Tan’s account that there is no reason to see an equal division 
as presumptively just and see the proposed departure from equality as 
ultimately just; perhaps the ideal justifying inequality can defeat the ideal 
justifying equality.

Yet the second Pareto argument is vulnerable to Tan’s problem, but for a 
different reason. The reason is that what makes equality just is the same 
thing that makes departing to the difference principle just: the absence of 
inequalities justified by their morally arbitrary causes. Indeed, that the 
difference principle shares the just-making property of equality is what 
keeps the second Pareto argument from making the mistake of the first 
Pareto argument. What we learned from that argument was that in order 
for a departure from equality to be just, the departure distribution cannot 
violate the principle that justifies the equal division. So, if equality is just 
because it contains no inequalities justified by the morally arbitrary, then 
the just unequal division must also contain no inequalities justified by the 
morally arbitrary. (If it contained such inequalities it would be unjust.)  It 
follows that, on the second Pareto argument, it is not obvious how we can 
distinguish, from the point of view of justice, between the benchmark of 
equality and the difference principle because they both contain a property 
that is sufficient for making them just. Hence the second Pareto argument, 
like Tan’s argument, appears not to be able to explain why equality is 
merely presumptively just while the proposed departure from equality is 



18 Cynthia A. Stark 

LEAP 6 (2018)

ultimately just.

However, Cohen’s second Pareto argument may be salvageable on 
grounds not available to Tan precisely because separate principles are 
invoked to justify the benchmark and difference principle inequality. 
Perhaps the argument Cohen has in mind is this: equality is, let us say, 
sufficiently just because it contains no inequalities justified by differences 
in natural talent, and so no inequalities justified by something morally 
arbitrary. Difference principle inequality is more just than equality because 
it also contains no inequalities justified by something morally arbitrary 
and, on top of that, it is mutually beneficial relative to equality. (Another 
option would be to say that difference principle inequality is not more just 
than equality but is in some other way morally preferable. This 
interpretation is suggested by Barry’s claim that it would be irrational to 
insist on equality if mutually beneficial inequality that maximally benefits 
the worst off is available.)

On this interpretation, then, the second Pareto argument is stronger 
than Tan’s argument but it is not immune from Cohen’s original criticism 
of that argument, namely, that other divisions (besides equality) that lack 
inequalities justified by something morally arbitrary (though not the 
division to which we should depart) can qualify as the benchmark.

2.5 Equal moral standing and moral arbitrariness

A further problem with the first version of the Pareto argument outlined 
above is not noticed by Cohen. It is that if the benchmark of equality 
contains inequalities produced by choice, as Cohen claims it must, it is 
unclear why strong Pareto improvements on equality might be possible 
and it is unclear why departing from equality is required to avoid leveling 
down. After all, if people already have different shares of wealth at the 
benchmark that are produced by their choices about work, they do not 
need the promise of incentives inequality in order to work harder. The 
incentives inequality is already present at the benchmark. This observation 
suggests that the Barry/Cohen account of Rawls’s presumption argument 



 The Presumption of Equality 19

LEAP 6 (2018)

is incorrect.11  So, I offer below an alternative account of Rawls’s argument 
for the benchmark of equality. However, before outlining that account, 
which is different in its structure from the arguments I have thus far 
examined, let me identify three general desiderata for constructing 
presumption arguments that can be gleaned from the analysis above. It 
turns out that these cannot be simultaneously fulfilled, so presumption 
arguments must have a different structure than those discussed above.

1.  The thing that allegedly produces and justifies equality must 
actually produce equality. Otherwise genuine equality is not the 
default, and in some cases, it is not clear why the alleged default 
requires departing from.

2.  The thing that produces and justifies equality must entail equality. 
Otherwise, it is not clear why equality is the default, rather than 
some other distribution, including in some cases, the distribution 
departure to which is recommended.

3.  The unequal departure distribution must fulfill the principle that 
justifies equality. Otherwise, that distribution cannot be just.

The second two of these cannot be mutually satisfied. If what justifies 
equality entails it, then no departures can be justified. And if what justifies 
equality does not entail it, then departures can be justified, but equality is 
not uniquely justified as the default. As we will see below, this problem is 
traceable to the following feature of the above arguments: the presumptive 
justice of equality and the ultimate of justice of inequality are thought to 
hold in all circumstances. Rawls’s Pareto argument, though not sound as it 
stands, avoids this problem. It runs (as I interpret it) as follows:

1) Persons have equal moral worth.

2) Therefore, an equal division stands as a “benchmark for measuring 
improvements”. 

3) Suppose strong Pareto improvements on equality (e.g., unequal 

11  The idea that the moral arbitrariness claim is deployed by Rawls in the argument 
for the benchmark is not well supported by the text of the Pareto argument. But it may be 
supported by Rawls’s reason for rejecting the bargaining theorist’s use of the nonagreement 
point as the “status quo”: “[i]t is to avoid the appeal to force and cunning that the principles 
of right and justice are accepted. Thus, I assume that to each according to his threat 
advantage is not is not a conception of justice. It fails to establish an ordering in the required 
sense, an ordering based on certain relevant aspects of persons and their situation which are 
independent from their social position and their capacity to intimidate and coerce”. Rawls 
says, further, in a footnote to this passage, “[w]hat is lacking is a suitable definition of a 
status quo that is acceptable from a moral point of view. We cannot take various contingencies 
as known and individual preferences as given and expect to elucidate the concept of justice 
(or fairness) by theories of bargaining. The conception of the original position is designed to 
meet the problem of the appropriate status quo” (1971: 134).



20 Cynthia A. Stark 

LEAP 6 (2018)

distributions that increase everyone’s share) are possible.

4) Then, of the two main candidates for the just strong Pareto 
improvement – laissez-faire  and the difference principle  – the one 
that minimizes the inf luence of morally arbitrary factors on people’s 
income shares is just.

5) The difference principle minimizes the inf luence of morally 
arbitrary factors on people’s income shares. 

6) So, the difference principle is just.

This is merely a skeleton of Rawls’s account, but the details are not 
important for assessing its form qua presumption argument. I wish to 
make two points about its structure. The first is that, as in Tan’s case, the 
second premise does not follow from the first without further argument. 
As I have already observed, many distributions can be grounded in the 
equal standing of persons. Indeed, if this were not case, there would be 
little disagreement among theorists of distributive justice.

The second point about the structure of Rawls’s argument concerns the 
status of the presumption. The sense in which equality is presumptively 
just is that it is just unless inequality can be mutually beneficial (Rawls 
1971: 62,76; see also Cohen 2008: 156-60). For Rawls (1971: 78), it is an open 
question as to whether or not this is the case. The answer depends upon 
the plausibility of certain economic theories and on controversial ideas 
about human motivation – for instance, the claim that people,  as a rule, 
will work less hard in the absence of incentives to acquire extra wealth.12 At 
the end of the day, for Rawls, whether or not equality or the difference 
principle is just depends on the circumstances.13

For this reason, an entailment relation between the justifier of equality 
and equality, which Rawls does not provide and which is necessary to 
single out equality as the benchmark, does not prevent departures: we can 
say that justice demands equality, and only equality, in some circumstances 
and it demands a departure from equality in others. Compare this approach 
to Tan’s. On his account, both equality and inequality generated by choice 
are just (in the way in which they are just) in any circumstance. The 
difference is in the way in which they are just – presumptively or ultimately. 

This gives us a clue as to how we might salvage Tan’s argument. It can 
be reinterpreted to have the same structure as Rawls’s.14  This interpretation 

12   For criticism, see Cohen (1997).
13  For discussion, see Cohen (2003).
14  Thanks to Christopher Wellman for pointing out that the luck egalitarian 

argument might have this structure.



 The Presumption of Equality 21

LEAP 6 (2018)

solves the main problem with Tan’s view, which is that because the same 
principle grounds both equality and choice-generated departures from it, 
there is no reason to treat equality as merely presumptively just and 
departures generated by choice as ultimately just. If circumstances change, 
however, then the same grounding principle might entail a different 
distribution. It might be that equal moral worth demands equality if 
choices do not produce inequality and otherwise demands inequalities 
produced by choice.

Nevertheless, it is unlikely that this interpretation is what luck 
egalitarians have in mind when they invoke the presumption, because it 
commits them to the idea that it is an open question as to whether or not 
choice will produce inequality. But there are strong reasons to think that 
inequalities produced by choice are simply inevitable. This is because 
differences in shares based upon choice depend, not on complex theoretical 
claims or controversial empirical claims, but on nothing more than the 
laws of physics: if you and I have the same capabilities and are gathering 
nuts in the same place, if I choose to gather for ten minutes and you choose 
to gather for twenty, you will (ceteris paribus) have more nuts than I. If 
inequality produced by choice is inevitable, then it is implausible to treat 
the presumption as endorsing equality on the condition that choice might 
not produce inequality.

To summarize, then, Rawls’s Pareto argument contains a plausible 
justification for departing from equality, to the extent that that departure 
precludes levelling down. (One may not agree with his account of which 
unequal distribution is just, but the idea that mutually beneficial inequality 
is, at least pro tanto, preferable to equality is reasonable.) However, Rawls’s 
account fails insofar as it does not single out equality as the just benchmark.

We can now draw two general conclusions about presumption arguments. 
First, luck egalitarians have not successfully defended the presumption of 
equality, because their distinction between presumptively and ultimately 
just describes two different ways in which distributions are just, rather 
than two different circumstances under which distributions are just. They 
are therefore vulnerable to the dilemma identified above: whatever 
justifies equality must entail it, or else equality is not uniquely justified, 
but if it does entail it, all departures are precluded.

Second, Rawls (1971: 118-83) is entitled to the presumption of equality, 
but the Pareto argument does not do the necessary work. In order to move 
from the claim of equal moral standing to the benchmark, Rawls needs the 
contract argument. In this argument, he models the equal standing of 
persons in his description of the parties to the contract and in his 
description of the hypothetical circumstances (the “original position”) in 



22 Cynthia A. Stark 

LEAP 6 (2018)

which the parties deliberate about the distribution of wealth (among other 
“primary social goods”). The parties would opt for equality he argues, 
given their equal claim to social goods (derived from their equal status) 
and their lack of knowledge of their particular capabilities, unless they can 
all have more under inequality. In this case, Rawls argues, they would opt 
to maximize the wealth of the least wealthy, given their inability to predict 
their ultimate place in the distribution of wealth. While this approach 
arguably supplies a justification for equality as the benchmark (and, 
indeed, a justification for departing to the difference principle) it is 
controversial qua hypothetical consent argument.15

One last consideration: perhaps there are alternative ways of 
understanding the presumption of equality that I have not considered. 
Below, I brief ly discuss two. I argue that neither is a strong candidate.

3. VALUE PLURALISM

The idea of value pluralism is frequently invoked by egalitarians, especially 
luck egalitarians.16  This doctrine says that equality is one among many 
values that bear upon the assessment of distributive arrangements.17  One 
proposal is that the presumption of equality is simply an expression of the 
notion of value pluralism. To say that an equal distribution is presumptively 
just is simply to say that, while there is something to be said for equality in 
assessing distributive arrangements, there is something to be said for other 
values as well and that these values permit or require deviations from 
equality. The presumption of equality, then, simply expresses the sensible 
view that equality is not the only thing that matters.

But notice that this way of putting the point presupposes the idea that 

15  For discussion, see Dworkin (1975); Stark (2000); Enoch (2017).
16  Larry Temkin (2003: 63), for example, says, “any reasonable egalitarian will be a 

pluralist. Equality is not the only thing that matters to an egalitarian. It may not even be the 
ideal that matters most. But it is one ideal among others that has independent moral 
significance”. See also, Temkin (2002); Parfit (2002); Segall (2007); Eyal (2007); Cohen (2008: 
4).

17  There are several notions of value pluralism proposed by egalitarians and several 
contexts in which value pluralism is said to apply. Some theorists, such as Temkin, Parfit and 
Cohen, hold that equality is one among many values bearing upon the goodness or the 
badness of a distribution. Others, such as Segall, hold that distributive justice (understood 
as the fulfillment of the luck egalitarian ideal of equality) is one among many values bearing 
upon the justice of the design of social institutions. Segall holds, further, that justice is one 
among many values bearing upon the morality of institutional design. Another view, 
advanced by Eyal, claims that luck egalitarian equality is one among many values bearing 
upon both the moral and non-moral goodness of a policy of compensating victims of bad 
luck. (See the references in the previous footnote.)



 The Presumption of Equality 23

LEAP 6 (2018)

equality has a special status. The proposal states that because equality is 
not the only thing that matters, we are sometimes justified in departing 
from it. But that assumes that equality has some sort of priority – it is the 
division that other values might justify deviating from. If equality really 
were simply one among many values pertinent to distributive ethics, then 
there are no grounds for positioning it as the distribution that other values 
might defeat. On a genuinely value pluralist view, we would take equally 
into account the ideals of, say, utility, mutual benefit and equality.18 That is 
to say, we would not assign a special weight or status to any of these values. 
A genuinely pluralist approach, then, represents an alternative to the idea 
that equality is presumptively just. Hence this approach cannot stand as 
an interpretation of the presumption.

4. THE BURDEN OF PROOF

Another way to interpret the notion that distributive equality is 
presumptively just is as a claim about the burden of proof: the burden of 
proof, the argument goes, is upon those favoring an unequal division and 
not upon those favoring equality. Equality simply requires no justification.19 
As a preliminary point it is worth noting that as a matter of social practice, 
the burden of proof tends to be assigned simply to those who hold the more 
unusual view. For instance, vegetarians are often expected by meat-eaters 
to justify their refraining from eating animals, where meat-eaters generally 
do not see themselves as owing anyone a justification for their practice, in 
spite of the fact that their practice is arguably more harmful. Though most 
people may not believe in distributive equality, most political philosophers 
do.20 Yet this would surely be a f limsy ground for assigning the burden of 
proof to the non-egalitarian.

So, let us assume that claims about the burden of proof can stand on 
sturdier ground than the mere prevalence of a view. To assess the idea that 
distributive equality demands no justification let us compare that claim to 
some views about the burden of proof that are widely accepted. One such 
view is the legal presumption of innocence in some systems of criminal 
law. Another is the idea that the atheist is not required to disprove the 
existence of God in order to be justified in believing that God does not 
exist. The notion that the burden of proof falls upon those who support 
distributive inequality, I argue, is relevantly different from these two cases. 

18  See Parfit (2002: 87-88.)
19  Thanks to David Rondell for proposing this interpretation. See Gosepath (2011); 

Wollheim and Berlin (1955-56).
20  Many theorists of distributive justice are either Rawlsians or luck egalitarians.



24 Cynthia A. Stark 

LEAP 6 (2018)

So, we have reason to doubt the claim that distributive equality demands 
no justification. I argue, further, that even if the presumption of equality 
were relevantly similar to the presumption of innocence, the idea that 
equality should be presumed just demands justification, for those who say 
that the accused should be presumed innocent can offer reasons for their 
view. Yet providing a justification for the idea that distributive equality 
requires no justification is tantamount to providing a justification for the 
idea that equality should be presumed to be just. And, depending on how 
that argument goes, it will be subject to the pitfalls I identified above in 
arguments for the presumption.

Here is how the presumptive innocence of the accused differs from the 
presumptive justice of distributive equality: where the former is a strictly 
epistemic notion, the latter is not. The demand to presume the accused 
innocent says that we must treat the accused as though they are innocent 
until there is sufficient evidence of their guilt. That is, until we know 
whether or not they are innocent, we treat them as though they are. We are 
not required to believe that they are innocent, or, alternatively, we do not 
ascribe to them the property of being innocent. To presume that an equal 
division is just, however, is not to treat equality as though it is just until we 
have sufficient evidence to think it unjust. Rather it is to say that equality is 
just, but that its justice can be defeated by other considerations. The 
presumption of innocence tells us what we should do when we do not know 
what to believe. The presumption of equality tells us what we should 
believe, namely that equality is just in a certain circumstance or that 
equality is initially just.

Even if I am mistaken about this difference, however, it seems reasonable 
for someone to demand reasons for assigning the burden of proof in a 
particular way. And, in fact, proponents of the idea that the burden of proof 
should be borne by the prosecutor to establish the guilt of the accused have 
offered reasons for their view. For example, one line of defense appeals to 
the serious harm of wrongful conviction. Placing the burden of proof on 
the prosecution to establish the guilt of the accused tends to produce more 
improper acquittals than improper convictions. The improper acquittals 
are seen as the legitimate price of avoiding wrongful convictions given the 
power imbalance between the accused individual and the state and the 
serious consequences of wrongful conviction.

Another view, proposed by Hamish Stewart (2014: 410), is that the 
accused have a right to be presumed innocent simply in virtue of being 
persons. The basic idea is that the moral status of persons includes being 
“without reproach”; it includes the right to not be “…found to have done 
wrong merely on the basis being a person”. Therefore, to judge someone 



 The Presumption of Equality 25

LEAP 6 (2018)

legally in the wrong that person must have done something legally wrong. 
So, persons have a legal right to be presumed innocent until proven guilty. 
The continuity between this argument and both Tan’s and Rawls’s 
arguments for the presumption of equality is striking and lends credence 
to the notion that the presumption in favor of distributive equality must 
itself be justified; it is not adequate to simply assert that distributive 
equality needs no justification. 

The idea that the burden of proof falls upon the theist is similar in one 
respect to the idea that the burden of proof falls upon the non-egalitarian. 
Both are views about what one should take to be true. One should believe 
that God does not exist in the absence of evidence that he does exist and 
one should judge equality to be just in the absence of reasons that it is not 
just. However, the case involving God’s existence hinges on the fact that 
the theist formulates the thesis that God exists in way that ensures that it 
cannot be disproved and then claims that the fact that God’s existence 
cannot be disproved justifies belief in God. This is the point of Russell’s 
teapot analogy. Russell says that if he were to claim that a china teapot, too 
small to be detected by the most powerful telescopes, is orbiting the sun, it 
would be ludicrous to claim that the teapot non-believer must disprove the 
existence of the teapot in order to be justified in believing in its 
non-existence.21

The dis-analogy between this case and the presumption of equality is 
plain. The theist says that because we cannot prove the non-existence of a 
thing the non-existence of which is virtually impossible to prove we must 
believe in the existence of that thing. This is indeed a strong reason for 
thinking that the burden of proof does not rest upon the atheist. Yet no such 
sleight of hand is present in the case of the presumption of equality. We cannot 
say that the burden of justification falls upon advocates of distributive 
inequality because those individuals have formulated their account of 
distributive justice in such a way that there are no reasons that count against 
it and then claim that egalitarians must accept their view on the ground that 
they (egalitarians) can provide no reasons against it. So, just as the presumption 
of equality is not analogous to the presumption of innocence, it is likewise not 
analogous to the presumption of the non-existence of God.

21  To this, theists claim that absence of evidence is not evidence of absence – even if 
evidence cannot be provided for the existence of something it might still exist. And, 
moreover, theists say, the basis for their belief in God is not the absence of evidence for his 
non-existence but rather evidence for his existence. Just as there is evidence that there is not 
a China teapot orbiting the sun, there is evidence that there is a God, for the postulate that 
God exists can explain e.g., the origins of universe, the complexity of life on earth and so on. 
To this the atheist replies that the things that the postulate allegedly explains can be 
explained without the postulate.



26 Cynthia A. Stark 

LEAP 6 (2018)

5. SUMMARY

The idea that distributive equality enjoys a special status such that 
departures from it require justification is indeed attractive. It allows us to 
endorse equality, in some sense, and, at the same time, avoid some major 
criticisms of equality, including the claim that it requires levelling down or 
fails to hold people responsible for their economic choices. Nevertheless, 
characterizing this special status and showing how it can be overridden or 
defeated proves difficult. I argued above that despite their endorsement of 
the presumptive justice of equality, luck egalitarians have not successfully 
shown equality to be presumptively just. This failure is due to the structure 
of their presumption arguments. In order to assign a special status to 
equality, then, luck egalitarians must fashion an argument that takes a 
different form.

Rawls, on the other hand, can assign a special status to equality. Its 
special status takes this form: it is the just division if, as a matter of fact, 
inequality does not increase the social pie in a way that benefits everyone. 
Otherwise it is unjust and the mutually beneficial division that maximizes 
the wealth of the least wealthy is just. To make this case, however, Rawls 
cannot rely upon the Pareto argument alone because that argument does 
not explain why equality stands as a benchmark. It explains only why 
departing from the benchmark to the difference principle is justified. 
Rawls must rely on the social contract argument to justify the special status 
of equality: equality is the benchmark because it is what people who know 
nothing of their natural talents and initial social position would choose 
(unless mutually beneficial inequalities are an empirical possibility). A 
weakness of Rawls’s approach is that it is limited in its appeal, given the 
controversial nature of social contract arguments.

BIBLIOGRAPHY

Barry, B., 1989: Theories of Justice, Berkeley: University of California Press.
Cohen, G.A., 1995: “The Pareto Argument for Inequality”, Social Philosophy and 

Policy 12: 160-85.
— 1997: “Where the Action Is: On the Site of Distributive Justice”, Philosophy & 

Public Affairs 26: 3-30.
— 2003: “Facts and Principles”, Philosophy & Public Affairs 31: 211-45.
— 2006: “Luck and Equality: A Reply to Hurley”, Philosophy and Phenomenological 

Research 72: 439-46.
—  2008: Rescuing Justice and Equality, Cambridge, MA: Harvard University Press.
Dworkin, R., 1975: “The Original Position”, in Reading Rawls, ed. N. Daniels, 16-53, 

Stanford: Stanford University Press.



 The Presumption of Equality 27

LEAP 6 (2018)

— 1981: “What is Equality? Part 2: Equality of Resources”, Philosophy & Public 
Affairs 10: 283-345.

Enoch, D., 2017: “Hypothetical Consent and the Value(s) of Autonomy”, Ethics 128: 
6-36.

Eyal, N., 2005: “Review: Justice Luck and Knowledge”, Economics and Philosophy 21: 
164-71.

— 2007: “Egalitarian Justice and Innocent Choice”, Journal of Ethics and Social 
Philosophy 2: 1-18.

Freeman, S., 2007: Justice and the Social Contract: Essays on Rawlsian Political 
Philosophy, Oxford: Oxford University Press.

Gosepath, S., “Equality” The Stanford Encyclopedia of Philosophy (Spring 2011 
Edition) E.N. Zalta (ed.), URL =

<http://plato.stanford.edu/archives/spr2011/entries/equality/>.
Hurley, S., 2003: Justice, Luck and Knowledge, Cambridge, MA: Harvard University 

Press.
Lippert-Rasmussen, K., 2005: “Hurley on Egalitarianism and the Luck-Neutralizing 

Aim”, Politics, Philosophy and Economics 4: 249-65.
Parfit, D., 2002: “Equality or Priority?”, in The Ideal of Equality, ed. M. Clayton and 

A. Williams, 81-125, New York: Palgrave MacMillan.
Rawls, J., 1971: A Theory of Justice, Cambridge, MA: Harvard University Press.
Segall, S., 2007: “In Solidarity with the Imprudent: A Defense of Luck Egalitarianism”, 

Social Theory and Practice 33: 177-98.
— 2012: “Why Egalitarians Should Not Care About Equality”, Ethical Theory and 

Moral Practice 15: 507-19.
— 2016: Why Inequality Matters: Luck Egalitarianism, Its Meaning and Value, 

Cambridge: Cambridge University Press.
Shaw, P., 1999: “The Pareto Argument and Inequality”, The Philosophical Quarterly 

49: 353-68.
Sher, G., 2014: Equality for Inegalitarians, Cambridge: Cambridge University Press.
Stark, C.A., 2000: “Hypothetical Consent and Justification”, Journal of Philosophy 

97: 313-34.
Stewart, H., 2014: “The Right to Be Presumed Innocent”, Criminal Law and 

Philosophy 8: 407-420.
Tan, KC., 2012: Justice Institutions and Luck: The Site, Ground and Scope of Equality, 

Oxford: Oxford University Press.
Temkin, L.S., 2002: “Equality, Priority and the Leveling Down Objection”, in The 

Ideal of Equality, ed. M. Clayton and A. Williams, 126-61, New York: Palgrave 
MacMillan.

— 2003: “Equality, Priority or What?”, Economics and Philosophy 19: 61-87.
Vallentyne, P., 2003: “Brute Luck Equality and Desert”, in Desert and Justice ed. S. 

Olsaretti, 169-86, Oxford: Oxford University Press.
— 2006: “Hurley on Justice and Responsibility”, Philosophy and Phenomenological 

Research 72: 433-38.
Wollheim, R. and Berlin, I., 1955-56: “Equality”, Proceedings of the Aristotelian 

Society, New Series 56: 281-326.



LEAP 6 (2018)

Natural Resources, Collective Self-
Determination, and Secession

F R A N K DI E T R ICH 
Heinrich-Heine-University Düsseldorf

ABSTRACT

International law grants states, as representatives of their peoples, the 
right to use and exploit the natural resources located on their territories. 
The aim of this paper is to clarify how the doctrine of peoples’ sovereignty 
over natural resources is related to their right to political self-determination. 
Three different perceptions of this relationship are examined. First, the 
view that peoples have collective ownership rights over the natural 
resources to be found on their territories is criticized and rejected. 
Thereafter, it is argued that instrumentalist reasons fail to explain why a 
people’s right to political self-determination implies sovereignty over 
natural resources. Instead, it is suggested to consider sovereignty over 
natural resources a necessary component of a people’s authority over the 
territory where their right to self-determination is realized. The proposed 
solution provides a sensible framework for dealing with practical issues, as 
can be exemplified by post-secession conf licts over natural resources. 

Keywords: collective self-determination, global justice, harm principle, 
natural resources, secession, territory.

1. INTRODUCTION

In international politics it is widely accepted that states are entitled to use 
the natural resources which are located on their territories to their own 
benefit. The many conf licts over natural resources we currently witness 
typically concern specific issues, such as the precise national borders 
between two countries. That states have sovereignty over natural resources 
– or rather the peoples represented by states – is hardly called into question 
by relevant international actors. Furthermore, the assignment of special 
resource rights to territorially concentrated collectives has a secure basis 
in international law. Most notably, Article 1 of the t wo major Human 
Rights Covenants from 1966 recognizes the right of peoples to political 

D OI : 10. 310 0 9/L E A P. 2018.V6.02



 Natural Resources, Collective Self-Determination, and Secession 29

LEAP 6 (2018)

self-determination. This right implies, as stated in the same article, the 
entitlement to freely dispose of the natural resources which are found 
within the respective territorial units. 

By contrast, the philosophical debate has been considering the principle 
of resource sovereignty mainly from a global justice perspective. Several 
authors have called into question whether peoples can establish special 
claims to spatially defined shares of the world’s resources while excluding 
all other human beings. In their view, advantages gained from the unequal 
distribution of natural resources are morally arbitrary and in need of 
correction.1 However, what has received much less attention in the recent 
philosophical debate is the rationale for seeing resource sovereignty as an 
important component of the right to collective self-determination. The 
aim of this paper is to examine in some detail how both concepts – collective 
self-determination and authority over natural resources – relate to each 
other. By clarifying this conceptual link at the theoretical level I also hope 
to contribute to a better understanding of various practical problems.

The argument is subject to two restrictions. First, within the scope of 
this paper I cannot address the fundamental objections global justice 
theorists have raised to the sovereignty rights of states or peoples. Instead 
I start out from the assumption that the right of peoples to political self-
determination can be justified and try to elucidate how this right relates to 
resource claims. The argument will, however, show that recognizing 
peoples’ authority over natural resources is in principle compatible with 
major demands of global justice.2 Moreover, even the critics of the current 
state system may agree that attempts to establish global political 
institutions are not likely to succeed in the foreseeable future. Thus, a 
thorough analysis of the concept of political self-determination may prove 
to be helpful for ref lecting on criteria of justice under non-ideal conditions.

Second, my argument relies on a rather conventional understanding of 
the term “natural resources”. I take natural resources to be materials or 
substances of some economic value, which exist without the actions of 
human beings, such as fertile land, minerals, or water. This is not to deny 
that more sophisticated models that have been recently proposed, e.g. Tim 
Hay ward’s (2006) “eco-space conception” or Avery Kolers’ (2012) 
“intentional conception”, may provide important insights. Again, it would 
go beyond the scope of this paper to enter into the current debate on the 
adequate understanding of natural resources. Although I expect my 

1  Criticism of the resource privilege of states or peoples has been offered inter alia 
by Pogge (2008: 202-221) and Armstrong (2015) and (2017: 132-149).

2  For an instructive discussion of how the ideal of global equality can be reconciled 
with the right of peoples to political self-determination, see Armstrong (2010). 



30 Frank Dietrich 

LEAP 6 (2018)

discussion of the right to collective self-determination to be relevant for 
more refined conceptions, I cannot demonstrate this here.

The argument proceeds by three steps. In the second section, I will 
explore the development of the right of peoples to political self-
determination – with a special focus on the doctrine of permanent 
sovereignty over natural resources – in international law. Thereafter, in the 
third section, I will discuss three possible explanations of how natural 
resources may be linked with a group’s entitlement to independently 
decide on its common future. First, they may be seen as the common 
property of a people; second, they may have an instrumental value for the 
achievement of a people’s collectively determined goals; or, third, resource 
sovereignty may be an essential component of a people’s claim to a territory 
of its own. After having advanced my arguments for the latter view, I will, 
in the fourth section, dwell on some of its implications. More precisely, I 
will ask what the proposed interpretation has to say on the handling of 
competing resource claims, which may emerge in the wake of secession or 
state dissolution. Finally, in the last section I will brief ly summarize the 
main findings of my analysis.

2. RESOURCE SOVEREIGNTY IN INTERNATIONAL LAW

The principle of people’s permanent sovereignty over natural resources 
has its roots in the period of decolonization. Its development was 
characterized by a conf lict of interests between colonial peoples and newly 
independent states on the one hand and the prosperous states of the West 
on the other hand. The former actors were anxious to gain political 
independence and, if achieved, to expand their ability to pursue common 
goals. Control over natural resources was, in their view, an important 
precondition for substantial self-determination and successful economic 
development (Schrijver 2010b: sec. C2). The (former) colonial powers, by 
contrast, worried about a possible shortage of raw materials and, 
consequently, detrimental effects on the global economy. Moreover, they 
feared that the decolonized states might nationalize foreign companies 
without offering sufficient compensation for their investments.

The emergence of the concept of resource sovereignty in international 
law was closely connected with the development of a right to collective 
self-determination. The first significant legal document mentioning the 
political self-determination of peoples was the Charter of the United 



 Natural Resources, Collective Self-Determination, and Secession 31

LEAP 6 (2018)

Nations in 1945.3 Article 1.2 of the Charter states: 

“The purposes of the United Nations are: … to develop friendly relations 
among nations based on respect for the principle of equal rights and 
self-determination of peoples, and to take other appropriate measures 
to strengthen universal peace.” 

There is wide agreement that at this time the self-determination of 
peoples had to be understood as a guiding principle for the peaceful 
coexistence of the community of states. However, in the years to come the 
principle of self-determination quickly developed into a legal right peoples 
under foreign rule could refer to. A crucial role in this process played 
Resolution 1514 of the United Nation’s General Assembly (UNGA) from 
1960, which called for bringing colonization to a speedy and unconditional 
end. In the so-called Decolonization Resolution the member states of the 
United Nations unanimously recognized a right of all peoples to self-
determination. Although UNGA resolutions are not legally binding, they 
provide evidence of the predominant conception of international law.

The view that a right to self-determination is existent in common law 
has been further substantiated in the process of decolonization, as many 
colonial peoples were able to gain political independence by appealing to 
their right to self-determination. In 1966, when the International Covenant 
on Civil and Political Rights (ICCPR) and the International Covenant on 
Economic, Social and Cultural Rights (ICESCR) were established, the 
right to self-determination was provided with a secure foundation in 
international treaty law. Both Human Rights Covenants stipulated 
identically in their Arts. 1.1: 

“All peoples have the right of self-determination. By virtue of that right  
they freely determine their political status and freely pursue their 
economic, social and cultural development.”4

In 1952 two UNGA resolutions for the first time linked the self-
determination of under-developed countries or peoples with the right to 
exploit natural resources. Resolution 523 stipulated “that the under-
developed countries have the right to determine freely the use of their 
natural resources.” Resolution 626 stated “that the right of peoples freely to 

3  The principle has been discussed at least since President Wilson’s famous 
“fourteen points“ and has been present in the thoughts of Lenin and Stalin but was not 
included in the regulations of the League of Nations.

4  Evidently, there is a tension between the right of peoples to self-determination 
and the right of states to territorial integrity as it is enshrined, most importantly, in Art. 2.4 
of the United Nation’s Charter. The entitlement of some part of a population, e.g. a colonial 
people, to freely determine its political status is difficult to reconcile with the inviolability of 
the established borders.



32 Frank Dietrich 

LEAP 6 (2018)

use and exploit their natural wealth and resources is inherent in their 
sovereignty and is in accordance with the purposes and principles of the 
charter of the United Nations.”5 For two reasons these resolutions met 
resistance by the USA, Great Britain, and other highly industrialized states. 
First, these states complained that the interests of prosperous economies 
to have access to raw materials were not sufficiently taken into account. 
Second, they were concerned about the resolutions’ potential for 
legitimizing the expropriation of foreign companies and the annulment 
of concessions. This worry was fueled, most importantly, by the 
nationalization of the Anglo-Iranian Oil Company, enforced by the then 
socialist Iranian government in 1951 (Schrijver 1997: 37-49). The main 
reason for voting against resolution 626, given by the US delegation, was 
the lack of any provision for adequate compensation in the case of 
expropriation (Hyde 1956: 860).

