Dignity, vulnerability and human agency in the context of tobacco control

• Published in: Human Rights and Tobacco Control pp. 10 - 25
• Main Author: Deryck Beyleveld
• Format: Book Chapter
• Language: English
• Published: United Kingdom Edward Elgar Publishing 14.08.2020; Edward Elgar Publishing Limited
• Series: Elgar Studies in Health and the Law
• Subjects: Health Law; Health Policy and Economics; Human Rights
• ISBN: 1788974816; 9781788974813
• DOI: 10.4337/9781788974820.00009

This chapter argues that analysis of the concept of a human right implicit in the provisions of the UDHR 1948, when coupled with the claim that only agents are intelligibly held to be addressors and addressees of practical rules (hence of duties), entails that any legal system purporting to give effect to the UDHR must operate in consistency with the Principle of Generic Consistency (PGC) of the late American philosopher Alan Gewirth. The PGC grants equal rights to all agents (hence all human agents), and only to agents, to ‘generic conditions of agency’ (GCAs), the non-possession of which (to some extent at least) damages the ability of an agent either to act at all, or to do so with general chances of success, regardless of the purposes involved. These ‘generic’ rights are both positive and negative under the will conception of rights (according to which agents may waive the exercise of their generic rights, provided that this does not result in interference with the generic rights of other agents against their will). It is for this latter reason that the PGC grants the generic rights only to human beings under the presumption that they are agents (and that human dignity as the basis of the rights recognized by the UDHR is only possessed by human agents). Nevertheless, it is argued that, because of intrinsic human cognitive vulnerabilities, all beings capable of behaving like agents must be held to have generic rights, and that, while no beings incapable of such behaviour may be held to have generic rights (which means that not all children, no unborn children, and not all adult human beings may be held to have generic rights), agents must recognize duties to human apparent non-agents in relation to ‘agency-like’ capacities that they are capable of displaying. Consequently, while the PGC permits human agents to smoke, the permissibility of this behaviour is limited not only by the proviso that it not cause generic harm to other (apparent) agents against their will, but also by a proviso that it not cause harms to interests displayed by apparent non-agents that would be GCAs if the apparent non-agents were apparent agents when the latter harms are not necessary to protect the generic rights of apparent agents. The chapter applies this framework as the basis for a critical evaluation of current regulations of smoking guided by respect for human rights.