Global Basic Rights

Charles R. Beitz (ed.), Robert E. Goodin (ed.)

https://doi.org/10.1093/acprof:osobl/9780199604388.001.0001
Published: 2011 Online ISBN: 9780191803567 Print ISBN: 9780199604388

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CHAPTER

10 Security as a Basic Right (After 9/11) 

https://doi.org/10.1093/acprof:osobl/9780199604388.003.0010 Pages 207–226

Abstract
This chapter addresses the question of whether we should give up any of our rights for the sake of
security. It considers the notion that security might be a precondition for enjoying any rights at all. In
doing so, it uses an earlier analysis of the relation between security and rights, set out in Henry Shue’s
book, Basic Rights.

Keywords: Henry Shue, Basic Rights, security, human rights

Should we give up any of our rights for the sake of security? The world is a dangerous place, more dangerous
perhaps than it was when our human or constitutional rights were rst de ned. Many people think we
would be safer if we were to abandon some of our rights or at least cut back on some of our more aggressive
claims about the extent and importance of our civil liberties. Or maybe the trade-o should go in the other
direction. Maybe we should be a little braver and risk a bit more in the way of security to uphold our precious
rights. After all, security is not the be-all and end-all; our rights are what really matter. But this alternative
line will not work if it turns out that security is valuable, not just for its own sake, but for the sake of our
rights. What if the enjoyment of our rights is possible only when we are already secure against various forms
of violent attack? If rights are worth nothing without security, then the brave alternative that I alluded to is
misconceived.

1
I considered some of these issues in an earlier article entitled “Security and Liberty: The Image of Balance.”
But I did not explicitly address the point that security might be a precondition for enjoying any rights at all.
In this chapter, I want to consider that possibility. In doing so, I shall make use of an earlier analysis of the
relation between security and rights, set out in Henry Shue’s book, Basic Rights.
 1. Security, Shue, and September 11

Basic Rights makes a vivid and compelling case for regarding security and also subsistence as indispensable
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p. 208 conditions for the enjoyment of human rights. “No one,” says Shue, “can fully if it all enjoy any right if
he or she lacks the essentials for a reasonably healthy and active life” (p. 24). And the same, he says, is true
of security: “threats to physical security are among the most serious and—in much of the world—the most
widespread hindrances to the enjoyment of any right” (p. 21). Threats of violence and lack of subsistence are
standard threats which anyone interested in any rights must be prepared to contend with. The abatement of

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these standard threats is part of the moral minimum: it represents everyone’s minimum reasonable
demand upon the rest of humanity (p. 19). No one can expect to be taken seriously in his juridical
proclamations about rights, says Shue, if he is not prepared to commit himself to a concern for the security
and for the subsistence that are presupposed by the enjoyment of the rights that he proclaims.

3
Much of the discussion of Basic Rights has focused on Shue’s thesis as it concerns subsistence. Less has been
said about the security side of the argument. I believe there is a lot to learn from Shue’s argument about
security. But I also think that when it is considered in the light of recent events, Shue’s claims may need to
be clari ed or rethought. Certainly when we compare what Shue said with very similar-sounding claims
that have been made more recently, we may see the need to engage more critically with his argument about
security.

Shue’s claims about the indispensability of security for the enjoyment of human rights were made in 1980.
Twenty-one years later, something happened in the United States which gave a di erent resonance to
claims about the importance of security. After the terrorist attacks of September 11, 2001, it was commonly
said that security needed much greater emphasis among our political values and that liberty needed to give
way to security in the priorities of a modern democratic society. As one commentator observed,

it has become a part of the drinking water in this country that there has been a tradeo of liberty
for security, … that we have had to encroach upon civil liberty and trade some of that liberty we
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cherish for some of that security that we cherish even more.

p. 209 Now, when complaints are made, in opposition to these suggestions—complaints that some of the trade-
o s being proposed encroach not just on liberty in general but on certain basic liberties that are valued as
human rights—what is said in response sounds remarkably similar to Shue’s thesis of twenty-one years
earlier. You cannot set up human rights against security, it is said, because security is the precondition for
the enjoyment of any rights. If we have to give up or cut back on some of our rights for the sake of security,
we need to understand that that sacri ce is necessary in order to be able to enjoy any rights at all. I will refer
to this in what follows as the 9/11 argument.

Sometimes the 9/11 argument is put forward disingenuously. There were many people in the Bush
administration who responded opportunistically to the crisis of 2001 to limit civil liberties, enhance
executive authority, and shake o the shackles of rights-based constraints without any real feeling that
what these changes were ultimately about was providing an environment in which rights could ourish.
They just wanted to enhance executive authority and the power of the national security apparatus. But many
proponents of the 9/11 argument are perfectly sincere. They care about rights, but they say that if we want to
continue as a free and rights-upholding society, we cannot ignore the security issue. Security is important
for everything including rights. And, they say, we should not rule out the possibility that this greater
attention to security might require substantial adjustment in our understanding of the rights we have.

As I have said, the 9/11 argument is reminiscent of Henry Shue’s argument from 1980. But appearances are
sometimes deceptive. Maybe what Shue was getting at is di erent from what the 9/11 argument is getting at.
Indeed it is possible that Shue’s argument might throw into relief—illuminate by contrast—some of the
 aws and de ciencies in the 9/11 argument. After all, Shue is not generally regarded as a supporter of the
modern security state. If anything, his work has been in uential in the opposite direction: I refer
5
particularly to his seminal article on torture. It is possible, of course, that Shue might not want to
distinguish his argument from the 9/11 argument. Or even if he wants to, it may be wrong to do this because
the logic of his case may t the 9/11 argument exactly. After all, the case that is made in Basic Rights is not
p. 210 Shue’s property to do with as he will: it purports to draw our attention to certain objectively important
connections between security and the rest of our rights, and it is important to see how exactly those
connections play out in the post-9/11 world, whatever Shue thinks or hopes.