The discussion on resource rights continued during the drafting 
process of the United Nations’ two major human rights covenants. In 1958 
the UNGA adopted resolution 1314, which confirmed “that the right of 
peoples and nations to self-determination … includes permanent 
sovereignty over their natural wealth and resources.” By this resolution a 
special commission was established in order to “conduct a full survey of 
this basic constituent of the right to self-determination.” The view that 
natural resources are a basic constituent of the right to self-determination 
was reaffirmed in the UNGA declaration 1803 on the permanent sovereignty 
over natural resources from 1962. Primarily two provisions prompted the 
Western states – with the exception of France – to vote in favor of this 
resolution. First, the declaration required of states which expropriate 
foreign holdings to pay the owner adequate compensation and, second, it 
stated that foreign investment agreements freely entered by signatory 
parties shall be observed in good faith (Schwebel 1994: 401-415).

The resolution on the permanent sovereignty over natural resources for 
the first time addressed an important aspect of internal self-determination, 
by commenting on the question of who is supposed to benefit from the 
extraction of resources. According to par. 1, the right to dispose of a 
country’s natural wealth and resources must be exercised in the interest of 
“the well-being of the people of the state concerned”. This is an important 
clarification, as experience has shown that in many cases the ruling elites 

5  According to Schrijver (2015: 23-24), the term “natural wealth” refers to the 
resource basis as distinguished from the natural resources themselves. For instance, the 
forest and the fertile soil constitute (part of ) a country’s natural wealth, whereas the timber 
of the trees and the tea or coffee plants count as natural resources.



 Natural Resources, Collective Self-Determination, and Secession 33

LEAP 6 (2018)

have commercially exploited the raw materials to their own advantage.6 
The resolution on peoples’ permanent sovereignty over natural resources 
paved the way for the inclusion of resource rights in the two human rights 
treaties of 1966. Both the ICCPR and the ICESCR state identically in their 
Arts. 1.2:

“All peoples may, for their own ends, freely dispose of their natural 
wealth and resources without prejudice to any obligations arising out of 
international economic co-operation, based upon the principle of 
mutual benefit, and international law. In no case may a people be 
deprived of its own means of subsistence”.7

In more recent debates on peoples’ permanent sovereignty over natural 
resources two topics have come into focus. First, the right to extract and 
make use of natural resources has increasingly been placed in the context 
of environmental protection. In 1972 the Stockholm Declaration of the UN 
Conference on the Human Environment for the first time specified 
obligations entailed by peoples’ resource sovereignty. Principle 21 of the 
Stockholm Declaration specifies: 

“States have … the sovereign right to exploit their own resources 
pursuant to their own environmental policies, and the responsibility to 
ensure that activities within their jurisdiction or control do not cause 
damage to the environment of other States or of areas beyond the limits 
of national jurisdiction”.8

While the Stockholm Declaration was mainly concerned with the 
prevention of external damage, later UN documents entertained a more 
comprehensive view of environmental protection. A crucial role for the 
development of international environmental law played the concept of 
“sustainable development”, which was introduced by the so-called 
Brundtland Commission in 1987.9 The goal of sustainable development has 
been cited in many international legal documents, thereby constraining 
the right of peoples to exploit their natural wealth and resources (Schrijver 
2010a: 59-66). A telling example is the preamble of the UN Convention on 

6  The moral responsibilities of other states with regard to governments who fail to 
manage natural resources in the interests of their peoples are discussed in Wenar (2008) and 
(2016: 281-334), see also Haugen (2014).

7  Art. 25 (ICESCR) and Art. 47 (ICCPR) state in unison: “Nothing in the present 
Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and 
utilize fully and freely their natural wealth and resources.”

8  The wording of this principle is reiterated – with only one slight alteration – in 
principle 2 of the Rio Declaration on Environment and Development from 1992.

9  The Brundtland report defines sustainable development as “development that 
meets the needs of the present without compromising the ability of future generations to 
meet their own needs.”



34 Frank Dietrich 

LEAP 6 (2018)

Biological Diversity from 1992, where the contracting parties reaffirm 
“that States have sovereign rights over their ow n biological resources 
[and …] are responsible for conserving their biological diversity and for 
using their biological resources in a sustainable manner.”10

Second, the intrastate allocation of the entitlement to exploit natural 
resources has become an important concern of international law. A 
growing body of legal documents has recognized that the doctrine of 
permanent sovereignty over natural resources applies to indigenous 
communities. Most importantly, the United Nations Declaration on the 
Rights of Indigenous Peoples from 2007 states in Art. 3: “Indigenous peoples 
have the right to self-determination. By virtue of that right they freely 
determine their political status and freely pursue their economic, social 
and cultural development.” Furthermore, Art. 26.1 states: “Indigenous 
peoples have the right to lands, territories and resources which they have 
traditionally owned, occupied or otherwise used or acquired.” It is now a 
widely shared view in international law that different peoples within one 
state may possess rights over different territories and the respective 
resources (Miranda 2012: 806-828, Pereira and Gough 2013: 20-34). Thus, 
states are not only obliged to manage the natural resources which are 
located within their borders in their citizens’ interests; they must also take 
into account that the population may consist of several peoples, each with 
its own resource rights.11

3. RESOURCE RIGHTS AS BASIC CONSTITUENT OF 
COLLECTIVE SELF-DETERMINATION 

The previous section has shown that international law conceives of 
resource sovereignty as an integral part of peoples’ right to political self-
determination. However, neither the relevant legal documents nor the 
drafting process that preceded their ratification make sufficiently clear 
how these concepts are connected with each other. In the following, I will 
discuss three possible explanations why an entitlement to collective self-
determination might imply resource rights. First, I will deal with the 
understanding that self-determining entities have property rights (or 
similarly created sovereignty rights) to the natural resources of a given 

10  A normative argument for the restriction of peoples’ permanent sovereignty over 
natural resources by environmental standards is presented in Gümplová (2014).

11  As a further problem area one might mention resource sovereignty in occupied 
territories, which has been addressed by the International Court of Justice in several 
decisions, e.g. the Israeli Wall Advisory Opinion of 2004 and the Armed Activities Case 
(Congo v. Uganda) of 2005. For a detailed analysis, see Dam-De Jong (2015).



 Natural Resources, Collective Self-Determination, and Secession 35

LEAP 6 (2018)

territory. Subsequently, I will explore instrumentalist accounts according 
to which a group’s capacity to exert its self-determination right crucially 
depends on the availability of natural resources. After having outlined the 
main shortcomings of these views, I will argue for considering sovereignty 
over natural resources a necessary component of a people’s authority over 
the territory where its self-determination takes place. Finally, I will discuss 
two objections that may be raised to my position.

3.1. Property and Quasi-Property Rights

The legal documents on peoples’ self-determination rights, which I discussed 
in the second section, recurrently speak of “their” natural resources. The 
use of the possessive pronoun “their” might indicate the existence of a 
collective property right, which predates the right to political self-
determination. According to this assumption, sovereignty over natural 
resources is not to be understood as an enabling condition for the exercise 
of the right to political self-determination. The exploitation (or 
conservation) of natural resources is rather within the scope of issues on 
which a people, by virtue of its ownership, is entitled to decide. Like an 
individual may determine the use of the goods she owns, the members of a 
people may jointly determine the use of their common possessions.12

An important challenge for an ownership account is to explain how 
collectives, such as peoples, acquire property rights over natural resources. 
In classical political thought, basically two mechanisms of how property 
rights come into existence – by first appropriation of previously unowned 
objects or by mixing one’s labor with such objects – are discussed. The 
historic versions of both theories start out from the assumption that God 
has devoted his creation to the whole of humanity. The original common 
possession of entire mankind is then, by a series of individual acts, 
transformed into a system of private ownership. According to a first 
appropriation account, as defended for instance by Hugo Grotius, a person 
who is first to settle on a hitherto uninhabited area acquires a property 
right to the land and its natural resources. By contrast, the core idea of the 
labor mixing account, which was initially advanced by John Locke, is that 
from the very beginning everybody is the owner of herself. If a person 
invests labor in a natural good, she merges this good with a part of her 
body, which already constitutes her individual property. Thereby she 
significantly increases the value of the good concerned and excludes the 

12  To be clear, a collective ownership right – as I understand the term here – does not 
entitle each member of the collective to use the goods concerned at her discretion. Instead 
the ownership right is held by the group as a whole: the individuals belonging to the group 
or their representatives must decide jointly – by a majority vote or some other procedure – on 
how to exercise this right.



36 Frank Dietrich 

LEAP 6 (2018)

rights of all other people to make use of it.13

From the perspectives of both theories only individuals are capable of 
acquiring property rights – either by first seizing previously unowned 
goods or by investing labor in them. Hence, the crucial question is how a 
people can come into the rightful possession of all natural resources 
located on the territory where it exercises its political self-determination. A 
possible answer is that the individuals who first acquired property rights 
over natural resources acted on behalf of the people. Think, for instance, of 
a ship’s captain who discovers a previously unknown island and who 
declares, when going ashore, to take possession of this island in the name 
of, let us say, Spain.14 Although a first appropriation of natural resources by 
a people’s representative is conceivable, it can, at best, provide part of an 
explanation. The example of the ship’s captain presupposes the existence 
of a Spanish state, which already has authority over a territory and its 
natural resources. Even if one admits that the ship’s captain was entitled to 
seize the island on behalf of the Spanish people, it is still unclear how this 
people’s claim to collectively own the natural resources of the Spanish 
heartland could be justified.

Another response to the here discussed problem is that the individual 
members of a people voluntarily transferred their property rights over 
natural resources to the collective. Seemingly, John Locke (1960 [1689]: II 
§120) comes close to such an idea when he declares: “By the same Act … 
whereby any one unites his Person, which was before free, to any 
Commonwealth; by the same he unites his Possessions, which were before 
free to it also.” However, what Locke has in mind is – I think – that the 
persons concerned submit their property to the jurisdictional authority of 
the state. In his view, the individuals in the state of nature have strong 
reasons to enter into a political society in order to obtain protection for 
their possessions. Therefore, they are prepared to vest the state with as 
much jurisdictional authority as necessary (and as little as possible) for the 
performance of its protective function. It is, however, hard to see why the 
persons who join a political society should transfer their property rights 
over natural resources completely to the state, or rather to the people 
constituting the state. They have no reason to relinquish their property 
rights because it is precisely the secure enjoyment of their possessions 
what motivates them to establish a state in the first place. At most, they 
might grant the state limited rights of intervention, such as the competence 

13  For a recent revitalization of Grotius’ theory, see Risse (2012: 89-129); for a detailed 
examination of Locke’s argument, see Simmons (1992: 222-306).

14  In a different context, Locke (1960 [1689]: II §28) admits the acquisition of property 
at the behest of another person by stating: “(…) the Turfs my Servant has cut (…) become my 
Property, without the assignation or consent of any body”.



 Natural Resources, Collective Self-Determination, and Secession 37

LEAP 6 (2018)

to raise taxes in order to finance police services. However, since they would 
not assent to substantial intrusions into their private property, the state 
would not obtain anything close to a collective ownership right.15

More recently, an argument has been advocated that may be understood 
as a culturalist modification of Locke’s labor mixing approach. So called 
liberal nationalist authors, such as David Miller (1995: 21-27, 2007: 214-230 
and 2012), Chaim Gans (2003: 97-123), and Tamar Meisels (2009), have 
pointed out to the formative inf luences the culture of a nation exerts on a 
territory.16 The members of a national community employ specific forms of 
agriculture, build roads and ports, and establish particular settlement 
structures. These cultural activities leave a lasting imprint on the territory, 
which distinguishes it from other geographical places. Persons identifying 
with a national community typically have strong emotional bonds to the 
area they regard as their homeland. Since the territory is shaped by their 
culture and closely connected to the nation’s history, they cannot imagine 
realizing their collective self-determination any where else.17 By analogy 
with Locke, it has also been argued that the national community put the 
piece of land it traditionally occupies to an efficient use. Over time, the 
various cultural activities of the group add material as well as symbolic 
value to the land (Meisels 2009: 97-112 and Miller 2012: 257-262).18

From a liberal nationalist perspective, the above considerations – 
cultural formation, emotional attachment, value enhancement – legitimize 
the claims of nations to “their” territories. It is important to note that, 
contrary to Locke’s account, territorial rights are not conceived of as 
collective ownership rights. Instead, national communities are thought to 
have an entitlement to exert jurisdictional authority over their traditional 

15  For a critical examination of Locke’s property theory of territorial rights, see Beitz 
(1980).

16  It may be worth noting that the above-mentioned theorists speak of “nations” or 
“national communities” instead of “peoples”. For the question under discussion – the link 
between collective self-determination rights and sovereignty over natural resources – this 
terminological difference seems, however, irrelevant.

17  As regards personal attachment, Miller (2007: 219) states: “The case for having 
rights over the relevant territory is (…) straightforward: it gives members of the nation 
continuing access to places that are especially significant to them, and it allows choices to 
be made over how these sites are to be protected and managed”.

18  The theory of resource rights advocated by Cara Nine (2012: 137-141) borrows from 
different aspects of Locke’s political thought. In her view, a group acquires resource rights 
when it uses the resources concerned in a value-generating way, whereby she considers the 
achievement of political justice the relevant value.



38 Frank Dietrich 

LEAP 6 (2018)

areas of settlement.19 The liberal nationalist’s argument has the advantage 
of avoid i ng t he problem w it h wh ich L ocke’s appropr iat ion t heor y ha s 
to grapple. Since the labor, which needs to be “mixed” with the land, is 
understood as the joint activities of a culturally defined nation, the creation 
of a collective right seems more plausible. It is not the work of particular 
individuals but the common and ongoing efforts of a nation that shape 
some piece of land and, thereby, establish a claim to it. Hence, the culturalist 
reinterpretation of Locke’s account need not explain how individual rights 
can be transformed into collective rights of a nation or a people.

The liberal nationalist’s argument for sovereignt y over natural 
resources faces, however, a serious problem. It needs to be shown how the 
cultural activities of national communities, on which their territorial 
claims depend, bear on natural resources. To be sure, the agricultural and 
settlement practices of national communities may shape the surface of the 
land and create strong feelings of belonging. Moreover, certain natural 
resources, such as coal or diamonds, and the transgenerational project of 
their exploitation may play an important role for a national culture (Miller 
2012: 263-264). However, a people’s sovereignty over natural resources is 
generally understood to comprise the whole range of raw materials that are 
situated within the relevant territory. Evidently, the members of a nation 
neither invest labor in every natural resource nor are they emotionally 
attached to every natural resource. For instance, the wood of an unmanaged 
forest and the water of a small, untouched river are not subject to any 
cultural activity. Furthermore, it is hard to see on which grounds a people 
might claim a right to the future use of still undiscovered resources. The 
above-sketched reinterpretation of Locke’s appropriation argument 
cannot extend to resources into which no cultural labor has been invested.

In sum, the here discussed account may, at best, justify the claim of 
national communities to exert their right to political self-determination on 
a particular territory.20 However, even if territorial rights can be established 
in principle, the question which competences these rights include still has 
to be settled. In the philosophical debate it has been widely taken for 
granted that the justification of a territorial claim encompasses the whole 

19  The jurisdictional authority of a people includes the competence to establish and 
modif y a system of property rights on the territory concerned. Thus, a people (or its political 
representatives) may decide to nationalize natural resources or to allow private property 
rights. For an important critique of the conf lation of “property rights” and “sovereignty 
rights” in current nationalist debates, see Fleischacker (2013).

20  For a critical examination of the liberal nationalist’s justification of territorial 
claims, see Dietrich (2011: 87-89).



 Natural Resources, Collective Self-Determination, and Secession 39

LEAP 6 (2018)

set of rights conventionally attributed to states.21 But the reasons that can 
be given for the substantiation of a territorial claim do not necessarily 
apply to each of its standard components. The liberal nationalist’s 
argument fails to explain why a group’s right to political self-determination 
entails an entitlement to dispose of (the full range of ) natural resources.

3.2. Instrumentalist Arguments

As set out in the second section, the right of peoples to political self-
determination emerged in the period of decolonization. At this time the 
freedom of newly created state communities to decide on their economic, 
social and cultural development was high on the agenda. Against this 
background, important legal documents refer to natural resources as 
means for the achievement of peoples’ independently chosen goals. Most 
notably, Articles 1.2 of the ICCPR and the ICESCR state: “All peoples may, 
for their own ends, freely dispose of their natural resources”. This 
formulation points to the instrumental value of natural resources for the 
exercise of the right to collective self-determination. Contrary to the 
interpretation discussed above, peoples do not acquire property rights (or 
similarly created jurisdictional rights) over natural resources by the work 
they invest on a given territory. Instead, they can claim authority over 
natural resources because their right to political self-determination would 
be void if an adequate material basis were lacking.22

The capacity of a people to make significant choices with regard to its 
common future depends, at least in part, on its prosperity. Roughly 
speaking, the more aff luent a collective is, the more goals are attainable 
between which its member can freely decide. The revenues, which can be 
generated from the exploitation of natural resources, will normally 
enhance a people’s set of options. It seems, however, plausible to assume 
that the right to political self-determination only requires the availability 
of a minimum amount of alternatives. In order to make collective decisions, 
a people must be capable of choosing between different economic, social 
or cultural goals. Meaningful self-determination does not require a 
particularly extensive set of options and is consistent with considerable 

21  For a standard definition of territorial rights that encompasses authority over 
natural resources, see Simmons (2001: 306).

22  A different instrumentalist argument for the permanent sovereignty of peoples 
over natural resources was presented by John Rawls (1999: 38-39) in “A Law of Peoples”. 
According to Rawls, a sustainable management of natural resources can best be achieved by 
assigning territorial rights to specific agents. If a people has exclusive responsibility for a 
certain piece of territory, it will be interested in the long-term exploitation of the resources 
concerned and refrain from overexploitation. Since Rawls is mainly concerned with the 
preservation of the environment – rather than the economic preconditions for collective 
self-determination – I will not discuss his argument in more detail.



40 Frank Dietrich 

LEAP 6 (2018)

wealth disparities between the right-holders. In this context, it should be 
recalled that Articles 1.2 of the two human rights covenants state: “In no 
case may a people be deprived of its means of subsistence”. The reference 
to the means of subsistence supports the view that the relevant regulations 
of international law focus on the basic prerequisites for the exercise of the 
right to self-determination.

Evidently, the instrumentalist interpretation must rely on an empirical 
assumption about the significance of natural resources for a people’s 
economic welfare. The research literature on the comparative development 
of resource-rich and resource-poor countries casts, however, doubts on 
the correctness of this thesis. To begin with, it seems questionable whether 
control over natural resources is necessary for achieving a minimum level 
of economic prosperity. There are other important factors, such as 
technological knowledge and the stability of political institutions, which 
contribute significantly to a people’s wealth.23 Thus, even a political 
community that widely lacks valuable raw materials may be able to 
generate the necessary economic means for exerting its self-determination 
right. Moreover, in the case of developing countries natural resources, 
such as oil and gemstones, have often proved to be a serious obstacle to 
economic progress. High resource income tends to increase government 
corruption and to help authoritarian regimes to ward off pressure for 
democratic reform. Competition for resource revenues is also likely to 
trigger violent intrastate conf licts, which impede a country’s economic 
development. In sum, what has become known as “resource curse” speaks 
against a positive correlation between wealth in resources and a people’s 
capacity for self-determination.24

On a more theoretical level, the here considered interpretation of 
peoples’ permanent sovereignty over natural resources faces three closely 
related problems (Armstrong 2017: 142-143). First, what the instrumentalist 
account can establish is, at best, that self-determining collectives are in 
need of a certain amount of economic means. It fails, however, to give any 
reason why peoples have special claims to the natural resources that can 
be found on their respective state territories. Of course, it may appear 
obvious to specify the right holders’ claims in accordance with the existing 
state borders. But it is not the instrumental value of natural resources for 
the right to political self-determination that explains the link to a particular 
territory. The precise location of the natural resources a people has at its 

23  John Rawls (1999: 113-120) restricted duties of international assistance to the 
building of stable institutions because he deemed this to be the most important precondition 
for a country’s economic development.

24  The term “resource curse” has been introduced by Richard Auti (1993); an 
overview over recent research is given, for instance, in Ross (2015) and Venables (2016).



 Natural Resources, Collective Self-Determination, and Secession 41

LEAP 6 (2018)

disposal is largely irrelevant for its capacity to take its own decisions. In 
principle, people A could be enabled to exercise its right to self-
determination by granting it a claim to the resources of people B’s territory, 
and vice versa.

Second, I have argued above that the right to political self-determination 
should be understood as a threshold concept, requiring only the availability 
of a minimum amount of choices. If this is correct, the instrumentalist 
view can only succeed with explaining why peoples need natural resources 
(or other sources of income) to an extent necessary for realizing a basic set 
of options. It provides, however, no reason for granting self-determining 
collectives authority over the total amount of natural resources that are 
located on their territories. The claims of peoples to natural resources, 
which are, strictly speaking, not indispensable for exercising their rights to 
self-determination, must rely on a different justification.

Third, natural resources and the chances of profiting from their 
exploitation are very unequally distributed across the globe. According to 
the instrumentalist interpretation, peoples are entitled to the natural 
resources necessary for exercising their rights to political self-
determination. This implies that each right holder should have access to a 
certain amount of valuable raw materials, even if the territory under its 
control lacks significant deposits. The instrumentalist account thus 
mandates the reallocation of natural resources, or of the revenues derived 
from their exploitation, in order to enable less well-equipped peoples to 
exert their rights to political self-determination. As a consequence, it 
cannot provide a general justification for peoples’ permanent sovereignty 
over the whole set of natural resources located on their state territories. 
Peoples who have authority over more commodities than required for their 
self-determination are duty-bound to share their resource wealth with less 
fortunate right holders.

3.3. Territorial Rights

A more promising interpretation of peoples’ permanent sovereignty over 
natural resources is suggested by the efforts of colonial peoples to 
effectively end their domination by Western states. The independence 
movements were particularly concerned that the former colonial powers 
would continue to exert a strong inf luence on their newly established 
states. Sovereignty over natural resources was a sensitive issue insofar as 
foreign state or private companies had made significant investments in 
their exploitation. The colonial peoples considered their political self-
determination to be substantially impaired if other actors had decision-
making powers over (some part of ) the natural resources situated within 



42 Frank Dietrich 

LEAP 6 (2018)

the borders of their designated state territories. Their misgivings about a 
continued domination find, inter alia, expression in Par. 2 of UNGA 
resolution 1803:

“The exploration, development and disposition of … resources, as well 
as the import of the foreign capital required for these purposes should 
be in conformity with the rules and conditions which the peoples and 
nations freely consider to be necessary or desirable with regard to the 
authorization, restriction or prohibition of such activities”.

The colonial peoples’ demand for non-domination draws attention to 
the crucial interest the right to political self-determination aims to protect. 
By granting this right in international law, the collectives concerned are 
supposed to be enabled to take independent decisions on their common 
future. However, a people cannot freely pursue its particular social, 
economic and cultural goals unless it has control over some piece of 
territory. It needs a clearly defined space where it can – undisturbed by 
other actors – implement its political decisions. If third parties pursuing 
conf licting goals were entitled to decide on the use of the territory 
concerned, a people might be unable to accomplish its common objectives. 
The territorial dimension of the right to political self-determination 
provides the key for understanding the conceptual link to the principle of 
resource sovereignty. Since a people’s right to political self-determination 
implies authority over some territory, it necessarily extends to the natural 
resources that are located within its borders (Moore 2015: 173-176). 

To illustrate the argument outlined above, it may be helpful to imagine 
a situation when a people’s right to self-determination would not comprise 
full authority over a defined territory. Think, for example, of an international 
company or some global institution having decision-making power over 
the extraction of coal within the state boundaries. The members of the 
people living on the territory may predominantly oppose coal mining, as it 
contradicts their own values, plans and projects. They may, for instance, 
attach great importance to the protection of the environment and the 
preservation of traditional settlements in the mining area. However, a 
majority decision to declare the region a natural reserve would be 
impossible to effectuate if some other actor were permitted to access the 
coal deposits. Consequently, assigning the right to decide on the 
exploitation of natural resources to a third party would seriously impair a 
people’s capacity for self-determination.

The here proposed interpretation has important consequences for the 
specification of the resource rights to which a self-determining collective 
is entitled. A people cannot exercise its right to political self-determination 
in a meaningful way unless it has authority over some piece of territory. 



 Natural Resources, Collective Self-Determination, and Secession 43

LEAP 6 (2018)

Therefore, it must have decision-making power over the exploitation (or 
conservation) of the natural resources located on the territory concerned. 
However, a people’s right to political self-determination does not imply a 
claim to the total earnings that can be derived from the natural resources. 
Thus, contrary to the conventional view in international law, a people’s 
right to political self-determination entails control rights over natural 
resources but fails to justify (the full set of ) income rights.25

Restricting the scope of peoples’ permanent sovereignty over natural 
resources to control rights allows for reconciling this doctrine with 
demands of global justice. Thomas Pogge (2008: 210-214), for instance, has 
proposed to introduce a “global resource dividend” as a mechanism for 
reducing the unequal distribution of wealth within the world population. 
According to Pogge, states should be permitted to make sovereign decisions 
on the exploitation of the natural resources that are located on their 
territories. However, if they decide to extract oil or other raw materials, 
they are required to transfer some percentage of their revenues to the 
global poor. Since the “global resource dividend” does not deny the control 
rights of self-determining collectives, it is fully compatible with the above-
sketched understanding of peoples’ permanent sovereignty over natural 
resources. It is important to note that I do not intend to make a case for the 
theory of global justice defended by Pogge or some other author. Within 
the scope of this paper, I cannot argue for or against a moral duty to 
redistribute wealth across national boundaries. I merely wish to point out 
that there is no fundamental contradiction between demands of global 
justice and the resource sovereignty of peoples.

Since control rights are at the core of the here defended view of resource 
sovereignty, it seems worthwhile to elaborate on their content and scope.26 
The right of peoples to political self-determination has to be understood as 
a prima facie right which can be trumped by conf licting moral 
considerations, such as the harm principle (Schuppert 2014: 76-77, Angeli 
2015: 98 and Stilz 2016: 100). By way of illustration, imagine a state that 
tests nuclear weapons in a desert region in close vicinity to a densely 
populated neighboring country. Clearly, the people’s right to take 
independent decisions on its defense policy does not include an entitlement 
to endanger the life and health of third parties. Since control rights over 
natural resources are closely connected to the ideal of political 
self-determination, they must be subject to the same restrictions. 

25  The distinction between control rights and income rights over natural resources 
has also been emphasized by Angeli (2015: 131-132) and Moore (2015: 173-176).

26  I am grateful to an anonymous referee of this journal for urging me to clarif y the 
concept of control rights.



44 Frank Dietrich 

LEAP 6 (2018)

Consequently, peoples lack authority over natural resources if their 
exploitation (or conservation) inf licts harm on persons living outside the 
country.27 Of course, decisions on the extraction of raw materials normally 
do not cause immediate damage to third parties, as in the example of the 
nuclear weapons test. The use of natural resources can, however, 
substantially worsen the living conditions of other persons in an indirect 
manner. A people may, for instance, significantly contribute to the 
devastating effects of global warming by authorizing the deforestation of 
rainforests or the extraction of fossil fuels.

In order to determine the restrictions that need to be placed on peoples’ 
control rights over natural resources more precisely, two goals have to be 
considered. First and foremost, third parties must be protected from the 
harm self-determining collectives may inf lict on them. The right to 
political self-determination includes neither a permit to damage other 
communities nor to expose them to serious risk. Second, a people’s capacity 
to realize its specific social, economic and cultural ambitions should be 
maintained to the widest possible extent. If there are two or more options 
of how the control rights of a people can be effectively constrained, the one 
that has the least negative impact on its political autonomy should be 
adopted.

For a proper understanding of the first goal, it is necessary to dwell on 
the concept of harm. Joel Feinberg (1986: 145-146, original emphasis) 
proposed to 

“think of harming as having two components: (1) It must lead to some 
kind of adverse effect, or create the danger of such an effect, on its 
victim’s interests; and (2) it must be inf licted wrongfully in violation of 
the victim’s rights”. 

Regarding the first component, a curtailment of individual or collective 
autonomy can only be justified if the neglect of other parties’ interests is 
significant.28 As the self-determination of an individual would be overly 
reduced if it were not allowed to pose relatively small risks on other actors, 
e.g. by driving a car, the political self-determination of a collective would 
be unduly diminished if it were required to rule out any possible negative 
externalities. Of course, it is difficult to state with any precision what extent 
of risk and damages other persons or groups must accept. It seems, 
however, to be clear that every assessment of the harm peoples may inf lict 
on third parties has to take three aspects into account. The evaluation has 

27  Moreover, the right to political self-determination does not license a people to 
violate the basic interests of minority groups who live within the state boundaries.

28  According to Barboza (2011: 99-102), it is generally accepted in international law 
that an imposition of minor risks and damages has to be tolerated by the states concerned.



 Natural Resources, Collective Self-Determination, and Secession 45

LEAP 6 (2018)

to consider the magnitude of the damage, the likelihood of its occurrence, 
and – in cases of several actors sharing responsibility – the contribution of 
a specific people. The higher a people’s resource utilization scores on these 
criteria, the stronger is the argument for limiting its control rights.

Regarding the second component, Feinberg (1984: 218-221) emphasized 
that individuals often pursue competing goals, which they cannot realize 
without thwarting the interests of other parties. For instance, the successful 
sales strategy of shopkeeper A may cut the profits of shopkeeper B who 
loses a great number of customers. A’s conduct is, however, fully legitimate 
– she does not wrong B – and fails, therefore, to violate the harm principle. 
Likewise, state decisions placing other actors at a competitive disadvantage 
normally do not constitute harm in the relevant sense. By way of illustration, 
think of a country C that hitherto has been the only exporter of a valuable 
raw material. If another country started to extract and sell the same 
resource, C would not be wronged, although its economic situation might 
deteriorate as a result of falling prices. 

Finally, one may wonder whether peoples who refrain from extracting 
resources can inf lict harm on third parties. The standard case of harm 
involves an action of party A that has a negative effect on party B, e.g. by 
causing an injury. Omitting an action, such as the extraction of resources, 
leaves the living conditions of other persons unchanged and does not 
worsen their situation. However, it is widely accepted that A’s omission of 
an action can harm B if A is obliged to perform this action. Think, for 
example, of a physician who fails to provide a patient with an urgently 
needed treatment because she does not want to be late for her dancing 
class. In this case, the patient is put in a worse position compared with the 
counterfactual scenario in which the physician had fulfilled her duty 
(Feinberg 1986: 148-150). Consequently, a people could harm third parties 
by abstaining from the exploitation of natural resources if it had a duty to 
make these resources available.29

As regards the second goal, it has to be examined more closely how the 
different forms the restriction of its control rights might take can affect a 
people’s capacity for self-determination. Above all, two aspects – the 
content of the limitation and the kind of competences which are conferred 
on other actors – need to be discussed. First, it makes an important 
difference whether a people is obliged to preserve or to extract (some part 
of ) the natural resources located on its territory. The forced conservation 

29  One may think of a duty to provide the world economy with scarce resources (see 
section 2) or a duty to transfer resource revenues to the global poor. The substantiation of 
any such duty can, however, be expected to be much more controversial than the justification 
of the harm principle.



46 Frank Dietrich 

LEAP 6 (2018)

of natural resources confines a people’s space of action but normally leaves 
many other options open. If a people is, for example, prohibited from 
exploiting a coal deposit, it still can take independent decisions on the use 
of the area concerned. Typically, there will be several possibilities – 
declaring a natural reserve, erecting new settlements, establishing an 
industrial zone – the political representatives can choose from. By contrast, 
the forced extraction of natural resources requires a specific action that 
may exclude every other option. In particular, large-scale projects, such as 
coal mining, profoundly affect the relevant area and allow of no additional 
usages a people could decide on.

Although prohibitions on the extraction of natural resources are usually 
less detrimental to peoples’ capacity for self-determination, it should not 
go unnoticed that their impact can vary greatly. The forced conservation of 
raw materials tends to weaken the political autonomy of developing 
countries much more than those of highly industrialized countries. In 
many cases, the export of natural resources provides an important source 
of income for the inhabitants of developing countries. If they are banned 
from selling valuable raw materials, their revenues and consequently their 
set of options will be significantly reduced. By contrast, technologically 
advanced societies normally have other possibilities to generate the 
financial means in order to pursue important collective goals. Therefore, 
the imposition of a duty to preserve (some) natural resources has to take 
the economic situation of the peoples concerned into consideration. If 
their potential for self-determination is impaired to a greater degree, 
prohibiting the exploitation of natural resources requires a stronger 
justification.30

Second, a people’s political autonomy also depends on the kind of 
competences that are conferred to other actors. On the one hand, some 
global or multilateral institution could be authorized to establish rules 
regulating the use of raw materials. Thereby, it would have decision-
making power over the exploitation or conservation of the natural 
resources in question. The agents of the institution would, however, not be 
allowed to implement or enforce its regulations within the territory of a 
people. On the other hand, some external authority could be entitled to 
directly access the raw materials over which it enjoys control rights. In this 
case, its agents would be free to enter a people’s territory and to organize 

30  Although Armstrong (2017: 233-238) is not much concerned with the political self-
determination of peoples, he makes a similar point regarding the welfare of their members. 
Poor societies who are required to leave (part of ) their natural resources unexploited can, in 
his view, legitimately claim compensation for the loss of development opportunities.



 Natural Resources, Collective Self-Determination, and Secession 47

LEAP 6 (2018)

the extraction of natural resources or to safeguard their preservation.31

Granting some global or multilateral institution the right to operate on 
the territory of a people would have the most negative impact on its capacity 
for self-determination. The application of norms regulating the use of 
natural resources normally leaves the political representatives of a people 
with some scope of discretion. This residual decision-making power would 
be lost if an external authority were directly responsible for the exploitation 
(or conservation) of the raw materials in question. Moreover, the right to 
manage part of the natural resources on a people’s territory may entail 
additional competences in other policy fields. For instance, in order to 
successfully run a coal mining project it may be necessary to develop the 
transport infrastructure and to admit skilled workers. Arguably, an 
external actor who is entitled to initiate the extraction of coal must also 
have a say in a country’s transport and migration policy. As a consequence, 
the self-determination of a people would be restricted in a number of 
spheres only indirectly related to the use of natural resources.

