A. An idealized talk exchange

In standard speech-act theory, speakers try their best to communicate their intentions to their hearers, while the latter try their best to understand those intentions and respond to them in the conventionally expected way. In this ideal speech world, if the creditor claims his money back from his debtor, the debtor will pay it back; if your doctor demands that you do not eat chocolate because you are on a diet, you will refrain from eating it; if I entreat my visitors to take off their boots before entering my house, they will please me and walk around in socks. In saying these words, Austin perspicuously noted, speakers bring about certain effects in the world: having their debts paid back, keeping you on track with your diet, and preventing others from ruining my shiny wood floor with their dirty boots.

In the case under examination, rights-theorists conceptualizing the sphere of agency of those whose subsistence rights go chronically unmet seem to have in mind a similar scenario. Rights-holders do their best to communicate their frustration in the face of chronic deprivation, or to straightforwardly demand that this situation be fixed, hoping that well-off duty-bearers will respond—where responding means realizing the objects of their rights. But, as Mary Louise Pratt notes, standard speech-act theory assumes a verbal utopia, “where a mythical free enterprise of words prevails, all voices vying equally to be heard . . . [a] vision of free exchange of ideas among peers untrammeled by hierarchy.”^{Footnote 27}

If one is not to accuse global justice theorists of bad faith or mere tittle-tattle, one must suppose that there are two assumptions at work. First, it is assumed that rights-holders will in fact get to dialogue with the duty-bearers. Second, it is assumed that, if they do get to dialogue, they will engage in a cooperative talk exchange that will issue in things being done. Neither is warranted.

Regarding the first assumption, hoping that the chronically deprived and those who should end their deprivation will actually get to see each other and talk to each other is overly optimistic under current conditions. Fights for recognition of subsistence rights at the domestic level are hard enough. It takes time, effort and organization to have those who are securely positioned listen and act upon the requests of those for whom insecurity is the only certainty, and not even then is there any guarantee that this will be met with the desired response. There are a series of challenges one must confront to mobilize for one’s rights. Feeling a common identity is key to the kind of collective organization that is required here, but “‘proud to be poor’ is not a banner under which many are likely to march.”^{Footnote 28} There are also important practical problems, beginning with the fact that those living under chronic deprivation are almost fully focused on everyday survival. Lack of “proper” clothing, low self-confidence, poor information and low educational levels, bad transport and no money are among the many factors that keep those in need “stuck at home” and away from the sphere of social and political agency.^{Footnote 29} At the global level, this is all the more notorious. Due to the sheer distance and lack of adequate communication channels, in many cases (if not most) claiming one’s rights will amount to a cry in the desert met by silence, or to a cry that will go unheard among many other cries.

Regarding the second assumption, in our own imperfect world Austin himself recognized that the performance of speech-acts was mined with infelicities; namely, situations where the act does not succeed because one or more necessary conditions are absent.^{Footnote 30} Imagine that the needy and the well-off sit around a table with the intention to engage in a cooperative dialogue. Or imagine that the former voice their claims against the latter so that they listen to them attentively and try to respond accordingly. It is hard to see how this could happen when the first requirement for acts like these to succeed is that there must exist an “accepted conventional procedure having a certain conventional effect, the procedure to include the uttering of certain words by certain persons in certain circumstances.”^{Footnote 31} Austin’s examples of misfires because of a lack of such conventional procedure are that of a wife saying “I divorce you” to her husband in a country where there is no divorce law, and that of Don Quixote challenging the windmills to a duel when there are no established provisions for dueling between windmills and knight-errants. Similarly here, no accepted conventional procedure exists for the global needy to successfully demand that the objects of their rights be satisfied by their hearers. But if exercitives like claiming, urging, pressing, and pleading are to have any impact on reality, this and no less is what is needed.