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There are two possible ways in which Shue’s argument about security might be distinguished from the 9/11
argument. One way is to distinguish the conceptions of security that are being used in these two arguments.
The other is to look a little more closely at what Shue says (and what the 9/11 argument says) about the logic
of the relation between security (however it is conceived) and other rights. I will consider the rst of these
approaches in sections 2 through 4 and the second in sections 5 and 6 of this chapter.

2. The Analysis of Security

Our pursuit of the rst possibility is hampered by the sorry state of the discussion of security as a concept in
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political philosophy. Security has not been properly analyzed. We know that the word is vague and
ambiguous and that there is good reason to regard its vagueness as a source of danger when talk of trade-
7
o s is in the air. But few attempts have been made in the literature of legal and political theory to bring any
8
sort of analytic clarity to the concept.

Shue’s account in Basic Rights is no exception. He provides little in the way of analysis of the concept of
security. His use of the term is quite narrow. He talks of “physical security” (p. 20) and says we have a right
“not to be subjected to murder, torture, mayhem, rape or assault” (ibid.). The only analytic points he makes
are about the distinctions between security and liberty and between a right to security and a right to life. On
the rst point, Shue is adamant that security is not just a matter of freedom. It is true that one can
characterize security in terms of “freedom from” beatings, torture, murder, etc., but this idiom connotes
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only the absence of an evil, not freedom in any meaningful sense (pp. 181–2 n.). On the second point,
p. 211 despite the prominence of mortal threats in his account of security, Shue is reluctant to treat the right to
security as simply part of the right to life (p. 186 n.). How one individuates rights is probably just a matter of
pragmatics, but Shue nds it illuminating to deal separately with security and subsistence (which arguably
could also be treated as part of the right to life) and their importance, respectively, for rights in general.

3. Security: Focused and Di use

When Shue talks about security as a precondition for rights, he seems to have in mind the absence of
physical violence directed speci cally at the right-bearers, considered one by one. The right to security is “a
right … not to be subjected to murder, torture, mayhem, rape, or assault” (p. 20). He is particularly
interested in threats which are intended to have or actually do have the e ect of preventing people from
making the choices that their other rights are supposed to protect. So Shue has in mind individualized
personal security: insecurity on his account just is an individual’s being directly subject to evils like rape or
murder or the threat of them. It is these evils in their most direct and personalized form that Shue sees as
inimical to the securing of other rights.

Maybe this distinguishes Shue’s argument from the claims about security and rights that have been made
since 9/11. Those who say, in the wake of terrorist attacks, that we must give up some of our rights for the
 sake of security do not necessarily mean security against physical attack of each and every one of us right-
holders. They mean something more di use: the general security of the nation against attacks of this kind.
If this is so, then maybe the two arguments are quite di erent since Shue is not interested in the premise of
the 9/11 argument.

Certainly Shue is anxious to dissociate his thesis of security as a basic right from claims that are often made
about the overriding importance of national security. He talks of the “cancerous growth” of the concept of
national security and he observes that it is “used with an imprecision that would normally not be tolerated
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even on many less important concepts” (p. 168). He acknowledges that national security was once

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supposed to have some connection to what he calls “the physical security of the people in the nation” (p.
169), but he says that the concept has grown to become more or less entirely divorced from this, so that now
p. 212 it mainly connotes the integrity and power of the governmental apparatus and its ability to pursue its
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policies successfully.

Another term that is sometimes used is “homeland security” and that seems to be tied rather more closely
to the incidence of physical attack on American civilians than national security is. But homeland security is
still a bit more di use than the conception Shue seems to be using. We say that we su er a loss in homeland
security when terrorist attacks take place or when the danger of terrorist attack is heightened, but yet the
impact of those attacks—even when they are as devastating as the attacks of September 11—is con ned to a
tiny fraction of the American people. Almost three thousand people were murdered in the attacks on the
World Trade Center in 2001; but out of a population of 300,000,000, that is no more than 0.001 percent. If
we were to use Shue’s conception focusing on individuals being insecure, in the sense of being beaten, hurt,
or murdered, then we might be forced to conclude that the actual extent of insecurity resulting from the
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attacks was very low. Even if we take into account well-grounded fears of death or injury from future such
attacks, an objective calculation at the individual level is not going to reveal very much insecurity, since the
probability of any of us actually su ering the evil that is threatened is somewhat smaller than the insecurity
we all accept when we drive on the freeway or engage in physical labor in a factory or a construction site.
Now, it is clear nevertheless that the authorities responsible for homeland security do have to regard any
further attacks on the scale of the events of September 11 as catastrophic events, to be avoided at almost any
cost. They have to regard such threats to homeland security as matters of the greatest concern, even though
their consummation would still leave the average resident of the United States with a vanishingly low
probability of su ering death and injury as a result. Security in this “homeland” conception is not detached
entirely from the physical well-being of individual men and women in the way that the notion of national
security seems to be. But it is not a simple function of individuals’ being threatened.

The homeland conception is, I think, the notion of security that is appealed to when people say that it may
be necessary to require us to give up some of our civil liberties in order to bring our security up to an
acceptable level. As I have said, it is a more di use conception of security than Shue’s. But I am not sure that
p. 213 Shue can avoid something like it at some stage in his analysis. And the something-like-it may generate
conclusions that are very close to those of the 9/11 argument.