If the relevant international authority is prohibited from entering a 
people’s territory, much depends on how its regulations are formulated. 
Peoples who have to conform to general standards typically enjoy some 
degree of discretion, whereas peoples who have to follow more specific 
instructions widely lack decision making power. For instance, a country, 
which is required to produce a certain amount of natural gas per annum, 
may still be able to take independent decisions on the development of 
deposits or the prohibition of drilling technologies. Likewise, a country, 
which is obliged to preserve eighty percent of its rainforests, can freely 
determine the areas where a protection zone shall be established. Since 
general norms allow for different specifications, they enable (to some 
extent) the political representatives of a people to bring important 
collective goals and values to bear. By contrast, more detailed directives of 
an external authority deprive peoples of the possibility to decide in 
accordance with their own preferences.

In sum, restrictions of control rights necessarily diminish a people’s 
political autonomy and require, therefore, a sufficiently strong justification. 
The most widely accepted reason for constraining control rights is provided 
by the harm principle, which prohibits a people from damaging third 
parties. Arguments for (or against) the limitation of control rights have to 
consider the seriousness of the harm and possible impacts on a people’s 
capacity for self-determination. As explicated above, the forced extraction 

31  In addition, Schuppert (2014: 87-94) has proposed to establish an International 
Court of the Environment authorized to make binding judgements on disputes concerning 
the use of natural resources.



48 Frank Dietrich 

LEAP 6 (2018)

of natural resources tends to reduce a people’s decision-making power to a 
greater extent than the forced conservation of natural resources. 
Consequently, regulations imposing an obligation to exploit natural 
resources must be supported by stronger harm-related reasons. Conferring 
to an external authority the right to access natural resources directly has 
the most negative impact on a people’s capacity for self-determination. 
Such a curtailment of a country’s territorial integrity can only be justified 
in exceptional cases when peoples are constantly unwilling or unable to 
comply with international norms.32

3.4. Two Objections

Finally, I will discuss two objections that may be raised to the here defended 
interpretation of peoples’ sovereignty over natural resources. A weakness 
of the above given argument may, first, be seen in the fact that I have 
characterized the right to political self-determination as a threshold 
concept. In subsection 3.2, I have maintained that the members of a self-
determining collective only need a minimum amount of alternatives 
between which they can freely decide. If a people lacks authority over the 
exploitation of (part of ) the natural resources on a given territory, its set of 
options is thereby restricted, but it may still be able to choose between a 
variety of competing goals. Therefore, one may object that my 
understanding of the principle of resource sovereignty is compatible with 
assigning quite extensive control rights to other actors. Even restrictions, 
which do not protect third parties from harm, may appear to be justified as 
long as they remain below the critical threshold.33

Here it is important to note that the right to collective self-determination 
– like the right to individual self-determination – consists of two elements. 
The right holder must, first, possess a sufficient number of options and, 
second, be free from external coercion.34 For instance, the self-
determination right of a patient would be seriously violated if a physician 
forced her to undergo a certain treatment. This would also be true if she 
were able to choose between many qualitatively different options outside 
the medical context. Likewise, granting a third party authority over natural 
resources may leave a people with the opportunity to decide many other 
social, economic and cultural issues. However, the entitlement of some 

32  For a brief examination of “ecological interventions”, see Schuppert (2014: 84-85).
33  A related criticism is discussed and rejected in Banai (2016: 17-18).
34  As regards the violation of individual autonomy, Raz (1986: 377) states: “Coercion 

diminishes a person’s options. It is sometimes supposed that that provides a full explanation 
of why it invades autonomy. It reduces the coerced person’s options below adequacy. But it 
need not. One may be coerced not to pursue one option while being left with plenty of others 
to choose from.”



 Natural Resources, Collective Self-Determination, and Secession 49

LEAP 6 (2018)

foreign actor to control the use of raw materials located on the territory of 
a people runs contrary to this people’s right to collective self-determination. 
For instance, thwarting the goal to preserve natural habitats or traditional 
buildings by mandating the extraction of coal clearly amounts to a form of 
alien domination.

A second objection that may be raised to the here proposed concept of 
resource sovereignty concerns the hogging of natural resources. Peoples 
enjoying self-determination rights may decide against extracting raw 
materials that could be used to alleviate poverty in other world regions. In 
view of the plight of destitute persons, one may doubt whether peoples 
who control valuable resources should be entitled to abstain from their 
exploitation. In response to this concern I would like to emphasize that my 
understanding of resource sovereignty does not preclude a duty to extract 
natural resources. Given the adverse effects of such a duty for the political 
autonomy of the people concerned, its imposition has to be supported by 
weighty reasons. Whether or not the forced extraction of natural resources 
can be justified ultimately depends on issues of global justice I cannot 
discuss within the scope of this paper.

Moreover, it should be noted that my concept of peoples’ sovereignty 
over natural resources is in principle compatible with theories of global 
justice, which call for the taxation of resource ownership. Most importantly, 
Hillel Steiner (1994: 266-282 and 2011) argued that states whose inhabitants 
appropriated more than an equal share of the world’s natural resources 
owe compensation to states whose members under-appropriated the 
world’s natural resources. These states are required to pay a tax to a global 
fund, which shall be based on the rental value of their territories.35 
Evidently, the authorization of a global fund to lev y taxes on resource 
ownership would interfere with peoples’ self-determination rights. 
However, the political representatives of a people would not be obliged to 
effect the extraction and sale of any raw materials located on the relevant 
territory. Provided that they had other sources of income enabling them to 
pay the tax, they could still opt for the conservation of natural resources.36 

It seems, however, worth noting that the establishment of a global fund, 
as proposed by Steiner, meets with two criticisms. First, to what extent a 
tax on resource ownership would diminish a people’s capacity for self-
determination depends very much on its economic situation. For poor 

35  According to John Locke’s theory of just appropriation, the tax disregards any 
improvements of the land and the natural resources located on it, which have been achieved 
through the investment of labor.

36  For a proposal to combine Pogge’s and Steiner’s theories by taxing the use and the 
ownership of natural resources, see Casal (2011a and 2011b).



50 Frank Dietrich 

LEAP 6 (2018)

peoples it may be difficult, if not impossible, to pay the tax unless they 
exploit (part of ) their natural resources, whereas rich peoples may still be 
able to decide in favor of resource conservation. Hence, in terms of self-
determination destitute peoples would be unfairly burdened by a global 
fund. Second, the imposition of a tax on consumption, as advocated by 
Pogge, would provide sensible incentives for a sustainable use of natural 
resources. By contrast, a tax on resource ownership would not encourage 
peoples to refrain from the exploitation of natural resources. Consequently, 
establishing a global fund would fail to meet the challenges of 
environmental degradation and global warming (Casal 2011a: 317-320 and 
Pogge 2011: 336-337).37

4. HOW SECESSION AFFECTS THE SOVEREIGNTY OF 
PEOPLES OVER NATURAL RESOURCES

In the preceding section, I have argued that the territorial interpretation of 
the permanent sovereignty of peoples over natural resources is not in 
contradiction to demands of global justice. If duties of assistance can be 
justified on a global scale, nothing stands in the way of reducing present 
inequalities by taxing resource-rich countries. A problem that has attracted 
much less interest in recent philosophical debates concerns the distribution 
of assets (and debts) after the break-up of states. Although in the past three 
decades a rich literature on the normative assessment of secession has 
emerged, the process of “political divorce” has not been discussed in much 
detail.38 In order to clarify whether and to what extent separatist states are 
entitled to the natural resources found on their territories, the distinction 
between control rights and income rights proves to be helpful again. This 
distinction suggests a morally more plausible approach to post-secession 
conf licts than the concept of unlimited sovereignty over natural resources 
on which international law currently relies.39

A state, which results from a legitimate secession, must be granted 

37  For a rejection of this criticism, see Steiner (2011: 332-333); for a response to 
Steiner’s defense, see Casal (2011b: 354-355).

38  The few authors who have dealt with questions of distributive justice that arise in 
the wake of secession have not specifically elaborated on natural resources (Dietrich 2014 
and Catala 2017).

39  According to the Vienna Convention on State Succession of 1983, agreements of 
the predecessor state and the newly independent state regarding state property (Art. 15.4) or 
state debts (Art. 38.2) “shall not infringe the principle of the permanent sovereignty of every 
people over its wealth and natural resources”. See also Zimmermann (2007).



 Natural Resources, Collective Self-Determination, and Secession 51

LEAP 6 (2018)

control rights over the natural resources that are found within its borders.40 
If the rump state still had decision making power over the use of these raw 
materials, the self-determination right of the newly constituted people 
would be seriously impaired. For the reasons given above, the population 
of a separatist state might be unable to pursue its specific aims if a third 
party would be entitled to require the extraction or preservation of natural 
resources located within its borders. However, income rights are not a 
precondition for collective self-determination and, therefore, not implied 
in peoples’ sovereignty over natural resources. Contrary to international 
law, a newly created state is not necessarily entitled to the full amount of 
intakes, which can be generated from the natural resources located on its 
territory. 

By limiting the concept of resource sovereignty to control rights, 
important interests of the rump state’s population can be taken into 
account. Both parts of the now divided country may have made large 
investments in the development of raw material deposits situated in the 
break-away region. If the exploitation of resources was made possible by 
joint efforts of the “divorcees”, the population of the rump state has a 
legitimate claim to benefit from the gains. Consequently, the inhabitants 
of the separatist state are bound to share their resource revenues in a fair 
manner with their former fellow-citizens. The duty to transfer an 
appropriate part of the resource revenues to the rump state is, however, 
limited in two respects. First, the citizens of the rump state are not entitled 
to benefit from the utilization of raw materials that were still undeveloped 
or undiscovered at the time of secession. Since their claim to receive some 
part of the earnings is based on their contribution to the exploitation, it 
cannot extend to these resources. Second, the duty of the separatist state 
to share its resource revenues with the rump state will presumably decrease 
over time. The exploitation of raw materials requires ongoing investments 
in the technological equipment and the infrastructure that need to be 
maintained and modernized. The higher the expenditures of the separatist 
state are, the more diminishes the relative weight of the rump state’s former 
contributions. Hence, the share of the resource revenues to which the 
citizens of the rump state are entitled will usually shrink in the course of 
time.41

To the first-mentioned qualification it may be objected that the citizens 

40  Of course, the question of what requirements a secession must meet to be 
considered legitimate is a matter of dispute. Different views are expressed, for instance, in 
Buchanan (2004: 331-400), Miller (1995: 81-118) and Wellman (2005).

41  Since it will be difficult to exactly determine the changing shares of the resource 
revenues, the second qualification is best understood as a normative guideline for a 
negotiated settlement of both parties. 



52 Frank Dietrich 

LEAP 6 (2018)

of the rump state had a legitimate expectation to benefit in the future from 
the exploitation of still undeveloped or undiscovered raw materials located 
on the separatist territory. Therefore, one may argue, they should receive 
an appropriate share of the earnings that will be generated from these 
resources. Here it is important to recall that I only consider cases when the 
population of the break-away regions had a moral right to create an 
independent state. Although the inhabitants of the remaining regions may 
not have reckoned with the secession, they have not been wronged by it. 
Generally speaking, the expectation of an actor A that some other actor B 
will not choose an option to which she is entitled cannot ground a moral 
claim against B. A may perhaps have good epistemic reasons, given her 
experience or knowledge, not to anticipate B’s decision. However, A is not 
normatively justified in expecting B to forego a morally permissible 
action.42 Hence, if the secession was legitimate, the rump state’s population 
cannot substantiate a claim to benefit from the exploitation of undeveloped 
or undiscovered resources.

Finally, the question needs to be addressed whether a separatist state 
has compensatory duties even if it terminates the exploitation of profitable 
resources. The citizens of the rump state may have made large financial 
contributions to the development of some raw materials and may, therefore, 
feel entitled to a fair share of the revenues that would have been generated 
had the secession not occurred. In my view, in the situation described 
compensatory claims are for two reasons unwarranted. First, the separatist 
state might be compelled to continue the exploitation of resources in order 
to be able to meet its financial obligations. The forced extraction of natural 
resources might make it extremely difficult, or even impossible, to realize 
important societal goals. Consequently, the self-determination right of the 
newly constituted people would be severely undermined by the rump 
state’s monetary claims.43 Second, it is generally assumed that sovereign 
states may reassess and change their energy policies over time. Thereby 
they do not incur compensatory duties against taxpayers for lost profits, 
although they may have contractual duties towards private investors. 
Given that the secession was legitimate, the same moral criteria must apply 
to the newly independent state as to any other state. Hence, the separatist 
state can be under a duty to share its resource revenues (to a diminishing 
degree) with the rump state, but it need not make compensatory payments 
if it decides to end the extraction and to forego potential gains.

42  For a brief discussion of the distinction between justified epistemic and justified 
normative expectations, see Meyer and Sanklecha (2014: 370-372).

43  As explicated in section 3.3, the forced extraction of natural resources is likely to 
have a more negative impact on a people’s capacity for self-determination than the forced 
conservation of natural resources.



 Natural Resources, Collective Self-Determination, and Secession 53

LEAP 6 (2018)

In sum, the here proposed interpretation of peoples’ permanent 
sovereignty over natural resources enables the international community 
to respond to post-secession conf licts in a balanced way. By granting the 
separatist state substantial control rights over the natural resources 
located on its territory the political self-determination of the newly created 
people can be effectively protected. By restricting the resource-related 
income rights of the separatist state the justified demands of the rump 
state’s population can be taken into account. The separatists’ duty to share 
their resource revenues with the rump state’s population has the additional 
advantage to provide sensible incentives. Although this duty is qualified in 
two important respects, it will tend to discourage secessions, which are 
primarily motivated by economic reasons. Hence, the concept of the 
permanent sovereignty of peoples over natural resources defended above 
promises a stabilizing effect on the international order.

 

5. CONCLUSION

In the penultimate section, I have examined three possible explanations 
for the close connection between a people’s right to political self-
determination and its permanent sovereignty over natural resources as 
established in international law. I have, first, argued against the attribution 
of property rights (or similarly acquired jurisdictional rights) to the 
collectives concerned and I have, second, criticized an instrumentalist 
view of the relationship between natural resources and political self-
determination. Instead, I have proposed to understand peoples’ sovereignty 
over natural resources as an aspect of their territorial authorit y, which 
is a necessary precondition for actualizing the right to political 
self-determination.

Based on this interpretation, an important distinction between control 
rights and income rights can be established. A self-determining people is 
– within the limits set by the harm principle – entitled to decide on the 
utilization or conservation of the natural resources located on its territory. 
However, it has not necessarily a claim to the full amount of intakes that 
can be generated from the exploitation of these resources. The restriction 
of income rights allows for reconciling the permanent sovereignty of 
peoples over natural resources with demands of global justice. In addition, 
as I have shown in the last section, the here defended interpretation 
provides a sensible answer to resource conf licts that may arise in the wake 
of secession. If the population of a rump state has made a significant 
contribution to the development of natural resources situated in the 



54 Frank Dietrich 

LEAP 6 (2018)

breakaway region, it can be granted a claim to a fair share of the separate 
state’s revenues.

BIBLIOGRAPHY

Angeli, O., 2015: Cosmopolitanism, Self-Determination and Territory. Justice with 
Borders, Basingstoke, New York: Palgrave Macmillan.

Armstrong, C., 2010: “National Self-Determination, Global Equality and Moral 
Arbitrariness”, The Journal of Political Philosophy 18: 313-334.

— 2015: “Against ‘Permanent Sovereignty’ over Natural Resources”, Politics, 
Philosophy & Economics 14: 129-151.

— 2017: Justice and Natural Resources. An Egalitarian Theory, Oxford: Oxford 
University Press.

Auty, R. M., 1993: Sustaining Development in the Mineral Economies. The Resource 
Curse Thesis, London: Routledge.

Banai, A., 2016: “Self-Determination and Resource Rights: In Defence of Territorial 
Jurisdiction over Natural Resources”, Res Publica 22: 9-20.

Barboza, J., 2011: The Environment, Risk and Liability in International Law, Leiden, 
Boston: Martinus Nijhoff Publishers.

Beitz, C. R., 1980: “Tacit Consent and Property Rights”, Political Theory 8: 487-502.
Buchanan, A., 2004: Justice, Legitimacy, and Self-Determination. Moral Foundations 

for International Law, Oxford: Oxford University Press.
Casal, P., 2011a: “Global Taxes on Natural Resources”, Journal of Moral Philosophy 

8: 307-322.
—  2011b: “Rejoinder to Pogge and Steiner”, Journal of Moral Philosophy 8: 353-365.
Catala, A., 2017: “Secession and Distributive Justice”, Philosophical Studies 174: 

529-552.
Dam-De Jong D., 2015: International Law and Governance of Natural Resources in 

Conflict and Post-Conflict Situations, Cambridge: Cambridge University Press.
Dietrich, F., 2011: “Changing Borders by Secession: Normative Assessment of 

Territorial Claims” in The Ashgate Research Companion on Secession, ed. A. 
Pavković   and P. Radan, Aldershot: Ashgate, 81-95.

— 2014: “Secession of the Rich: A Qualified Defense”, Politics, Philosophy & 
Economics 13, 62-81.

Feinberg, J., 1984: The Moral Limits of the Criminal Law. Vol. 1: Harm to Others, 
Oxford: Oxford University Press.

— 1986: “Wrongful Life and the Counterfactual Element in Harming”, Social 
Philosophy & Policy 4: 145-178.

Fleischacker, S., 2013: “Owning Land versus Governing a Land: Property, 
Sovereignty, and Nationalism”, Social Philosophy & Policy 30: 373-403.

Gans, C., 2003: The Limits of Nationalism, Cambridge: Cambridge University Press.
Gümplová, P., 2014: “Restraining Permanent Sovereignty over Natural Resources”, 

Enrahonar. Quaderns de Filosofia 53: 93-114.
Haugen, H. M., 2014: “Peoples’ Right to Self-Determination and Self-Governance 

over Natural Resources: Possible and Desirable?”, Nordic Journal of Applied 
Ethics 8: 3-21.



 Natural Resources, Collective Self-Determination, and Secession 55

LEAP 6 (2018)

Hay ward, T., 2006: “Global Justice and the Distribution of Natural Resources”, 
Political Studies 54: 349-369.

Hyde, J. N., 1956: “Permanent Sovereignty over Natural Wealth and Resources”, 
The American Journal of International Law 50: 854-867.

Kolers, A., 2012: “Justice, Territory and Natural Resources”, Political Studies 60: 
269-286.

Locke, J., 1960 [1689]: Two Treatises of Government, ed. P. Laslett, Cambridge: 
Cambridge University Press.

Meisels, T., 2009: Territorial Rights, 2nd ed., Heidelberg et al.: Springer.
Meyer, L. and Sanklecha, P., 2014: “How Legitimate Expectations Matter in Climate 

Justice”, Politics, Philosophy & Economics 13: 369-393.
Miller, D., 1995: On Nationality, Oxford: Oxford University Press.
— 2007: National Responsibility and Global Justice, Oxford: Oxford University Press.
— 2012: “Territorial Rights: Concept and Justification”, Political Studies 60: 252-

268.
Miranda, L. A., 2012: “The Role of International Law in Intrastate Natural Resource 

Allocation: Sovereignty, Human Rights, and Peoples-Based Development”, 
Vanderbilt Journal of Transnational Law 45: 785-840.

Moore, M., 2015: A Political Theory of Territory, Oxford: Oxford University Press.
Nine, C., 2012: Global Justice and Territory, Oxford: Oxford University Press.
Pereira, R. and Gough, O., 2013: “Permanent Sovereignty over Natural Resources 

in the 21st Century: Natural Resource Governance and the Right to Self-
Determination of Indigenous Peoples under International Law”, Melbourne 
Journal of International Law 14: 1-45.

Pogge, T., 2008: World Poverty and Human Rights: Cosmopolitan Responsibilities 
and Reforms, 2nd ed., Cambridge: Polity Press.

— 2011: “Allowing the Poor to Share the Earth”, Journal of Moral Philosophy 8: 335-
352.

Rawls, J., 1999: The Law of Peoples, Cambridge (Mass.), London: Harvard University 
Press.

Raz, J., 1986: The Morality of Freedom, Oxford: Oxford University Press.
Risse, M., 2012: On Global Justice, Princeton, Oxford: Princeton University Press.
Ross, M. L., 2015: “What Have We Learned about the Resource Curse?”, Annual 

Review of Political Science 18: 239-259.
Schrijver, N., 1997: Sovereignty over Natural Resources. Balancing Rights and Duties, 

Cambridge: Cambridge University Press.
— 2010a: Development without Destruction. The UN and Global Resource 

Management, Bloomington (In.): Indiana University Press.
— 2010b: “Permanent Sovereignty over Natural Resources”, Max Planck 

Encyclopedia of Public International Law, http://mpepil.com.
— 2015: “Fifty Years Permanent Sovereignty over Natural Resources” in Permanent 

Sovereignty over Natural Resources, ed. M. Bungenberg and S. Hobe, Heidelberg 
et al.: Springer, 15-28.

Schuppert, F., 2014: “Beyond the National Resource Privilege: Towards an 
International Court of the Environment”, International Theory 6: 68-97.

Schwebel, S. M., 1994: Justice in International Law, Cambridge: Cambridge 
University Press.



56 Frank Dietrich 

LEAP 6 (2018)

Simmons, A. J., 1992: The Lockean Theory of Rights, Princeton: Princeton University 
Press.

— 2001: “On the Territorial Rights of States”, Philosophical Issues 11: 300-326.  
1994: An Essay on Rights. Oxford, Cambridge: Blackwell.

— 2011: “The Global Fund: A Reply to Casal”, Journal of Moral Philosophy 8: 328-334
Stilz, A., 2016: “The Value of Self-Determination”, Oxford Studies in Political 

Philosophy 2: 98-127.
Venables, A. J., 2016: “Using Natural Resources for Development: Why Has it Proven 

so Difficult?”, Journal of Economic Perspectives 30: 161-183.
Wellman, C. H., 2005: A Theory of Secession. The Case for Political Self-Determination, 

Cambridge: Cambridge University Press.
Wenar, L., 2008: “Property Rights and the Resource Curse”, Philosophy & Public 

Affairs 36: 2-32.
— 2016: Blood Oil. Tyrants, Violence, and the Rules that Run the World, Oxford: 

Oxford University Press.
Zimmerman, A., 2007: “State Succession in Other Matters than Treaties”, in: Max 

Planck Encyclopedia of Public International Law, http://mpepil.com.



LEAP 6 (2018)

Symposium  
on the philosophy of social and  

economic human rights
GUEST EDITED BY JULIO MONTERO



The Philosophy of Social and Economic 
Human Rights

JULIO MONTERO
National Research Council of Argentina

The essays included in this volume are the result of a series of workshops 
organized by the United Kingdom-Latin America Network for Political 
Philosophy (UKLAPPN). The Network is sponsored by the British Academy 
of the United Kingdom and brings together academics from Argentina, 
Brazil, Chile, Colombia, Costa Rica, Mexico, Spain and the United Kingdom, 
who work in the field of contemporary political philosophy. As the title 
suggests, the main topic the volume addresses has to do with the nature, 
justification and implementation of socioeconomic human rights.

The normative relevance of socioeconomic human rights cannot be 
overlooked. According to the World Bank, 736 million people are situated 
below the poverty line of USD 1,90 per day and many of them die every year 
due to poverty-related causes (World Bank 2015). Severe poverty is thus 
one the most serious threats to human dignity of our time and the aim of 
socioeconomic human rights is precisely to conquer that threat. 

International human rights law proclaims a wide array of socioeconomic 
rights, including rights to nutritious food, shelter, medical care, housing, 
education and social security (UN 1966). In the academic literature, there 
is some consensus that the fulfillment of these rights is essential if we want 
individuals to f lourish as human persons. The reasonable assumption 
underpinning this view is that someone who is starving, illiterate or 
seriously ill becomes materially unable to make a valuable use of her 
freedoms and to lead a distinctively human life. So if we think that 
individuals have a fundamental right to develop their agency, we have 
decisive moral reasons to care about the satisfaction of their socioeconomic 
needs.

In spite of this consensus, there are also deep controversies about the 
normative justification of socioeconomic human rights. Some think that 
they are not genuine human rights because they are not universal: 
individuals can only claim them against modern political institutions and 
they would have no clear addresses in alternative scenarios. Instead, other 
authors insist that the list of socioeconomic rights proclaimed by current 
instruments is too demanding. In their opinion, people may have a human 

D OI : 10. 310 0 9/L E A P. 2018.V6.03

LEAP 6 (2018)



 The Philosophy of Social and Economic Human Rights 59

LEAP 6 (2018)

right to the resources they need for subsistence but they should not be 
recognized rights to the highest attainable standard of physical and mental 
health, free higher education, maternity leave or periodic holidays with 
pay (UN 1966). International instruments may have gone too far by placing 
societies under extremely burdensome or even unfeasible obligations. 
Finally, some liberal theorists argue that socioeconomic rights are 
secondary and less important than other categories of rights.

From a legal point of view, socioeconomic human rights enjoy the same 
status as civil and political ones. As the 1993 Vienna Declaration sustains, 
all human rights are indivisible, interdependent and equally important 
(UN 1993). In consequence, governments cannot pick and choose; they 
have a strict legal obligation to satisfy all our human rights at once. 
However, there are a number of crucial theoretical issues that must be 
urgently addressed if we want socioeconomic human rights to live up to 
their aspirations. Fundamentally, this is because international instruments 
provide no clear guidelines as to what States must do in order to honor 
their responsibilities in this respect. The 1966 International Covenant on 
Economic, Social and Cultural Rights defines its party’s obligations in the 
following terms:

“Each State Party to the present Covenant undertakes to take steps, 
individually and through international assistance and cooperation, 
especially economic and technical, to the maximum of its available 
resources, with a view to achieving progressively, the full realization of 
the rights recognized in the present Covenant by all appropriate means, 
including particularly the adoption of legislative measures” (UN 1966, 
Article 2).

The evident problem with this key article is that the idea of progressive 
realization up to the maximum of available resources is extremely opaque. 
What are the resources available to a state? Does this clause only refer to its 
annual budget or it also includes all the resources governments could 
potentially collect through more progressive fiscal schemes and the full 
use of their natural resources? In practice, this vague language became a 
major obstacle for the effective realization of socioeconomic human rights 
as it makes almost impossible to decide when states have done enough to 
honor their commitments under the Covenant. 

In a number of additional documents, the UN Committee on Economic, 
Social and Cultural Rights tried to specify the extent of states’ obligations. 
In its General Comment 3 (1991), it establishes the existence of a “minimum 
core obligation” to ensure the satisfaction minimum essential levels of 



60 Julio Montero 

LEAP 6 (2018)

each of the rights:

“Thus, for example, a State party in which any significant number of 
individuals is deprived of essential foodstuffs, of essential primary 
health care, of basic shelter and housing, or of the most basic forms of 
education is, prima facie, failing to discharge its obligations under the 
Covenant. If the Covenant were to be read in such a way as not to 
establish such a minimum core obligation, it would be largely deprived 
of its raison d’être” (#10). 

Nevertheless, the notion of a “minimum core” is once more presented 
as dependent on the availability of resources: 

“By the same token, it must be noted that any assessment as to whether a 
State has discharged its minimum core obligation must also take account 
of resource constraints applying within the country concerned” (#10).    

Finally, the Committee’s analysis of the clause of “progressive 
realization” is considerably abstract and offers no operative orientation as 
to how to make sense of such requirement:

“It thus imposes an obligation to move as expeditiously and effectively 
as possible towards that goal. Moreover, any deliberately retrogressive 
measures in that regard would require the most careful consideration 
and would need to be fully justified by reference to the totality of the 
rights provided for in the Covenant and in the context of the full use of 
the maximum available resources” (#9).

Unfortunately, the Committee never spells out what may count as a 
legitimate reason to postpone the satisfaction of socioeconomic rights or 
to justify the adoption of retrogressive measures. 

In the specialized literature there is also an intense ongoing debate 
about the judicial enforcement of socioeconomic rights. Many authors 
argue that courts lack the legitimacy and the technical expertise required 
to make decisions about the allocation of scarce resources. Their claim is 
that socioeconomic human rights are not rights in the technical sense; 
they should rather be regarded as non-justiciable standards that 
governments must observe when designing their public policies and 
economic plans.

In recent years courts have developed some interesting strategies to 
deal with the difficulties that motivate these objections. In its inf luential 
sentence Government of the Republic of South Africa vs. Grootboom and 
Others, the Supreme Court of South Africa sustained that the housing 
program implemented by the local government of Cape Town was 
unsatisfactory (Constitutional Court of South Africa 2000). Its main 



 The Philosophy of Social and Economic Human Rights 61

LEAP 6 (2018)

argument was that while the government was investing a significant 
amount of resources in the program, the plan included no special measures 
to address the situation of those people who lacked even a precarious 
shelter for their families. Two aspects of the sentence make it particularly 
interesting. First, the Court recognizes that resources are limited and that 
judges have no authority to make decisions about their allocation. Second, 
the sentence does not order the government to provide any particular 
individual with immediate access to housing, but simply insists that the 
Executive should develop an alternative program that incorporates its 
recommendations.

The Grootboom sentence is certainly innovative. It shows that courts 
have some promissory resources to enforce the satisfaction of 
socioeconomic rights without invading the competences of democratic 
institutions. Yet, many critics object that the strategy adopted by the Court 
was too weak both because it established no clear standards for policy 
makers and because it failed to provide immediate relief to thousands of 
people living in miserable conditions. 

As we see, socioeconomic human rights raise a number of questions of 
critical import for human rights theory and practice: what concrete 
measures must nations undertake to fulfill the socioeconomic rights of 
their inhabitants? When can a state legitimately claim that it is promoting 
their satisfaction up the maximum of its available resources? To what 
extent can their effective implementation be monitored by courts and 
what specific judicial techniques should they apply when supervising the 
conduct of governments? Can courts force elected functionaries to advance 
certain public policies instead of the plans supported by the people through 
electoral processes? Do they have the authority and skills to supervise the 
social programs chosen by democratic governments?

The essays in this volume explore some of these issues from a 
philosophical perspective. Mariano Garreta Leclercq argues against the 
constitutionalization and judicial implementation of socioeconomic 
human rights. In his view, when courts or expert committees unilaterally 
implement complex economic plans that are not approved through 
democratic mechanisms, they undermine the autonomy of the citizenry. 
This conclusion is backed by three general assumptions. The first one 
claims that there are deep controversies about the kinds of policies that 
could maximize the satisfaction of socioeconomic rights; the second one 
asserts that if those policies go wrong they could impose significant costs 
on the population and may even have a negative impact on the satisfaction 
of the essential needs of thousands of individuals; and the third assumption 
claims that treating persons as fully autonomous agents implies refraining 



62 Julio Montero 

LEAP 6 (2018)

from imposing risks on them, unless the potential victims have freely 
agreed to undertake those risks. As a result, it is up to the people to decide 
what concrete measures to implement in order to bring about the 
satisfaction of socioeconomic human rights.

The essays by Eduardo Rivera López and Saladin Mackled-García 
investigate the normative structure of socioeconomic rights and human 
rights in general. Eduardo Rivera López claims that socioeconomic rights 
differ from classical liberal rights in a relevant aspect. The normative core 
of liberal rights is composed by “deontological constraints” not to treat 
people in certain ways. In this sense, the government cannot infringe the 
freedom of expression of an individual just by arguing that this will 
maximize the overall satisfaction of that same right. By contrast, 
socioeconomic rights are sensitive to aggregative considerations: 
governments may legitimately refuse to satisfy my right to an adequate 
diet if this implies that more people will have access to nutritious food in 
the immediate future. According to the author, this conceptual asymmetry 
between liberty rights and socioeconomic rights has important 
implications in terms of their enforcement by courts. In essence, while 
judges can protect individuals from discriminatory policies or order that 
some particular individuals be granted access to certain goods or services, 
they should refrain from sanctioning or recommending the implementation 
of specific public policies aimed at maximizing the overall fulfillment of 
socioeconomic rights.  

In turn, Saladin Meckled-García sustains that all categories of human 
rights involve two distinct kinds of obligations: “decisive obligations” and 
“weighting obligations”. Decisive obligations are obligations not to take 
certain considerations into account when we decide how to treat an 
individual. So governments have a decisive obligation not to curtail 
people’s access to certain public services or freedoms based on their 
gender, religion or ethnic origin. On the other hand, weighting obligations 
are obligations to give a fair weight to the needs and interests of separate 
persons. For example, when deciding what to do in order to promote my 
right to medical care, the government must balance my interest in enjoying 
that service versus the interests of other members of society in not paying 
higher taxes. The conclusion of the paper is that because human rights 
cannot be reduced to purely decisive obligations but also involve weighting 
ones, then any plausible account of human rights must include concrete 
principles as to how burdens and benefits must be distributed among 
members of a human community. Otherwise, the view would be seriously 
incomplete as it would fail to guide the action of political institutions. 

Finally, Leticia Morales develops an original argument in favor of 



 The Philosophy of Social and Economic Human Rights 63

LEAP 6 (2018)

adopting a universal basic income scheme that allows people to satisfy 
their most essential needs. Her main ambition is to show that this kind of 
policy is valuable and morally mandatory not because it promotes the 
freedom of individuals, but because it improves the legitimacy of 
democratic institutions. The reasonable assumption that underlies this 
claim is that poverty constitutes a major obstacle to political participation 
and seriously discourages it. As a result, the implementation of a basic 
income scheme is not only a plausible strategy to advance the fulfillment 
of socioeconomic rights; it is also an integral component of a well-ordered 
democratic society.   

