the moral dilemma in the rescue of refugees

8/9/2019 The Moral Dilemma in the Rescue of Refugees

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The Moral ilemma

in the Rescue

of Refugees

BY ERNST

T U G E N D H A T

1 o rescue peop le in need is a so-called positive du ty. W hen

we wish to clarify our moral intuitions, the distinction between

negative and positive duties is of fundamental importance.

Negative obligations toward others are obligations not to inflict

evil on them, for example, not to kill or to injure. They are

called negative because they are obligations to abstain from

doing something. Positive obligations are obligations to do

good or to prevent or repair evil. To rescue a person from

drowning or starving or to help him move if handicapped are

examples of positive obligations. All positive obligations can be

subsumed under the duty to help.

T here are obvious differences in the application of these two

types of moral duties. When asked to whom we have the

obligation not to harm, the obvious answer is: to everybody,

and there can be no question of more or less. On the other

hand, there can be no obligation to help everybody, since

o ugh t implies can. T h e usual view is that we have a duty to

help a stranger only in special cases and when the cost is not

especially high. When a person goes beyond that the action is

not a duty; correspondingly, we do not say that the other


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130 S O C I A L R E S E A R C H

which we may l ive a l i fe as we deem good for ourselves. The

other possibi l i ty, when one merges his entire l i fe in morali ty,

could be called the life of a saint. '

Turning to the duties which a state has toward i ts ci t izens, we

meet a s imilar dist inct ion. I t may sound a bi t awkward to speak

of negat ive and posi t ive human r ights , but the idea is that

negat ive r ights of an individual are r ights to non- interference;

J o h n L ocke's classical rig hts (the rig ht to life, l iberty, an d

pro pe r ty ) we re such negat ive r ights . It is general ly assu m ed,

al though i t is not quite true, that the state can respect these

r ights by s imply absta ining f rom cer ta in ac t ions . On the other

hand, posi t ive human r ights are r ights according to which the

s ta te has a duty to provide cer ta in th ings , oppor tuni t ies , and

even goods; such posi t ive r ights are , for example , the r ight to

work, the r ight to heal th care , and the r ight to subsis tence .

They can a l l be thought of as r ights to be helped, in

correspondence wi th the posi t ive obl igat ion to help in personal

moral i ty . This para l le l ism could lead one to suppose that

posi t ive r ights are as marginal in the concept ion of human

rights as posi t ive duties are in personal morali ty. In fact ,

posi t ive r ights had been recognized by few authors before the

Second World War . However , s ince the Universa l Declara t ion

of Human Rights of the Uni ted Nat ions of 1948, which

conta ins a large number of r ights of both kinds wi thout

assumpt ion of p r io r i t i e s , au thors wr i t ing about human r igh ts

have split into two camps: one asserts that only the classical civil

r ights are genuine , and the other asser ts that posi t ive r ights are

of equal weight.^

Th is is not the place to d iscuss the a rg um en ts for a nd agains t

these views, but i t may be helpful to point out what is the


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MO RAL DILEM M A 131

example, the constitution of the Federal Republic of Germany

of 1949. These two key concepts reflect the different

conceptions that the two views have of the significance of

hu m an rights. In spite of its ubiquitous use, the word dignity

is nowhere defined. Kant uses it equivalently with his concept

of the absolute, that is, non-relative worth of human beings.

Kant also uses the expression that hum an beings are ends in

themselves. A word which may help us to un de rsta nd what we

m ean by dignity is hum iliation. W hen a perso n hum iliates

anoth er, he tells him that he does no t consider him an end in

its lf

but a mere thing; he denies the other respect, thus

denying him the attribute of dignity. To live under undigni-

fied conditions means to live under conditions unfit for a

human being. This is again not very clear, but we are probably

unable to say what we mean by conditions that are unfit for

human life except by enumeration. There exists a central

notion, however, that would have to appear in this enumera-

tion, and this is the possibility for a sense of self-value and

self-respect. Admittedly, this brings us back full circle to the

notion of dignity, since to have self-respect means to have a

sense of one's dignity.