Even if one were to begin with Shue’s more concrete conception of individualized security, one might still
end up in a place not far from the homeland conception. Though the point of Shue’s security is to avoid the
situation in which particular individuals face death or violence or the threat of death and violence, as the
cost of exercising their rights, the strategy for avoiding this prospect need not be as particularized as the
prospect itself. True, we might provide security for each individual right-bearer by assigning him a personal
bodyguard. But a more e cient and probably a more e ective-means is to use police forces to ensure a
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secure environment for everyone. This sort of provision treats security as something like a public good.
And under a regime of this kind, individuals bene t from security (in the enjoyment of their rights) not
because their own particular security is attended to on a focused one-by-one basis but because threats to
security in general are removed or reduced by less personalized means. The police do not wait till any
 particular death squad or paramilitary militia threatens a particular right-bearer. They outlaw these death
squads and militias in general. The public authorities provide lighting in dark places and reliable police
o cers on patrol and on the beat. They reduce violence and the threat of violence by a variety of strategies
to keep the crime rate down and to diminish the vulnerability of various classes of person. And everyone
bene ts from these e orts, just because they proceed on such a broad front. Using means like these to
guarantee security to anyone means that security is guaranteed for many, for most, and—in the ideal case—
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for all.

Does it make a di erence that Shue wants to present security not just as a background condition for the

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enjoyment of rights but also as itself a basic right? On some accounts, a right to security is just a right
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p. 214 correlative to a negative duty not to actually attack or harm others. But Shue refuses to accept this view
of the right to security. (Indeed his challenge to the simplistic distinction between rights correlative to
negative duties and rights correlative to positive duties is one of the great virtues of Basic Rights.) He says:

Perhaps if one were dealing with some wilderness situation in which individuals’ encounters with
each other were infrequent and irregular, there might be some-point in noting to someone: I am
not asking you to cooperate with a system of guarantees to protect me from third parties, but only
to refrain from attacking me yourself. But in an organized society, insofar as there were any such
things as rights to physical security that were distinguishable from some other rights-to-be-
protected-from-assaults-upon-physical-security, no one would have much interest in the bare
rights to physical security. What people want and need … is protection of their rights. (p. 38)

Once this is accepted, then it is an open question whether the best way to protect security is to concentrate
on thwarting possible violations one by one as they present themselves or to try to provide a secure
environment as a sort of pubic good.

Joseph Raz has argued convincingly that the goods secured by rights often require the existence or provision
of public goods, such as the good of a tolerant society or the good of a society in which certain socially
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recognized options for the exercise of autonomy exist. And Shue himself recognizes that this may be true
in the case of subsistence. One of the examples he gives in Basic Rights of insu cient attention to
subsistence is the introduction of a macroeconomic policy that encourages the production of cash crops for
export. The implication seems to be that the basic contribution a government can make to subsistence is
avoiding macroeconomic changes like this, and instead maintaining an economic environment in which
people can live and hopefully ourish without being all the time on the edge of starvation. And I think he
acknowledges this need for macro-strategies also in the case of security, when he says that

protection of rights to physical security necessitates police forces; criminal courts; penitentiaries;
p. 215 schools for training police, lawyers, and guards; and taxes to support an enormous system for
the prevention, detection, and punishment of violations of personal security. All these activities
and institutions are attempts at providing social guarantees for individuals’ security so that they
are not left to face alone forces that they cannot handle on their own. (pp. 37–8)

Once all this is accepted, then it is an easy step to something like the homeland security conception. If
thousands of individuals are threatened by sporadic terrorist attacks which it is di cult for them to guard
against on their own, then the community has no choice but to adopt general strategies to combat and
reduce the incidence of this evil.
 4. Insecurity and Deliberate Threats

Even granting all this, there may be a further distinction to be drawn, to distance Shue’s thesis from the 9/11
argument. We might distinguish two ways in which lack of security can impact on one’s rights. One—which
he seems particularly concerned with—involves something like deliberate and direct intimidation relative
to the exercise of one’s rights. He writes:

No one can fully enjoy any right that is supposedly protected by society if someone can credibly

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threaten him or her with murder, rape, beating, etc., when he or she tries to enjoy the alleged right.
(p. 21)

The other might be a more generalized fear that, so to speak, keeps people indoors, keeps them away from
church or public meetings or polling places, not because they expect to be coerced in the exercise of their
rights, but just because they are afraid of being mugged, for example, by people who have no interest apart
from the particular circumstances of the mugging with the way their victims’ rights are exercised. The man
who robs me doesn’t worry about whether I vote Democrat or worship as an Episcopalian or attend
meetings of the ACLU; he just wants my money. And if fear of him or of people like him keeps me away from
exercising those rights that is an unintended side-e ect of his violence.

I think Shue’s thesis about a basic right to security is more plausible when the threat of insecurity is
understood in the rst way than when it is understood in the second way. In the second way, the threat to
the exercise of my civil and political rights posed by the mugger is rather like the threat posed to those
rights by bad weather. The rain may keep me away from church or from the ACLU meeting as well. (Of
course the mugging itself is deliberate and in that way unlike the weather; but we are talking about its
p. 216 collateral impact on the exercise of rights other than those a ected immediately by the mugging itself.)
On the other hand, Shue talks in a footnote of “non-human threats to both security and subsistence” (p. 189
n. 17), which seems to imply that it may be the second sense that he is interested in. Certainly the second
sense is appropriate for subsistence. For lack of subsistence can block or undermine the meaningful exercise
of one’s rights whether anyone intends that consequence or not. Shue does not really address the question
of whether insecurity might be di erent from lack of subsistence in this regard.

