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The Positive Right to Security
CURRENT CONCERNS ABOUT the need for security from terrorists have had a perverse effect on human rights discourse. Instead of reaffirming the commitment to human rights in the face of threats to democracy, ‘rights talk’ has been used to undermine rights. Powerful rhetoric about the right to security and the right to life has been marshalled in support of removing rights to a fair trial, to freedom of speech and to freedom from torture. Even more conspicuous are the ways in which positive duties, usually associated with egalitarian principles and the welfare state, have been harnessed to this corrosive purpose. Thus, it is said that detention without trial is a necessary part of the positive obligation on states to protect the rights of citizens to security from others who might be intent on causing injury. This contrasts with alternative understandings of the right to security, which view the state’s positive duty to provide security from poverty, illness and degradation as at least as fundamental as its duty to protect individuals from harm by others.
In this essay, I aim to explore the notion of a positive right to security. The first part looks at ways of understanding the positive dimension. I argue that the right arises from a deeper understanding of human freedom, one which does not simply prevent interference in free choices but instead seeks actively to remove constraints on choice and facilitate agency. The right to security is not simply a right to non-interference but a right to positive state action—state action that aims to protect the individual from risks to the person, whether they are caused by fellow citizens, poverty or the state itself.
On this understanding, the right to security is a platform for the exercise of real freedom and agency. However, because a positive approach makes demands on the community and the state, it is necessary to incorporate too an analysis of responsibility. In the second part of this essay, I address the potential conflict between a positive notion of the right to security and other rights, such as the right to freedom, and argue for a notion of responsibility that moves beyond competitive rights and questions the primacy of an individual’s right to choose only in self interest. The third part aims to anchor this discussion in legal possibilities, examining the role of legal and constitutional provisions in elaborating such a right. I contrast the approach of the Canadian Supreme Court to the right to security with that of the South African Constitutional Court and a recent British House of Lords judgment to show the extent to which background understandings of choice and responsibility influence outcomes. Finally, I briefly consider possible principles of adjudication of the positive right to security.
I. THE POSITIVE RIGHT TO SECURITY: A CAPABILITIES APPROACH
As traditionally understood, positive and negative rights differ according to the nature of the duty imposed on the state. Negative rights are said to impose a duty of restraint on the state, whereas positive rights require action by the state. At first glance, the right to security is quintessentially a negative right. Its core is defensive: the right not to have one’s person or personal space invaded. However, on closer inspection, it is clear that the right to security cannot be limited to a duty of restraint on the state. At the very least, it must extend to protection of the individual against the acts of other individuals, whether fellow citizens or enemy forces. Indeed, the duty of the state to protect individuals from each other is fundamental to the social contract envisaged by early liberal political theorists. But this requires far more than a duty of restraint: it necessitates a raft of positive measures, ranging from a criminal justice system to laws of property. This in turn demonstrates, as Shue has argued, that rights cannot sensibly be divided into positive and negative rights.1 Instead, all rights give rise to a range of both positive and negative duties. Shue classified these duties into three groups: duties of restraint, duties to protect individuals against other individuals and duties to provide.2
The right to security clearly includes both the duty of restraint and the duty to protect. It is argued here that it also includes the duty to provide for basic needs of individuals. This is based on an understanding of security that is not so much about freedom from invasion but instead entails the right to be free from threats to one’s bodily survival, to the extent that such threats can be deflected by human agency. Protection against hunger, want and other material deprivations that threaten a person’s existence are then as much part of the right to personal security as protection against assaults by the state or others. Correspondingly, the duty of the state includes both the duty to protect rights holders against those who obstruct or invade their means of survival and the duty to make positive provision of such means of survival, where necessary.
Thus the core of the right to security is not simply a defensive right to be free from interference. If it were, the right to security would be co-extensive with the right to liberty. The relationship between liberty and security is more complex than this. As a start, major human rights instruments refer to a right to liberty and security.3 This suggests that the right to security is more than a rhetorical flourish. Second, and more substantively, the right to security can just as well conflict with liberty as reinforce it. Indeed, political theorists have repeatedly portrayed the state in terms of a trade-off of liberty for security. Thus Hobbes depicted the formation of society in terms of a decision by individuals to surrender their liberty in return for guarantees of security.4 In the more liberal, Lockean portrayal, individuals achieve the right to security by agreeing to curtail their own freedom as a quid pro quo for others being required to do the same.5 Third, whereas the individual liberty right is formulated as pre-dating society, the right to security is an essentially social right arising directly from the need to co-operate. Security from assault can only be achieved through social co-operation. Similarly, security from want cannot in practice be achieved in isolation but requires co-operation from others.