Some could object that, even if there is no conventional procedure, the needy could engage in acts of civil disobedience that have a perlocutionary (rather than illocutionary) element.^{Footnote 32} Instead of bringing about an effect in saying them, perlocutionary acts produce consequences independent of conventions—for example, when someone threatens another to do something. If this is the suggestion, however, it should be made much more explicit, and the question would remain whether this is an option available to the needy.^{Footnote 33}

What all this reveals is a confused idea regarding the illocutionary force of moral prescriptions to enact real change. It is as if these authors were assuming (or hoping?) that having some utterances said will mobilize noncompliers into compliance. One must here recall, however, the predominant legal context in which exercitives are commonly used.^{Footnote 34} Without the law and the capacity for enforcement backing it up, it is unclear how these claims could succeed.

In short, giving needy agents the chance to utter Austinian exercitives when the legal context is lacking amounts to giving them a Hohfeldian privilege not to stay quiet about their unfortunate situation (where all it means to have a Hohfeldian privilege to φ is that one has no duty not to φ^{Footnote 35}). This opens the possibility that their Austinian claims will clash against an equal Hohfeldian privilege of their hearers to ignore their voice, or to be equally or more vociferous so as to neutralize it. In fact, the issue of giving people a voice and no more is a common criticism leveled against policymakers and organizations working with the needy.^{Footnote 36}

B. Duty-bearers as monopolistic agents

It is hard to see what O’Neill finds charming or delightful about claiming one’s rights, especially one’s right to subsistence, and my choice of adjectives would surely be different if I were to describe the plea of those living under a material threshold considered minimal to lead a human life. Putting that to the side, however, the quote above condenses very well the spirit in which the needy currently get portrayed when it comes to the question of what they may do in order to fulfill their rights.

Just like “Ready, steady, go” has the illocutionary force to start a race, in the ideal talk exchange the needy utter certain verbal formulae that will set the well-off duty-bearers in motion. The function that the rights-holders play toward the fulfillment of their rights is limited to triggering the actual delivery of the resources needed by the relevant moral agents. But one should be suspicious when only one of the sides playing a game gets to write and interpret the rules—especially if it is the side of those who recognize themselves as systematic cheaters in that very game.

By explicitly conceptualizing the well-off of the world as Hohfeldian duty-bearers with the mission to fulfill some important claims of others, I said before that rights-holders disappear from the picture as agents in the quest to realize the objects of those claims. To this should be added that, by implicitly conceptualizing the well-off of the world as attentive interlocutors who will take action in listening to the Austinian claims of rights-holders, duty-bearers are effectively left as the only agents of change in the global poverty debate. Some, like O’Neill, could reply that this is a welcome shift. For her, there are advantages in dropping the language of subsistence rights and focusing on the language of obligations instead. First, the latter leaves space for doing things that are right without them necessarily being a matter of rights (because not all obligations are correlated with rights); and second, only the latter is genuinely agent-centered: “When we discuss obligations, our direct concern is with what should be done; but when we discuss rights, our direct concern is with what should be received.”^{Footnote 38} I disagree on both fronts.

Starting with the last point, it is a stipulation more than an argument. One could paraphrase it and say that “when we discuss obligations, our direct concern is with what should be done; but when we discuss rights, our direct concern is with what may be done.” Without further justification, both assertions seem equally plausible, and I will argue in the next section that there is a lot to commend the latter.

As for the language of obligations being preferable to that of rights in responding to subsistence needs (insofar as it leaves space for the performance of imperfect obligations), this paints an incomplete picture of the moral landscape. For one thing, it is a lot to expect that people sheepishly dwindle while those self-appointed to get them out of their plight persist in their moral failure. For another thing, the figure of the needy as agents has been mostly missing in the global poverty debate, even though they may be just as (or more) capable than well-off individuals, governments, and supranational institutions and agencies when it comes to the fulfillment of their subsistence rights. As Monique Deveaux has recently suggested, the sociopolitical empowerment of the poor should be an integral part of the solution to the problem of global poverty. Exceptional among global justice theorists, for Deveaux it is a matter of principle and not just a pragmatic point that those whose rights are not yet fulfilled may act toward that fulfillment and not just passively wait. There is both a moral and a political dimension to this: “The moral agency of the poor derives from their capacity to act in response to concerns for the welfare or survival of those in dire need—including themselves and their families—and their political agency similarly stems from considerations of solidarity with their communities or others struggling in poverty.”^{Footnote 39} If a solution to this problem is wanted, then, all moral agents (including the most deprived and marginalized) have to play their part. This is both a call to treat those in need with respect rather than condescension and to take advantage of the unique knowledge they have of their own situation—what social scientists call “insider expertise.”