Which category do terrorist attacks (such as the attacks of September 11) t into? I am not sure. My
inclination is to say that they t into the second category: they are designed just to cause death and wreak
havoc and enrage and humiliate the American government; any further impact on the way Americans
exercise their civil and political rights was just a side-e ect. But I have heard people say the opposite. The
term “terrorism” implies a desire for some e ect on the society that is attacked which goes beyond the
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immediate death and havoc that is caused. President Bush says that the terrorists who threaten us do so
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precisely because they hate our freedoms and want to frighten us away from the exercise of them. But
what if the terrorists’ strategy is to provoke those who are supposed to protect us into curtailing or
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undermining our rights? If the state’s reaction to A’s attack on B is to curtail B’s rights, can we really say
that it is A’s attack that is the standard threat to rights? I don’t think so. We certainly can’t use that
characterization to justify taking rights away from B for the sake of enhancing the security that B is
supposed to need in order to enjoy his rights, for that would be to postulate the very same thing (the taking
away of rights by the state in the face of terrorist attack) as both the problem and the solution!
 5. The Logic of Indispensability

I said there were two ways in which we might distinguish Shue’s argument about security from the post-
9/11 argument about security. We have considered whether there might be a distinction between the
p. 217 conceptions of security that are being used in the two arguments. Now we must consider as well the
relation between security and rights, and see whether the relation that Shue asserts is similar in relevant
respects to the relation that has been envisaged in recent homeland security strategies.

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The language that Shue uses is the language of indispensability. Security is an indispensable condition for
the enjoyment of individual rights:

No one can fully enjoy any right that is supposedly protected by society if someone can credibly
threaten him with murder, rape, beating, etc., when he or she tries to enjoy the alleged right. Such
threats to physical security are among the most serious and—in much of the world—the most
widespread hindrances to the enjoyment of any right … In the absence of physical security people
are unable to use any other rights that society may be said to be protecting without being liable to
encounter many of the worst dangers they would encounter if society were not protecting the
rights. (p. 21)

Indispensability here conveys one or both of two ideas. One is that an individual’s security is a necessary
condition for his enjoyment of any right. The other is that an individual’s security is actually a part of what
any other right is a right to. Shue uses the second formulation explicitly when he says that security “is
desirable as part of the enjoyment of any other right” (p. 21). And he uses the rst formulation when he
presents the abstract form of his argument in terms of a syllogism: “If everyone has the right to y, and the
enjoyment of x is necessary for the enjoyment of y, then everyone has a right to x” (p. 32). In fact the
distinction between the two formulations doesn’t really matter, since Shue sees no need to distinguish
between, as it were, the essence of a right and what is necessary for its enjoyment. The distinction certainly
makes no di erence to four points that I would like to make about this indispensability relation.

Saying that one thing, x, is indispensable for or inherently necessary for another thing, y, raises a number of
questions about the priority that should be accorded to x over y or vice versa. Some of those questions
require us to look a little more closely at the indispensability relation and some require us to look skeptically
at the issue of priorities. Let me begin with indispensability.

(i) How tight is the relation of indispensability supposed to be, as between security and rights, on Shue’s
account? People often seem to exercise (and sometimes even enjoy) their rights under the most adverse
circumstances. Is Shue really saying that this can never happen in the absence of security? Shue is sensitive
to the point and says this:

A person could, of course, always try to enjoy some other right even if no social provision were
p. 218 made to protect his or her physical safety during attempts to exercise the right. Suppose there is
a right to peaceful assembly but it is not unusual for peaceful assemblies to be broken up and some
of the participants beaten … People could still try to assemble, and they might sometimes assemble
safely. But it would obviously be misleading to say that that they are protected in their right to
assemble … If they are as helpless against physical threats with the right protected as they would
have been without the supposed protection, society is not actually protecting their exercise of the
right to assembly. (p. 22)

And a little later he says that if people do not have “guarantees” that they can assemble in security, then
they have not been provided with assembly as a right (p. 27). But I don’t think this settles the issue.
 The trouble is that security is not an all-or-nothing-matter, but a matter of more or less. I may be provided
with a guarantee of protection but not a cast-iron guarantee. The government may sincerely undertake to
do its best for my security, but it may not be able to prevent every last gang of thugs from occasionally
breaking up a public meeting. In this situation, I am not as helpless against attack as I would be if the
government had done nothing at all. If I try, often successfully, to exercise my rights in these
circumstances, haven’t I refuted at least a very strong version of Shue’s claim that my security is absolutely
indispensable for the enjoyment of my rights? This point seems particularly important when we consider
security in the public good sense (i.e., in the sense discussed, above, in section 3). If the provision of security

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as a public good is less than perfect, or if it falls short of what might in certain circumstances be reasonably
required, is it still plausible to say that the absence of security makes the enjoyment of rights impossible?
Obviously not, for we have acknowledged that there might be a failure of something like homeland security
and yet many individuals may face no actual threat at all.

I think this shows that there is a considerable gap in the 9/11 argument. When the avatars of homeland
security justify curtailing a right for the sake of security, they do not usually mean that once this right is
curtailed then everyone can be made perfectly secure. Instead they have in mind at best an incremental
enhancement of security as a public good as a result of the curtailment: curtailing the right may allow us to
move from (say) 51 to 52 percent of the provision of security at an optimal level. Perhaps the curtailment is
justi ed, but if it is, it is not because we need this curtailment in order to enjoy the rest of our rights. The
rest of our rights, which we are going to have to exercise anyway in something less than perfect security,
may not be much a ected.

