The right-of-resistance question Gargarella raises is the most difficult problem in political philosophy. It requires that we think morally about violence, potentially deadly violence, and its possible justifications. And it requires that we treat most other topics in political philosophy: What laws are just? What controversies about justice are reasonable disagreements? Who has the right to impose laws, and what laws? Who has what duties to obey laws, and which laws, imposed by whom? What rights to self-defence are there, what triggers them, what do they permit, and can they be exercised in behalf of others? What are the duties of rulers toward those who conscientiously resist their rule, permissibly or otherwise? It is not surprising that, despite the obvious importance of the question, we do not have even the beginnings of a satisfactory answer.
I agree with Gargarella that the right of resistance is a live issue today, and I agree with most of what he has written. I will then concentrate on making a few complementary points. In particular, I propose to link his question to the language and practice of human rights and especially to the notion of a human rights violation. As I understand it, this notion focuses attention on the cases in which resistance to political authority tends to be at its most plausible (though I doubt it can furnish a strictly necessary or strictly sufficient condition). It does so by including the following five elements. First, human rights cover only a small set of goods that are vital to a worthwhile human life. A person’s human right is violated only if she lacks secure access to its object, that is, suffers or is vulnerable to suffering severe harms or deprivations. Second, these harms or deprivations are internationally recognized as such and in this sense beyond reasonable disagreement. Abortion or exclusion from religious communion fail to be so recognized, and resistance aimed at preventing them is therefore morally much more questionable. Third, human right impose only negative duties. In order to violate human rights, one must not merely ignore the un(der)fulfilled human rights of others, but must actively contribute to this underfulfillment. Fourth, the underfulfillment one is contributing to must be reasonably avoidable. One is not violating human rights when, in a famine, one distributes available food, or regulates its distribution, in a way that allows as many as possible, but not all, to survive. Fifth, the agent must be able to foresee that his conduct contributes to the avoidable underfulfillment of human rights. He is guilty of violating human rights only if he could or should have known that his conduct would contribute to their underfulfillment.
Despite these five highly restrictive conditions, human rights violations are still widespread today, mainly taking the form of a collective imposition of social rules and practices on both the global and national levels. A very large percentage of humankind lack secure access to the objects of their basic human rights, especially to minimally necessary foodstuffs, clean water, clothing, shelter, and basic medical care. Roughly one third of all human deaths, 18 million annually or 50000 daily, are due to such poverty-related causes. Provisionally defining severe poverty in terms of the World Bank’s $2/day (1993 purchasing power) threshold, we see that it is avoidable: The 44 percent of the world population living below $2/day now consume 1.3 percent of the global product and, if they all lived at the World Bank’s poverty line, would still consume only 2.2 percent. An income shift of 0.9 percent of the global product could eradicate severe poverty completely. Such a shift could be effected in many ways, for example through a fairer international trading regime (abolishing the tariffs, quotas, anti-dumping duties, subsidies, and export credits rich countries still use to shelter their markets against cheap imports from the developing world), through a global tax on pollution and perhaps resource extraction, through treating intellectual property in pharmaceutical inventions as a public good, through global minimal labour standards governing wages, hours, and working conditions. And it is entirely foreseeable that sticking with the existing rules perpetuates the global poverty problem. Foreseeably and avoidably killing 18 million human beings annually, the imposition of the present global order stands out as the largest, albeit not the gravest, human rights violation ever committed.
Similar points could be made about the institutional order of many of the countries in which human rights are massively underfulfilled. To be sure, some of these countries lack the resources to do much better within the existing global regime. But in many others the existing underfulfillment of human rights could be largely avoided through better domestic institutions and policies. Here those responsible for imposing the existing domestic institutions and policies as well as those responsible for imposing the existing global institutional order are jointly violating the human rights of the deprived and excluded, whose human rights would be (better) fulfilled if either domestic or international arrangements were more just. It is easy to conclude that those on whom human rights violating institutions are imposed have no general moral obligation to comply with these institutions. But how does their situation affect their other moral obligations? What may these victims justifiably do to fulfill their human rights? And what actions may others, whose own human rights are fulfilled, take in their behalf?
No progress seems achievable with the venerable but obscure distinction between passive and active resistance, which Gargarelle briefly revisits. If a woman is failing to vacate the room she cannot pay for, or eating a loaf of bread that is not hers, is she passively refusing to comply with the state’s commands or is she actively challenging legal prohibitions?
I believe that six other distinctions are more likely to prove morally significant: (1) is the illegal conduct by individual or collective agent A reasonably expected to advance the fulfilment of the human rights of some person or group B, either by mitigating existing severe deprivations B is suffering or by contributing to the reform of existing institutions or policies that violate B’s human rights? (2) are A and B identical, overlapping, or distinct? (3) does A’s illegal conduct impose serious harm, or a substantial risk thereof, on any person or group C other than A? If so (4) is C involved in violating human rights, and those of B in particular, and (5) could the fulfilment of B’s human rights have been advanced at lower cost and (6) what is the ratio of gain for B and harm to C?
The most significant and interesting cases are those where questions (1) and (3) come out affirmative. These cases are comparatively rare in the modern world because resistance that would or might do serious harm is now rarely productive and often highly counterproductive as those upholding the existing human-rights-violating institutions and policies effectively take advantage of any violent resistance to divert attention from, and often even to justify, the abuses they practice. The “wars on terrorism” waged by Israel and the US, for example, make it much harder to focus attention on Israel’s ever-expanding settlements in the occupied territories and on the severe economic burdens US policies are imposing on the poorest countries and their citizens, as any such critique is lightly dismissed as “giving in to terrorism.” The most massive human rights violations today are committed by agents who also enjoy an unprecedented superiority in the means of coercion, which allows them to destroy violent resistance or to cut it down to the desired level, as well as an unprecedented control of the media and public opinion, which allows them to use any violent resistance to their own advantage.
In the rare cases where (1) and (3) do come out affirmative, we proceed to face question (4), whether those resisting human rights violations may harm the innocent and what status should be assigned to those involved in violating the human rights of persons other than B. Are there strict deontological constraints (as the Russian anarchists believed according to Camus’ account in The Rebel), or is harm to innocents merely weighted more heavily?
Unfortunately, I cannot contribute more to these fascinating issues Gargarella has raised in the available space.