While Deveaux shows how actual poor-led movements like the Sem Terra in Brazil and Nijera Kori in Bangladesh reveal the power of agency of the needy, getting organized is only one type of agency exercised by people in poverty, and it is also the least frequent and most challenging.^{Footnote 40} In the next section, I bring back Samuel Pufendorf’s account of the right to subsistence or self-preservation—and how it is expressed via the right of necessity—to suggest that there are yet other types of action that should be included in the normative analysis: actions where individuals do not organize, but act on their own; actions through which they are not necessarily pursuing long-term, strategic goals, but simply everyday survival; actions which may be illegal, but morally permissible.

A. The original spirit of subsistence rights

Known as the father of international law, the Dutch jurist and moral and political philosopher Hugo Grotius is also considered the father of modern rights-talk. To the conventional meanings of “right” as that which is just, or part of the law, Grotius added another definition that inaugurated a new era of thinking about rights: “a moral quality annexed to the person, enabling him to have or do something justly.”^{Footnote 41}

To the description of rights-holders as claimants who “point to others’ duties . . . [who] do not have to take much action, and may even wrap themselves passively in a cloak of grievance or of resentment,”^{Footnote 42} Grotius would have raised his eyebrows in astonishment. For him and for the tradition following him, rights are moral powers of action that delineate an individual sovereign sphere: the suum, or that which belongs to the person.^{Footnote 43} Those who have rights have a standing in the world (rather than a sitting, forgive the pun). Rights are where the action is, and rights-holders are the paradigmatic moral agents, who recognize each other as equals regarding these entitlements. This is most clearly the case with the natural right to self-preservation, the predecessor of contemporary basic rights. In the remainder of this section, I briefly present Samuel Pufendorf’s analysis and justification for this right. Pufendorf follows the Grotian tradition but develops and perfects it.^{Footnote 44} His account is especially illuminating considering that, unlike Grotius and like contemporary global justice theorists, he focused on duties more than rights. Unlike the latter, however, he acknowledged that there were some natural rights that individuals never relinquished so that, under certain circumstances, they may exercise them even if this meant breaking human laws.

Self-preservation is, according to Pufendorf, the strongest interest shared by all human beings, and its normative relevance is reflected twofold. On the one hand, one may protect one’s sovereign sphere from the encroachment of others, and may appeal to force if necessary. This is the reactive side of self-preservation and constitutes the traditional right to self-defense. On the other hand, as an embodied being, one may undertake different actions in order to get “those things necessary without which we cannot keep ourselves alive,”^{Footnote 45} so long as one does not encroach upon the sovereign sphere of others in so doing. This is the proactive side of self-preservation and comes close to our contemporary understanding of subsistence rights.^{Footnote 46} Self-defense and subsistence are therefore two sides of the same coin: rights that all individuals have to remain sovereign over themselves, marking a minimal sphere of free action and generating a duty on others to respect that sphere. In Hohfeldian terminology, they are both privileges and claims.

This picture might give the impression of a minimal morality designed for atomistic loners, but it is quite the opposite. Pufendorf thinks that preserving sociability is the first principle of natural law and that, therefore, delimiting each other’s moral terrain is fundamental. Because we are social beings who want to live with others, but are also prone to conflict with them, it is only by acknowledging the importance of self-preservation that we can keep a peaceful society.

