The Ethics of Human Rights (74): Rights or Duties?

This is a telling result from Google’s Ngram viewer*:

It seems that once upon a time people believed that duties were more important than rights (or, which we assume is the same thing, people wrote more about duties than about rights). This time ended somewhere in the late 1800s. Some would call this the era of morality. The era that followed it would then be the era of “ME”, of individualism, of people’s nascent and by now “overwhelming” urge to claim things for themselves, and to claim them from others, from society and from the state. There is indeed a venerable school of thought that sees rights as amoral or even immoral and as the favorite tool of modern individualists and egoists.

Somewhat surprisingly, one origin of this idea is Marx. Nowadays, however, it’s associated more with conservatism and with so-called collectivist and harmonious “Asian” societies (with or without a history of communism). Or maybe it’s just associated with the self-appointed representatives of those societies, namely the often authoritarian leaders there. Not surprisingly, those leaders are the first beneficiaries of harmony and of a widespread sense of duty.

None of this should be understood as a rejection of the notion of duty. Far from it. One person’s rights are another person’s duties. (See also here). In a sense it is indeed regrettable that duties are apparently going out of fashion.

* If you don’t know what the Ngram viewer is, go here first.

The Ethics of Human Rights (73): The Link Between Corporate Social Responsibility and Reparations for Slavery

Advertising for Mercedes-Benz, from the Nazi propaganda magazine Signal, c1943

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Daimler-Benz … avidly supported Nazism and in return received arms contracts and tax breaks that enabled it to become one of the world’s leading industrial concerns. (Between 1932 and 1940 production grew by 830 percent.) During the war the company used thousands of slaves and forced laborers including Jews, foreigners, and POWs. (source)

Can companies violate human rights and should they be held morally and legally responsible if they do? Or are companies just legal fictions that can’t do anything? In the latter case, if a company seems to be engaged in wrongdoing, then it’s really just the employees, the bosses or the shareholders – or all of them – that have done wrong. It’s therefore always the individuals who should be held responsible and not the company as such. This latter view is expressed in the following quote:

[C]orporate action and corporate responsibility is something of a metaphor. Corporations don’t misbehave, speak, think, and so on. People acting on behalf of corporations do. I support applying the First Amendment to the “speech of corporations” because I think the restrictions on such speech end up interfering with the rights of people, both as listeners and as people who associate in order to create an enterprise in which some of the employees speak on the enterprise’s behalf. “Corporations have First Amendment rights” is useful shorthand for conveying that, but we have to recognize that it’s just shorthand.

And because this is just shorthand, I find it hard to fault the Mercedes-Benz of today for the actions of the Mercedes-Benz of the Nazi era. Whatever Mercedes-Benz officers and employees did then is their responsibility — not the responsibility of the very different people who run the company today. And that action during the Nazi era strikes me as not really relevant to Mercedes-Benz’s current actions, or to what should be our attitudes with regard to the company and its products today. (source)

That sounds persuasive, until you start to think about the transtemporal aspect of things. Indeed, current Mercedes employees or bosses are not the same as those of the Nazi era, but the company is. It’s Mercedes now and it was Mercedes then. It’s not absurd to suggest that the company profited from its Nazi era wrongdoing – or from the wrongdoing of its people back then – and that this advantage extends to our current time.

I’ll explain. Suppose that the Nazis liked company X and its people, and that this liking led to the government backed discrimination or even elimination of competitors Y and Z. Y and Z never recovered after the end of the Nazi era, and hence company X continues to this day to profit from the absence of competitors Y and Z. And I could suggest numerous other examples of ongoing advantages resulting from actions taken decades ago (e.g. continuing returns on savings which accumulated while the wrongdoing took place and which resulted from the wrongdoing; continuing returns on expropriated goods, etc.).

(source unknown)

This discussion is similar to the one about reparations for slavery. None of the current white citizens of the US are responsible for the slavery that ended more than a century ago, and yet they do still profit – as a group – from the defunct institution, even those whites who don’t have forefathers directly implicated in slavery or who came to the US after the end of slavery. Of course, those who do have implicated forefathers profit directly from the wealth their forefathers accumulated through slavery and subsequently transferred across generations. But whites in general profit from the fact that slavery has imposed disadvantages on blacks even after its demise (lack of education, lack of certain skills, segregation, forced migration etc.). These disadvantages were and still are benefits to whites. For example, they make it easier for whites on the job market and elsewhere.