In sum, the essays in this volume offer a comprehensive introduction to 
the philosophy of socioeconomic human rights and try to come up with 
concrete answers to some of the most important questions they raise. Our 
hope is that these contributions will stimulate the debate about their 
nature and precise implications and ultimately contribute to their 
universal realization. 

BIBLIOGRAPHY

Constitutional Court of South Africa, 2000: Government of the Republic of South 
Africa and others v Grootboom and others (CCT11/00) [2000] ZACC 19; 2001 (1) 
SA 46; 2000 (11) BCLR 1169 (4 October 2000), URL = <http://w w w.saflii.org/za/
cases/ZACC/2000/19.html>. 

UN, 1993: Vienna Declaration and Programme of Action, URL = <https://w w w.
ohchr.org/en/professionalinterest/pages/vienna.aspx>.

UN, 1966: International Covenant on Economic, Social and Cultural Rights, URL = 
<https://w w w.ohchr.org/en/professionalinterest/pages/cescr.aspx>.

World Bank, 2015: “Poverty Overview”, URL = <https://w w w.worldbank.org/en/
topic/poverty/overview>. 

UN Committee on Economic, Social and Cultural Rights, 1991 
General Comment 3: The nature of states parties obligations,  
UR L = <ht t ps ://tbinternet.ohchr.org/layouts/treat ybodyexterna l/TBSearch.
aspx?Lang= en&TreatyID =9&DocTypeID =11>. 

http://www.saflii.org/za/cases/ZACC/2000/19.html
http://www.saflii.org/za/cases/ZACC/2000/19.html
https://www.ohchr.org/en/professionalinterest/pages/vienna.aspx
https://www.ohchr.org/en/professionalinterest/pages/vienna.aspx
https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx
https://www.worldbank.org/en/topic/poverty/overview
https://www.worldbank.org/en/topic/poverty/overview
https://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTypeID=11
https://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTypeID=11


LEAP 6 (2018)

Socioeconomic Human Rights, Autonomy 
and the Cost of Error
M A R I A NO G A R R E TA L ECL E RCQ

Universidad de Buenos Aires - Consejo Nacional de Investigaciones  
Científicas y Técnicas de Argentina

ABSTRACT

One of the most inf luential strategies to justify human rights available in 
the specialized literature is centered on the notion of autonomy. Such a 
strategy assumes that civil and political and socioeconomic human rights 
are equally essential to lead a minimally autonomous human life. This 
article examines whether the ideal of autonomy can really provide support 
to the view proclaimed in the Covenant that socioeconomic human rights 
must be realized progressively, according to “the maximum of available 
resources”. To do so, I focus on the conceptual relation between the ideal of 
autonomy and a fundamental dimension of moral deliberation which is 
often overlooked in the debate, namely: the cost of error in decision 
making. In a nutshell, I argue that once this key variable considered, it 
becomes evident that any measures governments may implement to 
promote the realization of social and economic human rights must be 
subject to democratic control.

Keywords: economic and social human rights, autonomy, progressive 
realization, cost of error, democratic legitimacy.

1. INTRODUCTION

One of the most common philosophical strategies used to justify human 
rights – including both civil and political rights (CPHR) and socioeconomic 
ones (ESHR) – appeals to the notion of autonomy. Cécile Fabre provides a 

D OI : 10. 310 0 9/L E A P. 2018.V6.0 4



 Socioeconomic Human Rights, Autonomy and the Cost of Error 65

LEAP 6 (2018)

particularly persuasive example of such strategy (Fabre 1998), 1 which may 
be appl ied to t he nor mat ive just i f icat ion a nd ju r id ica l i nter pretat ion 
of t he UN Covenant on Economic, Social and Cultural Rights (1966).2 
Her ultimate aim is to prove that socioeconomic rights must be 
constitutionalized because both socioeconomic human rights and civil 
and political ones perform the very same normative function: they preserve 
the value of personal autonomy.  

Following authors such as John Rawls (1993), Joel Feinberg (1972) and 
Gerald Dworkin (1988), Fabre insists that in spite of its obvious liberal 
origins, the principle that individuals have a fundamental interest in 
personal autonomy may be accepted by people holding the most diverse 
doctrines of the good. In her own words:

“Autonomy captures an essential characteristic of human beings, which 
distinguishes them from other beings, namely their ability rationally 
and morally to decide what to do with their life, and to implement these 
decisions, over long periods of time, so as to lead a meaningful existence 
and through it develop an awareness of the kind of persons they are” 

(Fabre 1998, 265).

So we have reason to respect people’s autonomy because autonomy is 
an essential component of the human condition: only autonomous persons 
can fully develop their human nature. In this vein, Fabre sustains that civil 
and political rights have normative importance precisely because they are 
necessary to preserve our autonomy: freedom of expression, freedom of 
conscience, freedom of association and freedom of movement are obviously 
crucial to enjoying control over one’s own life. In fact, when such freedoms 
are not protected, individuals become unable to choose and revise their 
own life-plans in the most fundamental sense. The same is true of political 
rights:

“If it is important that I have some degree of control over my life, then 
surely it is important that I have some degree of control over the social 
and political environment within which I lead my life: electing 
representatives in Parliament, voting in referenda and running for 
office myself are means to acquire that control” (Fabre 1998, 266).

1 Although human rights can undoubtedly be derived from other normative ideals, 
Fabre’s argument is particularly relevant. This is because autonomy, under different 
formulations, has played a central role in liberal thought from Kant and Mill down to the 
most significant thinkers in the 20th Century, with John Rawls’ theory of justice (1971 and 
1993) in the front line. On the other hand, the notion of autonomy has played a crucial role in 
the specific field of human rights justification: the theories of Alan Gewirth (1982) and 
James Griffin (2008) are excellent examples.



66 Mariano Garreta Leclercq 

LEAP 6 (2018)

According to Fabre, the above considerations explain why civil and 
political rights must be constitutionalized and protected from majoritarian 
decision making. Importantly, Fabre insists that socioeconomic rights are 
equally important to preserve the autonomy of individuals: 

“Giving these resources –income, education, housing, etc.– to people is 
important because without them they would be unable to develop the 
physical and mental capacities necessary to become autonomous. If we are 
hungry, thirsty, cold, ill and illiterate, if we constantly live under the threat 
of poverty, we cannot decide on a meaningful conception of the good life, 
we cannot make long-term plans, in short we have very little control over 
our existence” (Fabre 1998, 267).

The main goal of this paper is to suggest that even if socioeconomic 
human rights are relevant to preserving the autonomy of individuals, there 
are cogent autonomy-based reasons to resist their constitutionalization. 
Of course, this does not mean that the satisfaction of socioeconomic 
human rights should not be regarded as a political priority by democratic 
societies. It simply means that any specific decisions about their 
implementation must remain under ordinary democratic control: neither 
courts, nor experts are authorized to make unilateral decisions to ensure 
their fulfillment under the clause of progressive realization according to 
the maximum of available resources. In this sense, the paper provides 
support for one particular understanding of what specific obligations 
governments have under current international law: while the fulfillment 
of subsistence needs is certainly a high priority mandate, they cannot be 
enforced by courts or public policy experts. How to implement them must 
be decided by the people.

The paper is structured as follows. In section 2 I discuss a demanding 
interpretation of article 2 (1) of the Covenant and explain why it is 
problematic, at least if we accept that human rights are grounded on the 
value of autonomy. In section 3 I develop an original argument in favor of 
adopting a more modest interpretation of state’s commitments under 
present International Law. Such argument sustains that when our actions 
involve serious risks for the interests of others, they cannot be implemented 
unless their implementation is authorized through democratic or 
representative mechanisms. Otherwise, the autonomy of those affected by 
our actions is seriously compromised.  In section 4 I discuss an important 
objection to my view, according to which lack of expert knowledge on the 
part of citizens may render democratic authorization unpalatable in the 
context of extremely poor societies. Finally, in section 5 I present some 
concluding remarks.



 Socioeconomic Human Rights, Autonomy and the Cost of Error 67

LEAP 6 (2018)

2. AUTONOMY AND THE PROGRESSIVE REALIZATION OF 
SOCIOECONOMIC HUMAN RIGHTS

The view that value of autonomy may justify the authority of both civil and 
political human rights and at least some socioeconomic ones, appears to 
be plausible in principle. In this vein, the 1966 UN Covenant proclaims 
human rights to adequate food, decent housing, fair and just conditions of 
work, health and education. Nevertheless, because in present conditions 
their immediate satisfaction may be unfeasible, the Covenant also asserts 
that their realization should be progressive and that states must invest the 
maximum of their available resources to achieve their realization. This is 
how article 2(1) is framed:

“Each State Party to the present Covenant undertakes to take steps, 
individually and through international assistance and co-operation, 
especially economic and technical, to the maximum of its available 
resources, with a view to achieving progressively the full realization of 
the rights recognized in the present Covenant by all appropriate means, 
including particularly the adoption of legislative measures”.

As we see, article 2(1) constitutes and attempt to re-articulate the idea 
that socioeconomic human rights are of major normative importance even 
in contexts where resources are scarce: although some states may lack the 
resources required to bring about their immediate realization, they must 
nevertheless use all the resources at their disposal to ensure their 
satisfaction in the shortest period of time. Otherwise, they would be failing 
to live up to their international commitments. However, the very notion of 
progressive realization according to the maximum of its available resources 
is opaque. It can be interpreted in a number of ways. 

On a demanding interpretation, article 2(1) implies that states must 
devote all their resources to promoting socioeconomic rights, unless this 
implies undermining the satisfaction of other human rights, such as civil 
and political ones. In the context of developing countries, this account is 
vulnerable to two interrelated objections. The first objection is that it may 
seriously undermine the political autonomy of citizens. To see why, 
imagine that a government elected by a majority of votes proposes to 
implement a number of political reforms in order to improve the economic 
performance of the country. The nation is poor and the government wants 
to achieve a reasonable level of economic development. If the plan is 
incompatible with the progressive realization of ESHR in the terms 
mandated by the Covenant, then it will be indefinitely blocked, even 
though it is supported by a majority of citizens. Of course, this does not 
imply that economic development is more valuable than ESHR; rather, the 



68 Mariano Garreta Leclercq 

LEAP 6 (2018)

point is that on the demanding interpretation, the Covenant may erode the 
political autonomy of the people, understood as their freedom to make 
collectively free decisions about their social environment. Predictably, 
such restriction of political agency will have a negative impact over 
individuals’ personal autonomy as their capacity to control important 
aspects of their lives would be curtailed.

The second problem has to do with the burdens that bringing about the 
realization of ESHR may have over the population. On the demanding 
interpretation, governments are obliged to use all the resources they can 
find to ensure their progressive satisfaction. In many cases, this will force 
them to impose heav y taxes on their most productive sectors at the expense 
of economic growth. So even if such measures increase the present capacity 
of the government to deliver on socioeconomic human rights, this strategy 
may nevertheless render the society poorer in the long run. Furthermore, 
there are persistent disagreements as to what measures can most effectively 
promote the realization of ESHR. Most likely, liberals, social democrats 
and socialists will propose alternative programs to achieve that goal and 
insist that the rival strategies are problematic as they may end up eroding 
the very values they aspire to promote. As a result, the demanding 
interpretation of article 2(1) is seriously incomplete as societies have no 
clear orientation about the exact policies it calls for.

3. AUTONOMY AND THE COST OF ERROR

The above considerations point to another problem which is often 
overlooked in contemporary debate: in scenarios where the costs of 
undertaking mistaken courses of action are particularly high, the ideal of 
personal autonomy involves some particularly stringent demands. To see 
this, consider the following example:

Imagine that two scientists, A and B, plan to carry out some experiments 
that prove necessary for the development of different technological 
appl icat ions of a pa r t icu la r t heor y. T he cha nces of success a re 
ident ica l ly high in both projects. The scientists’ work is not moved by 
prudential reasons, but by moral ones: both are persuaded that the 
result of their work will imply a significant improvement in the quality 
of life of their community. Assume also that A and B have equally sound 
reasons to make such moral judgment. Therefore, they both have a 
fallible moral knowledge that provides a pro tanto reason to act. There 
is, however, an important difference between both cases: the cost of 
error. If A’s research fails, this poses no substantial costs to the wellbeing 
of third parties. The situation is very different in B’s case: should her 



 Socioeconomic Human Rights, Autonomy and the Cost of Error 69

LEAP 6 (2018)

research fail, it will cause serious and irreparable harms to a substantial 
number of people – say, B’s research requires a kind of experimentation, 
which may be extremely dangerous for the environment and for people’s 
health.3

This thought experiment suggests that when a moral agent deliberates 
on how to act, she must not only make a moral assessment of the various 
courses of action at her disposal; rather, she must also consider the cost of 
error each alternative involves – such as those of making a false moral or 
factual judgments.4 

So how are we to interpret the situation of scientists A and B from a 
moral perspective?  Both are in similar conditions to think that they know 
– albeit fallibly – that the following statement is true: “Proceeding with my 
research is the best alternative from a moral point of view, since the result 
of such decision will bring about a significant improvement in life-quality 
for members of the community.” Consequently, they also seem to be 
equally morally justified to act on the basis of such judgment and continue 
their work on their research projects. The latter statement, however, is 
deeply problematic: there are cogent reasons to believe that while A is 
effectively justified to act on the basis of her factual and moral knowledge, 
such is not the case with B.  

The above conclusion may be thus backed. It is obvious that A is morally 
justified to act based on her knowledge. From an epistemic perspective, A 
is justified in subscribing the factual and moral tenets we attribute to her, 
and they constitute enough reason to act accordingly. Should something 
go wrong, neither A nor any other persons involved would endure any 
damage. Yet, the analysis varies as we move to a context in which the costs 
of error are drastically high. To see this, imagine for a moment that one 
aspect of B’s situation is different from what we described above: error-cost 
is very high but it only concerns the scientist’s welfare, not that of third 
parties. Although B firmly believes that her research will be successful, she 
is aware that in cases of error her experiments could be dangerous for her 
own wellbeing. B might decide that it is not worth running the risk, even if 
the chances of failure are very low; or she might alternatively decide to run 
the risk and proceed with his research. Both courses of action appear 
equally acceptable from a moral perspective. But what happens when, as 
in the original example described, other people could be seriously harmed 

3 This example, applied to the moral field, is modeled after some well-known cases in the epistemologi-
cal debate around contextualism and pragmatic encroachment: DeRose’s bank case, Cohen’s airport case and Fantl 
and McGrath’s train case. See DeRose (1992), Cohen (1999), and Fantl and McGrath (2002).   

4  Interesting exceptions to the tendency to overlook the relevance of the cost of error in the process of 
moral deliberation are  Thomson (1986), McKerlie (1986), Lockhart (2000), Hansson and Peterson (2001), and 
Hansson (2003).



70 Mariano Garreta Leclercq 

LEAP 6 (2018)

if B is mistaken? B may research further and try to diminish the probability 
of error.  However, since time is limited examining all potential sources of 
mistake is impossible. 

From an epistemic perspective, there is no way out of this situation. No 
matter how solid the arguments and evidence displayed by B, those who 
could be harmed have the right to refuse taking the risk: B is not entitled to 
decide in their name as this would undermine their equal moral status. In 
other words, in case B did so, she would fail from a moral perspective in her 
relationship with those agents. Why should B arrogate herself the special 
prerogative of deciding in the name of others, without their consent or 
some kind of authorization? Why might B deprive these people of their 
right to make a decision that may prove crucial for their lives? If B neglects 
such fundamental moral right, she would be treating those involved as 
mere instruments for the achievement of her own goals, rather than agents 
whose interests and projects have a weight of their own and are irreducible 
to interests and projects of other individuals. In essence, if B acted 
unilaterally in the way she judges best from a moral perspective – despite 
having good reason to presume her judgment is correct – she would infringe 
the autonomy of the potential victims – in Fabre’s terms, this would entail 
depriving them of holding significant control over their existence.

With this in mind, we can now reexamine the problem of implementing 
ESHR. As we saw, it is plausible to hold that the moral reason why ESHR 
must be fulfilled is that they prove just as indispensable as CPHR to respect 
people’s autonomy. However, in view of the large amount of economic 
resources required – particularly within unfavorable contexts – complying 
with ESHR demands launching dangerous economic experiments; and in 
case of error, this may bring about substantial damage to the people (both 
those who lacked the chance to have access to the resources necessary to 
enjoy those rights and those who did have access to them prior to the 
implementation of the necessary redistributive policies). So as in the case 
with scientist B, when the state unilaterally decides to enact risky economic 
measures, it undermines its citizens’ autonomy. Consequently, at least at 
first sight, we have reached a dead end: while ESHR are grounded on 
respect for people’s autonomy, implementing them in contexts such as 
those described proves incompatible with such very grounds, namely: 
respect for the autonomy of individuals.

Fortunately, there is a solution to the paradox. Let us assume that B 
manages to persuade all the potential victims to allow her to proceed with 
her research: they all decide to voluntarily run the risk, having received 
sufficient information about its potential costs. In such case, should B 
decide to carry out her experiment she will not be acting unilaterally, nor 



 Socioeconomic Human Rights, Autonomy and the Cost of Error 71

LEAP 6 (2018)

violating the autonomy of others. She is not running the risk in their name; 
all share responsibility for the decision. Similarly, it is reasonable to hold 
that, under certain conditions, democratic resolutions with a high level of 
legitimacy may have the same result. We can imagine in this vein that B’s 
decision to proceed with her research results from a free and open deliberation 
process in which all the relevant information was circulated, all those 
concerned were part of the process, and the decision was backed by a majority.

Whenever these conditions obtain it is reasonable to say that, through 
their participation in the political process, all those concerned have 
authorized the decision – or, at least, none can protest that the decision 
was arrived at with no previous consultation. Of course, the kind of 
authorization provided by democratic procedures may not amount to 
unanimous consent.  Yet neither unanimous consent nor the effective 
consent of all concerned is expectable within the context of ideological 
pluralism that pervades contemporary democratic societies. But it is 
generally accepted that a democratic procedure governed by majority rule 
is an adequate substitute of unanimous consent – at least when it complies 
with stringent legitimacy standards.

Now if we admit the legitimacy of the democratic system in general, 
then we must also accept that such system offers an appropriate instrument 
of authorization, both in the case of scientist B and, more broadly, in the 
selection of public policies in which the cost of error is significantly high. A 
committee of experts, or members of a tribunal, may certainly believe that 
a certain policy will promote the welfare of the people better than the 
others. However, if the cost of error is highly significant, they will not be 
morally justified to act unilaterally based on their (fallible) knowledge. For 
if they did so, they would be deciding in the name of others, thereby 
undermining their autonomy and their status as independent moral 
agents. In cases where fallibility is combined with the high cost of error for 
the wellbeing of those concerned, knowledge is not enough to justify action 
from a moral point of view. By contrast, the situation is radically different 
when that kind of decision results from an inclusive democratic process: 
even if not everyone agrees, implementing the policy that receives a 
majority vote is not comparable to a unilateral decision. In sum: if we 
assume that democracy is a valuable political system, we must also accept 
that it constitutes an adequate tool to authorize the implementation of 
risky measures in way that respects the autonomy and equal status of 
individuals. 

Similar considerations apply in the case of decisions about the amount 
of resources to be devoted to comply with the ESHR included in the 
Covenant. If the measures to put them into practice are the end result of a 



72 Mariano Garreta Leclercq 

LEAP 6 (2018)

process of democratic authorization with high levels of legitimacy, the cost 
of error will not have the moral implications described above. Plus the fact 
that it cancels the plausibility of the notion that implementing ESHR, no 
matter how risky, violates the autonomy of those concerned.

4. DEMOCRACY, POLITICAL AUTONOMY AND SCARCITY

There is an important potential objection I need to tackle before concluding.5 
The argument I am suggesting is grounded on a connection between 
autonomy and democratic deliberation. However, it could be countered 
that although such connection is plausible in conceptual terms, it is 
nevertheless unrealistic in the context of most developing nations. This is 
because citizens of such nations may lack the capacities or resources to 
engage in sophisticated economic debates. As a result, their autonomy 
could perhaps be better promoted through alternative means, such as 
decision making by courts or technical experts. In the example of the 
scientists, it was argued that B has no right to decide in the name of others 
because this would be incompatible with honoring their equal moral 
status. Yet one may recognize the equal moral status of individuals while 
at the same time insisting that they have no capacity to understand or 
contribute to complex technical debates. 

So if scientist B enjoys genuine expertise on the subject matter, she may 
legitimately refuse to take into account the views of others. Along the same 
lines, it could also be argued that when basic human needs are not secured 
and people lack adequate education and reasonable access to information, 
democratic debate and democratic authorization may not be the best 
option to promote the autonomy and wellbeing of individuals.

Nevertheless, the argument I have offered precludes the kind of 
epistocratic view underpinning this objection. As David Estlund points 
out, epistocracy tends to rely on three fundamental tenets:

The Truth Tenet: there are true (at least in the minimal sense) 
procedure-independent normative standards by which political 
decisions ought to be judged.
The Knowledge Tenet: some (relatively few) people know those 
normative standards better than others.
The Authority Tenet: The normative political knowledge of those who 
know better is a warrant for their having political authority over others. 
(Estlund 2008: 30)

5  I am thankful to an anonymous reviewer for Law, Ethics and Philosophy for 
raising this key objection.



 Socioeconomic Human Rights, Autonomy and the Cost of Error 73

LEAP 6 (2018)

The case of the scientists accepts the first two tenets, which look more 
or less plausible. It accepts the second tenet because it assumes that 
scientist B enjoys some privileged expert knowledge by virtue of which she 
knows that a certain course of action is the better one; and it accepts the 
first tenet as the claim that B’s knowledge is independent of any particular 
decision making mechanism. However, my account firmly rejects the 
Authority Tenet: since knowledge is in principle fallible, and the experiment 
involves high costs in case of mistake, then B is not morally allowed to act 
on her own personal assessments of merit. This is because even though her 
potential victims may lack relevant technical knowledge, they have a 
fundamental right to veto any unilateral decisions on the part of B. To 
enjoy such right they just need to know that the costs of a mistake are high 
for themselves and that the chance that the scientist is mistaken is 
significant. Thus, the only solution is to achieve the consensus of those 
who may be potentially affected by the experiment or, alternatively, to 
setup reliable mechanisms of democratic authorization. The same is true 
of citizens living in poor countries: they are entitled to resist any unilateral 
decisions adopted by epistemic elites, ranging from courts of justice to 
expert policy makers. 

On the other hand, it is worth emphasizing that, contrary to what the 
objection appears to presuppose, these kinds of decisions hamper the 
moral autonomy of individuals rather than just their political autonomy. If 
scientist B unilaterally decides to go on with her experiment under the 
assumption that this will significantly benefit her community, she not only 
undermines the political autonomy of the potential victims but also fails to 
respect their status as separate moral persons endowed with an intrinsic 
dignity. And the same is obviously true of an elite of experts who make 
unilateral public policy decisions that may compromise the interests of 
those in their power. 

To illustrate the point, imagine that after considering a set of alternative 
economic policies – P1, P2, P3 – a group of economic experts concludes that 
P1 is the best option. If P1 is successfully implemented, it will considerably 
improve the life prospects of the people. Yet, if the strategy fails, it will have 
a devastating impact on low and medium income classes. It is evident that 
in such case the experts are not morally allowed to impose their views on 
the citizenry. For even if the experts know that P1 is the best policy, they 
have a fundamental moral duty not to impose serious risks on others or 
decide in their name on matters that may seriously compromise their vital 
interests.

Of course, the existence of a minimally legitimate democratic system 
requires that at least the most basic socioeconomic needs of the people are 



74 Mariano Garreta Leclercq 

LEAP 6 (2018)

fulfilled. In this sense, the duty to satisfy certain ESHR is supported by 
distinctively democratic considerations: such rights are preconditions for 
a genuine democratic deliberation. In fact, when people lack adequate 
education and are deprived of the means of subsistence, political autonomy 
is a chimera. Yet, even if the satisfaction of ESHR constitutes a political 
priority, this does not imply that courts or experts can make unilateral 
decisions as to how to implement them. Since any such decision would 
presumably involve considerable risks, they call for democratic 
authorization. Naturally, when a nation is desperately poor, or when 
minimally reliable democratic frameworks are absent, we may have to 
consider other options. But in most present developing democracies, it is 
up to the people to figure out what specific policies must be implemented 
in order to promote their satisfaction and honor their commitment with 
human rights instruments.

5. CONCLUDING REMARKS

The conclusion of my argument is that even if we admit that ESHR are 
essential to the development and enjoyment of genuine autonomous 
agency, their unilateral implementation by governments or courts may be 
morally unjustifiable in many contemporary societies. Fundamentally, 
this is because in view of the extreme costs their implementation may 
involve, unilateral implementation violates the autonomy of individuals. It 
is important to emphasize, however, that this implies no skeptical view 
about the feasibility of ESHR or about their normative status. On the 
contrary, the account I propose suggests that governments and citizens 
are morally obligated to engage in democratic conversation about what 
measures to undertake in order to fulfill ESHR and grant this issue a 
privileged role in public debate. Within such political processes, people 
must compare rival interpretations of the “progressiveness” and 
“maximum available resources” clauses and their precise implications. 
Yet, if they want their human rights policies to be legitimate, they must 
result from democratic decisions about what risks the political community 
is willing to run to fulfill them.

BIBLIOGRAPHY

Cohen, S., 1999: “Contextualism, Skepticism and the Structure of Reasons”, in Philosophical 
Perspectives, ed. J. Tomberlin, 57-89, Cambridge: Blackwell.

Estlund, D., 2008: Democratic Authority, Princeton: Princeton University Press.



 Socioeconomic Human Rights, Autonomy and the Cost of Error 75

LEAP 6 (2018)

DeRose, K., 1992: “Contextualism and Knowledge Attributions”, Philosophy and Phenomenological 
Research 52: 913–29.

Dworkin, G., 1988: The Theory and Practice of Autonomy, Cambridge: Cambridge University 
Press. 

Fabre, C., 1998: “Constitutionalising Social Rights”, The Journal of Political Philosophy 6, 
3: 263-284. 

Fantl, J., and McGrath, M., 2002: “Evidence, Pragmatics, and Justification”, The Philosophical 
Review 111: 67-94.

Feinberg, J., 1972: “The Idea of a Free Man”, in Education and the Development of Reason, 
ed. R. F. Dearden, London: Routledge&Kegan Paul.

Gewirth, A., 1982: Human Rights: Essays on Justification and Applications, Chicago: 
University of Chicago Press.

Griffin, J., 2008: On Human Rights, Oxford: Oxford University Press. 
Hansson, S. O., 2003: “Ethical Criteria of Risk Acceptance”, Erkenntnis 59: 291-309.
Hansson, S. O. and Peterson, 2001: “Rights, Risks, and Residual Obligations”, Risk Decision 

and Policy 6: 1-10.
Lockhart, T., 2000: Moral Uncertainty and its Consequence, New York, Oxford University 

Press.
McKerlie, D., 1986: “Rights and Risk”, Canadian Journal of Philosophy 16, 239-251.
Rawls, J., 1971: A Theory of Justice, Cambridge, MA: The Belknap Press of Harvard 

University Press.
— 1993: Political Liberalism, New York: Columbia University Press.
Thomson, J. J., 1986: Rights, Restitution and Risk, Cambridge, Harvard University Press.



LEAP 6 (2018)

Social Rights and Deontological 
Constraints*

E DUA R DO R I V E R A-L ÓPE Z
Universidad Torcuato Di Tella/CONICET

ABSTRACT

Assuming that there is not terminological or conceptual impediment to 
call social and economic rights “human rights”, this paper argues that 
social and economic human rights are normatively different from classical 
civil and political human rights, and that this may have some significant 
institutional implications. Following mainstream opinion, I presuppose 
that both classical liberal rights and socioeconomic human rights are 
bundles of negative and positive “incidents” (concrete rights). My first 
claim is that in both cases negative incidents can plausibly be constructed 
as “deontological constraints.” That means that such constraints must be 
observed even if infringing them could maximize the satisfaction of the 
interests those rights seek to preserve. My second claim is that, contrary to 
classical human rights, the fulfillment of the negative incidents of 
socioeconomic rights, albeit necessary, does not represent a significant 
contribution to their fulfillment. Since in the case of socioeconomic 
human rights positive incidents play such crucial role, there is a relevant 
asymmetry between classical and socioeconomic human rights. The paper 
concludes by showing some institutional implications of this asymmetry.

Keywords: human rights, deontological constraints, social and economic 
rights.

1. INTRODUCTION

There are several arguments for holding that economic and social human 
rights (which, for simplicity, I will call “social rights”) are not “genuine” 

D OI : 10. 310 0 9/L E A P. 2018.V6.0 5

* For helpful comments and criticisms I am grateful to Marcelo Alegre, Mariano 
Garreta, Jeffrey Howard, Ignacio Mastroleo, Saladin Meckled-Garcia, Julio Montero, Leticia 
Morales, two anonymous reviewers, and the audience of the I Workshop “The Political 
Philosophy of Economic and Social Human Rights”, UK-Latin America Political Philosophy 
Research Network (Buenos Aires, 2017).



 Social Rights and Deontological Constraints 77

LEAP 6 (2018)

human rights. In this vein, it could be argued that they are simple goals or 
aspirations; that they count as principles of social justice rather than rights 
we enjoy just because we are human persons; that they are not enforceable 
due to the complexity of their effective implementation; that they are 
unfeasible; and that, as opposed to other human rights, they cannot be 
claimed against courts or enforced by them.1 The contrast is obviously 
with classical civil and political human rights (which I will stipulatively 
call “classical rights”). On this view, only these amount to genuine (human) 
rights.

My aim in this paper is not to argue that social rights are not genuine 
rights as I do not think there is anything like a “true” notion of human 
rights. There may be different kinds of norms, ideals, and moral or political 
principles that can be conveyed in the language of human rights, and this 
can be plausible or defensible, both politically and conceptually. What I 
want to show instead is that, beyond terminology and political use, social 
rights are normatively different from classical rights and that this may 
have some significant institutional implications: while classical rights (or 
relevant aspects of them) can plausibly be conceived as “deontological 
constraints” (in a sense to be explained), social rights (or relevant aspects 
of them) cannot. Although they can be conceived in that way (in the sense 
of there not being any conceptual impossibility), it is not plausible to do so, 
except (perhaps) in very specific or exceptional cases.

Importantly, the concept of human rights I will use throughout the 
paper is philosophical. So I will not be speaking about legal human rights 
such as those enacted at the international body of treaties and declarations. 
Rather, my concern is how we should conceive human rights from the 
viewpoint of strict moral analysis. While the way judges and other national 
or international authorities understand legal human rights may well be 
relevant to building a philosophical view of human rights, such relevance 
is only due to the fact that we want our philosophical theories of human 
rights to keep some ref lective equilibrium with the practice, not because 
we are merely describing the practice.

The paper is structured as follows. In section 2, I elucidate the concept 
of “deontological constraint” and provide some examples that show how 
human rights sometimes operate in that way. The key point of a right being 
a deontological constraint is that, in principle, it cannot be violated even if 
it doing so would maximize the satisfaction of the interest the right seeks 
to preserve. Section 3 advances a view about how to understand the 
relationship between classical and socioeconomic rights on the one hand, 

1  For some of these objections, see Cranston (2001); O’Neill (2005).



78 Eduardo Rivera-López 

LEAP 6 (2018)

and negative or positive rights on the other. I reject the traditional 
identification of classical rights with negative rights and of social rights 
with positive rights, and endorse instead the widely accepted account that 
both classical and social rights are bundles of negative and positive 
“incidents” (concrete rights). Nevertheless, I also claim that in specific way 
the negative incidents of classical rights are more fundamental than the 
negative incidents of social rights. Section 4 focuses on the relationship 
between deontological constraints and classical rights. In this respect, my 
claim is not that only negative rights or classical rights can operate as 
deontological constraints. The point is more nuanced and complex: while 
negative incidents of classical rights can plausibly be (and usually are) 
conceived as deontological constraints, positive incidents of classical 
rights may sometimes function as deontological constraints. In section 5 I 
sustain that the positive incidents of social rights cannot plausibly be 
understood as deontological constraints, except for some very specific 
cases – such as the right to be rescued from imminent death. This completes 
my main argument: there is a normative asymmetry between classical 
rights and social rights because relevant incidents of classical rights (which 
are negative in kind) can plausibly be conceived as deontological 
constraints, while relevant incidents of social rights (which are positive in 
kind) cannot be conceived in such way. In section 6 I explain why the 
alleged asymmetry may have some significant implications in terms of the 
role judges can play in the enforcement of human rights.

2. THE CONCEPT OF DEONTOLOGICAL CONSTRAINT

The notion of rights as deontological constraints (hereafter DC) I will use 
is not necessarily the most common one. In my sense, a moral right works 
as a DC when the fundamental moral reason to fulfill the correlative duty 
is focused on the individual holding that right. If John has a DC right 
against me that I do X, then I ought to do X because (and, in principle, only 
because) he has that right. That he has that right is the (in principle, 
sufficient) reason why I should do X. That a right (and its correlative duty) 
is a DC does not necessarily imply that it is absolute, or a “trump,” or a “side 
constraint.”2 But it does imply that it does not follow a strictly 
consequentialist logic, according to which fulfilling the correlative duty 
would be purely instrumental in achieving (or optimizing) some valuable 
social goal, whether aggregative or distributive.

Let me clarify the idea through some examples. Consider the (human) 

2  See Dworkin (1977) for the concept of rights as “trumps,” and Nozick (1974: 29) for 
the concept of rights as “side-constraints.”