(ii) This leads to my second point. In a dangerous world, the provision of security is a voracious ideal. If we
are looking for absolute security, there is no end to the resources that might have to be devoted to it. We
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p. 219 could station a police o cer every few yards and devote enormous resources to homeland security.
Maybe if we devoted the whole of the GDP, we might reduce to something approaching zero the threat of the
sort of violence that undermines the enjoyment of rights. But then there would be nothing left for any other
social program, let alone for any other program associated with rights. Since, on Shue’s account, there are a
number of necessary conditions for the enjoyment of rights (subsistence is another), it is not clear how we
can or should proceed with this calculation.

(iii) One thing is sure: we must not regard the necessary conditions of the enjoyment of rights as having
absolute priority over all other goals. Certainly we should not assign it lexical priority, in the Rawlsian
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sense. Surely we do not want to devote all our resources and energy to ful lling a necessary condition for
rights, and nothing at all to the rights themselves. We need to nd some balance here. Robert Goodin makes
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a similar point about national defense. Defense, he notes, is sometimes presented as “an indispensable
prerequisite to everything else the nation might do” or as a “precondition for pursuing other desirable
goals.” But if that is how we understand it, we must occasionally allow those other goals to surface in public
policy and to stake their claim to some of society’s resources. We cannot in nitely postpone their enjoyment
to the establishment of what is valued only as a necessary condition for their enjoyment.

When he introduced the notion of lexical priority, John Rawls observed that the idea should only be used in
circumstances where the item accorded priority is limited in its demandingness and there is some
reasonable prospect of its being satis ed, so that other items further down the list can be attended to:
“unless the earlier principles have but a limited application and establish de nite requirements which can
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be ful lled, later principles will never come into play.” Where this condition is not satis ed, we have to
proceed on the basis of some sort of balancing, messy though that may seem. This may involve sometimes
balancing the costs of rights against other social costs unconnected with rights. It will certainly sometimes
require balancing costs associated with the security that is necessary for rights against costs associated with
other aspects of the upholding of rights (including, no doubt, other necessary conditions).
p. 220 (iv) In any case, lexical priority may not be appropriate as a way of operationalizing the importance of
things which are valued only as necessary conditions for other values. A necessary condition for something
desirable is not worth supplying at all unless there is a practicable possibility of also securing su cient
conditions for that desirable thing; if there is no such possibility, then we should just forget about the
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necessary conditions. A necessary condition for me to visit the moon is that I should begin astronaut
training right now, but even assuming that my visiting the moon is highly desirable, the necessary
condition for it is simply of no interest since my visiting the moon is not going to happen. The e ect of this
point on the deontic logic of necessity and obligation is quite interesting. Suppose I have an obligation to

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ensure that person P enjoys a certain good, y. We cannot automatically infer that I have an obligation to
bring about something else (x) which is a necessary conditions of P’s enjoying y. If y cannot in fact be
supplied to P under any circumstances (because su cient conditions are not available), then I do not have
an obligation to bring about x even if x itself can be brought about by me. The only ground for bringing about
x in these circumstances would be if there were some reasonable prospect of su cient conditions for y
being available in the future, in which case bringing about x now would be a sort of advance preparation.
Accordingly, if there are other insuperable obstacles to people’s enjoyment of their rights, we may not be
able to infer from the fact that security is a necessary condition for the enjoyment of their rights that
therefore they have a right to security.

This point may be very important further down the line of the chain of necessary conditions. Shue’s claim is
that the enjoyment of individual rights among a given population depends on the individuals in question
enjoying security. Their individual security is a necessary condition for their e ective enjoyment of their
rights. But as we have seen, it may be a necessary condition for all these individuals’ enjoying individual
security in the relevant sense that the government provide a secure environment (by its homeland security
strategy) in the sense discussed in section 3. And a case may be made that it is a necessary condition for that
that (say) certain terrorist suspects be detained inde nitely. So we have a chain of necessary conditions:

detention of terrorist suspects

is necessary for

homeland security,

which is necessary for

p. 221 individual security for individual right-bearers,

which is necessary for

individual right-bearers’ enjoyment of their rights

But if su cient conditions are not available for any of these elements then we cannot infer that terrorists
ought to be detained. Suppose the terrorist threat is so great that there is no reasonable prospect for the
time being of establishing a secure environment for the enjoyment of rights. Then even though detaining
the suspects is a necessary condition for a secure environment, it is like my going to astronaut school: it is a
necessary condition for something that is not going to happen. It doesn’t follow that we should not detain
the suspects, but we cannot infer that they should be detained from the fact that their detention is necessary
for something which is necessary for something which is necessary for the enjoyment of rights.
 6. Rights as the Price of Rights

I have pursued these points about necessary conditions, priorities, and indispensability perhaps too fussily.
But I did not do so for the sake of scal prudence or out of a concern about the cost overruns that Shue’s
program might incur. My interest in this chapter is to see what, if anything, there is in common between
Shue’s argument about the relation between rights and security, and what I have called the 9/11 argument,
namely, the argument that it may sometimes be necessary to sacri ce or limit certain rights in order to
provide the security that rights in general presuppose. In the previous section, under heading (ii), I said that

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security was a voracious ideal. But the things that it might eat up are not just resources but rights, and if we
give security too great a priority (or indeed lexical priority) over the rights that it is supposed to be a
necessary condition for, we may nd that much of what we are ultimately aiming to secure has been
jettisoned for the sake of that security.