However, the guy quoted above may insist that the “group of currently living whites” is a lot like Mercedes: the group is a social fiction in the sense that it can’t act and hence can’t be responsible. Only individual whites can act. And what they do today can’t have effects on the past. Hence they can’t be responsible for what happened in the past. A fortiori, the group of whites can’t be responsible either. I agree that all of this is correct, but it doesn’t follow that the group shouldn’t be forced to pay reparations. Just as Mercedes today, it continues to profit from wrongdoing done in its name in the past, and that is unjust. Hence they should pay compensation for the unjust profit they reap.

More on corporate social responsibility here, here and here.

The Ethics of Human Rights (72): Who’s Responsible for Helping the Poor?

St Martin and the Beggar, unknown master, Hungarian, around 1490. One day as he was approaching the gates of the city of Amiens, Saint Martin of Tours met a scantily clad beggar. He impulsively cut his own military cloak in half and shared it with the beggar. That night, Martin dreamed of Jesus wearing the half-cloak he had given away. He heard Jesus say to the angels: “Here is Martin, the Roman soldier who is not baptized; he has clad me.” When Martin woke, his cloak was restored, and the miraculous cloak was preserved. Small temporary churches were built for the relic and people began to refer to them by the word for little cloak “capella” that these churches housed. Eventually small churches lost their association with the cloak and all small churches began to be referred to as Chapels.

(source)

If you’re a heartless cynic, you’ll reply “no one” or “that they help themselves” when asked who should help the poor. If not, you’ll probably offer one of three answers:

1. Those who caused poverty are responsible for ending it. The main champion of this line of thought is Thomas Pogge who we’ve mentioned before on this blog.
2. Those who can end poverty are responsible for ending it. Who caused poverty and how is really not important. Here it’s Peter Singer who is the main proponent. (We also mentioned him before).
3. Those who are in a special relationship with poor people are responsible for helping them. The best known representative of this view is David Miller.

The problem is that all three answers sound appealing and yet they are mutually incompatible in some respects. At the same time they seem incomplete without each other. Let’s look at the pros and cons of each answer before dealing with the relationships between them.

Answer 1 focuses on causation: those who caused poverty are responsible for ending it. And Pogge has argued very successfully that all poverty as it currently exists in the world is to a large degree if not entirely caused by the actions of people and institutions:

The existing global trading regime contributes to the perpetuation of poverty through the asymmetrical market opening that took place in the 1990s. Poor countries still do not enjoy unfettered access to our markets and are still hampered by anti-dumping duties, quotas and very high subsidies, for instance on agricultural products and textiles. Not only do these subsidies make poor countries’ products uncompetitive on rich countries’ markets. They also hamper poor countries’ products in other markets because they allow the rich countries to undersell these products everywhere. By upholding a global economic order that grandfathers the rich countries’ right to impose such protectionist measures into the global trading system, the rich countries greatly contribute to the persistence of the world poverty problem. (source)

Pogge also claims, convincingly, that focusing on the causes of poverty delivers a stronger account of duty. The negative duty to right a wrong for which you are responsible is stronger than the positive duty to help irrespective of whether you’re responsible for the predicament of those you have to help. It does seem to be a widespread moral intuition that the negative duty not to harm, to prevent harm and to rectify harm once you’ve done it is at least more urgent and perhaps also more important than the positive duty to do good. The latter duty is central in answer 2. The idea that we should help because we caused harm seems to carry more weight than the idea that we should help simply because we can.

And yet, there’s a competing intuition that we should help because others have needs, whether or not we are responsible for those needs. So answer 1 doesn’t seem obviously superior to answer 2. In defense of answer 2, Singer gave the example of the drowning child in a famous 1972 paper. Nobody would condone your failure to help a drowning child because you weren’t the one who threw her in the pond. The simple fact that you pass by and that you can help at a minimal cost to yourself is sufficient to ground a duty to help. Poverty, according to Singer, is the same, even if it is poverty far away: the minority of wealthy people in the word can end poverty at a small cost to themselves. We should help people if we can and it doesn’t matter why people need help or who caused the problem in the first place.

