Can the Right of Necessity Be Both Personal and Political?

Review of: Alejandra Mancilla (2016) The Right of Necessity: Moral Cosmopolitanism and Global Poverty. London: Rowman and Littlefield International. 140 pp.

In The Right of Necessity: Moral Cosmopolitanism and Global Poverty, Alejandra Mancilla argues that agents whose basic rights to subsistence are not realised should be entitled to “take, use and/or occupy the material resources required to guarantee [their] self-preservation, or the means necessary to obtain the latter” (4). This right of necessity (RoN hereafter) is, according to Mancilla, a “concrete expression” of the basic right to those material provisions necessary for survival (70). When an economic order guarantees its members secure access to the content of their subsistence rights (food, water, shelter, etc.), the exercising of the RoN would be limited to rare emergency cases. But in a world such as ours, in which very many human beings experience severe and chronic deprivation, resort to the RoN would be far more common. In this sense, the RoN serves as a check on any system of property rights: if a socioeconomic regime does not create conditions within which the basic right to subsistence is fulfilled for all, then those whose rights remain unmet – or others acting on their behalf – are entitled to act to guarantee their survival. “Demanding otherwise from them would be unreasonable, as it would be irrational for them to accept”, according to Mancilla (68). The RoN is a Hohfeldian “privilege compounded by a claim against others (including the owners of the targeted property) not to interfere with the agent’s actions” (85 italics in original). Defining the RoN as a privilege means that those who act to secure their survival have no duty not to do so. Combining it with a duty held by others not to interfere with the legitimate exercising of the RoN strengthens a right that would otherwise be weak.

The principal audience for this argument is moral cosmopolitans: those who hold that all individual human beings are equally the ultimate units of moral concern. One of Mancilla’s general aims is to rebalance the conversation on cosmopolitanism and global poverty in favour of a focus on “what the needy may be morally permitted to do by themselves and for themselves to fulfil or satisfy their basic right to subsistence” (3). Such a shift is indeed sorely needed: most contributions to the global justice debate to date have focused on the duties and (in)action of the well-off, treating the global poor simply as passive recipients of aid or sympathy. Another sense in which Mancilla’s contribution is very welcome is the careful and considered historical recovery of the arguments for the RoN provided by Aquinas, Grotius, and Pufendorf. These accounts demonstrate that RoN has a rich but as yet under-recognised historical pedigree.

In general, Mancilla’s case for the RoN is compelling: I found little to disagree with in many of the arguments she offers. Issues remain, nevertheless. Here, I focus on three. The first two relate to the assumptions she makes; the third to the likely practical and political implications of her argument.

Feasible conditions

Mancilla makes four normative and two factual assumptions, upon which the rest of her case for the RoN relies. Her normative assumptions are moral cosmopolitanism, the existence of the basic right to subsistence, the acceptance of the institution of property, and belief that any reasonable system of property rights must satisfy everyone’s basic needs. I will not discuss Mancilla’s normative assumptions as I have no quarrel with them. Her factual assumptions are more controversial, however. The first is that “certain minimally favourable material and technological conditions hold at the global level, that make it not utopian but feasible to have everyone’s basic right to subsistence satisfied” (16).

The problem with this assumption is that the feasibility of the satisfaction of subsistence rights for all is not fully determined by ‘material and technological conditions’ alone. As John Rawls says, when it comes to a society ensuring that all of its members enjoy human rights, while “money is often essential”, “political culture” is “all-important” (Rawls 1999, 108-109). Rawls gives the examples of famines that occur as the result of political and institutional failure, as opposed to simple lack of food (1999, 109). He also refers to the difference that the position of women can have on population levels and the sustainability of the economy (Rawls 1999, 109-110). Attitudes about the status of women are often deeply embedded within cultural and religious practices, and not necessarily reducible to ‘material and technological conditions’.

Rawls’ comments on this topic are far from perfect or complete. In particular, he does not elaborate on the specific ways a regime can be burdened by unfavourable conditions, and the sense in which political culture is implicated in each of these ways. The general point is clear, however: in order to make the realisation of the right to subsistence truly feasible, a society would need to have a political culture that was hospitable to it. It is not clear that conditions globally can currently be characterised in this way (which is not to say that it can never be), even if one did accept that anything like a single global society existed. This takes us to the next problem.

A basic global economic structure

Mancilla’s second factual assumption is “that there is such a thing as a basic global economic structure of which most human beings take part” (16). I take the reason why she needs this assumption to be that it provides a single global entity which can be held responsible for global poverty. Mancilla follows Thomas Pogge in interpreting human rights as “direct moral claims against social institutions imposed on oneself” (73). However, the crucial question Pogge does not consider in great depth, according to Mancilla, is what those whose human rights are not fulfilled are entitled to do for themselves while their institutions are failing. Mancilla regards her defence of the RoN as offering an answer to this question.