While in a pre-institutional state each of us is the enforcer of her own rights, with the advent of civil society and property laws we expect the common authority to defend and protect our sovereign sphere while we make our living. Pufendorf offers a contractualist story of the genesis of civil society and the institution of property, whereby we agree to give up these basic rights and to abide by certain rules insofar as these are beneficial (or, at least, not prejudicial) to us.

Under exceptional circumstances, however, individuals may break human laws and become the enforcers of their own preservation if this is the only way out. For example, if someone is attacked by a band of night-robbers in the middle of a solitary road, she may resort to self-defense. And if someone cannot provide what she needs for subsistence through the established legal channels, she may exercise her right of necessity, taking and using someone else’s property as if it were her own.^{Footnote 47} The right of necessity is, so to speak, the executive branch of subsistence rights—a right triggered when these would go unfulfilled if human laws were to be respected.

Foreseeing the disruptive effects of having an exceptional right such as the right of necessity turn into a common occurrence, Pufendorf’s insight was that minimal provisions had to be in place for all those subject to the law, so that they could get what they needed to support their lives without having to appeal to this last resort solution.^{Footnote 48} However, if such provisions were not in place, no one should expect individuals to perish for the sake of respecting laws that demanded more from them than what they could tolerate. Furthermore, the exercise of the right of necessity knew no boundaries. On the contrary, states had a duty to let in those driven to them by necessity.^{Footnote 49}

The strong human interest in self-preservation thus limited both what should be maximally demanded from, and minimally allowed to, individuals.^{Footnote 50} Here is the duty-focused philosopher par excellence acknowledging that, if duties remain unfulfilled, rights may do the work.

These are insights worth bringing into the global poverty debate. After all, the situation that Pufendorf describes is not unlike the current one, where needy individuals are oftentimes subject to laws that constrain their actions and do not benefit them, but rather harm them (such as, notably, property laws and migration laws).^{Footnote 51} If nothing is done to make those laws work for them (or, at least, not against them), why should they be bound by them? And, if they are not bound, what may they do instead?

B. “Owning it”

If one follows Pufendorf’s interpretation of the right of necessity, five conditions need to be fulfilled for its exercise to be permissible: the need in question must be indeed basic; the person must not be responsible for her plight; she must not take from others who are in a similar or worse situation; she must only use this prerogative as a last resort, and she must have the intention to restitute if possible. Briefly, this means that the person may only exercise her right to cover basic needs (Pufendorf’s examples are about food, clothing, and shelter), and she can only exercise this right when she has come to that situation through no fault of her own.^{Footnote 52} Moreover, this prerogative may only be exercised when “we suppose the owner to abound,”^{Footnote 53} and never when the owner is in a similar respect just as needy as, or needier, than the original person in need. The last resort clause ensures that the right can only be invoked after one has sought unsuccessfully to satisfy one’s needs via legal means—for example, by working, offering to do something in exchange, appealing to the relevant authorities, actively seeking the aid of others, and so on and so forth. Finally, the individual must intend to give back what was taken, or must at least show gratitude toward those she took from.

This is a very demanding list of conditions, and more discussion needs to be had, especially regarding what it means to be morally responsible for one’s plight: at the time when Pufendorf was writing, the now discredited distinction between “deserving” and “undeserving” poor was very much alive, and the stigma of laziness and idleness haunted poor people.^{Footnote 54} It is plausible to think, though, that not all cases of chronic need should be treated alike. The restitution requirement is also worth questioning, especially if those claiming their right of necessity are doing so because the institutional framework failed to guarantee the satisfaction of their basic needs: it sounds odd to demand that the agents restitute if what they are claiming is their right in the first place.^{Footnote 55}