If you wish, you can listen to his argument here:

He obviously explains it better than I can.

So we have two strong and seemingly incompatible intuitions here. The advantage of answer 1 is that it appeals to our understanding that negative duties are more urgent. Hence, focusing on causation and personal responsibility can, in theory, accelerate the struggle against poverty. We are more likely to act if we are convinced that we did something wrong.

The advantage of answer 2, on the other hand, is that it renders discussions about the facts of responsibility moot. Indeed, Pogge’s case about the West’s responsibility for poverty in the world is strong but not watertight. One can argue that people are partly responsible for their own poverty, or that local governments and natural conditions are also to blame. Hence, paradoxically, answer 1 can delay effective action because responsibilities first need to be attributed, and that is inherently controversial. Answer 2 then suddenly seems the more effective approach. Furthermore, answer 2 is able to deal with poverty that has no human causes: answer 1 seems unable to force action against poverty caused by natural forces.

The Good Samaritan by Ferdinand Hodler

And then there’s answer 3 making things even more complex. Answer 1 and 2 also accept that some people have greater duties than others – those who are responsible and those who can help respectively – but answer 3 takes this notion a step further. Those who are in a special relationship to the poor have greater duties to help. Part of the reason for this claim is that a relationship often yields a larger remedial capacity. Parents are better able than strangers to help their children because they have a special relationship with their children: they know them, care more for them, are closer and understand them better. The same can be said for national, linguistic or ethnic communities, according to David Miller. He speaks about “solidaristic communities” where people identify themselves as fellow members sharing a culture or beliefs with other members. This makes distributions easier and more effective.

It’s now the turn of answer 3 to claim to be the more effective one. And indeed, distance does play a role, not only in the effectiveness of actions but also in the willingness to help. Even Singer accepts the latter fact. We may want to change the facts but that takes time. In the meantime, it may be better to count on solidarity within groups than on the duties defended by answers 1 and 2.

It seems to be a widespread intuition that we can give extra weight to the interests of those close to us. This does not imply that we are allowed to neglect the world’s poor, but it does mean that our efforts to help them should not be at the expense of those close to us, including ourselves. If we have a duty to give, then this duty is limited by what we need for ourselves and for those close to us.

So, this concludes the description of different answers to the question in the title of the blog post. The relationship between these answers is a difficult one. They seem incompatible: either we look for those responsible for harm and force them to remedy; or we look for those who can offer a remedy and force them to act; or we look inside solidaristic communities. The duty bearers will sometimes be the same according to all three answers, and then there’s no problem if one, two or three justifications of their duties are successful in forcing them to act. But it can happen that the duty bearers are different people in the three different answers, and then there’s a problem. And we shouldn’t underestimate the probability of this. I personally tend to favor answer 2, but I don’t really have a good argument for this.

The Ethics of Human Rights (71): The Rights of the Dead

Whitney Houston

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Can the living violate the rights of the dead? Assuming that the dead are gone, they can’t be harmed. So the obvious answer would be “no”. And yet, I’m not alone in feeling uncomfortable about cases such as the death of Whitney Houston some time ago: certain very intimate and private details about her and her death were leaked to the press. So in some sense we believe that the dead deserve privacy.

Also some time ago, there was an uproar about Mormons posthumously baptizing people. Maybe this is harmless: the dead, again, can’t be harmed. If you believe in an afterlife, then things are different of course. For non-Mormon believers, posthumous baptism harms the dead because their wishes and agency are intact after death and are not respected by posthumous baptizers; for Mormons, on the other hand, a lot of good is done because it saves the dead from eternal damnation. But again, it seems like a belief in an afterlife isn’t a requirement for having a feeling of unease about the practice. Even the dead deserve respect of their agency and their choices in life. Posthumous baptism implies a negative judgment about people’s lives. Unintentionally, it also implies a negative judgment of the religion that engages in the practice: if you can’t convince the living to join your church and feel the need to co-opt them after death, then that says a lot about your appeal.