Now, there are obvious material preconditions for being able

to live a life of self-respect, and it is these that we consider

conditions befitting a human life. In the case of an animal, we

also can enumerate conditions needed to live a satisfactory life,

for example, sufficient food, a certain amount of freedom,

certain social conditions; but, for animals, these conditions do

not appear to be conditions of self-respect. It seems to make

little sense to speak of a sense of self-value and self-respect

when speaking of animals, and, hence, there does not seem to

be a very clear sense of what it would mean to humiliate an


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satisfactory l i fe . On the other hand, the two cases may be

co ns ide red to be sufficiently similar so tha t we also can say tha t

hu m an s living in undign i f ied condi t ions a re l iv ing u n d er

condi t ions that are unf i t for a minimal ly sa t is factory human

life.

This shor t a t tempt to c lar i fy what we mean by digni ty can

serve as a bas is to expla in what the more recent concept ion of

human r ights , based on the concept of human digni ty , f inds a t

fault with the classical view of human rights as we find it in

Locke, for example. In Locke's view, a s tate of nature is

pos tula ted which is a s ta te of perfect f reedo m , the only

def ic iency being that people can harm each other . The sole

purpose of government l ies in the provis ion of a centra l power

tha t p reven ts ha rm . T h e func tion of go ve rnm en t is to p ro tec t

those r igh ts in which humans supposed ly have been , a l though

precar ious ly , in the s ta te o f na ture . Human r igh ts , the re fore ,

consis t in the r ight , enforced by government , that people do

not harm each o ther p lus the r igh t tha t the government i t se l f

does no t in f r inge upon these r igh ts . A leg i t imate government

is a m inimal go ve rn m en t of se l f - res t ra int . T his exp la ins why in

the c lass ica l concept ion of r ights the fundamental value

seemed to be that of f reedom, a l though the r ight to l i fe or ,

more general ly, to bodily securi ty is not a r ight of freedom.^

From the point of v iew of the new concept ion of human

rights , an un ref iec ted pre jud ice of th is v iew is the pre su pp os i-

t ion that only those who in principle could exist in a s tate of

nature , namely, those who can fend for themselves , make up

socie ty . Those members of socie ty who in the s ta te of nature

could not fend for themselves even in principle are disre-

garded; they lack e i ther the oppor tuni ty to fend for

themselves , as when they have no proper ty , or the capaci ty , as


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M ORA L DILEM M A 133

dignity, whose satisfactory conditions for conducting a human

life could be taken care of by themselves. This is the reason

why a term like dignity did not even have to ap pe ar.

Both views are based on a morality and, ultimately, even on

the same morality, the only difference being that the classical

view restricts itself to negative duties while the new view

equally stresses the positive duties. Now, it might seem that a

virtue of the classical view of human rights is that it

corresponds to the priority that we attribute to negative duties

in personal morality. However, the problem of human rights is

no t ju st a reflex of person al morality. As soon as we tu rn to the

problem of human rights, two things change. First, the

emphasis is now not on the subjects who have moral duties but

rather on their objects. This is the reason why some

philosophers have recently spoken of a right-based in contrast

to a duty-based morality.^ In my opinion, this can not mean

that the concept of duty is being defined in terms of the

concept of right; we have no way of defining the concep t of the

righ t of a person except by m eans of the duties which this right

implies for others. However, the point of a right-based

morality is that it is the needs of the recipients of obligations

that determines the contents of the duties as well as the

addressee of the recipients' claims.^ Further, the recipient is

no t only the object of the du ties, but h e is entitled to the actions

or the omissions in question.

The second difference is that the claim that a human right

be respected is not directed merely to everybody—to all

individuals singularly—but to the collectivity. It is not a special

virtue but a necessary deficiency of individual morality that it

cannot deal adequately with positive duties. But it seems, at

least at this stage, that we can deal adequately with them if we


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catas t roph e such as an ea r thq ua ke or a f lood the g ov ern m en t

has a duty to rescue. Any one individual is quite helpless in

such cases bu t collectively we ar e cal led u p o n an d the

government i s the representa t ive of the col lec t iv i ty .