Thus at one level, security provides the social constraint on the liberty right. At another level, however, security is an essential prerequisite for the exercise of freedom. Without basic security, individuals cannot exercise their liberty. This is as true for protection against want as it is for protection against assault. In this sense, the positive understanding of the right to security feeds into a richer concept of the right to liberty, which focuses on autonomy and genuine freedom of choice, rather than freedom from interference. This shifts the focus to constraints on autonomy arising from socio-economic conditions and power structures in society. A positive approach stresses the need, not just to protect individuals from interference with choice, but to address the constraints on such choice. The right to security from want is an essential means to facilitate such choice.
The theories of Amartya Sen and Martha Nussbaum provide the framework for such an approach. For Sen, substantive freedom of choice is about agency and the actual ability to achieve valued functionings if one chooses to do so.6 These substantive freedoms he calls capabilities, which he distinguishes from functionings. Functionings are the things a person may value doing or being, while capabilities refer to the alternative combinations of functionings that are feasible for a particular individual to achieve.7 This distinction is important because, as a result of social or economic or physical constraints, it may not be feasible for people to achieve the valued functionings they would otherwise have chosen. This in turn generates the need to address the constraints on such functioning. ‘What people can achieve is influenced by economic opportunities, political liberties, social powers and the enabling conditions of good health, basic education, and the encouragement and cultivation of initiatives.’8 Thus development requires the ‘removal of major sources of un-freedom: poverty as well as tyranny, poor economic opportunities as well as systematic social deprivation, neglect of public facilities as well as intolerance or over-activity of repressive states’.9 It can be seen from this that the right to security from want is just as essential as the right to security from state repression to the achievement of freedom as agency.
Sen’s argument also demonstrates the converse relationship—that liberty as agency contributes to ensuring the right to security from want and deprivation. Thus, Sen argues, free agency of people is a major engine of expanding the real freedoms that all individuals can enjoy. The enabling conditions of good health and basic education are essential to the extent to which people can exercise political freedoms. But, conversely, the ‘liberty to participate in social choice and the making of public decisions’ are necessary to determine the meaning and nature of social needs and influence the institutional arrangements for achieving these enabling conditions.10 Moreover, choosing is a valued functioning in itself: fasting and starving might look like the same outcome, but in terms of substantive freedom, they are entirely different. Thus the freedom to choose is valuable both for itself and for the outcome it leads to.11
Sen’s approach does not specify whether achieving these developmental aims should take place within the political arena or whether they should be entrenched as human rights. Nussbaum takes Sen’s conceptual apparatus of capability into the heartland of human rights law. Her aim is ambitious: to provide the philosophical underpinning for an account of basic constitutional principles that should be respected and implemented by governments of all nations, as a bare minimum of what respect for human dignity requires. Basic constitutional principles, she argues, should provide for a threshold level of each capability below which truly human functioning is not available. The social goal, therefore, is to get citizens above this capability threshold.12 Notably, she sees the threshold as more important than equality of capability, allowing her to defer questions about what needs doing after all citizens are above the threshold. She therefore maintains that her approach is compatible with several different accounts of distribution above threshold.13
Nussbaum gives more concrete form to these abstract principles by attempting to enumerate those threshold capabilities that she believes can be universally accepted. These are generated from the core idea that human beings, as distinct from animals, are dignified free beings who shape their own lives in co-operation and reciprocity with others.14 The Kantian ideal that each person is a bearer of value and an end in himself or herself is supplemented with the Marxist perception that the major powers of a human being need material resources to support them. Nussbaum then enumerates ten basic capabilities that are necessary for fully human functions; these include both the positive and negative dimensions of the right to security. On the negative side are bodily integrity and the right to move freely and to be secure against assault. On the positive side are life—in the sense of being able to live to the end of a human life of normal health—and health, which includes reproductive health, and adequate nourishment and shelter. Similarly they include both expression and education.15 These, with the remaining principles, she argues, constitute the underpinning of principles that can be embodied in constitutional guarantees.
II. WHO PAYS? RECONCEPTUALISING RESPONSIBILITIES
Central to the perspective outlined thus far is the recognition not just that human beings should be free to pursue their own versions of the good life, but that the major powers of a human being need material resources to support them.16 The reason why this causes difficulties within an individualist human rights framework is because it immediately raises the question of where the resources will come from. Will some have to sacrifice their right to pursue and achieve the fulfilment of their own capabilities in order to ensure that others achieve the minimum? In other words, is the right to security won at the expense of rights to non-interference? So long as individuals are simply restrained from interfering with each other, and so long as states are similarly constrained, rights to freedom and security can be reconciled. But because the capabilities approach insists on the duty to provide material resources to support individual freedom, it requires a different conceptualisation of the structure of freedom and responsibility.