I could cite many other cases: there was this one about funeral disturbances; there’s of course the rule against necrophilia; and the argument against presumed consent for organ donation also relies on the rights of the dead (“my dead body belongs to me and the state can’t just confiscate it for organ donations if I haven’t explicitly consented to this”). Personally, I find this latter invocation of the rights of the dead much less appealing than the other ones I’ve cited: if the right to speech and the right to vote die with us, why not the right to control our bodies? Still, I mention the case because it’s testimony to a widespread belief that the dead have at least some rights.

Many of these discussions are “contaminated” by the effects of certain practices on the living. For example, it can be seen as offensive to living Jews if dead Jews are systematically baptized posthumously. We want to ignore those effects for argument’s sake and in order to determine whether the dead have certain rights. I now think they do.

If I’m right, this supports my previously stated view that human rights are about more than protection against harm – if the dead can’t be harmed and have rights nonetheless, then rights aren’t just about harm.

More on the rights of the dead here and here. More posts in this series are here.

The Ethics of Human Rights (70): A Human Right to Non-Existence?

Can people have a human right not to exist? This potential right has to be distinguished from the right to die or the right to end your life. In fact, what I’m talking about here is a right not to be born. Can a potential or prospective person have a right that forces her potential parents not to act in such a way that she comes into existence?

It’s common to hear people claim that, in some circumstances, it’s in a person’s interest for her parents to not act in such a way that leads to her conception and birth. And when there’s an interest there’s possibly a right as well. The specific circumstances people often refer to are, for example, the likelihood of genetic defects in the parents that would lead to a life of suffering for the potential child. Indeed, it’s uncontroversial that we can cause harm to a child by bringing about her existence, and when there is harm, there’s often also a right to be protected against such harm.

Less common these days is for people to argue that those who are “burdened” in non-genetic ways – such as the poor – should also not procreate owing to the risk that their children would find themselves leading similarly dismal lives.

So, if prospective parents are in a position to know or to be told that their potential children will lead a life not worth living because of genetic reasons, should they respect the so-called right to non-existence of these potential children? This right – if it exists – imposes a duty on prospective parents not to beget miserable children.

(A short parenthesis: suppose there is such a right not to exist, does that right not imply the existence of the “mirror-right”, namely a right of prospective children to exist when their lives will be very rewarding? In other words, do people have a duty to procreate in some circumstances? Most human rights imply their mirror-right: the right to free association implies the right to leave associations or to not associate at all; the right to free speech implies the right to remain silent; freedom of religion implies freedom from religion etc.

However, the presence of a mirror-right doesn’t always seem to be a necessary corollary of a right. The right to a free trial or the right to be free from discrimination don’t seem to imply any mirror-rights. If we assume, temporarily, that there is a right not to exist, we don’t need to assume that the mirror-right should also exist, if only because there are some serious problems with the possible right to exist, as I’ve argued elsewhere).

Back to the main point of the argument. If you want to defend the right to non-existence you have to distinguish between two cases:

1. a right to non-existence belonging to a possible future child, and
2. a right to non-existence belonging to a future child.

Case 1 is a right of potential children before conception, and this right would – if we agree that it exists – justify (forced) sterilization and such. Which is already one indication that such a right does not or should not exist. Case 2 is a right of a fetus not to be born, and is a right that would justify some types of abortion.

If we accept the right to non-existence in case 1, we won’t impose harm on children – because they never leave the stage of potential being – but we may impose harm on parents’ procreation rights, privacy rights, physical integrity rights etc. If we accept the right in case 2, we will impose harm on parents if we have to force them to have an abortion in order to protect the fetus’ right to non-existence.

In either case, however, we are dealing with “people” who can’t possibly claim their right to non-existence for themselves, either because they don’t (yet) exist, or because they exist in a form in which they can claim rights. Hence, when we act to realize the right to non-existence, we always act on behalf of the wellbeing of others, potential others even. Given the many problems linked to paternalism, the burden of proof must be very high before we engage in such actions. For instance, it should be abundantly clear that “a life of unbearable suffering” will indeed be unbearable: a life of poverty and illiteracy would still be valuable enough and would not trigger the right to non-existence of the potential children of the poor and illiterate. Hence it would also fail to trigger paternalistic actions such as forced sterilization or forced abortion. On the other hand, a life of constant physical pain brought about by genetic facts could perhaps be of sufficiently low value to trigger the right and the corresponding paternalistic actions, although I personally find it repugnant to consider forced abortion or forced sterilization.