Abraham Lincoln famously asked, in regard to his unlawful presidential suspension of habeas corpus in 1861,
whether he was to let all the laws but one collapse and go unexecuted for the sake of upholding some
particular law “made in such extreme tenderness of the citizen’s liberty, that practically it relieves more of
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p. 222 the guilty than the innocent.” Proponents of the 9/11 argument ask something similar about rights: are
all the rights but a few to go unprotected, unsupported by the security that rights require, for the sake of
protecting those few rights that might actually stand in the way of our providing the requisite security?

Where does Shue stand on this? I believe that Shue is not in a position to rule out the possibility that the
post-9/11 argument envisages. There are two ways of reaching this conclusion. One is via the idea of the
systematicity of rights. The other is via the exigencies of particular circumstances.

On the systematicity account, we might want to consider whether the right whose sacri ce seems to be
required for the sake of security should really ever have been regarded as a right at all. (Or, if it is the
limitation, rather than the wholesale sacri ce, of the right that seems to be called for in the name of
security, we may want to consider whether the right should ever have been recognized in its unlimited
form.) We might want to say that the importance of security represents a constraint on what counts as an
acceptable set of individual rights. Just as we would not recognize a right that permitted a person to
interfere with or undermine the rights of others, so (it might be argued), we should not recognize a right
that is incompatible with conditions required for the security of others. This is analogous to the way in
which Shue thinks about subsistence. Some people complain that securing subsistence for everyone might
be incompatible with respecting property rights or rights to market freedom. But Shue’s position seems to
be that no such rights exist if they are incompatible with what is necessary for subsistence: “property laws
26
can be morally justi ed only if subsistence rights are ful lled” (p. 124).

Of course there is immense room for argument here—not only argument about the logic of necessity and
indispensability considered in the previous section, but also argument about the di erence between
qualifying property rights for the sake of immediate requirements of individual subsistence and qualifying
property rights for the sake of a particular macroeconomic strategy calculated to enhance subsistence in the
medium or long term. Analogously, there is considerable room for argument in the space between
qualifying a right whose exercise poses a direct threat to security and qualifying a right whose exercise or
enjoyment may be incompatible with the particular homeland security strategy that we happen to be
pursuing.

The systematicity approach assumes that, in some sense, we can settle in advance on a set of rights that are
27
p. 223 compossible inter se and compatible with the requirements of security. Of course we have to do the
guring in real time, but the systematicity approach assumes that there is, objectively, a solution—
something available to be gured out. The exigency approach is more skeptical about that. It does not
assume that we have access to an objective set of rights whose natural-law provenance ensures that they t
 together rationally or coherently (p. 93). Instead we have to calculate and recalculate the e ect on one
another of the exercise of various rights in various circumstances. It assumes that no right is absolute, and
that occasionally rights might have to be overridden or our sense of what rights we are entitled to rely on in
particular circumstances may have to be revised. This is a troubling possibility, but Shue refuses to rule it
out (p. 94).

A particularly troubling consequence of the exigency approach is that it might allow for the rights of some
people to be overridden even when the similar rights of others are not. (This is unlikely on the systematicity
approach since some sort of guarantee of equality of rights will operate alongside security and subsistence

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as an adequacy condition on any acceptable set of human rights.) So, for example, provision may be made
for the detention without trial of people whose ethnicity and appearance are similar to those of a certain
category of terrorists, even though it would be unthinkable to permit such detention in the case of citizens
generally. Some of us have argued that this has been characteristic of the Bush administration’s homeland
28
security strategy. Though there is talk of a general trade-o of (say) liberty for security as though
everyone were giving up a certain amount of liberty so that everyone could achieve greater security, in fact
the trade-o has often been a matter of them-and-us—their liberty for our security. As Ronald Dworkin has
pointed out:

None of the administration’s decisions and proposals will a ect more than a tiny number of
American citizens: almost none of us will be inde nitely detained for minor violations or o enses,
or have our houses searched without our knowledge, or nd ourselves brought before military
tribunals on grave charges carrying the death penalty. Most of us pay almost nothing in personal
29
freedom when such measures are used against those the President suspects of terrorism.

Still, nothing in Shue’s account a ords any basis for ruling this sort of thing out as a matter of principle, at
p. 224 least on the exigency approach. Everything will depend on the particular dimensions of what is proposed
and the case that can be made—subject to all the caveats of section 5—as to its necessity.

Elsewhere I have argued that if we are in the business of sacri cing or limiting rights for the sake of rights,
30
we are required to pay particular attention to the logic of rights. When Lincoln spoke of preserving “all the
laws but one,” he seemed to be using a simple maximizing approach: if not all the laws can be upheld, then
we should uphold as many as possible. That may or may not be plausible in the case of laws. But when the
currency of our calculation is rights, maximization is certainly not appropriate. Rights are inherently equal,
and the only justi cation for the sort of unequal upholding of rights envisaged in the previous paragraph is
that it is necessary to avoid even greater or more extensive inequality. So, for example, if we have to choose
between two strategies for security, one that requires everyone in a community of (say) a quarter of a billion
people to give up one right (for the sake of security) and one that requires ten thousand people in that same
community to give up ten rights each (for the sake of security) while all the others enjoy their rights intact,
we should prefer the former strategy even though incomparably more rights in the aggregate are
safeguarded by the latter strategy. There is not space here to pursue this matter further and, in any case, the
philosophical study of such calculations remains fairly rudimentary. But it needs to be emphasized again
and again that the mere fact that it is appropriate to contemplate trade-o s between rights and security
does not license a more general move away from the egalitarian domain of rights to the more brutal logic of
maximization. Trade-o s may seem to be the exclusive domain of the Benthamite economist; but the fact
that trade-o s among rights are sometimes necessary shows that, in at least some cases, tradeo s need to
be handled more carefully than one can expect economists to handle them.

