Two (Different) Types of Human Rights Duty.

Abstract

In this paper I introduce a (new) distinction to 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 colour 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, 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 health care secured 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 also means accepting that we must pay 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 conflicting interests should be weighed and providing an “index” for such weighing.