Also, the fact that the bearers of the right in question can’t possibly claim it themselves – either because they’re still a fetus or because they are as yet potential human beings (some, by the way, would claim that a fetus is also no more than a potential human being) – could indicate that it’s impossible to talk about a right in this case. However, some children and comatose patients also can’t claim their rights, but that’s no reason to state that they don’t have any. Maybe it would be better to frame the issue, not in terms of rights, but in terms of the duties that parents have when considering a decision to procreate. And yes, there can be duties without corresponding rights: if I have a duty to respect my promises given to you, you don’t have a corresponding human right to have these promises respected.

Related Articles

• Brazilian Woman Forced to Carry Fetus Without a Brain (womensrights.change.org)
• shall we end humanity right here, right now? (3quarksdaily.com)
• Should This Be the Last Generation? (opinionator.blogs.nytimes.com)
• Hundreds of Uzbek Women Report Forced Sterilization (womensrights.change.org)
• Finnis and Singer debate moral status of embryo at Princeton (exlaodicea.wordpress.com)

The Ethics of Human Rights (69): Democratic Transition Caught Between the Rights of Past and Future Generations

Reconcilliation cartoon by Dario Castillejos

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Here are some general observations inspired by the recent talk of a possible amnesty for Assad as a means to convince him to give up power in Syria.

Imagine a country in which roughly 20% of the population ruled the other 80% during several decades or even centuries. The members of the ruling class owned the land and controlled much of the economy, are of a different social class (perhaps even race) and made sure that the rest of the population lived in constant poverty, oppression and discrimination.

The combination of an internal uprising and external intervention produced a successful transition to a fully democratic form of government. A strong and independent judiciary is now in place, able to effectively enforce a constitution that includes a wide array of human rights.

How should this new democracy deal with the horrors of the past and the rights violations of the now defunct regime? There are two seemingly incompatible needs: victims of rights violations in the past now demand justice, but the society as a whole may be better off without justice, at least in the short run immediately after the democratic transition (and later it may be too late to bring the perpetrators to justice because they’re all dead). Justice can make it more difficult to integrate the old ruling class into the new state. Given that most of the members of that class were heavily implicated in the horrors of the past, justice can’t be a simple matter of punishing a few key perpetrators. And punishing large groups of people will alienate those people, with potentially fatal consequences for the stability of the new state. It may even be the case that one can identify a few key perpetrators, but that those are still quite important for stability even though they’re not very numerous. For example, it’s likely that the military was implicated in past injustices, but the military – especially the top brass - is very important for stability and the new state can’t risk alienating this group, even if it’s not very large. An internally divided society is not at peace with itself and risks upheaval.

However, failure to pursue justice will also divide society. Failure to do something about past injustices will result in impunity and will undermine the moral authority of the new state. Also, what would that imply for future respect for human rights? Why respect rights when past disrespect was without consequences? And if only new rights violations are prosecuted, then there will be a feeling of injustice because of double standards.

A solution to this dilemma can perhaps be found in the fact that there are degrees and different kinds of justice. Justice doesn’t have to be penal or focused on retribution or revenge. Better perhaps to emphasize truth, also a traditional element of justice. Truth, as in the so-called truth commissions, can foster repentance, forgiveness and reconciliation. Judicial prosecutions can still play a part, but their potential divisiveness can be softened by measures such as amnesty, pardon or limited punishments, on the condition that the defendants cooperate in truth commissions. It’s often the case that truth is more important to victims than retribution.

Of course, some major perpetrators may still have to be punished and perhaps even severely punished. Some types of responsibility are simply to heavy to warrant amnesty. It may be impossible for a society to exist given the presence of monsters continuing their lives as if nothing happened. It’s not necessary to “buy” the allegiance of every single individual in society, not even individuals who still have a broad base of support. In addition, we have to avoid coerced amnesty: perpetrators can blackmail the new state by threatening large-scale unrest or upheaval.

