positive duties, but these cannot be part of the fundamental system of rights, primarily
because making such positive duties a part of the basic system of rights would place
undue burdens on acting individuals. Habermas apparently worries that each citizen
would then be required to render aid personally. Instead, Habermas invokes a pragmatic
argument to show that there must be a “moral division of labor” in which the positive
duty to care must be organized and institutionalized, especially through the state or
powerful transnational institutions. The positive duty to respond to others’ needs, in
other words, is translated primarily into the duty to design or reform institutions that can
respond to needs effectively (see Shue, 1988, p. 703). As Habermas puts it, the intrinsic
value of aiding those in need “can at best express itself in public support for the
corresponding policies and aid programs” rather than in the fundamental principles of a
legitimate legal order (1998b, p. 440).
However, Habermas’s response confuses the issue at hand and is deeply
problematic, because it makes responsiveness to the vulnerabilities a matter of private
choice. In the first instance, Habermas has oddly confused the question of what
categories of rights are basic to a legitimate legal order with the question of how those
rights should be administered, organized, and protected.
He is quite correct to point out
that the right to receive care should not obligate each member of the society (or the world
as a whole) to provide such care directly and personally. This is probably not a good idea
primarily because of pragmatic obstacles. Yet this is not the issue. At this stage, we are
only concerned with the first question, namely, whether all persons in a legitimate legal
order have some claim to basic provisions and care. It is only after establishing this right
4
This is a very odd mistake for Habermas to make, because his conception of legal legitimacy carefully
distinguishes between two stages. In the first stage, equal legal consociates grant one another the
fundamental categories of rights. In the second stage, there emerges a form of political power to enforce
these rights.
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Convention