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Political Philosophy on Fundamental Rights - Dictionary of Arguments

Gaus I 214
Fundamental rights/welfare state/ welfare rights/Political philosophy/Moon: (...) many of the considerations that can be invoked to support strong property rights also support welfare or 'positive' rights, and so can be used to justify the redistributive activities of a welfare state. vities of a welfare state. When we think about why we are attracted to the idea that humans have rights at all, including a (defeasible) right not to be coerced by others, the reasons we are likely to come up with will support the idea that people ought to be accorded certain basic welfare rights, rights to goods and services necessary for human functioning.
Nozick/Moon: For example, Nozick refers to the idea that people are capable of leading meaningful lives, and so they have (or should have) a right against being coerced by others because such a right is necessary to protect that fundamental human capacity. I can only create projects for myself, and organize my life to realize those projects, and thus find meaning in my life, if I am free from coercion by others: they can't force me to do their bidding rather than fulfil my own aspirations.
Problem: This is a powerful argument, but it is equally true that to live my own life requires not only protection against interference from others, but also access to the resources necessary to life itself. If those resources can be appropriated as private property, then a person could be deprived of anything resembling a decent life, or even life itself, because she lacked the necessary resources.
Fundamental rights/Waldron: Jeremy Waldron (1993(1): 309-38) gives the example of a homeless
person, in a setting in which all land and other amenities, such as toilets or sleeping places, are pri-
vately owned. Under those circumstances, she would not be able to live, or at least to live without
violating someone's 'rights'. But what reason would she have to acknowledge a duty not to take
Gaus I 215
what she needed, when her life depended on it? It is hard to see why people, recognizing the possibility that they might become impoverished, would have reason to accept a system of property rights that could leave them in such desperate straits.
Property rights: As Waldron (1993(1): ch. I and passim) argues, the only system of property rights that all have a reason to endorse would be one that ensured that no one need be deprived of essential resources, and the obvious way of achieving that would be to make property holdings subject to taxation, so that the state could provide essential goods and services, or at least a minimum income, when necessary.*
Social minimum state/Moon: This line of argument supports what might be called a social minimum state, not necessarily an institutional welfare state. The core argument is that
some fundamental human values - the idea of a meaningful life, personal autonomy, or life itself -
can be realized (or at least guaranteed) only if there are government programmes providing enough income at least for subsistence.
Welfare state/social minmum/Hayek: F. A. Hayek, for example, is renowned as a critic of the welfare state, but he accepts the idea of a social minimum, arguing that citizens may feel that there is 'a clear moral duty of all to assist, within the organized community, those who cannot help themselves' and so the society could provide 'a uniform minimum income... outside the market' to those who are indigent (1976(2): 87).**
Political theories: Others have argued that people have prepolitical welfare rights, on all fours with the 'negative' rights to non-interference such as the right to bodily integrity, and that it is the government's responsibility to secure those rights.
Welfare rights/Political philosophy: The view that we have welfare rights that are, in some sense, prepolitical, which require that the state provide various goods and services, is subject to well known difficulties. The standards defining the scope of such rights claims are notoriously vague. Plant: Raymond Plant et al. (1980)(3), for example, base positive rights claims in 'needs', but what are the boundaries of need? I may 'need' an enormously expensive kind of medical treatment in
order to prolong my life, if only for a few days, but is it plausible to say that I have a right to such treatment?
Dworkin: Ronald Dworkin argues the traditional practice of medicine may be based on the 'rescue principle' , which answers that question affirmatively: 'it says we should spend all we can [on health care] until the next dollar would buy no gain in health or life expectancy at all', but he insists that 'No sane society would try to meet that standard' (2000(4): 309): it would require sacrificing too many competing goods, including other rights claims, like the right to an education or a minimal standard of living.
Gewirth: Alan Gewirth views positive rights claims as implicit in the commitment to human agency, a commitment one necessarily undertakes in performing any intentional action, because doing
so presupposes that one views oneself as an agent, and so is implicitly committed to those conditions necessary for the exercise of agency, which include access to certain resources. (...) when I cannot meet my needs through my own efforts, others have an obligation 'posi
tively to assist' me (1978(5): 134).
Moon: But what standards are they to use to determine what constitutes a reasonable effort on my part?
Holmes/Sunstein: These concerns may not be decisive to reject the idea of basic welfare rights, but they do mean that specifying them is impossible in the absence of some political process through which the standards governing responsibility and trade-offs among conflicting uses can be determined (see Holmes and Sunstein, 1999)(6). And because these rights cannot be specified except through a political process, it is implausible to view them as establishing a pre-political standard of justice to which that political process must conform. >Equal opportunities/Welfare economics.

* See Lomasky (1987)(3) for a rights-based defence of a mmimal welfare state, which taxes people to provide for a minimum standard of living for all.
** Although generally critical of the welfare state, Hayek seems to allow for certain forms of public provision and compulsory insurance (1960(4):285-394).

1. Waldron, Jeremy (1993) Liberal Rights. Cambridge: Cambridge Umversity Press.
2. Hayek, Friedrich (1976). The Mirage of Social Justice. Chicago: University of Chicago Press.
3. Plant, Raymond, H. Lesser and P. Taylor-Gooby (1980) Political Philosophy and Social Welfare: Essays on the Normative Basis of Welfare Provision. London: Routledge and Kegan Paul.
4. Dworkin, Ronald (2000) Sovereign Virtue. Cambridge, MA: Harvard University Press.
5. Gewirth, Alan (1978) Reason and Morality. Chicago: University of Chicago Press.
6. Holmes, Stephen and Cass Sunstein (1999) The Cost of Rights. New York: Norton.

Moon, J. Donald 2004. „The Political Theory of the Welfare State“. In: Gaus, Gerald F. & Kukathas, Chandran 2004. Handbook of Political Theory. SAGE Publications

Explanation of symbols: Roman numerals indicate the source, arabic numerals indicate the page number. The corresponding books are indicated on the right hand side. ((s)…): Comment by the sender of the contribution. Translations: Dictionary of Arguments
The note [Author1]Vs[Author2] or [Author]Vs[term] is an addition from the Dictionary of Arguments. If a German edition is specified, the page numbers refer to this edition.
Political Philosophy
Gaus I
Gerald F. Gaus
Chandran Kukathas
Handbook of Political Theory London 2004

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