No w if this is the case with natu ra l catas tro ph es i t is difficult

to see why the community is not ca l led upon in a l ike manner

to he lp its des t i tu te m em bers those wh o can not he lp

themselves for economic reasons or for reasons of age or

health. This in fact can lead to a quite different raison d etre of

government than the one that was given by the t radi t ion which

star ted f rom a hyp othet ica l s ta te of na tu re . T h e reaso n we

ne ed a go ve rn m en t is no t tha t it def end s the lucky m em be rs of

society against those who have no resources but that i t assumes

those mora l du t ies toward the communi ty which a re ou ts ide

the reach of the individuals . I said that both views have a moral

bas is but the advantage of the more comprehensive view is

that i t bet ter accords with the quite general view that a

government must ac t in the general in teres t to be legi t imate

and th is can only mean in the in teres t of everybody and not

ju s t o f one g roup .

I do not wish to claim that this new conception is t rue and

the other fa lse but s imply that our moral out look has changed.

I t has changed regardless of whether we argue for th is v iew or

the other . How are such his tor ica l changes to be expla ined?

Probably there is most of ten a concurrence of two th ings: on

the on e ha nd cer ta in empir ica l facts are e i ther new or for

some reason we became more consc ious o f them; on the o ther

ha nd cer ta in res t r ic tions in the appl ica tion of the m oral

ou t look appear as a rb i t ra ry .

Social and economic r ights are often spoken of as the second


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individuals concerned. I do believe, however, that a new

generation in our view of human rights has arisen gradually

since the end of the Second World War as a result of the

internationalization of human rights. Here again, what

happens is that, first, certain empirical facts become much

more prominent than they had been, and, second, certain

aspects which previously had been taken for granted in the

discussion of human rights no longer seem so self-evident. As

for the empirical facts, in the first years after the end of World

War II, it was assumed that the problem of refugees quickly

would become marginal; instead, the number of political

refugees worldwide has grown enormously and, in all

probability, will increase further in the next years. What no

longer seems self-evident today is that human rights are

exclusively a national m atter, and that sovereignty is something

which excludes any interference whatsoever from the outside.

I must first explain what I consider to be the main point of

this internationalization of human rights. Some surface aspects

are obvious, but the fu ndam ental point seems to me to be that

the concept of hu m an rights itself changes when the addressee

of the right-claim switches even if only partly or as substitute)

from the government of the country to the international

community. A moment ago I pointed out that it is of the

essence of human rights that they are addressed to the

community, but the community has been thought of through-

out the traditional theory of human rights as the national

community, represented by the government. A government,

with its jud icial a nd executive pow ers, is an especially ap t

addressee of human rights claims, providing that when it

functions normally, it has the means to enforce these claims. If

there is no government, to talk of human rights seems to lose

part of its sense. On the other hand, when we speak of the


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which th er e no lon ger is a s ingle funct ion ing go ve rnm en t ,

th er e is no ins ti tu t ion tha t can replac e the no n-fu nct io nin g

region al go ve rnm en t . Or if the re is a func t ioning region al

government , but i t i s incapable of deal ing wi th the des t i tu t ion

caused, for example, by a f iood or a drought, or i f i t is unable

to safeguard against the infract ions which i t commits itself th e

internat ional communi ty may help rescue , but i t i s not a

poss ib le addressee of r ights . I f we choose to cont inue to speak

of human r ights , never theless , I would suggest tha t what we

sti l l cal l r ights loses i ts t radit ional sense of two-term predi-

ca tes—a re la t ion be tween c i t i zen and government—and ap-

pears ra the r as one-p lace p red ica tes , the s imple enumera t ion

of i tems that const i tu te human digni ty .

This expla ins why so of ten in contemporary d iscuss ions of

human r igh t s t he concep t o f human i t a r i an conce rn comes up .