For my money, these questions are much more likely to be handled with the appropriate care by someone
like Henry Shue than by the latter-day proponents of the 9/11 argument. Shue does not discuss the issues
about security exactly as I have posed them. But he does talk about trade-o s of similar kinds in other
contexts, and this gives us an indication I think of how he would respond to the 9/11 argument. Shue does
 not deny the possibility that sometimes some rights, or some things that we thought were rights, might
p. 225 have to be sacri ced to secure other rights. But, in a discussion in Basic Rights of the limits on what we are
required to do or to put up with for others, he draws the line at the sacri ce of anyone’s basic rights. “One is
required,” says Shue, “to sacri ce anything but one’s basic rights in order to honor the basic rights of
others” (p. 114). Why this line? As I understand it, Shue’s position is that the sacri ce of anyone’s basic
rights means the sacri ce of the conditions that make it possible for that person meaningfully to enjoy and
exercise any rights at all. And it is a consequence of what I believe is his acute sensitivity to the logic of the
distribution of rights that he rules out this possibility. Even if innumerably more rights could be secured by

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this means, sacri cing some person as a rights-bearer—reducing him in e ect to a non-person, a being
who has no rights at all—is out of the question. Our responsibility with rights is to recognize everyone as a
rights-bearer and to adjust our sense of what rights each person is to have under the discipline of this
fundamental recognition.

What if the basic rights of some have to be sacri ced not just for the sake of rights but for the basic rights of
others? In this case, Shue says, “it is certainly not obvious which set of rights ought to be sacri ced” (pp.
166–7). One possibility he considers is that, in such a trade-o , a government (such as the U.S.
government) is entitled to prefer the basic rights of its own citizens to the basic rights of foreigners. The
most he is prepared to say in regard to this proposal is that government may elect to give priority to
securing the basic rights of its own citizens to securing the basic rights of foreigners, but that this does not
imply that it is entitled to violate the basic rights of foreigners—that is, act deliberately to undermine them
31
—as a means to securing its own citizens’ basic rights (p. 166).

This sense of constraint is very important, both for what it represents about Shue’s commitment to the logic
of rights, and for its actual impact on the post-9/11 proposals. It is important to remember, in evaluating
various proposals for trade-o s that might enhance our security in a post-9/11 world, that at times of
national panic the deprivations imposed on (or proposed for) members of vulnerable and identi able
minorities are often deprivations of security, not just deprivations of civil liberties or other ordinary rights.
32
For example, those who have been beaten and tortured—some beaten and tortured to death —by American
p. 226 intelligence operatives in the war against terrorism have su ered not just the loss of rights, but the
radical loss of security. As I argued in section 3, the in iction of pain during interrogation renders a person
not just less free—though he has to be made unfree (held down) in order to be tortured—but less safe, less
33
secure in a very straightforward sense. The security that we all crave is security against violent attack, but
that is exactly what many people lose when they are imprisoned in Guantánamo Bay or in “black” U.S.
prisons in Eastern Europe, or when they are “rendered” by U.S. agents to foreign countries like Syria for
34
torture by their authorities. Their security is sacri ced in order to make the rest of us more safe. That is an
appalling prospect to contemplate on any account. But on Shue’s account, it is particularly troubling, since
he understands their security as not just a good to be enjoyed, but as a basic right, a condition for their
having any other rights at all.

Elsewhere I have argued that we should not treat security as a good to be maximized in society, but as
35
something to be achieved, as far as possible, at an equal level for everyone. But that was not an easy
36
argument to make. Shue makes it much easier, however, by conceiving of security as a basic right. If
security is the condition of the e ective enjoyment of rights, then sacri cing anyone’s security for the sake
of others’ is absolutely ruled out. What is commanded here by the logic of rights is peremptory and
deafening: we are to do everything possible to avoid the situation in which anyone’s security is
comprehensively sacri ced, for to do so is to act as though none of that person’s rights matter, ultimately as
though his personhood doesn’t matter. Obviously there is still a little room for argument inasmuch as even
the sacri ce of security can be conceived as a matter of more or less. But it is a sign of the importance of
Shue’s analysis that it locates the issue rmly on this ground of basic rights.
Notes

1 Jeremy Waldron, “Security and Liberty: The Image of Balance,” Journal of Political Philosophy, 11 (2003), 191–210.
2 Henry Shue, Basic Rights: Subsistence, A luence, and U.S. Foreign Policy (Princeton, N.J.: Princeton University Press, 1980).
Page references in parentheses in the text are to this work. (I use the 1980 edition rather than the second edition of Basic
Rights published by Princeton University Press in 1996, because the latter does not include an important chapter on U.S.
foreign policy, Chapter 7 of the original edition.)
3 See, for example, James W. Nickel and Lizbeth L. Hasse, “Review of Basic Rights by Henry Shue,” California Law Review, 69
(1981), 1569–86 and Tara Smith, “On Deriving Rights to Goods from Rights to Freedom,” Law and Philosophy, 11 (1992),