 Social Rights and Deontological Constraints 79

LEAP 6 (2018)

right not to be tortured and the correlative duty of state officers (or the 
state) to never use torture as a method of obtaining information or 
confessions from detained or accused persons. Since there is broad 
agreement on the absolute (or quasi-absolute) character of this right (and 
of the correlative duty), the example is simple (as we will see, other 
examples may be more complex). Claiming that A has a human right not to 
be tortured means that no state officer is allowed to torture A. This right is 
a DC because the fundamental reason why a state officer is not allowed to 
torture A is that A has a right not to be tortured. Such reason is sufficient to 
justify the prohibition. This implies that the state officer is not allowed to 
torture A, even if torturing A would optimize what we may consider morally 
valuable goals (such as human life). More importantly (and crucially), the 
state officer is not allowed to torture A, even if not torturing A would imply 
that more instances of torture will occur in the future.

The DC feature of some rights can be noted even more clearly with 
another example: the right of innocent people not to be convicted and 
punished. When the judge releases an innocent person, her reasoning is 
not (or should not be) that acquitting this person is instrumental for the 
good of society or for some valuable social goal. The reasonable belief that 
the accused person is innocent is (at least in principle) sufficient reason to 
release her. The innocent must be acquitted. This is the only relevant 
consideration. 

As I said, it is not necessary for a right to be absolute to constitute a DC. 
There could be some threshold of social harm above which the duty not to 
torture or not to condemn an innocent might yield. Even if consequentialist 
considerations (for example, about potential social harm) might be thought 
to be relevant, it may still be correct to say that there is a DC right not to be 
tortured or not to be wrongly convicted. However, at the point where 
considerations of consequence alone become relevant, it would start to be 
doubtful that we are dealing with a right not to be tortured or not to be 
wrongly convicted. Certainly, we might still use the terminology of rights, 
insofar as, in general, the state would have a duty not to torture or to convict 
innocent people. But, beyond terminology, we are dealing with a 
qualitatively different kind of norm, namely: a rule aiming to minimize 
tortures or wrongful convictions. This, in turn, could only be understood 
as part of a more general norm aiming to optimize some more basic value, 
such as the well-being of people or the minimization of suffering (where 
minimizing instances of torture or wrongful convictions would be 
instrumental to the optimization of that value).

There is a third more complex example, which nevertheless illustrates 
the DC feature of some human rights: the right to democratic participation 



80 Eduardo Rivera-López 

LEAP 6 (2018)

(to vote and be elected). The state violates the right to be elected by, for 
instance, proscribing or coercively preventing a candidate or a party from 
participating in free democratic elections. This is so, even if it were true 
that not proscribing a certain candidate would lead to a deterioration of 
democracy, or to more people being wrongfully proscribed in the future. 
As in the previous examples (actually, more so than in the previous 
examples), this DC character of the right to democratic participation may 
be subject to certain limitations (such as the duty to tolerate the intolerant). 
Where to draw such limitation may of course ben controversial. Yet, if the 
human right not to be proscribed is a DC right, the limit must be more 
demanding than the limit would adopt if we simply wanted to optimize 
political freedom.

In sum, a right to X is a DC right only if we are prepared (at least to some 
extent) to sacrifice the satisfaction of important values (including, 
crucially, the fulfillment of more cases of the right to X) to honor the right 
to X in particular cases. The right not to be tortured or wrongly convicted 
and the right to be allowed to participate in free elections are examples of 
rights that can plausibly be conceived as DC rights.

3. POSITIVE AND NEGATIVE INCIDENTS OF HUMAN 
RIGHTS

The idea that certain rights (typically, classical rights) are DC must not be 
confused with the idea that classical rights are negative rights (rights that 
correlate with duties of omission), whereas social rights are positive ones. 
Let me clarify this point. 

In this respect, I follow ideas from Cecile Fabre and David Bilchitz on 
social rights that capture our common sense intuitions about the 
relationship between the positive-negative distinction vis a vis the 
classical-social distinction (Fabre 1998: 267-270; Bilchitz 2007: 90-91).3 The 
main idea is that human rights are clusters of more specific rights (to which 
I will refer as “incidents,” or “aspects” of a human right).4 Some incidents of 
a human right are negative while others are positive; or, in other words, 

3  Although similar, what I am defending is not exactly Henry Shue’s view. He claims 
that any basic right conceptually involves the existence of negative and positive duties (Shue 
1980: 52-53). I just claim that classical rights (such as the right to political participation) 
usually include positive incidents (such as the right not to be prevented from voting) and 
that social rights (such as the right to subsistence) usually include negative incidents (such 
as not to eliminate the only available means of subsistence). For a discussion on Shue’s view, 
see Cohen 2004.  

4  I borrow the use of the term “incident” from Honoré’s classical work on ownership 
(Honoré 1961).



 Social Rights and Deontological Constraints 81

LEAP 6 (2018)

some require only abstentions from the state, while others require actions 
and the provision of resources from the state. Even though we may speak 
of a right to free expression (a typical classical right) as an “abstract” right 
(to use Bilchitz’s terminology),5 this abstract human right brings together a 
set of “concrete” rights or incidents, which in practice make up the right to 
freedom of expression. Within this set, there are usually negative rights as 
well as positive rights. Similarly, abstract social rights (such as the right to 
subsistence or to adequate housing) are clusters of incidents that correlate 
with specific duties, including both positive and negative ones.

Now that the complex nature of rights has been clarified, the next step 
is determine the role that negative and positive incidents play in classical 
rights as opposed to social ones. In this respect, I want to highlight an 
important asymmetry that will be crucial for my overall argument. 

I have admitted that both classical and social rights have negative and 
positive incidents that can be violated both by action and omission (by the 
state). The operation of both kinds of rights is symmetrical in the case of 
the violation of a right. For example, the social right to adequate housing is 
violated both when the state evicts members of a community from a certain 
territory over which they have a right and when the state does not provide 
adequate housing to homeless people. In this sense, positive and negative 
incidents of the social right to adequate housing operate in the same way 
as positive and negative incidents of classical rights. In both cases, we can 
safely say that the (abstract) right (be it classical or social) is being violated.

However, such symmetry breaks down when we focus, not on the 
violation but on the fulfillment of the right. So imagine that the state meets 
a negative incident of a classical right. For example, it abstains from 
censoring the press. In that case, we can plausibly say that the state fulfills 
at least one important, relevant or substantial part of the abstract classical 
right to freedom of speech. And we can plausibly say so even if the state, at 
the same time, fails to fulfill positive incidents of the same classical right, 
say, because it does not promote the public expression of minorities or 
disadvantaged groups. To be sure, we might say that in such case the 
fulfillment of the right to free speech is deficient or insufficient. Still, if the 
state does not actively censor or in any way prohibit or restrict public 
expressions, we would surely conclude that a relevant, substantial, part of 
the right to free speech is being fulfilled. On the contrary, imagine that the 
state meets the negative incidents of a social right: the government does 
not evict persons from their houses or territories. In such case, we may 
think that this is not enough to fulfill the most important, relevant, or 

5  Bilchitz (2007: 91).



82 Eduardo Rivera-López 

LEAP 6 (2018)

substantial aspect of the social right to adequate housing, in particular 
when the state fails to fulfill the positive incidents of that same social 
right.6 Consider a further example: imagine that the state simply refrains 
from actively obstructing people’s access to nutritious food. Would we say 
that the state is fulfilling the social right to subsistence, in the most relevant 
sense? I think the answer is no. The only way for the state to guarantee the 
satisfaction of the social right to subsistence or adequate housing is to 
actively guarantee that people who lack access to nutritious food or decent 
housing enjoy secure access to the objects of their rights. In other words, 
while in some cases this may turn out to be insufficient, fulfilling just the 
negative incidents of a classical right makes a substantial contribution to 
its satisfaction. Contrariwise, in most relevant cases, fulfilling just the 
negative incidents of a social right makes only a secondary contribution to 
its full satisfaction. In fact, the point and purpose of social rights is to make 
sure that everyone enjoys secure access to their objects.

To illustrate the point, let us take a closer look at the negative incidents 
of social rights. Those incidents are negative rights that can be violated 
(only) by actions. Imagine a community living from fishing at sea (a 
common property). At some point, the government grants a private 
company an exclusive fishing license which deprives the community of its 
only means of subsistence. In such case we could certainly claim that the 
state has actively violated the social right to subsistence.7 The state has 
violated a negative incident of that right by performing an action that 
renders community unable to obtain sufficient food.

Now imagine that at some point the government changes its mind and 
decides to fulfill the community’s social right to subsistence. An obvious 
way of doing so would be to cancel the company’s exclusive license so that 
members of the community can fish again. Since this solution cancels its 
previous active intervention, it restores the fulfillment of the negative 

6  Thomas Pogge would disagree at this point. According to his view, when social 
rights are not fulfilled, the state is violating negative rights, not (just) positive rights (see 
Pogge 2002: 203 ff; Pogge 2011). The correlative duty to that (negative) right is the (negative) 
duty not to impose an unjust institutional scheme that causes social rights to remain 
unfulfilled. I do not want to discuss this view here, but it seems to me that the discussion is 
rather terminological. The important point is whether those duties are DC duties or just 
goals. It seems to me clear that the duty to reduce global poverty is (at least partially) an 
aggregative goal, and the measures that Pogge suggests to achieve that goal (such as his 
“Global Resources Dividend”) is not a DC duty. Proof of that is that we (and Pogge, I assume) 
would not be prepared to defend the Global Resources Dividend if it were foreseeable that, 
while rescuing some people from extreme poverty, it will pull more people into extreme 
poverty. This implies that the duty (and the correlative right) involved in fighting against 
extreme poverty is not a DC, in contrast with what happens with (negative incidents of ) 
classical rights. I thank an anonymous reviewer for raising this point.

7  I thank Julio Montero and Mariano Garreta for this example.



 Social Rights and Deontological Constraints 83

LEAP 6 (2018)

incident of the right to subsistence. However, there are other options the 
state may try. In this vein, it may choose to transfer money to the victims so 
that they can buy the food they need. Or else, it may directly distribute 
food among the victims. If so, the state is not fulfilling a negative incident 
of the right to adequate food.8 Rather, it is fulfilling the right by undertaking 
a positive action, that is by fulfilling a positive incident of the right. I take 
this to prove that fulfillment of negative incidents are less relevant in the 
case of social rights than in the case of classical ones.

This is not to deny that infringing negative incidents of a social right 
may amount to a very serious wrong. However, my impression is that, in 
such cases, the incident will also constitute an independent negative right 
(or a negative incident of a classical right). To see why, consider a perfect 
and rich libertarian society in which all human needs are satisfied through 
market transactions. If at some point the state starts confiscating some 
people’s food, we would not (primarily) say that the state is violating the 
social right to subsistence, or at least not only that right. Instead, we would 
most likely insist that the state is (primarily) infringing the property rights 
of the victims, that is: a classical right. On the other hand, if the state does 
not intervene and everyone happily satisfies their food needs, we would 
not say that state fulfills the social rights of citizens by omission (say, 
because the state does not coercively stop people from satisfying their 
needs). We would rather say that social rights are spontaneously satisfied 
though not officially guaranteed.

All this shows that there is an asymmetry between the fulfillment of 
classical rights and of social rights. To repeat: the fulfillment of the negative 
incidents of classical rights is a substantial part of their satisfaction, 
whereas the fulfillment of the negative incidents of social rights is much 
less substantial (unless that negative incident has an independent 
justification, for example, as negative incident of a classical right).

4. DC AND CLASSICAL RIGHTS

The claim that rights are DC, or that at least some rights work as DC, is 
admittedly controversial. I do not want to defend that claim here, or the 
associated claim that to qualify as a right (or as a “true” right), any interest or 
claim must have this feature. I want to argue instead that classical rights (or, 
as we will see, at least certain aspects of classical rights) seem to have the 
feature of being DC as defined in the previous section. So let us explore more 

8  Except in the trivial sense that the state is not actively impeding to use the money 
or the food that the very state has provided.



84 Eduardo Rivera-López 

LEAP 6 (2018)

carefully how the negative and positive incidents of abstract classical human 
rights behave with respect to their having or not having a DC character. 

Negative incidents of classical rights can plausibly be conceived as DC 
rights. The correlative duties of abstention held by state officers not to kill 
or torture, censor the press, persecute religious minorities or specific 
associations, imprison people without trial, or proscribe candidates, are 
duties that the state must (at least in principle) strictly honor irrespective 
of the consequences of honoring them, including the consequences in 
terms of the satisfaction of the very same rights.

It is important to emphasize that what distinguishes classical from 
social rights is not that the former are negative. For as I have explained, 
both classical and social rights involve negative and positive incidents. 
Rather, my point is just that the negative incidents of classical rights can 
plausibly be regarded as DC. This means, again, that the state is not allowed 
to violate the negative incidents of classical rights (in this case, actively) to 
optimize some valuable social goal, including the social goal of optimizing 
the satisfaction of the very classical right in question.

Classical rights, I have assumed, also have positive incidents which call 
for active state policies or allocation of the relevant resources. So the right 
to due process requires that the state spends resources to establish 
impartial courts, jurors, and prosecutors, and to guarantee a public law yer 
to the defendant. Likewise, the right to democratic participation implies 
that the state must provide resources to organize free elections and 
guarantee polling stations across its territory or jurisdiction, among other 
things.

Assuming that the negative incidents of classical rights are DC rights, 
we can wonder whether the positive incidents of classical rights are DC 
rights as well. The question is not directly relevant to my argument, but it 
merits some attention. Although I have no conclusive views about this 
issue, I am inclined to think that whether the positive incidents of classical 
rights are in fact DC depends on the particularities of the case we consider. 

So let us consider the example of the classical right to a fair trial. This 
abstract human right involves clear negative incidents: the state must 
refrain from actively inf luencing judges, organizing summary trials that 
violate the right of defense, or coercively preventing the defendant from 
hiring a law yer. All these negative duties are plausibly DC, which implies 
that the state must respect them even if refusing to do so would bring about 
social benefits, such as that future trials would be more impartial or that 
terrorism would decrease significantly. 

On the other hand, the right to a fair trial also involves some obvious 



 Social Rights and Deontological Constraints 85

LEAP 6 (2018)

positive incidents: it requires that the state takes over the defense if the 
accused lacks the resources to pay for a law yer. May this incident count as 
a DC right? Even though the answer is not completely clear to me, it is not 
unreasonable to think that its satisfaction may legitimately factor in 
consequentialist considerations. In such case, the state might be allowed 
refuse to guarantee an official defender if some alternative allocation of 
(scarce) resources (say, redirecting official defenders to some other 
jurisdiction) would optimize this specific aspect of the right to a fair trial. 
Alternatively, it could also be argued that this positive incident (the right to 
a law yer) is in fact a DC right: if the state is unable to provide the service, 
then the trial should be suspended until it can do so.9 In any case, no 
definitive answer to this controversial issue is necessary for my argument; 
all I need to claim is that negative incidents of classical rights can plausibly 
be conceived as DC rights, whatever we believe about their positive 
incidents.10

In sum: classical rights have both negative and positive incidents. While 
the negative incidents may be plausibly regarded as DC rights, it is unclear 
whether their positive incidents are DC too.

5. DC AND SOCIAL RIGHTS 

What about social rights? As in the case of the right to a law yer in a criminal 
trial, there is no conceptual obstacle for a positive right to be a DC. In that 
sense, there is no conceptual impediment for both negative and positive 
incidents of social rights to be DC rights. But conceptual possibility is not 
the same as philosophical plausibility. The key question here is whether 
social rights (as conceived by international human rights conventions) can 
plausibly be considered DC rights equivalent to the negative incidents (and 
perhaps some positive incidents) that classical rights involve. 

There is at least one important positive right that can plausibly be 
conceived as a DC right: the right to be rescued from imminent death. In 
fact, it seems reasonable to claim that we have a moral duty to aid someone 
at dire straits, even if this means that fewer people in a similar situation 
will be rescued. These kinds of normative scenarios are familiar during 
health emergencies: in order to save a child who requires a heart transplant, 
we may need to invest a large amount of money which we will render 
unable to invest in saving many children at risk. If we assume that concrete 

9  I thank Marcelo Alegre for discussion on this point.
10  In fact, the claim that positive incidents of classical rights are DC would support 

my (main) thesis that there is a normative asymmetry between classical and social rights, 
since, as we will see, it is not plausible to take positive incidents of social rights as DC rights.



86 Eduardo Rivera-López 

LEAP 6 (2018)

lives take priority over statistical ones (and I am not saying that this is 
necessarily the case), then it is plausible to conclude that the right to be 
rescued (and the corresponding positive duty to rescue) is a DC.11

Having conceded that positive rights can well be DC, the next question 
is whether positive incidents of social rights (which, if my argument in 
section II is correct, constitute a crucial aspect of social rights) should be 
understood as DC. This is, I insist once more, not a conceptual question, 
but normative one. In other words, the relevant question is whether we are 
prepared to consider all (or most) social rights in the same way as (DC) 
rescue rights (and, of course, as negative incidents of classical rights), 
namely: in a way that implies that we have the obligation to fulfill the social 
right to X in one particular case, even if doing so would reduce the overall 
satisfaction of the social right to X. To anticipate my view: I think this is not 
plausible because social rights are better constructed as mandates to 
optimize certain goals.

Social rights are optimizing mandates in two senses. First, they allow 
for intra-subjective trade-offs. They form an interrelated set of interests, 
the joint satisfaction of which enables the individual to lead a minimally 
satisfactory life. Take the rights to decent housing and to health. It is clear 
that most persons will rationally seek to optimize the joint satisfaction of 
both rights; or else they may decide to give up some degree of satisfaction 
of one of them to increase the satisfaction of the other one. The same is 
true for all social rights. In essence, the substantial normative claim that 
underlies them is the enjoyment the set of goods we need to lead a 
minimally autonomous or dignifying life (let us call this set “basic needs”). 
The state’s correlative duty is an optimization mandate as well, in the sense 
that it requires the provision of that set of goods that allows the optimal 
satisfaction of basic needs. Furthermore, each of the individual duties 
correlative to specific rights (to housing, health, nutritious food and so on) 
stands in some sort or tension or trade-off with the rest. Note that this is 
not the case with classical rights. Even if individuals may rationally want to 
sacrifice a certain degree of freedom of speech or vote in exchange for an 
improved satisfaction of her basic needs (better housing or health care), we 
would not accept that the authorities engage in these kinds of trade-offs.

Social rights are also inter-subjectively optimizing. The aim of social 
rights public polies is to satisfy social rights for an entire population and in 
the long run. This means trying to achieve something like a state of affairs 
in which the satisfaction of basic needs is given to as many people as 
possible, or a state of affairs in which the satisfaction of basic needs of 

11  On the controversy between saving identified versus statistical lives, see Cohen, 
Daniels and Eyal (2015).



 Social Rights and Deontological Constraints 87

LEAP 6 (2018)

those who are worse off increases to the greatest extent possible, or some 
other optimal state of affairs in terms of justice.

These two optimizing features of social rights do not necessarily imply 
that social rights are not genuine rights. Insofar they can be legitimately 
constructed as priority goals which take care of essential interests, rights 
language is not inadequate. Still, whatever preeminence or importance we 
are willing to give to social rights, it is important to stress that they operate 
as social goals, that is: goals the state must promote according to some 
criterion of justice or efficiency to be optimized through an adequate set of 
public policies. Such policies may be constrained by classical rights, but 
not by the same social rights.

To determine to what extent social rights can be DC, let us brief ly 
consider Henry Shue’s discussion of a thesis sustained by Garret Hardin. 
According to Hardin, humanitarian aid to the global poor is self-defeating 
because, given the limited carrying capacity of the planet, it will only 
produce more global poverty in the future (Shue 1980: 97-104). Although 
Hardin’s theory has lost its appeal because it has proven empirically false, 
it is nevertheless interesting as it helps us to test if we we are willing to 
consider the human right to subsistence as a DC it has proven empirically 
false (see Drèze and Sen 1989).

If the social right to subsistence generates a DC duty, then we should 
take action to satisfy it, even if this would undermine its satisfaction for a 
greater number of people in the future. On the other hand, if the social 
right to subsistence only the expresses a principle of justice that seeks to 
minimize (or eradicate) extreme poverty, then we should refrain from 
helping the poor now to avoid more poverty in the future – provided 
Hardin’s thesis were true. Of course this is a false dilemma, but it is 
remarkable that Shue’s discussion focuses primarily on showing that the 
empirical basis of the theory is false, not that we should satisfy the right to 
subsistence regardless of what may happen in the future.12 This does not 
prove that Shue was thinking of social rights as optimizing goals, but it 
suggests he was. And plausibly so. When we think of extreme poverty, our 
concern is to reduce or eradicate poverty, and we are willing to appeal to 
any means to achieve that goal (compatible with the fulfillment of some 
fundamental classical rights). We would not be willing to advance policies 
that, in the name of helping the poor (or satisfying their social rights), increase 

12  “The dilemma suggested by the population objections dissolves entirely, provided 
that in fact poor countries have, or can obtain, means of controlling population growth that 
are compatible with the protection of subsistence rights” (Shue 1980: 101).



88 Eduardo Rivera-López 

LEAP 6 (2018)

the number of poor people (or the non-satisfaction of their social rights).13

These arguments do not show, as I said at the beginning, that social 
rights cannot be considered human rights. What they show is that social 
rights have a different normative structure vis à vis classical rights. The 
latter have a relevant DC component: we are willing to sacrifice valuable 
social goals (including the satisfaction of classical rights; including the 
satisfaction of that very classical right) to fulfill classical rights in each 
relevant occasion. Social rights, on the other hand, cannot be plausibly 
conceived in this way. I repeat: we would not be willing to allow more 
people to remain in poverty if this were the consequence of actively 
bringing fewer people out of poverty.

6. SOME INSITUTIONAL IMPLICATIONS

The conceptual distinction between liberal and social rights that I explored 
may have significant practical implications in terms of the judicialization 
of social rights, which I will now try to sketch though maintaining a 
considerable level of abstraction. Schematically, there are three kinds of 
procedures judges may use to make a decision in the field of social rights.  

The first kind of decision takes the claim of the right holder as a DC 
right. In the case of classical rights, this is obviously the rule. For example, 
when a judge declares that an act of censorship is unconstitutional and 
cancels the closure of a newspaper, she does so to satisfy the right to free 
speech.  Importantly, the judge’s duty correlates to a DC right, since she is 
not allowed to consider the social consequences of reopening the 
newspaper. Similarly, in the realm of social rights, a judge can order the 
executive to grant a specific indigent family adequate housing or a specific 
patient an expensive medicine.14 In these cases, she follows the same kind 
of reasoning: she is not calculating the burdens and benefits her decision 
may entail for society as a whole. 

A second kind of intervention is familiar in the realm of social rights 
and should not be confused with the first one.15 Suppose there is a 
governmental policy that provides some service to the population, say 

13  In the terminolog y coined by Guido Pincione and FernandoTesón, publicly 
defending that kind of policy would be a case of “discourse failure” (Pincione and Tesón 
2006: 142 ff.).

14  For example, in Q. C., S. Y. v. Gobierno de la Ciudad Autónoma de Buenos Aires, a 
judge ordered the government of Buenos Aires to provide adequate housing to an indigent 
family with a disabled child. The decision was reversed by the Superior Court of Buenos 
Aires.

15  Leticia Morales has made me aware of this kind of intervention.



 Social Rights and Deontological Constraints 89

LEAP 6 (2018)

basic education for every child. Imagine now that one specific child (or set 
of children) is denied the service (for reasons of scarcity or for any other 
reason). In such case, the judge might order the executive to provide the 
service to that particular child (or set of children). In one sense, the 
intervention works as if the child had a DC right to basic education, because 
her claim is taken as a sufficient reason (for the judge) to deliver that order. 
Still, I do not think a DC right to education is necessary involved, but rather 
a DC right to equal treatment. Given that there is a policy providing some 
service, it must be provided to all. Similar examples can be provided for the 
case of health-care services.

Finally, there is a third kind of judicial intervention which is qualitatively 
different in nature. In this kind of case, the judge orders the executive 
simply to deal with housing shortage, or to clean a polluted river, or to 
provide education, or to have some kind of social security plan, etc. So she 
is intervening in public policy in order to promote some valuable social 
goal, such as the goal that no one lacks housing, food or education, or that 
the river is clean. This is the intervention path followed, for instance, by 
the South African Supreme Court in the well-known “Grootboom” and 
“T.A.C.” cases, which required that the government implemented a 
“reasonable” policy to provide adequate housing and essential HIV drugs 
to its population.16 Along the same lines, in the case “Mendoza” the 
Argentine Supreme Court urged the executive to issue an “integrated plan” 
to improve the environmental situation of the polluted river “Riachuelo”.17 
Naturally, I am not claiming that this type of intervention is not justified or 
that the judiciary should not make this kind of decisions; my sole claim is 
rather that this is an essentially different sort of intervention.

From a strictly normative point of view, the relevant question is whether 
the judiciary should intervene only in the first (and the second) way, or we 
want it to intervene in the third way as well. For only the first kind of 
intervention implies granting social rights a DC status. Instead, the second 
one is not essentially about social rights, while third one does not deliver 
on a DC right. 

One relevant conclusion we may draw from the above argument is that 
when courts behave in the third way, they are doing something conceptually 
and normatively different from what they do when they behave in the first 
one. We can of course say that they are enforcing social rights in both 
cases; but they are not doing the exactly same in the most fundamental 

16  See Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC); 
Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC).

17  See Mendoza, Beatriz Silvia y otros c /Estado Nacional y otros s/daños y perjuicios 
(daños derivados de la contaminación ambiental del Río Matanza-Riachuelo)” (M.1569.XL).



90 Eduardo Rivera-López 

LEAP 6 (2018)

conceptual sense: whereas in the first case the court is treating the social 
right as a DC right, in the third one, it is treating the social right as a 
normatively prioritarian policy goal (based on considerations of justice).

This being so, we may wonder whether it is normatively acceptable or 
plausible that judges make the first kind of decision, taking (positive 
incidents of ) social rights as DC rights (assuming, of course, that we find 
acceptable that they treat negative incidents of classical rights as DC 
rights). I cannot pursue this question here, but I think there are reasons to 
be skeptical. As I mentioned before, taking social rights as DC rights seems 
plausible only in exceptional cases, such as those which involve rescuing 
people from imminent, serious and irreparable harm (typically death). 
Beyond this, judicial intervention to provide specific solutions to specific 
problems (lack of housing, lack of medical care, lack of adequate education, 
etc.) is highly problematic. This is so because fulfilling a certain right (to 
adequate housing or health care, for example) in a particular case fails to 
factor in relevant social consequences; and when these kinds of measures 
are not taken in truly exceptional cases they may end up being detrimental 
to the satisfaction of the very right involved (they result, for instance in less 
people having adequate housing or health services).18 Even though we are 
prepared to face such paradoxical result in the case of classical rights, it is 
much less clear that we want to do so with social ones.

7. CONCLUDING REMARKS

I conclude brief ly. I wanted to bring to light a feature that at least some 
essential aspects of classical rights have. My question was whether that 
feature (which I called DC) also operates plausibly in the case of social 
rights. My response was cautiously negative. Conceiving of social rights as 
DC rights might be reasonable in extreme situations or catastrophes, in 
which we have a very strong intuition in favor of saving concrete people 
with partial or total independence of the subsequent consequences of that 
decision. But this conceptual framework is inadequate to think about 
social rights in general, which are rather mandates to satisfy certain 
minimum in the satisfaction of basic needs of the whole population. This 
seems rather a mandate for optimization and, therefore, is qualitatively 
different from what happens with classical rights.

18  This is not just a speculation. See Wang 2015, where Wang describes how courts 
decisions to provide medical treatments to specific persons have become an important 
factor of the health policy in Brazil. Wang very plausibly claims that this has negative 
consequences in terms of distributive justice of the access to health services. The reason is, 
following my terminolog y, that judges enforce the right to medical treatment as DC rights, 
without looking at the consequences.



 Social Rights and Deontological Constraints 91

LEAP 6 (2018)

BIBLIOGRAPHY

Bilchitz, D., 2007: Poverty and Fundamental Rights. The Justification and 
Enforcement of Socio-Economic Rights. Oxford: Oxford University Press.

Cohen, A., 2004: “Must Rights Impose Enforceable Positive Duties?” Journal of 
Social Philosophy 35 (2), pp. 264–276.

Cohen, G., N. Daniels, and N, Eyal, (eds.) 2015: Identified versus Statistical Lives. An 
Interdisciplinary Perspective. Oxford: Oxford University Press.

Cranston, M., 2001: “Human Rights, Real and Supposed”, in P. Hayden (ed.) The 
Philosophy of Human Rights (St Paul: Paragon House).

Drèze, J. and A. Sen, 1989: Hunger and Public Action. Oxford: Oxford University 
Press.

Dworkin, R., 1977: Taking Rights Seriously. London: Duckworth.
Fabre, C., 1998: “Constitutionalising Social Rights”, Journal of Political Philosophy, 

Vol. 6, No 3, pp. 263-284.
Honoré, T., 1961: “Ownership,” in A. G. Guest (ed.), Essays in Jurisprudence. London: 

Oxford University Press, 1961.
Nozick, R., 1974: Anarchy, State, and Utopia, New York: Basic Books.
O’Neill, O., 2005: “The Dark Side of Human Rights,” International Affairs 81.
Pogge, T., 2002: World Poverty and Human Rights. Second Edition. Cambridge. 

Polity.
Pogge, T., 2011: “Are We Violating the Human Rights of the World’s Poor?,” Yale 

Human Rights & Development Law Journal, Vol. 14, No 2, pp. 1-33.
Shue, H., 1980: Basic Rights. Subsistence, Affluence, and U.S. Foreign Policy. 

Princeton: Princeton University Press.
Wang, D., 2015: “Right to Health Litigation in Brazil: The Problem and the 

Institutional Responses”, Human Rights Law Review, Vol 15, No 4, pp. 617–641.



LEAP 6 (2018)

Two (Different) Types of Human  
Rights Duty

S A L A DI N M ECK L E D - G A RCI A
University College London

ABSTRACT

In this paper I introduce a (new) distinction in human rights theory, 
between two types of genuine obligations corresponding to human rights: 
a) obligations that require us to rule out specific considerations for treating 
people in a certain way, such as the obligation not to consider Jane’s skin 
color when deciding whether she should be permitted to enter a shop or 
the obligation not to take political expediency as a consideration relevant 
to whether political opponents should be silenced, and b) an obligation to 
give some weight to different interests: those interests people have in 
enjoying certain conditions and those of people who must carry burdens 
to create these conditions, when deciding what must be done for rights 
holders. For example, we must weigh the interest Jane has in seeing certain 
improved access to secured health care versus the interests of other 
members of Jane’s society in not facing significantly-increasing tax 
burdens, or seeing reduced social opportunities for their ends, as these will 
impact on their abilities to pursue their own personal life projects. Both 
types of interest matter, so to resolve how much health provision Jane is 
entitled to have we need to know how to weigh them against each other – 
we need an index. These different types of obligations, with their basis in 
different forms of reasoning, cut across categories of human rights and can 
both exist for any one human right. Accepting the distinction means 
accepting that we must pay careful attention to how a human right is given 
content in the form of obligations. It also re-introduces conceptions of 
distributive justice as a necessary component in solving how conf licting 
interests should be weighed an “index” for such weighing.

Keywords: human rights; responsibilities; obligations; conf licting 
interests; weighing; categorical reasons; excluded reasons; distributive 
justice; fairness.

D OI : 10. 310 0 9/L E A P. 2018.V6.0 6



 Two (Different) Types of Human Rights Duty 93

LEAP 6 (2018)

1. INTRODUCTION 

A slogan adopted by the United Nations, echoing an account by Henry 
Shue, says that the duties corresponding to human rights are to “respect, 
protect, and fulfil” those rights (Shue 1996: 52; CESCR 1999a: s. 15; CESCR 
1999b: s. 46; CESCR 2000: s. 33). This, of course, means the duties are to 
respect, protect, and fulfil people’s secure enjoyment of the content or 
objects of those rights as described in international instruments. However, 
a problem with these headings is that they do not explain how we should 
allocate the burdens of these different types of duties and justify the 
allocation for those that will execute them or bear the costs of their 
execution – ultimately the citizens of each society.

In this paper, I introduce a different categorization of duties. This cuts 
across, rather than underpinning, traditional distinctions between types 
of human rights – such as Civil and Political (CivPol) rights versus Economic 
and Social (EcoSoc) rights, liberty rights versus benefit rights, or even 
rights with positive obligations versus those with negative obligations, 
distinctions that have been debated in the literature.1 This new 
categorization is not intended to map onto debates where authors defend 
or dispute that such distinctions exist or use a categorization to undermine 
the importance of any specific group of rights. Instead, the argument lies 
within the sphere of genuine obligations. It neither challenges the existence 
of the two categories of obligations I set out, nor questions the rights to 
which they give substance. Indeed, for many traditionally understood 
rights in either of the above CivPol or EcoSoc categories, both of my types 
of duty will apply. The point of the distinction I introduce is rather to help 
us think about what it means to satisfy obligations and when it is appropriate 
to satisfy an obligation in one way rather than the other. The distinction 
focuses practically on how to adjudicate or claim different elements of a 
right, given the different obligations it can imply. As will become clear, 
when I set out the two different types of duty, adjudicating what it means 
to act on these two types of duties or to breach them amounts to very 
different things, implying very different tests.

The distinction I have in mind is between a) obligations that require us 
to rule out specific considerations for treating people in a certain way, such 

1  The Civil & Politial v Economic & Social distinction is a de facto description of 
rights appearing in different instruments of the UN Bill of Rights (ICCPR v ICESCR); liberty 
v goods and benefits rights is a terminolog y introduced by Onora O’Neill (1996:131 ff.); 
Negative v Positive rights are discussed in (Bedau 1979); and positive v negative duties later 
by Shue (1996: 35 ff.); other attempts to distinguish human rights that are thought genuine 
from those that are not include the justiciable versus non-justiciable distinction, Justice 
Sachs (2000); see also Christiansen (2007).



