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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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132 S O C I A L R E S E A R C H
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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134 S O C I A L R E S E A R C H
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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MO RAL DILEM M A 135
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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136 S O C I A L R E S E A R C H
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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MO RAL DILEM M A 137
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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138 S O C I A L R E S E A R C H
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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MO RAL DILEM M A 141
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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142 S O C I A L R E S E A R C H
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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