However, even if one retains Pufendorf’s list, I suggest that thousands, nay, maybe millions of individuals in the world today might arguably fulfill it.^{Footnote 56} Against the standard account of the plea of necessity, which only applies in one-off, urgent, and unforeseeable situations that arise mostly via natural causes, in this reading a chronically deprived homeless person living on the streets is just as entitled as an inadvertent hiker in a mountain storm to take and use what she requires to subsist.^{Footnote 57} Against the standard argument against indigence being a justification for necessity (namely, that it would be a remedy worse than the disease), in this reading indigence is accepted as a justification, so long as the abovementioned conditions are met.^{Footnote 58} Human need is human need, regardless of its cause, and the goal of society and its institutions is therefore to eliminate it insofar as possible under normal circumstances. When this does not happen, however, one should not expect individuals to sit down quietly, but to do whatever is in their power to fulfill their right to subsistence. Furthermore, one should not interfere with them doing so, even if this breaks human laws. Indeed, regarding the ways in which the right may be exercised, Pufendorf allows for the use of force when property owners refuse to have their property taken away from them, especially when it is of negligible value for them and of great value for the claimants (who, as said above, are assumed to be innocent of their plight). Pufendorf also allows for the possibility of claiming one’s right covertly rather than overtly.^{Footnote 59}

I suggest that, if rights-based theories incorporate these considerations into their normative evaluations of the global poverty debate, the account of duties of the well-off toward the needy will be complemented by an account of rights that the needy may enact for themselves and by themselves. Both will be about standing in the world, and about respecting those minimal entitlements that Pufendorf subsumed under the natural right to self-preservation, which are latent (but mostly ignored) in our contemporary understanding of subsistence rights.

Actions like shoplifting, pilfering, squatting, occupying, engaging in underground work, and illegally migrating have been extensively documented and examined by human geographers, social anthropologists, and economists. Not by vociferously claiming, but by silently doing, often those engaging in such actions are—in common parlance—“owning it.” They are getting by (or “coping”) under exacting circumstances, and they are getting back at (rejecting through acts of everyday resistance) “the constraints imposed by the socioeconomic order . . . even if they do not directly challenge that order or power.”^{Footnote 60} It is now time that liberal rights-based theories look at these actions more closely and with a sympathetic eye.^{Footnote 61} By this I mean using Adam Smith’s concept of sympathy as the ability to put oneself in someone else’s shoes, trying to conceive “what we ourselves should feel in the like situation.”^{Footnote 62}

At this point, there are different types of considerations that will worry even the most charitable reader. There are issues of epistemic overdemandingness (How will I, the duty-bearer, know that a truly needy person rather than a professional thief is taking from me?); psychological overdemandingness (What if the needy repeatedly target my property, even though there are many who are much better positioned than I to bear the loss?); and theoretical overdemandingness (Isn’t it self-defeating to fulfill the rights of some by failing to respect the rights of others?).^{Footnote 63} There is also the question of how much force and coercion should be allowed. Based on a binary model of liability, Pufendorf acknowledged that the needy may force those who had rampantly failed to fulfill their duties. But, should coercion be allowed to be used today, for example, against a common citizen who may be only indeterminately and diffusely responsible for the plight of the claimant (say, by sustaining through her tacit consent unjust institutions at the domestic and global level)? I cannot hope to answer these questions here, but put them forward to show that a whole new spectrum of inquiry is opened once we stop thinking of the right to subsistence as a mere claim.

To avoid misunderstandings, I am not claiming that the free and unfettered exercise of the right of necessity by those who fulfill its conditions in today’s world is the ultimate cure to the problem of global poverty. I am not claiming that by repeatedly infringing property laws and border control regulations the needy will finally be able to exit their precarious state—and that we should merrily accept that outcome. What I am claiming is that the right of necessity thus understood can no longer be ignored in the global poverty debate, unless we wish to accept that subsistence rights are truly no more than manifesto rights. What I am claiming is that, if individuals are prevented from pursuing their self-preservation within the legal framework (which is seemingly what most want anyway^{Footnote 64}), it should come as no surprise that they will turn to whichever alternatives are available.^{Footnote 65} What I am claiming is that brushing off these actions from the analysis is as unjust as it is hypocritical. Acknowledging the disruptive potential and the many unwelcome—and even unfair—consequences that the repeated exercise of such a right could have should not deter us from thinking it through.^{Footnote 66}