94 Saladin Meckled-Garcia 

LEAP 6 (2018)

as the obligation not to consider Jane’s skin color when deciding whether 
she should be permitted to enter a shop or the obligation not to take 
political expediency as a relevant consideration to whether political 
opponents should be silenced; and b) an obligation to give some weight to 
different interests people have in enjoying certain conditions and those 
interests of the individuals who must carry burdens to create such 
conditions. For example, we must weigh the interest Jane has in seeing 
certain improved access to health care secured versus the interests of other 
members of Jane’s society in not facing significantly-increasing tax 
burdens, as these will impact on their abilities to pursue their own personal 
life projects.2 Both types of interest matter, so to resolve how much health 
provision Jane is entitled to have we need to know how to weigh them 
against each other – that is, we need an index.

Consider an example. In 2015, the government of Greece was criticized 
review of the Committee for Economic Social and Cultural Rights (CESCR) 
of the UN for failings in its EcoSoc rights provisions, such as basic health 
provisions (CESCR 2015: e.g., paras. 19 & 20). Specifically, provision of 
health resources and access to them had been curtailed by government 
policy during an economic emergency, principally ref lected in a sovereign 
debt crisis. The Greek government responded that it did not have the 
resources to keep those EcoSoc provisions at the prior level given the 
conf licting priority of f loating the economy. Critics of Greece point out 
that it had options as to where to find resources to address the crisis: health 
provision was not the only one. It could have increased taxation of the 
aff luent instead as a concrete response that is more specific than the 
CESCR’s chide that the government could “do more”. However, a question 
arises as to what the right way to understand the duty to fulfil the right 
might be, in terms of how burdens can be allocated to resource that 
provision without being unreasonable (imposing unacceptable levels of 
burden). Answering that question, I will argue, requires us to adopt the 
second model of obligations (b) above in that it calls for an index in 
weighing different and conf licting interests none of which are disqualified 
as irrelevant considerations to what we should do. That is a different 
question from the categorical one of whether the Greek government was 
appealing to unacceptable, irrelevant considerations, in distributing 
burdens the way it did. 

In part 2 below, I set out this distinction in types of duties more clearly. 

2  Throughout this paper I refer to “duties” and “justified burdens” as comprising 
the costs that people may have to shoulder to secure the satisfaction of certain interests for 
others. Duties are just one type of burden, whereas lost opportunities (opportunity costs) 
involving no obligatory action are another, thus the need to specif y both elements. I also use 
duty and obligation interchangeably.



 Two (Different) Types of Human Rights Duty 95

LEAP 6 (2018)

In 3, I focus on the second obligations model, underpinned as it is by 
reasons relating to how one should weigh competing but legitimate 
interests and which I call ‘Weighing reasons’. In 4 I return to the other 
model of obligations, those based in what I call ‘Decisive reasons’. In 5 I 
show why some key objections to this distinction between the two models 
and its application to human rights duties do not work. 

2. THE DISTINCTION

Another way to frame the distinction among types of duties I have in mind 
is in terms of reasons and actions.3 On the one hand, we consider a specific 
action type in terms of the considerations for it and whether there are 
reasons to rule out those considerations – and with them the action. This 
might also work with omissions where a specific action should not be 
omitted for certain considerations.4 The government omitting to distribute 
food aid because it does not want to develop an aid plan for the poor, viz. 
poor citizens will not generally bring electoral dividends, makes it 
wrongfully neglectful of those citizens. In such cases, we have reasons to 
rule out the consideration, the electoral calculations, supporting the 
omission and with it the omission itself.5 However, ruling out omissions 
requires ruling out the positive considerations entertained in favor of 
wrongfully omitting the action. On the other hand, we have reasons to give 
a certain weight to some considerations when determining what action 
should be carried out, given the different competing considerations. The 
proposal to increase contributions towards educational provision must be 
considered by weighing the benefits the provision brings to those who can 
access it against what it requires in burdens for those who must, say, be 
taxed to finance it. We do not have a categorical reason to provide a given 
amount of education for any person, in this case, until we have found a 

3  For one theorist, a practical reason is something “that counts in favour of some 
attitude or action” (Scanlon 2004: 231). For clarity in the text when referring to “reasons” I 
shall exclusively be referring to obligation-generating moral considerations, and by 
“considerations” I shall mean any candidate reasons (in Scanlon’s sense), moral or non-
moral, for acting or omitting to act.

4  I make no fundamental distinction between actions and omissions (the failure to 
perform a given action) in this paper. One can have an obligation to perform specific actions 
as well as an obligation not to perform certain specific actions (to omit).

5  The idea that there are special moral reasons that indicate considerations we can 
disqualify or exclude as reasons in moral deliberation is present in a number of authors 
(Dworkin 1984; Waldron 2000: 302 ff.; Dworkin 2010: 330). Scanlon identifies a special brand 
of ‘complex reasons’: those reasons we have to not take certain other considerations into 
account. These can include reasons not to weigh or promote a given aim (Scanlon 1998: 50 
ff.). The general idea that moral reasons can ‘silence’ other considerations is present in John 
McDowell (1998, originally published in 1978: see 92).



96 Saladin Meckled-Garcia 

LEAP 6 (2018)

justified way to weigh the different interests against each other and arrived 
at the amount that is mandated by this weighing.

We can call the first kind of reasons “Decisive”:

Decisive: No considerations within a range, R, such as considerations a, 
b, or c, etc., is admitted as a (pro tanto) reason in deciding how to treat 
someone. Actions based on those considerations are ruled out.

Considerations can here include people’s interests, which can be 
disqualified as having no weight in our deliberations. For example, consider 
a state claiming an interest for itself or its citizens in allowing slavery to 
take place. That interest should be given no weight because it demeans and 
diminishes human beings, treating them as objects of ownership. Weighing 
the interests of one group (the slavers) versus another (the potential 
victims) is itself decisively ruled out because of what the pro-slavery 
interest implies about other human beings.6

Where we have reason to weigh interests against each other, we can call 
this “Weighing”:

Weighing: For a range of beneficial outcomes O that persons might 
enjoy, such as p, q, r, etc., the securing of which depends on others 
persons limiting their enjoyment of a range of outcomes, S, such as t, u, 
v, etc., we must assign a certain weight to these outcomes such that we 
know how much curtailment of S-type outcomes it is justified to assign 
to those that will experience the curtailment, given the O-type outcomes 
this will produce.

Simply, “Weighing” assigns obligations according to some idea of 
appropriate weighing and balancing between certain benefits for persons 
and those burdens required to produce/secure the benefits. I will come to 
what such weighing amounts to and how it might be done below. For now, 
consider that the fact that we can increase street lighting by 50%, and with 
it personal security by 5%, does not by itself tell us whether we should do 
so. First, we must look at the costs, in terms of lost opportunities or 
outcomes to others. A proposal to reduce road traffic speed limits down to 
20mph on all roads, even if it improves safety outcomes gained, has to be 
weighed against the losses it would bring in many other areas of life; and 
that weighing, done right, might indicate that a global 20mph speed limit 

6  By “interest” here I mean an element of people’s wellbeing, in the sense of what 
does or can make their lives go better if satisfied. Some theorists claim that one cannot have 
an interest in unjust things, and that is why some “interests” do not count for the purpose of 
grounding rights (Tasioulas 2015: 49). However, if we are justif ying human rights this would 
be circular, appealing to a right (justice) to explain a right. Not only that, there is an 
important sense in which interests relate to a person’s life plans, even mistaken life plans, 
rather than what is good per se.



 Two (Different) Types of Human Rights Duty 97

LEAP 6 (2018)

constitutes too much of a loss in ways that matter for people’s lives, even if 
it would avoid a certain amount of death-risk on the roads. The weighing 
must be done to determine what we should do. We would not, however, 
accept similar reasoning when considering killing of one’s unhelpful boss, 
say, such that we weigh the benefits to us against her personal losses, assign 
weights to each on some scale, and then calculate what to do. Rather, 
entertaining that very calculation smacks of psychopathy – we have a 
compelling reason not to treat such considerations as operative reasons at 
all, because treating people as part of such a calculation is excluded by 
their status as persons. Secondly, where weighing is appropriate we need 
to introduce a way to weigh the securing of this range of people’s interests 
given the costs of doing so to others. That might be done by introducing a 
certain index to do this weighing, such as that for every gain X, a certain 
amount or type of cost Y is acceptable for others, but no more. I will shortly 
come to how to weigh.

Weighing reasons allow both that the amount of provision towards 
satisfying a given interest for each person is determined according to the 
fair burdens that can be imposed on others in providing it. It might also 
allow that the numbers of persons having access to that provision are also 
limited, according to the fairness of the required burdens, as where people 
in the worst conditions are prioritized given what can fairly be imposed in 
the form of taxes at a certain juncture. Fairness is a value that itself needs 
setting out, and there are different accounts. Some see fairness as 
equivalent to reciprocity, others to focusing on the least well-off.7 For now, 
I am using it to indicate what burdens people may be expected to accept 
given the benefits, where no reason exists to cancel out the burdens as a 
valid consideration in deciding the correct course of action. The question 
of how we should weigh costs against benefits works along both axes 
(individual provision/numbers of individuals provided for). I will leave 
open the question as to along which axis balancing is permitted, in the 
sense set out above. If one accepts a basic equality restriction that no 
person can receive less provision than any other – which would require a 
special justification – then only one kind of balancing will be permitted. I 
am also leaving aside the question of weighing or deciding what to do when 
rights themselves (as opposed to the interests underpinning rights 
claims) clash. For my case that two types of reasons exist it is enough that 

7  W hilst Rawlsian fairness may have started out as Hartian reciprocity, it is not clear 
that Rawls’ theory of distributive justice, and especially his “difference principle”, is a 
reciprocal version of fairness. The original position models fairness in terms of what people 
would reasonably accept as a potential outcome for them: “…the idea of fair terms of 
cooperation: these are terms each participant may reasonably accept, and sometimes 
should accept, provided that everyone else likewise accepts them.” (Rawls 2001: 6).



98 Saladin Meckled-Garcia 

LEAP 6 (2018)

sometimes we must weigh competing interests and sometimes competing 
interests are silenced.

Decisive reasons are pro tanto moral reasons or obligations. That is, 
there may be circumstances where one is forced by other moral reasons or 
obligations to go against these reasons. That would not, however, be a case 
where the reasons were extinguished. So, suppose a police officer was 
forced to act in a racially discriminatory way in order to prevent a murder 
(thus mollifying the murderer until backup arrived): that would not render 
the reasons to not racially discriminate invalid in such a case. There are 
other overriding reasons all-things-considered take priority in these 
circumstances. This is important because the mere existence of potentially 
overriding reasons all-things-considered, as in the above example, does 
not turn all Decisive reasons into Weighing reasons. That would be the 
case if Weighing reasons were only, or principally, triggered where we had 
to adjudicate between pro tanto obligations. But Weighing reasons exist 
where no pro tanto moral obligations exist, mandating us to act, but where 
valid considerations are nevertheless weighed and balanced. No obligation 
survives this balancing or weighing, all-things-considered, and we wrong 
no one by fairly adjudicating between the competing interests. Thus, 
consider the benefits of university education and the cost of taxes to 
provide it. If we decide on a certain amount of taxation, and resulting 
university provision is acceptable, we are not thereby deciding to breach a 
pre-existing pro tanto moral reason not to tax. The question of whether we 
should tax or not is always posed in relation to the benefits that might be 
derived from taxation. The interests people may have against taxing at this 
level may be outweighed by the interests in university provision. In which 
case, we would have a resulting reason to tax, which is a pro tanto reason, 
not a group of separate pro tanto reasons.

The focus on disqualifying considerations in Decisive reasoning may 
be thought to imply that reasoning is wholly about intentions, versus the 
objective features of the actions themselves; indeed that has been raised as 
an objection to one version of this approach (Möler 2009: 762 ff.). The 
objection poses a dilemma: either we focus on subjective states in pursuing 
an action or we focus on objective reasons of the action. Focusing on 
subjective states is problematic because we may be unable to determine 
them, and part of what one can acceptably intend will any way depend on 
what an action objectively does – intentions deriving their moral 
acceptability form the actions they intend. Focusing on objective effects, 
however, will focus on how interests are affected and that goes beyond the 
specific reasons the agent may have for carrying out the action. For my 
purposes, here we can refuse the dilemma. The objection runs together 



 Two (Different) Types of Human Rights Duty 99

LEAP 6 (2018)

“intention behind” with “reasons for”. We can consider what can best 
explain the action in its context in terms of the considerations that might 
support it, the reasons for it, and decide from those if any could plausibly 
render the action permissible because they are not disqualified 
considerations but genuine reasons. Indeed, some types of action are 
already differentiated by their inherent incorporation of a certain kind of 
purpose that can never be an acceptable consideration for acting. The 
action of enslaving a person inherently incorporates extreme purposes 
with regard to human instrumentalization such that they cannot be 
divorced from a proper interpretation of the action. Below I will identify 
the kind of moral basis one might cite to exclude reasons of this kind; but 
for now, we can see that it is not the subjective intention, but the publicly 
defensible interpretation of an action and its plausible supporting reasons 
that matters for Decisive reasons.

Now, it might be objected here that there are moral theories that not 
only permit weighing, but endorse it, in all cases, meaning the cases I have 
described as Decisive are only ever provisionally decisive. Some forms of 
consequentialism, such as those incorporating an unconstrained 
wellbeing-maximizing instruction, might indeed assign weights to the 
option of murdering my boss, as well as reducing speed limits on the road. 
They arrive at both conclusions about what can or should be done by 
weighing. A significant attraction in rights thinking, however, which is 
also present in the aspirations for human rights standards, is to limit that 
kind of reasoning. Rights are seen variously as limits, side constraints, or 
as invoking interests that are “qualitatively” different from other interests 
that can be simply weighed against each other.8 How, or why, such 
qualitative limits exist depends on one’s theory of individual-centered 
imperatives, but one thing any such theory would need to do is explain 
certain considerations as peremptory, such that certain considerations, 
including those relating to satisfying other people’s interests, cannot count 
against them even in very large numbers. To do that, those other 
considerations must have a weighting of zero in confrontations with these 
interests. Examples of such, pro tanto, weightless considerations would be 
justifying the political exclusion of others on the basis of race or the 
sacrifice a person’s life on the grounds that it brings satisfaction in terms of 
(whatever number of ) other people’s life projects. To be able to do this, we 
need a reason to set the relevant considerations to zero in these 
confrontations, and that kind of reason needs explaining beyond an appeal 
to an unexplained terminology of qualitative differences between 

8  For latter see Waldron (1989: e.g., pp. 509, 512, & 519).



100 Saladin Meckled-Garcia 

LEAP 6 (2018)

interests.9 If one accepts that there are such rights, then one needs that 
reason-based explanation.

Now, if this is right, it means that, whilst Decisive reasons focus on what 
counts as an acceptable consideration for an action (or omission), Weighing 
reasons are index-focused. They concern what should be weighed against 
what and on what basis, as an index for negotiating between different and 
valid competing interests, in order to arrive at normative conclusions 
about what can or should happen.

Decisive reasons are more straightforward. Key human rights or basic 
rights include rights not to be arbitrarily detained, arbitrarily killed, 
tortured, or enslaved, for example.10 It is important to note that what is 
ruled out by such rights relates to certain types of treatment, distinguishable 
not simply by the interests that they affect, but also by the basis for the 
treatment. We must not simply look at the impact on certain interests of 
being detained to determine whether it is morally acceptable, but must 
also consider whether it is arbitrary: meaning there is no compelling 
reason for it. If the non-arbitrariness test is passed, then detention can be 
permissible. It is also possible that negative impacts on interests such as 
one’s interest in being free from coercive force, from having one’s bodily 
integrity attacked, or from having one’s life threatened are not by 
themselves the basis for ruling out certain actions. Killing in self-defense, 
forcibly coercing a detainee to prevent them carrying out a crime or from 
escaping justice, would both seem to be compatible with human rights 
standards. Killing for personal advantage, coercing someone with the aim 
of convenience, interfering with bodily integrity for material advantage or 
for no good reason, are all ruled out. With some human rights, the 
disqualified purpose is already built-into the description of the right. So, 
torture incorporates the purpose of using attacks on a person’s wellbeing 
(inf liction of grave pain) to either break their resolve in order to extract 
something from them against their prior conviction, such as information, 
punish them, or enjoy their suffering. Slavery incorporates the notion of 
ownership or control such that one person’s exercise of her will in directing 
her life and person is subordinated to the aims of another. The attack on 
the interests in question, on being free from pain or being free from 
restraint or free to do as one wishes, is not by itself obviously prohibited. 
One might legitimately apply very serious pain to prevent an attacker 
harming another person, and that would not constitute a violation of a 

9  Waldron, for example, never explains the notion of ‘qualitatively’ different 
interests that he takes to underpin rights (op cit).

10  These are clear core candidates for moral human rights, also ref lected in 
international instruments (viz. ICCPR 1966/1978: Arts. 9, 6, 7, 8).



 Two (Different) Types of Human Rights Duty 101

LEAP 6 (2018)

human right, even pro tanto. This indicates that it is the way that interests 
are attacked – on the basis of what consideration or purpose that this is 
done – that determines the acceptability of the actions.

Here, one could object that the interest in question is the interest in 
being free from slavery, for example, such that it is an attack on these and 
not the considerations behind the attack that matters. That way, the effect 
on interests, and not the reasons behind the action affecting them is what 
matters in explaining human rights obligations. But not only is this an ad 
hoc move, introducing sui generis interests identified by type of treatment; 
this response still needs to explain why some interests are special, in the 
sense of being capable of disqualifying other considerations and not 
merely outweighing them. The slave owner’s interest in holding slaves 
should have a weight of zero in deliberating on what to do if many slave 
owners are not to skew the figures on whether slavery is acceptable. In 
which case, we need a reason to disqualify them and the interest taken on 
its own will not explain that reason.

It is worth emphasizing here that Decisive reasons do not only exclude 
actions. Their focus is on disqualifying certain types of considerations as 
relevant to deciding how to act. They can also disqualify consideration 
that apply to omissions – as when a government neglects the safety of its 
citizens. Decisive reasons cut across negative-positive rights or even 
negative-positive duties distinctions because they are reasons to disqualify 
considerations; and they rule out actions or omissions in so far as they are 
supported by disqualified considerations. These can include considerations 
that fail to sufficiently take into account the effect of a policy on citizens, 
and thereby imply neglect of their interests. Decisive reasons do not only 
apply to CivPol rights as traditionally understood. They can apply to 
considerations in the way EcoSoc rights are distributed. A state that 
prevents Jay from accessing a hospital because of her race or gender, where 
the hospital is not dedicated to group-specific ailments, will thereby 
breach a Decisive reason. Such considerations are disqualified when 
determining how to distribute social goods. What Decisive reasons cannot 
tell us is how to fairly determine the balance between interests, benefits 
and burdens when weighing these is appropriate, and consequently how 
much of a given social good is to be provided. That question concerns the 
correct index for weighing these interests against each other in determining 
what to do, implying a different kind of moral consideration.

Weighing reasons are more complex because considerations against 
providing certain outcomes for people can include interests that are not 
easily dismissed or disqualified as inherently invalid, yet do not themselves 
ground decisive reasons. So, for example, the human right to health or 



102 Saladin Meckled-Garcia 

LEAP 6 (2018)

education are often taken as entitling people to fulfilment in the form of a 
certain amount of benefit provision in these categories of (health and 
education) interest (CESCR 1999b: s. 47; CESCR 2000: ss. 33, 36, 37, & 44; 
Also Bilchitz 2007: 195). But it cannot be the case that a person has a claim 
against grounding an unconditional duty for others to provide N amount 
of health provision or N* amount of educational provision, given that 
providing these requires those others to take on burdens to do so that 
would represent personal costs in pursuing life aims. Consider a level of 
resource requirement, n, needed to achieve educational provision N, that 
imposes on fellow citizens a duty to give up pursuing any personal life 
aims not dedicated to advancing n, but instead to adopt life-shaping aims 
around achieving n. They would have to decide their career choices and 
personal goals in terms of a personal commitment to what better achieves 
n. Achieving n might require citizens to further restrict their personal 
lives, limiting their friendships in number so as to maximize resource and 
time towards contribution. Untrammeled, obligatory dedication to n 
would reach deep into their lives as separate persons that would otherwise 
be guided by a sense of their own projects and pursuits. These requirements 
are unreasonable in the sense of undermining one of the points of a liberal 
and egalitarian morality: individuals living the lives according to their 
values and best lights. Unlimited instrumentalization should be an 
unreasonable demand, even for egalitarians.11 So, we need some clear 
sense of the limits of reasonableness. Whilst many authors mention 
reasonableness as a limit, or concede that no “excessive”, “unreasonable”, 
or “overly burdensome” requirements can be expected, these views always 
leave the criteria for reasonableness or excessiveness un-specified. Nor do 
they even supply a decision-procedure or principle that we might use to 
arrive at such an answer.12

In addition to reasonableness problems, there are also matters of 
fairness. Demanding large contributions from some citizens, even if these 
demands are consistent with allowing them to choose and pursue personal 

11  In the words of G. A. Cohen, they would turn each person into an “engine for the 
welfare of other people” or “slaves to social justice”. Cohen says that this requirement would 
be “excluded by a legitimate personal prerogative [that] grants each person the right to be 
something other” than this (Cohen 2008: 10). 

12  Viz. whilst Cohen, supra, accepts a balance between other-regarding contributions 
and a personal prerogative (11), but gives no indication on how to determine the proper and 
just balance between the two (other than to claim we intuitively understand it [6 ff. and 354 
ff.]). Other examples of accepting limits but giving no account include Buchanan (2004: 89, 
92, 94 n.8), Stemplowska, who concedes duties to provide resources apply “if such resources 
can be provided at a reasonable cost to the provider”(Stemplowska 2009: 468), and Gilabert, 
who also acknowledges there are limits to contribution but gives no account of those limits 
(Gilabert 2012: 47).



 Two (Different) Types of Human Rights Duty 103

LEAP 6 (2018)

aims, can still be unfair. That is because one can ask whether allowing the 
burdens to fall unevenly on some citizens treats those citizens with equal 
concern. Allowing some citizens more opportunities, or fewer burdens, to 
exercise their capacity to pursue their personal goals means treating them 
differently, and the differences have consequences for how they can pursue 
distinct lives. The need for fairness requires a positive account of how 
interests – both basic ones and those in pursuing distinct lives – can be 
balanced so that citizens are treated with equal concern, and thus fairly. 
An account of how to weigh interests fairly is, however, different from an 
account that disqualifies certain considerations for action. 

Of course, there may be circumstances where fairness considerations 
are not pertinent. It might be argued that one ought to save a drowning 
child, even if one has saved many such children recently – just because one 
is confronted with the drowning child. Introducing fairness here is out of 
place. However, what precisely matters about the interests in play in the 
cases I have identified is that they are not rescue cases triggered by special 
circumstances of direct confrontation with the jeopardy of specific 
sufferers. Rescue cases are most plausible when considerations relating to 
a reasonable dispensation to prioritize one’s own aims to guide one’s life 
are absent, and so are considerations focused on the fair distribution of 
opportunities to pursue one’s life aims. This is ref lected in the number of 
authors working on rescue that look for characteristics to demarcate these 
cases in terms of the specificity of the circumstances – such as “being 
confronted” with another’s plight, or being in the “proximity” of someone 
in peril.13 Certainly, any attempt to generalize from the mere fact that 
someone lacks basic interest satisfaction in a specific rescue case to a duty 
to contribute to basic interest satisfaction for all who need it, will introduce 
the need for a Weighing reasons model.

3. ACCOUNTS OF WEIGHING REASONS

If my above analysis is correct, then there are two types of duties, and two 
types of reasons that underpin them, corresponding to human rights 
standards. The point of this distinction is not to reject either type of duty 
but rather to invite ref lection on what these duties demand, in the form of 
theories that give them content. The distinction is also not intended to rule 
out either duty model as relevant to human rights, in the way that perhaps 
debates on whether human rights are (technically) rights are intended to 

13  W hat triggers rescue duties is a matter of dispute. A number of theorists propose 
proximity, (Miller 2010: 23 ff.; Kamm 2007: 379) while others focus on ‘confrontation’ with a 
specific person’s case (Dworkin 2010: 277 ff.) as the defining feature.



104 Saladin Meckled-Garcia 

LEAP 6 (2018)

do (Cranston 1973; Bedau 1979). I deal with the question of whether this 
disjunctive analysis challenges the status of human rights as rights below. 
For now, if there are genuine Decisive and Weighing reasons, then they will 
generate obligations. Given the nature of the two types of claims, and any 
one human right will need both types of reasons and obligations to give it 
a well-articulated content.

By introducing the complexity of types of duty and the reasons that 
underpin them I also introduce some necessary complexity in our 
understanding how human rights can or should be claimed. Where the 
matter is simply one of Decisive reasoning, certain actions or omissions 
are categorically ruled out because of the character of the considerations 
that support them. Where Weighing reasons are appropriate, adjudication 
will need more information about what it would take to provide different 
levels of provision, and it will also need a principle for weighing the 
provision against the cost. This can only mean that an account of 
distributive justice is required.

For states seeking to comply in a principled way with their human rights 
obligations, determining a principled (reasonable and fair) way to carry 
out this balancing will be indispensable. That involves having a clear sense 
of what fairness can demand, in the form of a justifiable principle of fair 
distribution of benefits and burdens (a principle of distributive justice). 
Whilst there is little or no literature on fairness for human rights, the 
literature for principles of distributive justice is much richer and more 
advanced.

A rare exception to the lack of attention to, or even recognition of, this 
problem in human rights literature is David Bilchitz, who argues that we 
should accept a “core obligations” model prioritizing certain demands for 
fulfilment of interests, and progressive taxation as a means to resource the 
provisions (Bilchitz 2007: 88-89). Bilchitz’s basic idea is that the more 
wealth people have, the more diminished are the returns on that wealth as 
utility for those that enjoy it (ibid). Thus, requiring contributions from 
those with more wealth is a less demanding (and a more marginal) burden 
than from those at other income levels. This, he argues, supports a 
progressive taxation solution to the supply question. But, whilst it is 
commendable that Bilchitz at least recognizes that there is a problem to be 
addressed, his response does not solve it.

While the response explains where to prioritize contributions, it either 
fails to explain what constitutes a fair contribution or it implies an 
implausible account of fairness. To take contributions at the margin – i.e., 
from the better-off first – does not indicate any limit on how much should 
be contributed. It is possible, on this instruction, to simply keep on taking. 



 Two (Different) Types of Human Rights Duty 105

LEAP 6 (2018)

If there is no limit with an accompanying justification, then this not an 
account of fair contribution so much as an account of the order in which to 
collect contributions. One could come up with a limit, say of a certain level 
of wealth, but that would require justification as the right account of fair 
cost distribution. It would also imply that taking more was wrong, because 
unfair, and correspondingly right holders could only claim what was 
achievable with this level of contribution. Bilchitz does not supply an 
account of this kind of fairness. But we can consider some alternatives.

Perhaps, implicit in the progressive tax idea is the view that people must 
contribute up to that point where their own rights are threatened. That is, 
they are allowed to keep enough resources to be marginally above basic 
interest satisfaction. However, it is unclear why that is what constitutes a 
fair contribution. Bilchitz himself focuses on basic interests as setting a 
threshold of ‘core obligations’ for EcoSoc human rights.14 But that threshold 
seems too low to act as the bottom limit to which contributions can 
acceptably take a contributor, as a matter of fairness – it gives little or no 
weight to the value of respecting people developing and pursuing distinct 
life-shaping aims. It would imply that where some people were below the 
threshold because of a deficit in resources, potential contributors would 
always forfeit opportunities to personally work towards obtaining 
resources to advance their life-shaping projects and aims. This seems to 
rule out the prospect of pursuing a meaningful life through one’s work and 
effort. It yokes the life of each individual, in the sense of developing and 
pursuing projects and goals that are one’s own, to the sole aim of achieving 
a certain wellbeing level for others. Of course, the claim is not that people 
have unlimited rights to this pursuit, it is rather that it should have some 
fair weight.

It is important to parse out the issues here. There is a level of treatment 
for people that is prohibited, and would be covered by an account of 
Decisive reasons. That does not set a level of provision or contribution, 
except in so far as it rules out certain considerations (including some 
considerations about contribution or cost) as relevant to provision. When 
considering behavior such as the enslavement of others, cost considerations 

14  Bilchitz defines minimum core in terms of interest fulfilment that secures near 
bare survival (Bilchitz 2007: 221). It is worth noting that Bilchitz distinguishes implementation 
duties, what he calls “unconditional rights”, from the content of the rights themselves, 
which he calls “conditional rights” because their requirements being categorical depends 
on context and resources (77 ff. & 220 ff.). The latter, somehow, symbolically go beyond what 
is required at any one time by unconditional rights. This distinction is troubling in my view, 
given that the normative content of a right is precisely a matter of what can justifiably be 
demanded from others, and a right considered distinctly from its normative content seems 
a mysterious idea. However, in this paper I am only concerned with the justification of types 
of duty.



106 Saladin Meckled-Garcia 

LEAP 6 (2018)

(of spurning slavery) to those doing the enslaving are irrelevant. However, 
when considering Weighing reasons, we must find a way to balance 
interests and determine fair limits for those contributing towards the 
fulfilment of human rights. The limits here are not the same as in Decisive 
reasons – they are not set as limits on the kind of considerations that can 
count, but by deciding how much of one set of acceptable interests it is fair 
to give up for another set – and so what can fairly be expected of contributors. 
However, the proposal that we should set the limits on contribution at the 
point at which “basic” or “core” interests are affected indicates that no one 
has a right to pursue a distinct life of their ow n so long as they can 
contribute more towards others reaching the satisfaction of those basic 
or core interests, however many people may be in that position. Here, 
reasonableness can still be preserved by not requiring people to prioritize 
the project of contributing to the raising of each and everyone’s wellbeing 
levels, as one’s life aim. That would be an illiberal consequence that made 
a person’s conscience and life aims an instrument for the improvement of 
wellbeing. But even avoiding that, it challenges fairness to require each 
potential contributor to limit their pursuit of personal aims (save those 
that benefit overall interest fulfilment) to zero until all others have their 
basic interest satisfaction secured. It means no one is permitted to pursue 
resource opportunities, for their personal goals, that diverge from 
contributing to that goal, which is a challenging conception of fairness 
given that it does not give any weight to the interest in living a distinct life.

One could try to define the baseline differently, so that it captures those 
resources and opportunities needed to live a meaningful life, say. This 
might also solve associated problems, such as that in today’s world the 
above measure of contribution might consign everyone to a life where they 
cannot pursue any aims that require resources above those necessary for 
basic interest satisfaction. People, on that approach, should give up any 
resource that places them above the core interest satisfactions, so long as 
richer people were the first to give up their resources. This is a worrying 
implication. I am assuming that the advantages above basic interest 
satisfaction that people have are not all or even mostly due to exploiting or 
oppressing those below the basic interest satisfaction level, so we are not 
considering those more straightforward cases of just rectification for 
wronging others. In which case, the yoking of individual life opportunities 
solely to the aim of increasing wellbeing for others implies they cannot 
legitimately pursue meaningful purposes of their own.

The only solution to this problem seems to be to allow that the limit on 
contribution is set so it allows enough resources to live a meaningful life. 
But that raises a set of serious problems too. Any attempt at settling an 



 Two (Different) Types of Human Rights Duty 107

LEAP 6 (2018)

objective definition of a meaningful life that overrides subjective 
conceptions of what people find meaningful, will be illiberal in that it 
demands the state adopts a conception of a meaningful life for all, even 
those that reject the one proposed by the state. One could try to develop a 
conception at such a level of abstraction that it can encompass very many 
conceptions, say by focusing on a certain level of autonomy or reason-
sensitivity in guiding one’s life.15 But such abstract conceptions are 
compatible with a wide variation in life projects and, consequently, a wide 
variation in the resources people should have the opportunity to pursue to 
put towards those goals. The idea of a compelling general conception of a 
meaningful life that inherently sticks to the resources needed to pursue it 
seems implausible. The alternative, of simply taking subjective 
understandings to define a meaningful life, is even less likely to establish a 
specific resource threshold to which they all subscribe.

Of course, in the sphere of debates about distributive justice theory, 
which is effectively where we find ourselves presently, there are views that 
seems to focus on a threshold as the basis for justice. Sufficientarianism 
suggests we can have a threshold of resource distribution where each 
person has “enough”, and permits anyone above that level to have as much 
as they can obtain that is still compatible with everyone having at least as 
much as the threshold.16 Importantly, however, these views do not limit 
sufficiency either to a fixed point, or at the level of basic interest satisfaction. 
The idea is that people should have enough for a decent human life, and 
what that implies can vary and expand depending on one’s social 
circumstances (See Casal 2007: 313 ff. & 323 ff.). If sufficiency views simply 
asserted the threshold of sufficiency as basic interest satisfaction and 
mandated unconditional redistribution down to that, they would offer a 
categorical account of Weighing reasons. But that approach would suffer 
from the very problem to which we are trying to respond – the unfairness 
of yoking everyone’s life aims and opportunities solely to the aim of 
increasing wellbeing up to certain level for everyone. Instead, space for 
pursuing a meaningful life is needed. Sufficientarian views also do not 
seem to offer a useful account of that (see Casal 2007: 313 ff.).

Note that in now considering fair arrangements, and accounts of 
distributive justice, I have departed from the simple rights view justifiable 
on the Decisive reasons model. For fair arrangements, we need a justified 
principle of distribution (within what Decisive reasons permit). That is: we 
are engaged in considering the fairness of different possible principles 

15  E.g., see Sher’s reason-sensitivity view (Sher 1997: esp. Chapts. 3 & 4).
16  E.g., Sufficientarianism in distributive justice (Frankfurt 1987; Crisp 2003) and as 

applied to human rights (Brock 2009: 62 ff.).