From an individualistic perspective, three problems arise in respect of the positive right to security as framed above. First, it seems to rest on a distinction between ‘costless’ rights and ‘costly’ rights. Rights such as freedom of speech, association, religion and assembly and freedom from interference in family and private life are portrayed as costless, while rights to the minimum resources to fulfil our capabilities seem costly. This is particularly relevant for theories of adjudication, since judges are said to be reluctant to adjudicate on resource allocation issues.
Second, the approach outlined above requires us to create a distinction between rights that apply to all and those that apply only to the needy or disadvantaged. Thus everyone has a right to freedom of speech, but, although everyone has a right to the minimum material resources, many people are in a position to provide for themselves. If we follow this argument, the right to minimum resources places a duty on the state only in some cases. Even more problematically, it seems that those who can provide for themselves should give up some of what they provide for others in society. Indeed, the capabilities approach could be said specifically to require this result: Sen argues that since social, economic and physical constraints do not operate evenly throughout the community, some individuals might require more or different resources in order to achieve valued functionings.17
Third, and as a logical implication of the first two points, negative freedom arguably conflicts with positive freedom. Thus in order to provide basic resources to some, the state must step over the boundaries of non-interference and require some to contribute so that others’ rights can be protected.
These problems can be addressed by adopting a more sophisticated analysis, beginning with the distinction between costless and costly rights. The recognition that all rights give rise to a threefold set of duties immediately demonstrates that civil and political rights are far from costless. It has been demonstrated above that the right to security is more than a right of restraint: it requires the state to put in place systems to defend the security rights of citizens, in the form at the very least of a defence force and a criminal justice system. These are far from costless. An even more far-reaching answer can be found in the capabilities approach itself. Speech, religion, assembly, and association appear costless, but they too might need resources if our capability set cannot support them on their own. Thus if I own a large hall, or a newspaper, I can exercise my freedom of assembly or speech without input from the state; but if I do not, I might need access to a venue or to print media to achieve this functioning. On closer inspection, even if I already own a hall, I am not exercising a costless right. Although background private law is taken for granted, property ownership itself requires state provision of a panoply of property laws.18
The second problem—that positive rights apply only to some while negative rights apply to all—can also be addressed by a more sophisticated analysis. On closer inspection, it can be seen that it is not true to say that rights available to those who need them are not universal. Instead, anyone for whom the need arises can claim them. This is true, for example, in relation to rights to security in unemployment, illness and old age. In addition, the positive right to security need not be targeted only at the needy. Rights to security can be set up in a wide variety of ways, as is evidenced by different models of the welfare state.19 It is true that, using Esping Anderson’s terms, a ‘liberal’ regime targets only the poor, merely providing a safety net when the market fails.20 However, an alternative, ‘social democratic’ regime takes a different view. Instead of targeted, means-tested assistance, rights are attached to individuals and based on citizenship, therefore avoiding the stigmatic ‘we–they’ divide of the liberal welfare regime.21 On this model, rather than simply transferring income to the poorest in society, the right to security has a public and universal dimension. Access to public services, such as vocational training, health care, transport, education and child care, are considered collective benefits, giving individuals real rather then formal opportunities.22 Such public facilities build up social capital as well as take the pressure off income as the chief means of fulfilling individual needs. In this way, social progress is seen as the best path to achieve individual well-being. Crucial too is the community solidarity that comes from giving everyone a stake in the welfare state.
The third problem, the supposed conflict between the negative and the positive, opens up a more fundamental debate as to the understanding of the right to positive security. The assumption so far is that rights are individualised, in that they benefit only the individual rights holder. Correspondingly, a right is portrayed as a package of commodities. The implication of this is that the benefit to one could be a cost to another, therefore requiring a further theory that justifies imposing positive duties to make provision for others.
An alternative view, however, would see the benefit of rights as diffused through the community. On this view, state responsibility for ensuring all reach a minimum capability threshold is a contribution to the community as a whole,23 not simply to particular individuals. Thus Ritchie argued at the end of the nineteenth century that fundamental or natural rights were:
mutual claims which cannot be ignored without detriment to the well-being and in the last resort to the very being of a community … They represent a minimum of security and advantage which a community must guarantee to its members.24
In a more modern version of this approach,25