What Are Human Rights? (41): No Right Without a Remedy

Ubi jus ibi remedium: where there is a right, there must be a remedy in case of violation of the right. It’s an old but somewhat misguided principle. If you focus too much on it, you’ll miss the essence of human rights. It has some superficial appeal: when nothing can be done about a rights violation, you might just as well not have a right at all. Conversely, the presence of remedies may deter future wrongdoers.

However, if you dig deeper, you’ll notice some problems. First, the principle is often used to disparage economic human rights: what’s the use of promulgating a right to work, when the presence of work depends on economic circumstances rather than on decisions by judges or on government policy? Compare this to the right to free speech: when a government shuts down a newspaper, a judge can – ideally – order the government to step back. Or compare it to the right to property: when someone steals your stuff, a judge can order to thief to give it back or compensate you financially. If we want to hold on to economic rights – and I think we should – we have to soften the remedy principle.

But there are problems even if we don’t care about economic rights. A remedy is often inadequate or even unavailable. Judges are ineffective or complicit in dictatorships. Do we say that the citizens of those dictatorships do not have rights simply because they don’t have remedies? I don’t think so.

Even if we focus on states with a well-functioning rule of law, there are many rights without remedies. Suppose the police harasses you repeatedly for no good reason. They regularly invade your house and strip search you. As a result, your sense of security and privacy is gone. You live in constant fear and humiliation. You appeal to a judge who manages to stop the police and who awards you financial damages. And yet, you’ll probably be traumatized for the rest of your life. In short, you have no real remedy. The same is even more obvious in the case of a violation of the right to life. There’s obviously no remedy, but that doesn’t make the right to life useless. It’s still a strong moral claim that often has beneficial effects.

Even when real remedies are possible, they may require more than a few words spoken by a judge. Take for instance racial segregation in the U.S. Courts have repeatedly ruled it unconstitutional in the 1950s and 60s, but it took decades of complex laws and policies to diminish its effect. Again, the difference with economic rights tends to disappear. For instance, a healthy environment for job creation in the private economy also requires good and complex government policies maintained over many years.

More posts in this series are here.

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