108 Saladin Meckled-Garcia 

LEAP 6 (2018)

according to which relevant agencies can arrange benefits and burdens, 
opportunities and obstacles. These are typically defined and pursued 
through the allocation of socially recognized rights and duties to citizens, 
by an agency that can legitimately make such allocations. Societal fairness 
here asks according to what principles should authoritative agents create 
cooperative arrangements between contributors and beneficiaries using 
allocations of rights and duties.17 Where Weighing reasons are appropriate, 
the principles do not mandate outcomes for beneficiaries at all possible 
costs, but instead offer principles for deciding what costs are acceptable in 
exchange for which benefits. The literature on such principles is rich and 
varied, and interestingly it has been significantly ignored by people 
proposing theories of human rights. Yet, as we now see, if Weighing reasons 
do characterize the content of well-known human rights duties, such as 
duties to fulfil, addressing the problem of how to weigh interests is 
unavoidable. I will consider some arguments for avoiding that model 
below. For now, I look at the implications of treating this as part of 
distributive societal justice theory.

A significant category of principles of distributive justice address the 
above problem of a fair opportunity to pursue a meaningful life, even 
whilst redistributing to assist those who have less opportunities. Some of 
these views allow certain freedoms and opportunities to pursue increased 
access to resources, but conditionally. People can pursue and achieve 
certain personal, resource-requiring goals on the condition that these 
opportunities and achievements are simultaneously of benefit to people 
with less opportunities to pursue resources for their own aims. These 
views differ from proposals that require contributions up to the point in 
which contributors’ own basic interests will cease to be satisfied because 
the latter exclude people pursuing additional resources over and above 
the basic threshold. Conditional opportunity theories condition the 
opportunity to pursue such aims including by pursuing resources on their 
simultaneously contributing to the social good. So, opportunities to pursue 
extra resources towards advancing a musical or artistic project would only 
be permitted in so far as these pursuits also contribute to social benefits 
– in the form of redistribution of a component of their resources. For 
example, a Rawlsian maximin principle requires social institutions to 
permit people to pursue inequality-producing resource aims, but only 

17  I am not here limiting distributive justice to these institutional considerations, 
but rather stating an important role that distributive justice must play, and indeed does in 
the accounts of theorists as varied as Rawls, Dworkin, and G. A. Cohen. For an extensive 
discussion of the distinctive role of the concept of distributive justice see (Meckled-Garcia 
2016).



 Two (Different) Types of Human Rights Duty 109

LEAP 6 (2018)

where this helps the least advantaged in society.18 Similarly, Dworkin’s 
account of justice as equal concern, and in turn of societal equal concern 
as equality of resources, allows people to pursue distinct life projects so 
long as society aims to guarantee equal starting resources for all to pursue 
their projects, and everyone who can, contributes to social insurance for 
those that might meet difficult resource circumstances (Dworkin, 2000: 
pp. 73 ff.).

Accepting that some human rights duties or justified Weighing reasons 
must apply, has the upshot that whilst the principles for weighing different 
interests will remain the same, their application will vary according to 
which interests are in play to be weighed against each other in any one 
context. Fairness demands different things where pursuit of a personal 
end will simultaneously contribute to the social good compared to where 
that pursuit has no social dividend. The principle is the same in both cases, 
but the interest distribution and relation differs. With Decisive reasons, 
one is not relating interests that might differ but rather determining what 
kind of considerations are acceptable or relevant to a course of action. 
Moral reasons should be able to rule out a range of these a priori, and with 
them the actions they support. Distributive justice principles, because of 
their conformity to the Weighing reasons model, do not have this a priori 
consideration and action-focused component.

Of course, here I do not propose to support or advance any one theory of 
distributive justice. A whole range of candidate principles exist in the 
literature that try to answer the fairness problem, including utilitarian, 
egalitarian, prioritarian, and sufficientarian views. Some function by 
introducing more specific opportunity-focused, resources-focused, welfare-
focused, access-to-welfare-focused, maximin-focused, etc., frameworks. For 
my purposes, it is only necessary to highlight that the kind of distributional 
problem best framed in terms of Weighing reasons is already recognized 
by a significant body of literature. That literature recognizes different 
facets that matter to distributive justice – including personal responsibility 
for opportunities, the significance of choices and abilities, the important 
role of a distributive agency, and the space for pursuing one’s own ends or 
meaningful projects. Yet that literature (and the problems to which it 
responds) are not recognized as core discussions in human rights theory. 
One motivation for this might be the belief that human rights do not engage 
with Weighing reasons but rather with categorical requirements. I consider 
arguments for this below.

18  Rawls’ maximin principle is described in his Theory of Justice (revised edition) 
(Rawls 1999: 72); some critiques of this view have questioned this permission as un-justified 
(Cohen 2008: 151 ff.).



110 Saladin Meckled-Garcia 

LEAP 6 (2018)

For now, if human rights obligations include both Weighing reasons 
and Decisive reasons, then these must be parsed out when deliberating 
over the content of people’s entitlements as a matter of right. To give 
content to obligations that engage Weighing reasons, some account of 
distributive fairness will be crucial.19 Bilchitz’s (unsuccessful) attempt to 
provide such an account highlights that we need this kind of framework in 
settling the content of some human rights duties, such as those to fulfil. 

So, returning to the example of the Greek government, taxing aff luent 
people is perfectly justified to protect crucial health provisions for the 
most vulnerable in society. A variety of principles of distributive fairness 
might support this. A maximin principle would say that where the wealth 
of the aff luent does not improve the condition of the worst off, and the 
simple existence of aff luent people did not do that for health in Greece, 
contributions must be made by those who have greater advantages, but 
opportunities to pursue resources are nevertheless permitted only as long 
as pursuing them brings dividends to the least advantaged. There are no 
limits on what can be pursued that has this characteristic and taxation 
must not make the beneficial opportunities impossible. If, on the other 
hand, one were obliged to fulfil others’ basic interests at whatever cost, 
globally, allowing people to pursue additional resources would be ruled 
out, as they can be expected to work to fulfil global basic interests regardless 
of any opportunity to obtain resources for their aims (Cf. Cohen 2008: n. 
10). Treating human rights duties as unconditional requirements to fulfil 
basic interests misses this complexity.

If the above is right, then when resolving the duty content of rights and 
adjudicating specific cases, we need to be aware of the different kinds of 
reasons that it makes sense to take into account. Trying to apply Decisive 
reasoning where Weighing reasons are appropriate will create problems of 
resource and contribution sensitivity that Decisive reasons do not tell us 
how to solve. Treating human rights as generating categorical obligations 
also hides these differences leading to similar tangles. International 
standards recognize the need for resource sensitivity, as we shall soon see, 
but supply no principle for adjudicating these questions. When duty 
bearers appeal to lack of resources in fulfilling a right, a compelling 
response will need to appeal to a fair principle of distribution.

Weighing reasons are important for fulfilment duties because Decisive 
reasons give no positive account of how much of any important provision 
or benefit people must supply. To be pertinent in any context, we must be 

19  Some theorists see human rights as a subset of justice, and distributive justice as 
on a par. They thus miss the possibility of these different types of duty and the different 
consequences of applying them (e.g., Tasioulas 2010: 654 ff. & 659).



 Two (Different) Types of Human Rights Duty 111

LEAP 6 (2018)

faced with valuable aims, in the form of interests that matter for persons, 
as well as countervailing, though legitimate, considerations in the form of 
t he a i ms a nd pu rsu its of t hose who wou ld have to forego t hose 
pu rsu its to satisfy the valuable aims. Those two models of reasoning 
about considerations are pertinent to duties corresponding to both CivPol 
and EcoSoc rights. There is a difference between discriminatory or even 
neglectful considerations in deciding how police protections are to be 
distributed, and the question of how much police protection everyone 
should have, given the costs in a particular social context. The pertinence 
of both types of reasoning is as true of police protection budgets as of the 
decision over how many dialysis facilities a society should have.

4. DECISIVE REASONS

Whilst I have given some examples, I have not set out a general account of 
the kind of moral consideration that can constitute a Decisive reason in 
the sphere of human rights. These are reasons to disqualify a given range 
of considerations as relevant to how a person should be treated – thus also 
ruling out a Weighing reasons type deliberation on the basis of these 
considerations. That a person has important interests is not sufficient to 
establish reasoning as to the relevance or irrelevance of a consideration 
because that importance does not explain the kind of categorical 
decisiveness that can disqualify a consideration. The importance of an 
interest might, under certain circumstances, simply outweigh other 
interest considerations, depending on the numbers of interests in play. 
Thus, the need to improve road safety can outweigh road users’ interests in 
efficient travel. However, to rule out or disqualify some considerations as 
relevant to how we ought to treat a person, we need reasons or values that 
are categorically superior so that other considerations do not count against 
them. That must be the case however many considerations of the 
disqualified kind could be stacked against this value. That an interest is 
important for a person’s wellbeing, even hugely important, does not have 
this categorical character unless one has a special reason to promote it 
categorically. An example of such a consideration might be the inherent 
value in a person being respected in exercising her capacity to adopt goals 
and commitments, to develop these, prioritize amongst them, and to 
pursue them as personal life projects – projects that give direction to and 
shape her life. To value that capacity is to respect it, and to respect it means 
not seeking to usurp its exercise, impose conditions on it exercise, or 
undermine the possibility of its exercise. Failure to respect the sovereign 
exercise of this capacity in persons, for any reason other than upholding 



112 Saladin Meckled-Garcia 

LEAP 6 (2018)

this very same respect, is wrongful because it treats their living distinct 
lives as subordinate to aims and priorities that are not their own.

Actions like enslavement and torture are in this way categorically 
wrongful; they disrespect a person as having sovereignty over the exercise 
of this capacity. The actions of slavery subordinate a person’s capacity to 
adopt, prioritize, and pursue her ends to the priorities, and pursuits of the 
slave owner. Torture uses a person’s sense of wellbeing (in her aversion to 
pain) to alter her priorities and commitments – e.g., the commitment not 
to disclose the location of her colleagues, thus subordinating her capacity 
to prioritize and pursue these commitments to the aims of the torturer. 
Imposing pain on someone may under certain circumstances be 
permissible, as in self-defense. There the permission to intervene is not a 
failure to respect self-sovereignty but rather an expression of it: upholding 
that it be respected for others. The value itself sets limits on its own exercise. 
Where the considerations for imposing pain on another or constraining 
her freedom fail to respect this self-sovereignty value, they are discounted 
as having no weight; and the actions they support are ruled out as (pro 
tanto) wrongful. With the race-based exclusion case, mentioned at the 
beginning of this paper, the literature contains a number of theories of 
discrimination and though some of those analyses overlap with this 
question they are not limited to it (Viz., Wasserstrom 1995; Lippert-
Rasmussen 2006; Gardner 2018). But the key question here is the narrower 
one of what kind of reason can not only outweigh, but also disqualify a 
race-based consideration for exclusion? Some accounts focus on the 
demeaning of the target, others on thwarting of a key interest (Hellman 
2008; Moreau 2010). Some views focus on treating groups as less worthy of 
decent treatment (Shin 2009). However, to disqualify the consideration 
itself even as an interest that should be balanced with others in a weighing 
exercise, we simply ref lect that it mistakenly uses the characteristic of race 
as grounds to dismiss the value in people exercising their capacity to form, 
develop, prioritize, and pursue commitments as the determinant of how 
they should be treated. The mistake disqualifies the consideration as 
having any weight against treating people in light of the capacity. Where 
countervailing considerations are not open to disqualification in this way, 
but have independent importance as people’s interests, then the Weighing 
reasons model is appropriate.

5. OBJECTIONS

As I mentioned above, the Decisive reasons versus Weighing reasons 
distinction – and certainly the notion of principles of distributive societal 



 Two (Different) Types of Human Rights Duty 113

LEAP 6 (2018)

justice – are not commonly appealed to as sources for the content of human 
rights standards. One reason for this may be a tendency to treat the analysis 
of duties and justified burdens associated with human rights as categorical 
obligations, meaning they unconditionally demand a certain outcome for 
each person and would thus rule out Weighing reasons as part of their 
analysis. I now respond to some arguments for this view.

5.1. Weighing reasons as Decisive reasons

The first objection is that we can and should re-describe human rights 
duties in categorical terms. In saying people have a right to a certain 
amount of health care we are saying that this is obligatory in some non-
negotiable sense. One way this could be done is by introducing obligations 
that are categorical but worded in a conditional way.20 In fact, the use of 
conditional wording is present in international legal documents associated 
specifically with fulfilling EcoSoc rights.21 The resources and infrastructure 
that should be present to fulfil these rights make the associated duties 
difficult to word unconditionally. Instead, resource sensitivity is introduced 
in the form of a duty to “progressively realize” them. In carrying out 
progressive realization, states are charged with taking all “appropriate 
steps” and employing “all available resources” towards the goal of fulfilling 
these rights.22 Thus, instead of a categorical obligation to supply certain 
outcomes, which would be resource insensitive, we have a duty to move 
towards those outcomes when certain conditions are met, which is thus 
sensitive to the resources that a state has available to it.

A categorical reading of the fulfilment duties associated with EcoSoc 
rights might imply an obligation to supply an outcome O that requires R 
resources. A duty to progressively realize O means that a state at any time t 
only has an obligation to realize O to the extent, nO, that is possible with 
the resources, nR, that the state has available to it at t. There is a firm and 
categorical obligation here; yet it is not the obligation to fulfil the right, 
only to partially fulfil it to the extent, nO, possible at t. The duty to entirely 
fulfil the right, categorically, would only occur at a point t^, where R 
resources were available to it. So, the duty is conditional on resource 
availability at any one time. If this analysis is correct, we should not have 

20  Cf. Bilchitz’s distinction between conditional and unconditional rights, (Bilchitz 
2007: 78 ff.).

21  There is an important inconsistency in that EcoSoc rights are explicitly subject to 
such conditionally in the UN documents, such as General Comments 3, 10, 14 (CESCR 1990; 
1998; 2000) where PolSci rights are not, or at least not systematically, yet protection and 
fulfilment duties associated with the latter clearly should be as I have stressed above.

22  For “appropriate steps” see (CESCR 2000: ss. 11 & 49); for “available resources” see 
(CESCR 1990; 1998; 2000).



114 Saladin Meckled-Garcia 

LEAP 6 (2018)

to resort to Weighing reasons to resolve how to resource the provision of 
human rights fulfilment. We can instead re-describe those duties in 
categorical, albeit conditional, terms in terms.

The problem with this response is that the notion of “available 
resources” is being used as a descriptive term, when it could only be a 
normative concept. This is because what counts as “available” for a state to 
use depends on what it can legitimately extract from those who work for or 
within it. This will take the form of taxation, work contributions, or the 
configuring of property relations. Any physical or natural resource will 
need to be turned into exchangeable or useable resources; any already 
exchangeable or useable materials that are owned will need to change 
ownership. That means a state will need to make decisions about 
appropriate levels of taxation, ownership, wealth, property rights, and 
even labor in order to decide what resources are genuinely “available” to it. 
Of course, one could try restricting the notion of available resources to 
what a state has in its possession, or revenue, at any one time, to avoid 
these problems; but that would be an arbitrary choice given the point of 
using these resources. The plausible notion of an available resource will, 
then, depend on the burdens that a state can justifiably impose on people 
leading to benefits for others in terms of basic interest satisfaction. 
Consequently, it is clear that the level at which we set availability depends 
on what citizen contribution level is justified – a moral normative question. 
Some human rights literature takes a step in that direction by appealing to 
the concept of “reasonableness” in assessing what resources are “available” 
(Chenwi, 2013). But no account of reasonableness has been provided to 
address the essential question of how to weigh conf licting interests in 
assigning burdens. This is the Weighing reasons question: at any one time, 
t, what counts as a duty will depend on available resources, which in turn 
depends on the Weighing reasons that apply to the fair social distribution 
of benefits and burdens.

A component of the progressive realization doctrine that might be used 
to try to prescribe categorical requirements for states is the idea that 
EcoSoc rights include “core obligations” associated (CESCR 200: ss. 43 ff.). 
As I have said, my concern here is not with duties associated only with 
EcoSoc rights but with obligations cutting across those kinds of distinctions. 
So, the claim some EcoSoc obligations might be categorical does not 
threaten my analysis of two types of reasons at the heart of human rights 
obligations. However, if the claim is that a scheme for fulfilment provisions 
in which there are certain mandated outcomes is a categorical requirement, 
this does conf lict with the view of duties and justified burdens I have 
proposed. The international doctrine associated with core obligations, 



 Two (Different) Types of Human Rights Duty 115

LEAP 6 (2018)

however, either highlights rights that are easily accounted for as Decisive 
reasons – based on the distinction I have proposed – e.g., that EcoSoc 
services should not be provided in a discriminatory way, or would need to 
be somewhat sensitive to resource availability (Bilchitz 2007: 220 ff.).

5.2. “Rights” versus Weighing reasons?

Some theorists associate human rights with a technical notion of “rights” 
that conceptually implies an entitlement to a specific content – whether it 
is an outcome or form of treatment – that must be known in advance. The 
Weighing reasons analysis does not give us any definite content for the 
entitlement, only for the principle that will be employed to determine it in 
any specific case. So it seems to undermine human rights as rights (see 
Bilchitz’s worry, ibid). In itself, this is not a strong point. For there is no 
reason to think that human rights have to be rights in that very technical 
sense, as opposed to important obligations states have towards their 
citizens.23

A feature more centrally associated with human rights, however, is their 
universality. Some authors interpret this as human rights encompassing 
justified claims that can be claimed by all persons and claimed equally, 
regardless of circumstances or social membership (O’Neill 1996: 130 ff.). 
Onora O’Neill uses this premise to argue that rights to goods and services 
cannot be human rights: to be able to claim them justifiably, and – for the 
purposes of this paper – fairly, one must claim them from a certain 
infrastructure with specific types of responsible agents (O’Neill 1996: 130-
136). Importantly, a state must have fairly allocated the duties to supply the 
content of the rights. However, what exactly a person is entitled to have as 
a matter of fulfilment of their rights, depends on what it is in any given 
context fair to impose as a burden on others. Given that this may differ 
with context, the claim cannot be justifiably and equally made by all 
persons, regardless of circumstances or social membership. That, in turn, 
implies the right is not universal, so that on this view it is not a human 
right.

Yet, this objection does not deny that protection or fulfilment claims 
can ever be justifiably made. It simply says they are not universal in the 
right sense. Institutional orders can be set up such that justifiable, fair, 
claims can be made. So, why is universality, in this particular sense of 
universality, essential to defining human rights? Universality of this 
formal kind is just one dimension that might pick out what is special or 
distinctive in human rights; a different trait might be their importance or 

23  James Griffin, for example, rejects the need to use the technical sense of a right to 
analyze human rights (Griffin 2014: 210).



116 Saladin Meckled-Garcia 

LEAP 6 (2018)

urgency, or even their ability to place limits on the legitimacy of political 
institutions. There is no obvious reason why all human rights should apply 
independently of institutional context – in fact, that very condition is 
challenged by “political theories” of human rights (e.g., Beitz’s theory, 
Beitz 2008). Whatever the right answer as to the defining feature/s of 
human rights standards, the claim is not that standards based on Weighing 
reasons, and thus lacking the requisite universality, fail to be normative 
standards at all. If it is admitted that such standards exist and under the 
right conditions they can justify normative claims, then whether we call 
these human rights or not seems more a matter of nomenclature than 
significant substance.

5.3. Does this weaken EcoSoc human rights?

A final objection I will consider is that this approach, with its two models of 
reasoning underpinning different types of obligations, weakens EcoSoc 
human rights claims. EcoSoc rights rely more heavily on fulfilment as their 
core mission. Which is to say that whilst there are cases where taking 
EcoSoc opportunities away – e.g., by intentionally or negligently destroying 
a source of water – is a violation and one consistent with a Decisive reasons 
approach, the key question for EcoSoc rights is how to fulfil certain EcoSoc 
conditions for people. By introducing Weighing reasons, and with them 
the idea that an infrastructure of distribution that is capable of fairness is 
needed for these rights to apply, I would seem to have made EcoSoc rights 
less easily claimable and less practically useful outside certain specific 
societal contexts.

Whilst this may be true, it is important to point out that any alternative 
formulation of the duties and justified burdens associated with human 
rights will suffer similar or equivalent problems. Re-describing the duty to 
fulfil as a categorical requirement still faces the problem of how these 
requirements are to be supplied and by whom. One could indeed abandon 
the idea that there are countervailing considerations such that we must 
engage in Weighing. But that means giving up an essential component of 
reasonableness and fairness in practical and political reason. It would be a 
victory by stipulation only, not one responding to the practical problem of 
the existence of legitimate conf licting considerations. If we accept the 
need to adjudicate between these different considerations, then Weighing 
reasons do not weaken human rights duties but provide the only kind of 
solution that will give a significant portion of them some rational content.



 Two (Different) Types of Human Rights Duty 117

LEAP 6 (2018)

6. CONCLUSION

In conclusion, I have identified two types of reasons – or two models of 
reasoning – when determining the content of certain human rights 
obligations and justified burdens. The Decisive reasons model offers us a 
way of understanding categorical duties, whereas the Weighing reasons 
model is engaged when we must consider interests and considerations that 
need to be balanced. Provisions and interpretations that are compatible 
with both models are present in international human rights documents, 
although these documents do not explicitly recognize the need for either 
model, or any model altogether. I have argued that these models are, 
however, both necessary to make sense of, and give content to, different 
types of human rights responsibilities. I stress, these two types of reasoning 
are not designed to undermine any one type of right or duty – instead, they 
cut across different traditional distinctions between types of rights 
(Economic and Social versus Civil and Political); and they are both ways of 
explaining the duties as genuine obligations. Yet, without sensitivity to 
these forms of reasoning, trying to give content to our human rights 
obligations will lead to troubling confusions. Not all human rights duties 
are categorical and we need an account of how to determine those duties 
when they are not.

BIBLIOGRAPHY

Bedau, H. A., 1979: ‘Human Rights and Foreign Assistance Programs’, in P. G. 
Brown and D. Maclean, eds., Human Rights and US Foreign Policy, Lexington 
Mass.: Lexignton Books

Bilchitz, D., 2007: Poverty and Fundamental Rights, Oxford: Oxford University Press
Buchanan, A., 2004: Justice, Legitimacy, and Self-Determination, Oxford: Oxford 

University Press
Brock, G., 2009: Global Justice: A Cosmopolitan Account, Oxford: Oxford University 

Press
Casal, P., 2007: ‘Why sufficiency is not enough’, Ethics 117(2): 296–326
Charles, B., 2008: The Idea of Human Rights. Oxford: Oxford University Press
Chenwi, L., 2013: ‘Unpacking “progressive realisation”, its relation to resources, 

minimum core and reasonableness, and some methodological considerations 
for assessing compliance’, De Jure, 46(3): 742-769

Christiansen, E. C., 2007: ‘Adjudicating non-justiciable rights: socio-economic 
rights and the South African Constitutional Court’, 38(2): 321-386

Cohen, G. A., 2008: Rescuing justice and equality, Camb. Mass.: Harvard University 
Press

Committee on Economic, Social, and Cultural Rights (CESCR), 1990: General 
Comment 3, United Nations



118 Saladin Meckled-Garcia 

LEAP 6 (2018)

Committee on Economic, Social, and Cultural Rights (CESCR), 1998: General 
Comment 10, United Nations

Committee on Economic, Social, and Cultural Rights (CESCR), 1999a: General 
Comment 12, United Nations

Committee on Economic, Social, and Cultural Rights (CESCR), 1999b: General 
Comment 13, United Nations

Committee on Economic, Social, and Cultural Rights (CESCR), 2000: General 
Comment 14, United Nations

Committee on Economic, Social and Cultural Rights (CESCR), 2015, 27 October: 
Concluding Observations, UN Doc. E/C.12/GRC/CO/2, United Nations, e.g., 
paras 19 &20

Cranston, M., 1973: What Are Human Rights, Taplinger Publishing, New York
Crisp, R., 2003: ‘Equality, priority, and compassion’, Ethics 113(4): 745–763 
Dworkin, R., 1984: ‘Rights as trumps’, in Waldron, J., ed., 1984, Theories of Rights, 

Oxford: Oxford University Press 
— 2000: Sovereign virtue and the practice of equality, Cam. Mass: Harvard University 

Press
— 2010: Justice for Hedgehogs, Cambridge, MA: Belknap Press
Frankfurt, H., 1987: ‘Equality as a moral ideal’, Ethics 98(1): 21–43
Gardner, J., 2018: ‘Discrimination, the good, the bad, and the wrongful’, Proceedings 

of the Aristotelian Society, CXVIII(1)
Gilabert, P., 2012: From global poverty to global equality, Oxford: Oxford University 

Press
Griffin, J., 2014 : ‘Replies’, in Crisp, R., ed., 2014, Griffin on human rights, Oxford: 

Oxford University Press
Hellman, Deborah, 2008: Why is Discrimination Wrong?, Cambridge, MA: Harvard 

University Press 
Kamm, F., 2007: Intricate Ethics, Oxford University Press
Lippert-Rasmussen, K., 2006: ‘The Badness of Discrimination’, Ethical Theory and 

Moral Practice, 9: 167–185
McDowell, J., 1998, originally published 1978: ‘Are moral requirements hypothetical 

imperatives?’, Mind, value, and reality, Cambridge Mass.: Harvard University 
Press

Meckled-Garcia, S., 2016: ‘Two concepts of justice, and of its scope’, Critical Review 
of International Social and Political Philosophy, 19: 534-554

Miller, R., 2010: Globalizing justice, Oxford: Oxford University Press,
Möller, K., 2009: ‘Two concepts of positive liberty: against reason blocking’, Oxford 

Journal of Legal Studies, 29(4): 757–786
Moreau, S., 2010: ‘What is Discrimination?’ Philosophy and Public Affairs 38: 143–

179
O’Neill, O., 1996: Towards Justice and Virtue, NewYork: Cambridge University Press
Rawls, J., 1999: A Theory of Justice (revised edition), Cambridge Mass.: Belknap 

Press
Rawls, J., 2001: Justice as fairness, a restatement, Cam. Mass.: Belknap Press
Sachs, A., 2000: ‘Social and Economic Rights, can they be made justiciable?’, S. M. 

U. Law Rev., 53: 1381-1391
Scanlon, T. M., 1998: What we owe each other, Cambridge Mass.: Belknap Press



 Two (Different) Types of Human Rights Duty 119

LEAP 6 (2018)

— 2004: ‘Reasons: A Puzzling Duality?’, In Wallace, R. J., Pettit, P., Scheffler, S., & 
Smith, M., eds., 2004: Reason and Value: Themes From the Moral Philosophy of 
Joseph Raz, Oxford: Clarendon Press

Sher, G., 1997: Beyond Neutrality. Cambridge University Press
Shin, Patrick, 2009: ‘The Substantive Principle of Equal Treatment’, Legal Theory, 

15: 149–172
Shue, H., 1996 (2nd Ed.): Basic Rights: Subsistence, Affluence, and US Foreign Policy, 

Princeton: Princeton University Press
Stemplowska, S., 2009: ‘On the real worlds duties imposed on us by human rights’, 

J. Social Philosophy, 40(4): 466-487
Tasioulas, J., 2010: ‘Taking rights out of human rights, Ethics, 120(4): 647-678
— 2015: ‘On the foundations of human rights’, in Cruft, R., Liao, S. M., Renzo, M., 

eds., Philosophical foundations of human rights, Oxford: Oxford University Press
Waldron, J., 2000: ‘Pildes on Dworkin’s theory of rights’, The Journal of Legal 

Studies, 29(1): 301-307
— 1989: ‘Conflicts of rights’, Ethics, 99(3): 503-519
Wasserstrom, R., 1995: ‘Preferential Treatment, Color-Blindness, and the Evils 

of Racism’, in Steven Cahn, ed. The Affirmative Action Debate, New York: 
Routledge, pp. 153–168

United Nations, 1966/76: International Convenant on Civil and Political Rights 
(ICCPR)

United Nations, 1966/76: International Covenant on Economic, Social, and Cultural 
Rights (ICESCR)



LEAP 6 (2018)

The Democratic Case for  
a Basic Income1

L E T ICI A MOR A L E S
Universidad Austral de Chile

ABSTRACT

While most of its advocates justify the right to a basic income because it 
promotes individual freedom, autonomy and human development, an 
alternative line of argumentation insists that a universal basic income is a 
core component of a well-functioning democratic society. In this article I 
examine the democratic case for a basic income by engaging with the work 
of Carole Pateman and Michael Goodhart. More concretely, I argue that 
although their proposals offer interesting insights, they ultimately fail to 
properly justify the importance of a basic income on democratic grounds. 
I develop an alternative argument based on the right to political 
participation and explain why a universal basic income scheme may 
promote such right.

Keywords: democracy, political participation, material preconditions, 
social rights, income security, basic income.

1. INTRODUCTION

The right to income security poses something of a conundrum. While it is 
universally accepted that income is very important for the lives of human 
beings, the main international human rights treaties do not explicitly 
recognize a right to income security. Neither the Universal Declaration of 
Human Rights nor the International Covenant on Economic, Social and 
Cultural Rights directly proclaim a right to income security. However, they 
appear to do so indirectly through the right to social security, the right to 

1  Previous versions of the paper were presented at the 8th Summer-School in 
Political Philosophy & Public Policy (University of Minho), the 17th BIEN Congress in Lisbon, 
the Seminario Austral de la Universidad Austral de Chile, and the 2nd International 
Conference of the UK-Latin America Network for Political Philosophy (UKL APPN) in Mexico 
City. I am grateful to the audiences at these events and to Jurgen De Wispelaere, Felicitas 
Holzer, Julio Montero and two anonymous referees for this journal for helpful comments 
and suggestions.

D OI : 10. 310 0 9/L E A P. 2018.V6.07



 The Democratic Case for a Basic Income 121

LEAP 6 (2018)

an adequate standard of living and the right to work.2

Income security can be established in various ways (De Wispelaere and 
Morales 2016). The most common view links income to a wage obtained 
from work, social security payments or other state benefits, often subject 
to certain eligibility criteria and past contribution. In recent years, however, 
the proposal to grant each individual citizen a regular cash payment, 
without insisting on a means test or work requirements, has become 
popular in both academic and public policy debates (Van Parijs and 
Vanderborght 2017). The advocates of “basic income” – as the proposal is 
most commonly known – argue that granting each citizen or long-term 
resident an unconditional cash payment is the most effective way to ensure 
income security for all.

Unsurprisingly, this proposal is regarded as deeply controversial and 
there intense debate about its normative justification is ongoing. The most 
inf luential view tries to ground the right to basic income on the ideal of 
individual freedom. In this vein, Philippe Van Parijs – one of the pioneers 
in the basic income debate – famously sustained that basic income is a 
condition for securing real freedom, understood as the freedom to do 
whatever one might want to do (Van Parijs 1995; also Van Parijs and 
Vanderborght 2017). While freedom-based justifications have dominated 
the debate for years, some authors have emphasized the limitations of this 
approach. Such dissenters do not necessarily object to basic income as 
such; they merely reject the freedom-based justification because they 
think it fails to take into account some key structural features of 
contemporary societies.3 One such view proposes that, instead of freedom, 
we focus on democracy as the political value that could justify an 
unconditional basic income (Pateman 2002, 2003, 2004; Goodhart 2007, 
2008; Van Damme, 2017).

In this article I explore the relationship between basic income and 
democracy. I start my analysis by focusing on the critique of Carole 
Pateman and Michael Goodhart against freedom-based justifications and 

2  The Universal Declaration of Human Rights (UDHR) recognizes the right to social 
security (art. 22), the right to work (art. 23), and the right to a standard of living (art. 25). The 
International Covenant on Economic, Social and Cultural Rights (ICESCR) establishes the 
right to work (art. 7), the right to social security (art. 9), and the right to a minimum standard 
of living (art. 11).

3  Although some have argued against basic income on precisely such grounds. See, for 
instance, Gourevitch (2016).



122 Leticia Morales 

LEAP 6 (2018)

their attempt at grounding a democratic case for basic income.4 The 
writings of Pateman and Goodhart offer many interesting insights but in 
my view end up conf lating a number of different democratic arguments. A 
first task of this article is to disentangle the strands of their argumentative 
web and separate out what I believe are importantly different mechanisms 
through which basic income could have a democratic impact. Upon 
ref lection, it turns out not all of these different pathways to a democratic 
justification of basic income are convincing. I offer a two-fold critique of 
Pateman and Goodhart by first suggesting that both authors are 
unnecessarily wedded to an over-expansive ideal of democracy and, 
secondly, arguing that a basic income in many cases would fail to deliver 
on the democratic outcome they anticipate. The final section of this article 
constructs what I believe to be a more plausible democratic case for an 
unconditional basic income. Adapting a line of argument already found in 
Pateman and building on my earlier work on the democratic justification 
for social rights (Morales 2016), I examine the extent to which basic income 
constitutes a material precondition for the effective political participation 
of all citizens.

2. BASIC INCOME: FROM INDIVIDUAL FREEDOM TO 
DEMOCRACY?

A basic income is usually defined as an individual entitlement to receive a 
regular payment, independent of other sources of income, employment or 
willingness to work, or living situation (see Van Parijs and Vanderborght 
2017: 5). It is very tempting to articulate the main value of such a basic 
income in terms of expanding a person’s individual freedom as advocated 
most forcefully by Philippe Van Parijs (Van Parijs 1995). Of course, some 
authors reject Van Parijs’ particular conception of freedom; instead, they 
value basic income because it promotes Republican freedom (Pettit 2012b; 
Taylor 2017), Rawlsian political liberalism (Birnbaum 2012), or 
“Independentarian” status freedom (Widerquist 2013). However, all these 
views share a crucial feature: they ground basic income on a certain 
account of individual freedom.

Carole Pateman – a leading democratic theorist – embraces the idea of 
an unconditional basic income, but firmly objects to the dominant 

4  One restriction of this article is that I deliberately focus on the democratic case for 
basic income within a single state. In contrast to Goodhart (2007) I remain agnostic on the 
need to establish a global basic income or the role of basic income within single polities as a 
mechanism to further global democracy. The reason for this restricted focus is my emphasis on 
the role of democratic participation in the political system as typically represented in electoral 
democracies. 



