The Individual vs. the State Conference

21st annual The Individual vs The State Conference

Liberty in the Protective State

Theories and Practices of State Obligations to Secure Civil and Political Rights

October 25 – 26, 2013

Central European University, Budapest

For a reader who was trained to look at fundamental (human) rights as claims against the state, today’s landscape of human rights victories must look odd. While liberty used to mean an exercise of personal autonomy without state interference, today in order to be effective the conditions of the exercise of a right are also to be respected, and seem to necessitate a minimum of positive regulation. The contemporary welfare state is regulatory, in the regulatory state practically everything is regulated: regulation is the default, and only what is regulated is considered safe and acceptable. Suddenly, in the absence of positive regulation, what used to be a matter of uncontested private choice becomes unusual and uncertain. In a very densely regulated world some disadvantages emerge for freedoms without regulatory endorsement. A liberty may necessitate a positive regulatory environment which will produce the legal certainty providing the right to choose with effectiveness.

The German Constitutional Court is well known for its jurisprudence on outlining the duty of the state to protect basic rights (Schutzpflicht). In the jurisprudence of the European Court of Human Rights (ECtHR) the duty of the state authorities to investigate death or maltreatment which occurred in state custody follows from the provisions of Convention on the right to life (Article 2) and the prohibition of torture (Article 3), as does under the free speech clause (Article 10) the duty of the state “to put in place an appropriate legislative and administrative framework to guarantee effective pluralism” in the audiovisual media sector. Positive obligations grant the state wide discretion in managing specific risks. In return, the state’s mandate under a positive obligation might be misused to disregard the historically fundamental obligation of the State not to interfere into a liberty (i.e. a negative obligation). A reference to a positive obligation may, therefore, endanger that fundamental understanding of human rights and liberties. 

The ECtHR is certainly not alone with regularly prescribing governmental obligations in the name of defending /enabling fundamental rights.  Courts in the UK are also known to follow suit with imaginative remedies prescribed under the Human Rights Act. Other countries embark on similar ventures either because of their specific understanding of the welfare state’s caring function, or simply under the influence of ECtHR jurisprudence

Outside Europe a parallel concept of ‘due diligence’ has emerged slowly in the Inter-American system. Recently the Inter-American Commission on Human Rights found that the US “failed to act with due diligence to protect Jessica Lenahan and her daughters from domestic violence, which violated the State’s obligation not to discriminate and to provide for equal protection before the law under Article II of the American Declaration.” This decision is in direct contravention of the long-held stance of the US Supreme Court which is hostile to the idea of a constitutional duty to protect individuals from private acts of violence (see most famously DeShaney v. Winnebago County (1989).

Certainly, a comparable concept already exists in public international law. The ‘due diligence’ standard emerged in the Inter-American system and was also endorsed by the CEDAW Committee in the domestic violence context. The special rapporteur on violence against women, Yakin Ertürk claims that ‘due diligence’ is a rule of customary international law. Whether approached from the perspective of human rights or public international law, the horizontal effect problem raised by the language of positive state obligations is apparent. Even in a most modest setting one finds that the responsibility of the state is raised not only due to the behavior of its own employees, but on account of the acts of non-state actors. The ensuing norms are slowly transforming private law. Although the emergence of anti-discrimination norms is the most apparent example of the constitutionalization of private law, numerous further examples exist.

While questions may be asked as to whether certain forms of the welfare state are compatible with ideals of liberal constitutional democracy and the protection of negative liberties, this debate appears largely academic amidst the realities of most contemporary regulatory states. What remains unsettled is this: what are the specific criteria or conditions that trigger a duty of the State to act for the sake of rights protection and how “far” the regulator may go in the protective exercise? Some of the prescriptions require the state to maintain institutional safeguards, or functioning and efficient procedures for enforcing rights, while others are meant to prompt the state to prevent a particular wrong or minimize a certain risk, or even criminalize and punish, including perhaps actions protected otherwise as liberties.

At the entry level the problem of the preventive and protective state, if it is run through the judiciary, presents problems of redistribution, evidence and legitimacy (or the lack thereof). One may also inquire as to the standards courts apply for prescribing state obligations, after all, proportionality review (and its equivalents) are meant to measure permissible limitations of rights, and not the nature and extent of desirable state action in a given case. Furthermore, it is problematic if a protective measure is prescribed on account of a particularly harsh or extreme instance of violation of rights which may be regarded as exception, yet, it is equally questionable if a court intervenes to reinforce majority sentiment or preferences in the face of challenges from those who were left behind. Are victims’ vulnerability or a history of state inaction the proper grounds for imposing positive obligations? How far reaching can these obligations be in the sense of entering into private relations?

Courts are not the only source of hard questions, however. States are increasingly expected to counter not only actual harms, but also expected to prevent dangers, and even (often less carefully specified) future risks. Measures adopted by the responsive state are mostly likely to limit the liberties of some, or more, at least to some extent. When assessing risks and dangers, and imposing limitations on the options available to individuals, state actors take into account a wide range of factors. The extent to which states should be able to stir (or nudge) their citizens towards better options is as much a debate about good public policy or costs, as it is a debate about individual autonomy (or what is left of it). On the face of the matter, pragmatic questions about governmental involvement sound, for instance, like should the state be responsible to inform the public about the adversary effects of certain foods or chemicals on human health, should it prohibit the sale and manufacturing of such foods or drugs, or should it influence the behavior of individuals by other means, to make them stay away from dangerous products? At its heart, however, these are questions about the choices an individual is able to make about the what may be left of the good life. To put the same question from a different perspective: is there a line, and where does it lie, between efficient public administration on the one hand and an individual’s life under state control on the other?

With an interdisciplinary group of lawyers, political scientists, philosophers and sociologists we seek to explore the above questions at an international conference on October 25-26, 2013 at the Central European University, in Budapest.


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