Our hor ror a t the depr iva t ion o f human r igh ts can be d i rec ted

a t cons t i tu t iona l in frac tions by the co r res po nd ing go ve rnm ent ,

but i t can as well be directed at the simple fact that the people

concerned a re wi thou t he lp and pro tec t ion . Th is e ros ion o f

one connota t ion o f the concep t o f human r igh ts i s no t

necessar i ly only a bad th ing. The reference to human r ights ,

when they are v iewed f rom a perspect ive of pr imar i ly

international concern, loses al l or part of i ts enforceabil i ty;

however , they gain in universa l concern . Nonetheless , whether

i t is a good or a bad thing, i t is a real i ty of what has happened

to t he unde r s t and ing o f human r igh t s t oday . The concep t o f

human r igh ts seems espec ia l ly adequa te to under l ine the

absolute validity of these claims, and this was certainly

appropr ia te fo r the f i r s t genera t ion o f human r igh ts . The

extension of human rights talk to posi t ive r ights runs into

trou ble with the qu est ion of the ir inst i tut ionaliza t ion in the


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even have an institution to which rights claims can be

addressed.

What I want to suggest is that human rights, which have

arisen from morahty and consist in a special application of

moral duties to governments which, among other things, had

the great advantage of being able to deal, at least theoretically,

with positive duties, undergo at present a change in their very

meaning on account of the further extension of the addressee

of these rights. When they are seen as the objects of merely

humanitarian concern, they revert to individual morality and,

in so doing, may well overtax the moral capacity of humans.

The idea of rescue turns out to be, as soon as it becomes an

international affair, primarily based on a supererogatory

moral attitude as it had been in personal morality, and this

becomes increasingly so as the am ou nt of infractions of hum an

rights and of refugees surpasses our imagination and stands in

danger of being considered a normality. Those who try to

protect internal and external refugees from the worst

calamities, for example, the admirable team of the United

Nations High Comm issioner on Refugees UN HC R) and many

members of non-governmental organizations, form the tiny

group of saints in the strictly terminological sense in which I

used the word at the beginning of this essay, with full personal

dedication to the humanitarian cause and assisted by collec-

tions in aid given by some governments and many individuals

to appease their conscience, but the UNHCR cannot be and

does not want to be the addressee of the harassed human

rights.

The problem can be exemplified by the one human right, if

it is one, which is both national and international in its very

content: the right of asylum. What characterizes this right is


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right , i f i t were recognized, would be recognized for purely

mora l reasons , as the re a re no pressure g roups wi th in the

country to push for i t . The analogy in pr ivate moral i ty might

be that I have a duty to le t a person in to my house when he is

being persecuted. Since I have to open the door, i t is a posi t ive

right , and i t would be so in part icular i f i t were combined with

the idea that the refugee is to be received in dignity and

furnished with condit ions that enable him to begin a new l ife in

digni ty . This r ight would be fur ther character ized by the

fact— and th is is wh at would m ak e it so ur ge nt— tha t t he a l ien

is f lee ing f rom condi t ions that are not only humil ia t ing but

consist in infractions of his negative rights: he is not safe from

being ki l led or tor tured in h is country .

Now , the t ru th of the m at te r is tha t not even the Assembly of

the Uni ted Nat ions has brought i t se l f to accept th is r ight in to

the Universa l Dec lara tion of 1948 , a l tho ugh the p re pa ra to ry

com m it tee ha d p rop ose d tha t it do so . T h e on ly cou nt ry which

I know that has accepted the r ight of asylum into i ts

cons t i tu t ion , a l though in a nar row in te rpre ta t ion , had been the

Federa l R epubl ic of Germ any . Th e reaso n w as . tha t m any

members of the const i tu t ional assembly in 1949 had been

forced to ask for asylum themselves in o ther countr ies when

they were being persecuted by the Nazis , and they knew, of

course , that many had been ki l led because they did not obta in

asylum . T h e Swiss case of th e refusal of Jew ish refug ees r ig ht

a t the border was especia l ly g lar ing. The reasoning of the

German const i tu t ional assembly was purely moral in the bes t

sense o f the wo rd : W hat ha pp en ed to us sha ll nev er ha pp en

again as far as we are concerned.

Meanwhile , las t year th is guarantee was res t r ic ted by a

const i tu t ional change in such a way that the handl ing of


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M ORA L DILEM M A 139

significant is that this right actually did not even exist as a

reality before it was abrogated, once the number of petitions

for asylum had become significant. The supposedly unique

existence of the right of asylum in West Germany was in large

degree a formal fake, since the German courts saw to it that

refugees were declared not to have been persecuted nor to

have to fear persecu tion if they were re tu rn ed in cases in which

common sense would say they very obviously suffered

persecution. The right to asylum thus became the object of an

ugly and unfair judicial hairsplitting, and, in addition, the

government adopted an explicit policy of deterrence, with the

doubtful argument that this would diminish the so-called

abuse of the right to asylum and with the effect that the

refugees were held in camps in a state which did not

corresp ond to hu m an dignity many were sent back to their

country in defiance even of the Geneva Convention on

Refugees which prohibits expulsion of refugees into their

countries if they are liable to be persecuted).