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217–34.
4 James B. Comey, “Fighting Terrorism and Preserving Civil Liberties,” University of Richmond Law Review, 40 (2006), 403–18
at p. 403.
5 See Henry Shue, “Torture,” Philosophy & Public A airs, 7 (1978), 124–43. See also Henry Shue, “Preemption, Prevention,
and Predation: Why the Bush Strategy Is Dangerous,” Philosophic Exchange, No. 35 (2005), 5–17.
6 See the discussion in Jeremy Waldron, “Safety and Security,” Nebraska Law Review, 85 (2006), 454–507, at pp. 455–9.
7 In United States v. United States District Court, 407 U.S. 297 (1972), at 320, the Supreme Court spoke of the “inherent
vagueness of the domestic security concept … and the temptation to utilize such surveillance to oversee political dissent.”
8 But see the discussion in Glyn Morgan, The Idea of a European Superstate: Public Justification and European Integration
(Princeton, N.J.: Princeton University Press, 2005), pp. 97–104.
9 See also the discussion in Waldron, “Safety and Security,” pp. 487–8.
10 See also Nickel and Hasse, “Review of Basic Rights by Henry Shue,” p. 1586.
11 See Waldron, “Safety and Security,” pp. 460–1.
12 I think this individualistic approach is mistaken; I try to explain why in Jeremy Waldron, “Is this Torture Necessary?”
(reviewing David Cole and Jules Lobel, Less Safe, Less Free: Why America Is Losing the War on Terror), New York Review of
Books, October 25, 2007.
13 I mean a “public good” in the sense of a good which is non-competitive (one personʼs enjoyment of it does not diminish
the amount of it available for enjoyment by anyone else) and/or non-excludable (if it is made available to anyone in a
given group, such as a whole society, it is necessarily made available to all members of that group).
14 I acknowledge that this is a very rosy picture of law enforcement in most countries. O en the police are part of the
problem, and o en the public goods aspect is diminished or attenuated as certain neighborhoods are neglected and
certain classes of individuals are made more vulnerable not less vulnerable as a result of law-enforcement activities. All I
am trying to show is that Shue may not be able to avoid this sort of di use public-good conception as part of what the
security ideal requires.
15 For the traditional distinction between positive and negative rights (i.e., rights correlative to duties of positive action and
duties of omission), see Maurice Cranston, “Human Rights, Real and Supposed,” in Political Theory and the Rights of Man,
ed. D. D. Raphael (London: Macmillan, 1967), pp. 43–54.
16 See Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), pp. 198–207. Raz argues that public goods canʼt
themselves be the subject of rights. But he confines this point to what he calls non-contingent public goods. See also the
discussion in Denise Reaume, “Individuals, Groups, and Rights to Public Goods,” University of Toronto Law Journal, 38
(1988), 1–27 at pp. 9–13 and Jeremy Waldron, “Can Communal Goods be Human Rights?” in Liberal Rights: Collected
Papers 1981–1991 (Cambridge: Cambridge University Press, 1993), pp. 339–69. Security as I am imagining it, under the
auspices of good policing, is a contingent public good in the relevant sense.Onthe other hand, theremay be aspects of the
idea of securitywhich are noncontingent public goods: see the discussion in Waldron, “Safety and Security,” pp. 500–2 and
also in Ian Loader and Neil Walker, Civilizing Security (New York: Cambridge University Press, 2007).
17 See also the discussion in Jeremy Waldron, “Terrorism and the Uses of Terror,” The Journal of Ethics, 8 (2004), 5–35.
18 See George W. Bush, “Freedom at War with Fear,” Address to a Joint Session of Congress (Sept. 20, 2001) available at
<http://www.whitehouse.gov/news/releases/2001/09/20010920-8.html>. (“Americans are asking, why do they hate us?
They hate what we see right here in this chamber—a democratically elected government. Their leaders are self-appointed.
They hate our freedoms—our freedom of religion, our freedom of speech, our freedom to vote and assemble and disagree
with each other.”)
19 See Waldron, “Terrorism and the Uses of Terror,” p. 32.
20 See Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983), p. 67.
21 See John Rawls, A Theory of Justice, rev. edn. (Cambridge, Mass.: Harvard University Press, 1999), pp. 37–8.
22 Robert Goodin, Political Theory and Public Policy (Chicago: University of Chicago Press, 1982), p. 232–3.
23 Rawls, Theory of Justice, p. 38.
24 See Waldron, “Security and Liberty,” pp. 208–9.
25 Abraham Lincoln, “Message to Congress in Special Session,” July 4, 1861, quoted by Sherrill Halbert, “The Suspension of
the Writ of Habeas Corpus by President Lincoln,” American Journal of Legal History, 2 (1958), 95–116 at p. 100.
26 See also the discussion at the beginning of the “A erword” in Basic Rights, 2nd edn. (Princeton, N.J.: Princeton University
Press, 1999), p. 153.
27 On compossibility, see Hillel Steiner, “The Structure of a Set of Compossible Rights,” Journal of Philosophy, 74 (1977), 767–
75.
28 See, e.g., David Cole, “Their Liberties, Our Security,” Boston Review, December 2002/January 2003 and Waldron, “Is this
Torture Necessary?”

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29 See Ronald Dworkin, “The Threat to Patriotism,” New York Review of Books, February 28, 2002.
30 Waldron, “Security and Liberty,” pp. 198–200.
31 Shue argues in an endnote (219 n.) that this does not involve reintroducing the distinction between positive and negative
rights that, as we saw in section 3, he rejects. (See above, text accompanying note 15.)
32 “In U.S. Report, Brutal Details of Two Afghan Inmatesʼ Deaths,” New York Times, May 20, 2005.
33 See above, note 9 and accompanying text.
34 See the discussion in Waldron, “Is this Torture Necessary?”
35 Waldron, “Safety and Security,” pp. 491–4.
36 See also the argument about security in Bernard Williams, In the Beginning was the Deed: Realism and Moralism in Political
Argument (Cambridge: Cambridge University Press, 2005), pp. 4 .