The idea that negative duties are stronger than positive ones is wide-spread. The idea that human-rights-corresponding duties are strong is also widespread. I will show that both ideas are wrong. Alternatively, I propose the following three criteria for strong duties: (1) their refer-ence to basic goods, (2) reasonable demandingness, and (3) determinate-ness. A duty is strong if and only if all three criteria are fulfilled. Togeth-er they are necessary and sufficient. The critTogeth-eria themselves can obvious-ly be more or less fulfilled. So the strength of duties is a question of de-gree: the closer the criteria are to being met, the stronger is the duty.
The criteria can also be interpreted in different ways concerning their content. However, I will not go into detail concerning the interpreta-tion of the criteria in this paper. Even if we keep the criteria quite for-mal, it will turn out that there are strong positive duties. And it will turn out that not all human-rights-corresponding duties are strong, either based on an individual or on an institutional understanding of human rights.
In the first part of my paper, I will show that there are strong itive duties. Furthermore, I will argue that the distinction between pos-itive duties and negative duties is misleading with regard to their relative strength. I will discuss two possible ways of differentiating between pos-itive and negative duties that are both implicit in current debates but do not lead to the same conclusion concerning the strength of duties. We can more plausibly explain the strength of duties in terms of the goods protected by the duty, I will argue, than in terms of their being positive or negative in the sense of being duties to act or to omit an action. The second criterion to determine the strength of a duty is reasonable de-mandingness: if we can only save another person’s life by risking our own, this would be more than can reasonably be expected. Such a deed would go beyond duty; it would be supererogatory. The third cri-terion is determinateness. It must be clear who has to do or omit what in order to fulfill the duty. Taken the other way round, it must be clear by
which specific action or omission which person violates the duty and which person’s moral claims or legal rights or human rights are violated by the action or omission in question. All this means that we are com-mitting a serious moral or legal wrong if we violate a strong duty.
In the second part of the paper, I will apply this approach to the human rights discourse, where it is also common to interpret the strength of human rights in terms of the distinction between positive rights and negative rights. Onora O’Neill’s thesis is that we can distin-guish between human rights in a full sense and mere manifesto-rights by having a look at the corresponding duties. However, closer inspection reveals that it is not merely being positive or negative that determines the normative status of rights and of corresponding duties, but rather the relevance of the protected goods in combination with reasonable demandingness and the third criterion of determinateness, i. e. the spec-ification of duty-content and duty-bearer.
In the last part of the paper, I will focus on world poverty as a human rights violation and the question of how strong human-rights-corresponding individual duties are in this context. I will again defend the idea that we should consider the normative relevance of goods pro-tected by a right, the reasonable demandingness for the duty-bearer and the determinateness of the corresponding duty as the three decisive fac-tors for the strength of duties, which means that there may be strong and weak, or stronger or weaker, human-rights-corresponding duties. It may, for example, be that a duty that refers to a human right (which im-plies that the first criterion, reference to basic goods, is met) is still weak because the other two criteria are not met. Furthermore, I will defend the idea that the relevance of the protected goods in combination with the possibility of effective institutional protection is decisive for the sta-tus of a right as a human right and not the demandingness or determi-nateness of corresponding duties. The demandingness and determinate-ness of corresponding duties, whether negative or positive, can vary with factors independent of the status of the right, so that the right might remain unfulfilled or violated by unjust structures rather than being violated by individuals. We can consider institutional arrange-ments as unjust if an institutional allocation of human-rights-corre-sponding duties could fulfill the factors of determinateness and reason-able demandingness. However, if such structures are not in place, indi-viduals do not have as strong duties as they would have if just institu-tions were able to guarantee the determinateness of duties. Individuals might then have other duties, e. g. the duty to support the development
of better institutions, but these duties are not as strong as institutionally allocated human-rights-corresponding duties would be. This is partly so because the reasonable demandingness factor can depend on institution-al arrangements.
I. Positive and negative duties
In this part of the paper, I give a systematic account of the distinction between positive and negative duties. I begin with two prejudices con-cerning positive duties:
(1) There is no such thing as a positive duty. Actions that improve the well-being of others are not obligatory but supererogatory ; they are arbitrary gifts. They are morally good but not required (the supererogation thesis).
(2) Positive duties are weaker than negative duties. They are wide, imper-fect, leave latitude concerning their fulfillment, they are mere “duties of virtue”, cannot be enforced, they are not provided with corresponding rights (the subordination thesis).
By “positive duty” we usually refer to duties that require actions, in contrast to “negative duties” that require omissions. According to the supererogation thesis, there is no such thing as a duty that requires ac-tion. According to the subordination thesis, there might be duties to act, but they are only weak. Let us go into some terminological details here.
An action that is supererogatory is morally good but not required. We don’t owe it to others and we do not violate any duty if we don’t per-form the act. Weak duties in the Kantian tradition are duties without corresponding rights. Gewirth explains the weakness of a duty by refer-ring to a commonly held position towards the duty to help the poor:
“Few would deny that the more affluent should do something to help the poor. But most well-to-do persons understand this ‘should’
in a weak sense. They see such aid as beyond the call of duty, as super-erogatory or, at best, as provided pursuant to an ‘imperfect duty’ of charity, humanity, or solidarity, which leaves it to donors’ discretion as to how much they give and to whom. It is good to help, but the poor have no right to be helped” (Gewirth 2007, 219).
A related idea concerning positive duties is that they are duties to improve the well-being of others whereas negative duties are duties not to unduly harm others. This shows us the structural resemblance be-tween supererogatory acts and weak duties: if we don’t perform a super-erogatory act or fulfill a weak duty, we do not violate anyone’s right.
Where the stronger supererogation thesis says that there are no positive duties, the subordination thesis only says that there are weak positive duties but that there are no corresponding rights that are violated if a positive duty is not fulfilled. The moral wrong we commit is in both cases not as serious as the violation of any negative duty. The implicit assumption is that we improve the well-being of others via positive du-ties whereas we harm others (violate their rights) if we violate negative duties. If we talk of a strong duty we mean that we commit a serious moral wrong if we violate it. Therefore strong duties should have prec-edence over weak duties. This is plausible, but I will show in the follow-ing section that it is not plausible to claim that there are no positive du-ties or to consider positive dudu-ties weak. There must be different criteria for the (relative) strength or weakness of duties apart from their being positive or negative. Furthermore, in section II we will deal with the question of what it means to violate another person’s basic rights or human rights and if all human-rights-corresponding duties really are strong ones.