I myself campaigned in Germany in the mid-eighties for the

right of asylum, but I now ask myself whether the reference to

a right was the adequate moral rhetoric. I do not wish to say

that we should not formulate our moral convictions in terms of

the respect for rights, yet if a right is understood simply as a

paragraph in the constitution that can be included as well as

excluded by the will of a two-thirds majority, it does not

present itself with the motivational moral weight that it could

have. As long as the addressee of moral demands was clearly

the government, to understand these guarantees as rights

app eare d as the m ost adeq uate formulation. But as soon as, on

the one hand, the moral addressee is no longer a government

and, on the other hand, as in the case of the right to asylum,


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140 SOCIAL RESEARCH

course the question of rights comes up again but in a purely

moral sense: do we wish that it be part of our

self-

understanding that we respect all people equally and that this

respect implies that every one of them have a right to a life in

dignity?

This

I think is the direction in which our questions must go

but as things stand no solution will be found readily. The

moral situation of our contemporary world in relation to the

problem of political refugees could be summarized in the

following three propositions:

First the main cause for the current increase in political

refugees is a self-understanding of groups in particularistic

terms which ultimately implies the denial of universal respect

and of human rights altogether. Now this particularistic tide

found in the countries which produ e refugees is equally

characteristic for large parts of the populations of the

countries which could re eive refugees.

My second and third propositions point to the probable

expectations even in the improbable case that ethnic thinking

should be overcome. Thus second even if ethnic strife should

recede we must anticipate further wars and civil wars caused

by the aggravation of economic and ecological conditions that

is to say the amount of people which will be required to be

rescued will in all probability increase even without ethnic

strife and even if rescue be interpreted narrowly and restricted

to refugees suffering from persecution.

And third even supposing that the xenophobic tendencies

in the better off countries that in principle could rescue

refugees were overcome that is to say even supposing that we

did understand ourselves morally the rescue of aliens in great

numbers in spite of economic problems which this creates


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present and in the foreseeable future appears, therefore,

rather bleak. My first proposition says that the contemporary

moral condition of humanity is not propitious to diminishing

the problem in the first place. The third proposition says that

even presupposing a universalistic moral self-understanding,

morality itself would be strained beyond the normal limits to

which we are used to today, since supererogatory action would

be called for not as the exception but as the rule. The step

from private morality to a political morality based on human

rights seemed, in the second generation of human rights, a

way to overcome the embarrassment which positive duties (of

which the duty to rescue is the most important) pose in private

morality, but in what I called the third generation of human

rights, the du ty to help extends to all of hum anity and requ ires

a new understanding of the morality of individuals, govern-

m en t, an d their interp lay. New ways will have to be foun d that

are not only technical but concern our self-understanding.

Notes

' Among classical philosophers, it was Kant who stressed perhaps

m ore than anyone else the p riority of negative as opposed to positive

duties. A contemporary representative of this strict differentiation is

Bernard Gert.

^ Henry Shue, in his book

Basic Rights

is an outstanding

representative of this new conception. For the contrary view, cf.

Cranston (1967).

^Cf. Shue (1980).

^ Cf. Mackie (1984).

^ Cf. T ug en dh at (1993), the 17th lecture.


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Mackie, J.L .H ., Can there be a right-based moral theory? in J.

Waldron, ed., heories of Rights (Oxford: Oxford University

Press,

1984).

Shue , H e nr y , Basic Rights: Subsistence Affluence and U.S. Foreign Policy

(Princeton, NJ: Princeton University Press, 1980).

Tugendhat, Ernst,

Vorlesungen

ilber Ethik (Frankfurt: Suhrk am p,

1993).


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the moral dilemma in the rescue of refugees

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