 The Democratic Case for a Basic Income 123

LEAP 6 (2018)

freedom-based justification (Pateman 2003; 2004).5 Her main concern is 
that because this justification is entirely focused on social justice, liberal 
autonomy and individual freedom, it overlooks the impact a basic income 
may have on fundamental democratic values: 

“Little attention has been paid in recent academic debates to the 
democratic significance of […] a basic income. Participants have tended 
to focus on such questions as social justice, relief of poverty, equality of 
opportunity, or promotion of f lexible labor markets, rather than 
democracy” (Pateman 2004: 91).

At the core of a democratic society, Pateman holds, lies the idea that “all 
citizens, women and men alike, have full standing and enjoy democratic 
rights and individual freedom” (Pateman 2003: 130). However, the 
reference to individual freedom should not be misinterpreted; it refers to 
self-government or autonomy and explicitly denotes “a political form of 
freedom in contrast to an economic form of freedom as individual 
opportunity” (Pateman 2003: 132). Pateman insists that political freedom 
must be prioritized: while individual opportunity has an important place 
within a democratic society, it is nevertheless “insufficient for 
democratization, the political process through which all citizens obtain 
full standing, and become first-class democratic citizens” (Pateman 2003: 
132, added emphasis). By focusing on self-government and political 
freedom and its capacity to bring about the “necessary social and political 
change to create a robust democracy for all citizens” (Pateman 2003: 136), 
Pateman moves the justificatory goal posts away from excessively 
individualist approaches and towards a more structural perspective. In 
fact, her decisive objection against freedom-based justifications insists 
that “individual self-government depends not only on the opportunities 
available but also on the form of authority structure within which 
individuals interact with one another in their daily lives” (Pateman 2004: 
91).

How does basic income feature within this democratic theory? I believe 
Pateman provides a patchwork of distinct arguments to answer this 
question. In the remainder of this section I brief ly distinguish four of them.

First, Pateman highlights the democratic significance of a universal 
basic income by analogy to the historical and institutional role played by 
universal suffrage. Suggesting that basic income and the right to vote are 
comparable, she writes “a basic income should be seen as a fundamental 

5  At the time, Pateman’s focus was primarily on Van Parijs (1995) and the debate his 
work inspired in political philosophy. Pateman’s critique thus predates the “new wave” of 
freedom-based justifications of basic income, such as Pettit (2012b) or Widerquist (2013).



124 Leticia Morales 

LEAP 6 (2018)

or democratic right, like universal suffrage” (Pateman 2003: 131). Universal 
suffrage means that every member of a polity is entitled to participate in 
the electoral process, perhaps subject to certain minimal qualifications, 
such as age or residence. The key aspect here is that any barriers that make 
it harder for citizens to demonstrate their qualification to vote – e.g., 
cumbersome voting registration laws – are deemed undemocratic. Similarly, 
Pateman sustains that all citizens must be entitled to a basic income 
because they are adult members of the polity (Pateman 2003: 146).6 The 
right to basic income and the right to vote are analogous in the sense that 
both are entitlements that every citizen must enjoy as such. When their 
enjoyment is subject to further conditions they turn into a privilege rather 
than a right (Pateman 2003: 146; 2004: 102). In Pateman’s view, just like 
adding strict voting registration requirements frustrates access to voting, 
adding work requirements or means testing hampers access to the basic 
income citizens are entitled to.

Second, Pateman suggests that a basic income is necessary because it 
“provides the lifelong security that helps safeguard other rights” (Pateman 
2004: 94). Michael Goodhart has defended this view in more detail. His 
starting point is a justification of social and economic rights – including a 
right to guaranteed subsistence – as essential to secure emancipation and 
the enjoyment of other basic rights (Goodhart 2007: 94, 2008). He maintains 
that the fundamental right to guaranteed subsistence requires the social 
provision of a basic income (Goodhart 2007: 106) and insists that such 
income is an integral part of a democratic perspective because “its primary 
justification is its role in achieving and securing emancipation for all 
members of society” (Goodhart 2007: 107). In Goodhart’s view, basic 
income therefore is a desirable scheme because it “satisfies the fundamental 
economic right to a guaranteed subsistence that democracy demands” 
(Goodhart 2007: 109).

Third, Pateman insists that democratic citizenship requires equal 
social standing, understood as a relational notion that captures “the form 
of authority structure within which individuals interact with one another 
in their daily lives” (Pateman 2004: 91). Democratic standing informs both 
how individuals perceive themselves in relation to others and how they 
perceive others. In this respect, Pateman (2004: 94) finds inspiration in the 
writings of sociologist T.H. Marshall (1950), who divides citizenship into 
three different components – civil rights, political rights and social rights 
– and maintains that social citizenship involves an equality of status which 
requires “a direct sense of community membership based on loyalty to a 

6  In many proposals children and adults are covered by slightly different schemes (Van 
Parijs and Vanderborght 2017).



 The Democratic Case for a Basic Income 125

LEAP 6 (2018)

civilization which is a common possession” (Marshall 1950: 40-41). Basic 
income presents an appealing way to guarantee equally social standing: 
unconditionally securing a basic income to everyone avoids a person who 
would otherwise be subject to a controlling sanctioning welfare regime to 
be treated as “second-class citizens”. 

In a similar vein, Pateman argues that a universal basic income is 
valuable because it helps “to remove the temptation for some citizens to 
see others as less worthy of respect, and so as lesser citizens, because of 
their lack of economic resources” (Pateman 2003: 146). Pateman famously 
extends this idea of democratic citizenship to emphasize its potential in 
advancing the freedom and full social standing of women (Pateman 2004: 
90). This implies revisiting the social institutions of family, marriage and 
employment, and the extent to which these traditionally frustrated “the 
standing of wives as citizens” (Pateman 2004: 98). Critically, a basic income 
“is a crucial part of any strategy for democratic social change” by virtue of 
its capacity to “break the long-standing link between income and 
employment and end the mutual reinforcement of the institutions of 
marriage, employment, and citizenship” (Pateman 2004: 90). In other 
words, for Pateman, basic income plays an important democratic role by 
promoting full social standing of citizens in general, and women in 
particular, in the different spheres of life.

Fourth, Pateman argues for the democratic potential of a universal 
basic income by reference to an important opportunity it creates, namely 
the freedom not to be employed (Pateman 2004: 92). The reason why basic 
income has a significant democratic potential is that it improves the 
capacity of individuals “to refuse to enter or to leave relationships that 
violate individual self-government or that involve unsafe, unhealthy, or 
demeaning conditions” (Pateman 2004: 96). Furthermore, basic income 
also promotes citizens’ participation in collective self-government by 
opening up “opportunities for citizens to develop their political capacities 
and skills” and ensuring “that participation in social and political life 
would not require heroic efforts on the part of any citizens” (Pateman 2004: 
96).7 The focus on increased opportunities allows Pateman to explicitly 
link basic income with the ideal of democratization: 

“by opening up this range of opportunities and uncoupling income and 
standard of life from employment, a basic income has the potential 
both to encourage critical reassessment of the mutually reinforcing 
structures of marriage, employment, and citizenship and to open the 

7  Pateman (2004: 97) writes: “a basic income would allow individuals at any time to do 
voluntary or political work, for example, to learn to surf, to write or paint, to devote themselves 
to family life, or to have a quiet period of self-reassessment or contemplation.”



126 Leticia Morales 

LEAP 6 (2018)

possibility that these institutions could be remade in a new, more 
democratic form” (Pateman 2004: 97).

In sum, the democratic case for basic income, as outlined in the writings 
of Carole Pateman (2003, 2004) and Michael Goodhart (2007, 2008) can be 
understood as the mutually reinforcing combination of four distinct 
arguments. Together these paint a picture by which an unconditional basic 
income represents the economic analogy of universal suffrage which, by 
securing the equal enjoyment of fundamental human rights, promotes the 
full social standing and equal range of political and social opportunities for 
all citizens. 

3.  DEMOCRACY AND BASIC INCOME: A CRITICAL 
ASSESSMENT

Pateman and Goodhart justify basic income from a democratic perspective 
by assuming a substantive conception of democracy. However, substantive 
conceptions of democracy often fail to appreciate “value pluralism by 
neglecting the constitutive role of democratic decision-making processes 
for groups of individual agents who try to determine how they should act 
together” (Peter 2009: 2-3). A set of valuable outcomes is posited in advance 
and constrains the decision-making process (e.g., Goodhart 2008: 150), 
neglecting other alternative goals that citizens may reasonably want to 
advance. As Waldron (1999) has forcefully pointed out, this view fails to 
take deep political and moral disagreement seriously. Furthermore, 
substantive conceptions of democracy also blur the lines between 
democracy and social justice, failing to give proper due to democratic 
legitimacy as a distinct political value (Pettit 2012a: 59; Morales 2015).

Michael Goodhart insists that because substantive conceptions of 
democracy highlight the democratic importance of human rights, they 
contribute to the revival of “democracy itself, which in its atrophied 
electoral and procedural forms can seem like a fairly moribund and 
uninspiring ideal” (Goodhart 2007: 98). But in order to avoid the kind of 
“atrophied” democracy represented by procedural models of aggregative 
democracy that give primacy to the formal right to vote and Schumpeterian 
elite competition, it is not necessary to turn democracy into a substantive 
conception of social justice with predetermined social outcomes. As Phillip 
Pettit explains:

“Normative thinking about legal, political, and social institutions has 
been dominated over the past quarter century or more by the ideal of 
justice, in particular social or distributive justice. This focus on justice 



 The Democratic Case for a Basic Income 127

LEAP 6 (2018)

is unfortunate, because it has suggested that there is only one basic 
ideal that we need to think about in our normative projects. It is 
unfortunate, in particular, because it puts out of the picture the very 
different sort of ideal to which I give the name of legitimacy —
specifically, political legitimacy” (Pettit 2012a: 59).

Michael Goodhart, for instance, clearly adopts such an unfortunate 
position when he suggests that democracy is only instrumentally justified 
as a means to achieving emancipation through the enjoyment of 
fundamental rights (Goodhart 2007: 103; 2008: 150). In the next section I 
propose an alternative democratic model centered on political participation 
that avoids atrophied proceduralism without collapsing political 
legitimacy into social justice.

The Pateman-Goodhart approach to democratization is also problematic 
because they explicitly extend democracy to the family, the workplace and 
the economy (Pateman 2003, 2004). Goodhart holds that “certain 
institutions are more democratic than others, precisely because they are 
instrumental in securing fundamental human rights”; yet this also implies 
that “many rights can be secured differently in different contexts” 
(Goodhart 2008: 150). Unfortunately, this view overlooks that democracy 
is mainly a framework for collective decision making within a political 
system: its fundamental aim is to ensure that collective decisions are 
legitimate (Peter 2009).

These theoretical difficulties pose a practical and strategic problem: 
the sort of basic income scheme required to satisfy the goals that Pateman 
and Goodhart have in mind may be too radical or too demanding under 
present-day socio-economic conditions. The more moderate basic income 
schemes currently under consideration around the world are not likely to 
have the democratic impact Pateman and Goodhart are hoping for. To 
illustrate this problem, I re-examine the four arguments outlined in the 
previous section.

To begin with, the analogy between a universal right to vote and a 
universal right to basic income has some initial plausibility.8 However, 
these rights differ in important aspects. The right to vote is often explained 
through the egalitarian formula “one person, one vote”. Similarly, basic 
income may also be articulated through the formula “one person, one 
basic income”. But is there any deeper reason to accept the analogy 
between both rights? Pateman observes that “universal suffrage is the 

8  Pateman, along with many others, views basic income as a right but see the 
discussion of why conceiving basic income as a right is problematic in De Wispelaere and 
Morales (2016).



128 Leticia Morales 

LEAP 6 (2018)

emblem of equal citizenship”, which is further explained by reference to 
“an orderly change of government through free and fair elections” 
(Pateman 2004: 94). It is generally accepted that a person cannot be a 
citizen without the right to vote (King and Waldron 1988). Along similar 
lines, Pateman tries to argue that “a basic income is the emblem of full 
citizenship”, because “basic income as a democratic right is necessary for 
individual freedom as self-government” (Pateman 2004: 94-95). However, 
it is dubious that granting people a modest basic income will suffice to 
ensure the kind of equal citizenship Pateman proposes. Even though basic 
income offers a f loor (Van Parijs and Vanderborght 2017), it may fail to 
block the vast differentials in income and wealth – and, therefore, of power 
– that characterize contemporary societies (Casassas and De Wispelaere 
2016).

Second, Pateman and especially Goodhart maintain that basic income 
is meant to help to secure the equal enjoyment of universal human rights 
across different social spheres, including the family, employment and 
citizenship. Through the secure enjoyment of human rights, basic income 
helps to change the structure of oppressive institutions. Yet the kind of 
basic income that could secure the enjoyment of fundamental rights – “the 
minimum necessary to secure rights and emancipation” (Goodhart 2007: 
105) – would most likely be unfeasible under current conditions.9 However, 
the tenet that a basic income may promote the emancipation of women 
within the family is subject to considerable debate (e.g., Robeyns 2001; 
Zelleke 2011). Some Feminist authors argue that a basic income may end 
up reinforcing traditional gender roles as it may cause women to 
disproportionately exit the labor market (Robeyns 2001: 100-102).10  
Similarly, the view that basic income will emancipate workers has also 
been challenged (Gourevitch 2016; Birnbaum and De Wispelaere 2016). 
The argument advanced by Pateman and Goodhart relies on basic income 
improving the bargaining position of workers vis-a-vis employers by 
granting workers an exit option. But on realistic assumptions of how 

9  Additionally, Goodhart’s democratic argument appears to be circular. If all 
fundamental basic rights must be achieved in order to obtain emancipation, and if basic 
income’s failure to protect one right means no single right is protected (because of their 
interdependence), then the securement of other fundamental rights never could be justified 
if not by a democratic decision-making process where the fundamental basic right to 
participation is secured. But for Goodhart the right to participation can be left aside if there 
is another political organization that can guarantee other rights, such as an absolutist 
government, destroying the very notion of interdependent fundamental rights.

10  Robeyns concludes that basic income does not reduce gender injustice, and it is 
necessary for it to be “supplemented with other social policy measures that liberate women”, 
including “the transformation of certain cultural and social patterns, like gender roles and 
gender hierarchies, which are now constraining individuals in their freedom” (Robeyns 
2001: 103).



 The Democratic Case for a Basic Income 129

LEAP 6 (2018)

contemporary labor markets work, “an exit strategy might end up 
worsening rather than strengthening the opportunity set and bargaining 
position of the most vulnerable workers” (Birnbaum and De Wispelaere 
2016: 61).

A democratic case for basic income that relies on basic income being 
able to substantially secure a set of fundamental rights in order to promote 
genuine emancipation and democratization appears too tall an order for a 
realistic basic income scheme to satisfy. This puts Pateman and Goodhart 
at risk of being caught between the rock of downgrading the fulfillment of 
fundamental rights and the hard place of insisting on an utterly impractical 
basic income ideal.11

Third, as I have already mentioned, Pateman views democratic 
citizenship as a form of social standing. Building on the work of T.H. 
Marshall allows her to extend citizenship into the economic sphere by 
arguing that social and economic rights play a constitutive role in the 
equal standing of citizens. Being denied this equal standing amounts to a 
person being relegated to second-class citizenship or even denizenship 
(Standing 2012). Importantly, equal social standing requires independence 
and freedom from oppression and domination within the prevailing 
institutions of marriage, family, and employment. Once more, this idea is 
problematic because the sort of basic income policy that would promote 
such genuine independence would be unfeasible under current conditions. 
Without a clear sense of what level of basic income would be deemed 
sufficient to ensure the required independence it is difficult to assess 
whether a feasible basic income scheme contributes to democratization in 
the desired manner.

Finally, Pateman insists that basic income promotes a bundle of social 
and political opportunities, including those that follow from the freedom 
not to be employed. This includes opportunities to support individuals’ 
political participation in the decision making-process, opportunities for 
citizens to develop their political capacities and skills, and opportunities 
to do political work. These are all very relevant and important opportunities 
that directly connect basic income with democracy. However, two 
problems remain. On the one hand, Pateman offers no clear account of 
how precisely a basic income would improve political participation or 
democratic skills. What social or institutional levers does basic income 

11  Goodhart appears to bite the bullet when proposing basic income not as a welfare 
or poverty reduction program, but rather as a democratic entitlement that “costs more and 
delivers more; the value of what it delivers is ultimately a measure of our political 
commitments” (Goodhart 2008: 155). Of course this does not make basic income politically 
feasible.



130 Leticia Morales 

LEAP 6 (2018)

pull and how does this impact on democratic opportunities? On the other 
hand, for Pateman basic income appears to impact primarily by granting 
workers the opportunity to refuse employment. As mentioned before, 
recent research casts doubt on whether basic income is able to achieve 
such a robust “right to exit” or even have any meaningful impact on the 
democratic nature of employment relations (Birnbaum and De Wispelaere 
2016). But even if that were the case, there is something fundamentally 
f lawed about a view that depends on freedom from employment as a 
mediating mechanism to make a democratic argument stick. What about 
the democratic impact of basic income on workers’ political opportunities? 
If indeed freedom from work was the main pathway through which basic 
income secures democratic values and objectives, this would surely reduce 
its scope and democratic impact. 

When considered together, these objections suggest that in spite of its 
initial plausibility, the freedom to exit the labor market may make no real 
contribution to individual self-government. What we need is an argument 
that explains why a basic income may improve individuals’ opportunities 
to participate in the political process that does not exclusively depend on 
the freedom to exit employment. I provide such argument in the next 
section.

4. THE DEMOCRATIC ARGUMENT FOR BASIC INCOME 
REVISITED

In this final section I offer a democratic argument for basic income that 
builds on the work of Pateman but avoids the pitfalls I have discussed 
previously. Collective decisions are considered legitimate if they result 
from a decision-making process that satisfies the necessary formal and 
material conditions that secure the participation of all citizens (Peter 2009: 
4). On this view, political participation is the foundation of legitimate 
political authority because it respects the equal moral agency of each 
citizen. Political citizenship essentially refers to the right to political 
participation in the decision-making processes of the polity (Waldron 1999). 

This right must be universally realized: no citizen should be excluded 
either on formal or material grounds (Morales 2015, 2017). Formal exclusion 
occurs when institutional rules prevent some citizens from exercising 
their right to political participation. Material exclusion takes place when 
citizens fail to participate because they lack certain material resources 
even if no formal rule prevents them from doing so. In liberal democratic 
theory, the right to political participation is typically interpreted in formal 



 The Democratic Case for a Basic Income 131

LEAP 6 (2018)

terms. However, the legal recognition of a formal right to political 
participation is insufficient to guarantee the effective political participation 
of all. This raises a fundamental question: why must a citizen accept the 
authority of a political decision when she is materially unable to exercise 
her formal right to participate? Why should citizens accept political 
authority in cases where they are formally included but practically 
excluded from participation in the decision-making process? Real life 
examples of such a disjunction between formal and material right to 
political participation are plentiful, especially regarding the right to vote. 
Some political systems impose burdensome requirements of voter 
registration, which effectively disenfranchise otherwise eligible voters. 
Other systems may facilitate registration but many voters are unable to 
reach the polling booth because of a lack of transport or inability to take 
time off work. A formal interpretation of the right to vote – understood as a 
subset of the broader right to political participation – appears too weak to 
establish the legitimacy of a political system. 

The tenet that democratic decisions are legitimate because every citizen 
has an effective opportunity to participate in the decision making process 
does not imply that individuals must be treated equally in all domains of 
life – be it the family, the workplace, or the marketplace. Although all 
domains of life can be considered as political – as Feminists such as 
Pateman have rightly argued – there are relevant differences between the 
political domain and other social spheres. Several arguments may justify a 
more extensive or generous conception of equality in the social and 
economic realm; yet this is fully compatible with thinking that the political 
system is where legitimate processes of collective decision-making take 
place under conditions that must ensure the political participation of all 
citizens. Importantly, this view implies no commitment to the sort of 
atrophied electoral proceduralism that Pateman and Goodhart have 
criticized. 

Legitimate political participation is not restricted to voting in a formal 
election, campaigning for a candidate, or having the opportunity to run for 
public office, as Schumpeterians maintain. The concept of political 
participation must be broadened to include a host of other political acts 
provided they are “structurally embedded in the political system” 
(Cicatiello, Ercolano and Gaeta 2015: 448-449). Thus, the actions of public 
interest groups, civil organizations or social movements aimed at lobbying 
political decision-makers are rightly regarded as instances of political 
participation. Even acts of civil disobedience and protest at the margins of 
the social order – such as boycotts or the occupation of public offices – can 
be considered forms of political participation, for they too are aimed at 



132 Leticia Morales 

LEAP 6 (2018)

directly or indirectly inf luencing decision-makers.12 What unites this wide 
range of political activities is that they all contribute to the democratic 
process “by which citizens can communicate information about their 
interests, preferences and needs to the government” (Bovens and Wille 
2010: 395). Adopting a broad view of political participation that includes 
both “conventional” and “unconventional” forms of political action 
(Cicatiello, Ercolano and Gaeta 2015) situates my account of political 
democracy between advocates of a Schumpeterian electoral democracy 
and the more expansive emancipatory democratic model advocated by 
Pateman and Goodhart.

The intermediate model I propose implies that a genuine democracy 
must ensure that citizens have access to the full range of political 
participation activities, not merely a right to vote or stand in an election. 
Contestatory measures such as access to courts to challenge legislation or 
to engage in social protest are equally important (Pettit 2012b). That said, 
since most citizens engage in unconventional participation when they feel 
excluded from conventional forms of participation – e.g., people protest 
when they feel they have no real voice in an election – we should focus on 
conventional political participation in the first instance. Securing access 
to unconventional political participation is a second-best solution to a 
political system that has failed to include all citizens in conventional 
politics. With these building blocks in place, let us now examine the role of 
an unconditional basic income.

The democratic case for basic income depends on establishing a firm 
link between basic income and its expected impact on political 
participation. The idea that citizens need a guaranteed income to 
effectively participate in the legitimate democratic process is hardly a 
novel thought:

“Almost all of the great theorists of citizenship [...] have believed that in 
order to be a citizen of a polis, in order to be able to participate fully in 
public life, one needed to be in a certain socio-economic position. [...] 
People, it was said, could not act as citizens at all, or could not be 
expected to act well in the political sphere and to make adequate 
decisions, unless some attention was paid to matters of their wealth, 
their well-being and their social and economic status” (King and 
Waldron 1988: 425-426).

Contemporary democratic societies do not restrict the formal political 

12  Political participation at the margin of the social order may skirt what is deemed 
legal at any given time. The legality of protest and other unconventional political acts is a 
complicated matter.



 The Democratic Case for a Basic Income 133

LEAP 6 (2018)

participation of poor or economically disadvantaged people any longer: 
political rights are accorded to all citizens equally and no one can be 
politically excluded on the basis of social and economic status. Nevertheless, 
lack of money or income inequality continue to affect political participation 
even today.

Should income be regarded as a material precondition for political 
participation? The role of money in politics is indisputable: “money is an 
important political resource for any group, but it takes special significance 
for people who live at or near poverty levels” (Verba, Schlozman, and Brady 
1995: 288-303). A recent study confirms this view: “[t]he higher (lower) 
individual income is, the higher (lower) individual engagement in 
conventional and unconventional political activities is” (Cicatiello, 
Ercolano and Gaeta 2015: 451). In fact, “income may be considered the 
most important individual-level determinant of political participation; all 
political activities are costly because resources (time, money, skills) must 
be invested in order to carry them out” (Cicatiello, Ercolano and Gaeta 
2015: 450). Of course, the relevance of money should not lead us to 
underestimate other important structural obstacles to political 
participation.13 A universal basic income may be unable to eradicate many 
structural barriers that continue to exist in contemporary societies – 
including those related to religion, ethnicity, or gender. Basic income is 
only a partial solution to practical disenfranchisement in contemporary 
politics. Still, poverty and income inequality are also important structural 
obstacles that prevent those at the bottom of the income distribution from 
exercising their equal right to political participation. To the extent that 
poverty and income inequality undermine political participation, the 
democratic case for a basic income is a promising avenue to explore.

The main question is why money matters more for the political 
participation of those living at or near poverty, which presumably is where 
we would expect a basic income scheme to have its most pronounced 
effect? In other words, what is the mechanism that allows basic income to 
impact on a citizen’s ability to participate in political life? First, we might 
expect basic income to have a direct effect on the sort of costly actions that 
active citizens must engage in. For instance, basic income may help people 
afford the costs of voting registration or transport to the polling booth. 
Likewise, it may help to finance political campaigns: Obama’s presidential 
campaign was famously funded through numerous small donations from 
poor supporters. In spite of this, we might ask why a basic income is the 
best response to the reduced participation of the poor. Perhaps more 
targeted policies, such as subsidized registration or free public transport 

13  I thank a referee for this journal for pressing me to clarif y this point. 



134 Leticia Morales 

LEAP 6 (2018)

during the election day, are better. Furthermore, when resources are 
scarce, using money to promote participation involves significant 
opportunity costs for the poor because such money could be invested in 
providing them secure access to nutritious food, housing or medical care. 
Finally, any moderate basic income scheme will most likely not suffice to 
support a number of important instances of political participation, thereby 
failing to fully satisfy the requirements of political inclusion. So it seems 
that when it comes to direct costs, more targeted solutions may perform 
better than a universal basic income.

The democratic value of a basic income is better appreciated when we 
consider the indirect effects that (the lack of ) money has on political 
participation. For instance, a basic income may create incentives to 
participate through conventional channels because citizens will most 
probably want to defend a public policy that benefits them (Campbell 
2003). In other words, a basic income might politicize citizens because it 
gives them a stake in society (Dowding, De Wispelaere and White 2003). 
Relatedly, those who cannot “live the lives of a civilized being according to 
the standards prevailing in the society risk marginalization and shame”, 
which translates in political distrust and subsequently in reduced 
participation (Soss 2005: 306, citing Marshall 1964: 72). Unlike highly 
selective and conditional programs, a basic income would avoid negative 
experiences with case workers and other “representatives” of the state, 
therefore boosting political participation (Soss 2005; Bruch, Ferree and 
Soss 2010).14 

In addition, “the daily struggle to make ends meet leaves individuals 
with little time or energy to follow the public debate, participate in political 
organizations, or hold elected representatives accountable” (Soss 2005: 
306). Recent research has even suggested that poverty implies a genuine 
“scarcity mindset” with cognitive bandwidth restricted to survival 
activities (Mani et al. 2013). Finally, political decision-makers respond 
differently to distinct “target populations”, such that “policies for 
disadvantaged groups will isolate or stigmatize their targets, setting them 
apart from the majority as an object of pity or scorn” (Soss 2005: 294). One 
expected effect of the universalism of a basic income policy is that it might 
escape such easy targeting by decision-makers. 

In sum, through a variety of pathways basic income could have indirect 
positive effects on poor citizens’ political participation by freeing up time, 
energy and “cognitive bandwidth”, and by positively affecting their status 

14  However, a recent study of the Bolsa Familia program in Brazil suggests much also 
depends on how selective programs themselves are framed (Hunter and Borges Sugiyama 
2014).



 The Democratic Case for a Basic Income 135

LEAP 6 (2018)

and beliefs about themselves and others. The democratic hope is that basic 
income can generate a virtuous circle, through which an increased 
participation of the poor will bring about more responsiveness to their 
plights; and this will in turn reinforce participation.

5. CONCLUSION

In this article I have examined the democratic case for basic income. The 
idea that basic income should be justified not by reference to individual 
freedom but because of its impact on democratic citizenship was pioneered 
by Carole Pateman and developed by Michael Goodhart. However, I find 
that their approach fails to establish a robust case for basic income on 
democratic grounds. One major issue is that neither Pateman nor Goodhart 
offer a clear account of the pathways by which a basic income produces 
democratic value. Another major obstacle is that the kind of basic income 
their expansive model of democracy calls for is unfeasible under present 
conditions. I sustain that a more modest model of democracy that 
prioritizes broad and effective political participation in decision-making 
processes, offers a more plausible democratic case for a universal basic 
income. Recent research by political scientists has established a number of 
mechanisms through which low income and poverty negatively impacts 
on political participation. Granting each citizen an unconditional and 
secure basic income is a promising remedy to rectify this problem.

BIBLIOGRAPHY

Birnbaum, S., 2012: Basic Income Reconsidered: Social Justice, Liberalism and the 
Demands of Equality, New York, Palgrave Macmillan.

Birnbaum, S. and De Wispelaere, J. 2016: “Basic Income in the Capitalist Economy: 
The Mirage of ‘Exit’ From Employment”, Basic Income Studies 11(1): 61–74.

Bovens, M.  and A. Wille, 2010:”The Education Gap in Participation and Its Political 
Consequences”, Acta Politica 45: 393-422.

Bruch S., Ferree, M. and Soss, J., 2010: “From Policy to Polity: Democracy, 
Paternalism, and the Incorporation of Disadvantaged Citizens”, American 
Sociological Review 75(2): 205-226.

Casassas, D. and De Wispelaere, J., 2016: “Republicanism and the political economy 
of democracy”, European Journal of Social Theory 19(2): 283-300.

Cicatiello, L., Ercolano, S. and Gaeta, G., 2015: “Income distribution and political 
participation: a multilevel analysis”, Empirica 42: 447–479.

De Wispelaere, J. and Morales, L., 2016: “Is there (or should there be) a right to basic 
income?”, Philosophy and Social Criticism 42(9): 920-936.

Dowding, K., De Wispelaere, J. and White, S. (eds.), 2003: The Ethics of Stakeholding, 
Basingstoke, Palgrave MacMillan.



136 Leticia Morales 

LEAP 6 (2018)

Goodhart, M., 2007: “‘None So Poor that He is Compelled to Sell Himself’; 
Democracy, Subsistence, and Basic Income”, in L. Minkler and S. Hertel (eds.), 
Economic Rights, Cambridge, Cambridge University Press. 

— 2008: “A Democratic Defense of Universal Basic Income”, in I. M. Young, M. L. 
Shanley, and D. I. O’Neill (eds.), Illusion of Consent: Essays after Carole Pateman, 
State College, PA, Pennsylvania State University Press. 

Gourevitch, A., 2016: “The Limits of a Basic Income: Means and Ends of Workplace 
Democracy”, Basic Income Studies 11(1): 17–28.

Hunter, W. and Borges Sugiyama, N., 2014: “Transforming Subjects Into Citizens: 
Insights From Brazil’s Bolsa Familia”, Perspectives on Politics 12(4): 829–45.

King, D. and Waldron, J., 1988: “Citizenship, Social Citizenship and the Defense of 
Welfare Provision”, British Journal of Political Science 18(4): 415-443.

Mani, A, Mullainathan, S., Shafir, E., and Zhao, J., 2013: “Poverty Impedes Cognitive 
Function”, Science 341(6149): 976–980.

Marshall, T.H., 1950: Citizenship and Social Class, Cambridge, Cambridge 
University Press.

Morales, L., 2015: Derechos sociales constitucionales y democracia, Barcelona-
Madrid, Marcial Pons.

— 2017: “The Discontent of Social and Economic Rights”, Res Publica 24(2): 257-
272.

Pateman, C., 2002: “Self-Ownership and Property in the Person: Democratization 
and a Tale of Two Concepts”, Journal of Political Philosophy 10(1): 20-53.

— 2003: “Freedom and Democratization: Why Basic Income is to be preferred to 
Basic Capital”, in K. Dowding et al. (eds.), The Ethics of Stakeholding, Palgrave 
Macmillan, London.

— 2004: “Democratizing Citizenship: Some Advantages of a Basic Income”, Politics 
and Society 32(1): 89-105.

Peter, F., 2009: Democratic Legitimacy, New York, Rutledge Studies in Social and 
Political Thought.

Pettit, P., 2012a: “Legitimacy and Justice in Republican Perspective”, Current Legal 
Problems 65: 59–82.

— 2012a: On People Terms. A Republican Theory and Model of Democracy, 
Cambridge, Cambridge University Press.

Robeyns, I., 2001: “Will a Basic Income Do Justice to Women?”, Analyse und Kritik 
23(1): 88–105.

Soss, J., 2005: “Making Clients and Citizens: Welfare Policy as a Source of Status, 
Belief, and Action”, in Anne L. Schneider and Helen M. Ingram (eds.), Deserving 
and Entitled. Social Constructions and Public Policy, New York, State University 
of New York Press.

Standing, G., 2012: “The Precariat: From Denizens to Citizens?”, Polity 44(4): 588–
608.

Taylor, R.S., 2017: Exit Left: Markets and Mobility in Republican Thought, Oxford, 
Oxford University Press.

Van Parijs, P., 1995: Real Freedom for All: What (if anything) can justify capitalism, 
Oxford, Oxford Political Theory. 

Van Parijs, P. and Vanderborght, Y. 2017: Basic Income. A Radical Proposal for a Free 
Society and a Sane Economy, Cambridge, Harvard University Press.



 The Democratic Case for a Basic Income 137

LEAP 6 (2018)

Verba, S., Schlozman, K., and Brady, H.E., 1995: Voice and Equality: Civic Voluntarism 
in American Politics, Cambridge, Harvard University Press.

Waldron, J., 1999: Law and Disagreement, Oxford, Oxford University Press.
Widerquist, K., 2013: Independence, Propertylessness and Basic Income, Basingstoke, 

Palgrave Macmillan.
Zelleke, A. 2011: “Feminist Political Theory and the Argument for an Unconditional 

Basic Income”, Policy and Politics 39(1): 27–42.



LEAP
LAW, ETHICS AND PHILOSOPHY


	leap_6.3_MONTERO.pdf
	_GoBack

	leap_6.4_GARRETA.pdf
	_GoBack

	leap_6.6_MECKLED.pdf
	_GoBack