There are two problems with Mancilla’s assumption of a ‘basic global economic structure’, both of which suggest it is redundant. First, it is not at all clear that she needs it in order for the most striking implications of her argument to win through. Even if it was not the case that most human beings participated in a single economic order, the global poor would still presumably be able to exercise the RoN within their local, national, and regional settings. Indeed, all of the cases Mancilla cites as examples of when something close to the RoN has been invoked in the real world (the callamperos in Chile, for example, or the Movimento dos Trabalhadores Rurais Sem Terra in Brazil) are distinctly local in character (87-88).

The second problem is that, even if you accept Mancilla’s assumption of a ‘basic global economic structure’, it does not follow from this that such a structure itself has the capacity to guarantee the subsistence rights of all. The reason for this is that a ‘structure’ is not necessarily an institutional agent – that is, a macro-level agent able to regulate relations amongst other sub-level agents in line with a given pattern or goal. The presence of capable institutional agents is necessary if individuals are to have secure access to the content of their subsistence (and other) rights. The paradigmatic example of such an institutional agent in our current world is the state, but capable global institutional agents need not be exact replicas. A number of global justice theorists – including Henry Shue, who Mancilla cites approvingly throughout the book – have persuasively argued that it is precisely the absence of capable institutional agents which helps to explain the present levels of global poverty and inequality (Ronzoni 2009; Scheffler 2008; Shue 1988).

If Mancilla believes that the current levels of global economic interaction and interdependence is equivalent to the existence of a set of global institutional agents capable of regulating relations between all individuals such that all enjoy the basic right to subsistence, then she is mistaken. Alternatively, if she holds that the right to subsistence can be realised in the absence of capable institutional agents, this would be mistaken too. Indeed, given that Mancilla herself accepts that basic rights generate “final duties” to “create conditions under which the legitimate exercise of the right of necessity by the chronically deprived simply disappears” (76), it is not clear that the assumption of a ‘basic global economic structure’ is doing any useful work in her account at all.

Practical and political implications

The final problem with Mancilla’s argument for the RoN which I will discuss relates to its practical and political implications. This has two dimensions: personal implications for the agent exercising the RoN, and political implications for wider society. On the personal level, one question Mancilla deals with is whether those invoking the RoN can use force if others interfere with the exercise of their right. Mancilla’s response is disappointing (87-88). First, she distinguishes between violence and resistance with no explanation of what this distinction consists in. Then, she simply rules out violence a priori with an approving reference to Pogge where there should be an argument. Finally, she gives three examples of real world cases where the RoN has been successfully claimed without resort to violence, presumably to show that such results are possible. But the question is not whether it is possible to successfully exercise the RoN non-violently, but whether non-violence is all that can ever be justified. Given the current scale of deprivation globally and the inevitability of the resistance from those whose property will become vulnerable to appropriation by the needy, a more nuanced discussion of the characteristics of violence (directed at what, for example?) and fuller defence of pacifism is necessary. Does Mancilla really wish to rule out any resort to violence even if peaceful resistance is itself met with obstinacy and force? Such a move would have the unfortunate implication of rendering the ANC’s campaign against Apartheid unjustified, for example. This takes us to the political dimension.

As Mancilla rightly emphasises throughout The Right of Necessity, the overall aim of moral cosmopolitanism must be the establishment of conditions within which all human beings enjoy secure access to the content of their basic subsistence (and other) rights. For this reason, her discussion of what she calls the “Remedy Worse Than Disease objection” – which suggests that accepting the RoN would have highly negative consequences for social order and lead to a worse state of affairs for all, including the poor – is very interesting (106-107). Mancilla’s response is twofold. First – and rightly, I think – she questions why the burden is placed on the needy to sacrifice their subsistence for the sake of the status quo. Second, she suggests that the exercising of the RoN may in fact spur the global wealthy to take steps to reform the global order in line with cosmopolitan aims. Mancilla concedes that this as an “empirical claim” (107) – the problem is that it seems an implausible one. The few examples of real-world cases where peaceful invocations of the RoN have led to semi-permanent social reform do not evidence her claim; they are striking precisely because they are atypical. While it may not lead to near-anarchy, as Mancilla’s interpretation of the objection assumes, the RoN may lead to the overall aim of moral cosmopolitanism being harder, as opposed to easier, to realise. The likely response of those in power must always be borne in mind when engaging in action which seeks to have wider political effects, especially when these effects involve cost for those with power. This is part of the reason why resistance takes the form of civil disobedience (e.g. non-violent, public, etc.) in some contexts (see King 1991), and why the justificatory bar for violence is so high (which is not to say that violence can never be justified, as Mancilla suggests). Without a more careful discussion of the likely political implications of the RoN, Mancilla has no basis to claim that it could bring us closer to the overall cosmopolitan aim. It looks just as – perhaps more – likely to do the opposite.

Despite the problems just noted, Alejandra Mancilla’s The Right of Necessity is a timely, well-argued and original addition to the literature on global justice in general, and moral cosmopolitanism in particular. The most significant contribution it makes is to shift attention to the agency of those typically considered the victims of injustice. The central question we are left with is a pertinent one: what if the actions necessary to secure immediate needs are in tension with the overall cosmopolitan aim?