So we need to balance the needs of the past and the future. Both needs should be acknowledged and neither should be sacrificed for the other. Of course, that’s easy to say and very hard to do.

More on the rights of past and future generations here, here, here and here. More on transitional justice here and here. More on the prerequisites for a transition to democracy is here.

Related Articles

• Analysis: Justice in doubt for Congo atrocity victims (reuters.com)
• Action needed to investigate a decade of crimes in DRC (yubanet.com)

The Ethics of Human Rights (68): The Case Against the Sale of Human Organs

Or, better, a case against it. I believe that trade in human organs is morally wrong, at least if this trade is free and unregulated (but perhaps also when it’s regulated in some way). I don’t think the same case can be made against the sale of body products such as blood, hair etc., although some of the arguments against the sale of organs may also apply to the sale in body products. I will bracket this problem for now and concentrate on organs.

I make the argument against organ sales knowing full well that there’s a huge problem of organ shortages and that some people will benefit from free organ trade, and may even lose their lives if free trade is not allowed. Hence, if I claim that free organ trade is morally wrong, then I’m not necessarily making the claim that it should be forbidden in all circumstances. If there are other wrongs, such as people avoidably losing their lives, that overwhelm the wrongs resulting from organ trade, then the former wrongs may be preferable all things considered. However, I believe that the latter wrongs are commonly underestimated by those defending the legality of organ sales. I also believe that there’s a blindspot common among those who claim that the wrongs resulting from a ban on sales typically outweigh the wrongs resulting from a free organ market: it’s not as if the only choice is the one between the status quo – which is in most cases a ban on sales resulting in organ shortages – and a free organ market. There are other and perhaps better solutions to the shortage problem, even in the short term.

Here are some of the reasons why I believe a free organ markets causes serious wrongs:

1. Coercion by poverty

Not a single wealthy person will ever need or want to sell his or her organs. In a system of free organ trade, it’s the poor who will sell their organs to the rich. Maybe a legalized market will reduce the wealth disparity between buyers and sellers to some extent, given the fact that the number of potential sellers will be higher in a free market and that the number of potential buyers will not. This increase in supply compared to demand, following legalization, will reduce prices somewhat, making it feasible for more people to buy organs. Still, it will almost always be the relatively rich buying from the relatively poor, especially if the market is a global one (and I find it hard to understand arguments in favor of a free market limited to national borders).

Many of these poor will be desperately poor, particularly if the market is globally free. A decision to sell an organ isn’t made lightly, and requires some level of financial desperation. The extraction of an organ still carries a substantial risk (e.g. 1 in 3000 die from a kidney extraction even in the best medical circumstances), and few will be willing to take this risk from a baseline situation of wellbeing or happiness that is moderately high and that can not or need not be substantially improved by financial means.

Hence, if organ trade is allowed, many sellers will be desperately poor people, and there will be more of those in a legalized market than in a black market. Now it’s clear that desperation can be coercive: it forces people to do things that they would not otherwise do, that entail risks that they would avoid at higher levels of wellbeing, that may be harmful for them, and that go against their better judgment. If coercion is wrong, then free organ trade is wrong because free organ trade multiplies the number of desperately poor people that feel coerced to sell their organs.

2. Trade instead of justice

It’s reasonable to assume that rich people are responsible for the poverty that exists in the world, if not directly through their actions (trade policy, colonization etc.) then through their failure to prevent or remedy poverty. It will almost invariably be the same rich people who will want to buy organs from poor people. Now, if you first create poverty (or fail to do something about it, which in my mind is equivalent) and then tell poor people that you’ll give them money but only if they give you their organs in return, then you add insult to injury: you have a moral duty to give them your money unconditionally. Insisting on the possibility of trade while neglecting the necessity of justice is wrong.

3. Objectification and instrumentalization

There are some other good reasons why it’s wrong to buy an organ from someone, even if this person willingly agrees to the sale on the basis of informed consent, and even if he or she isn’t coerced into the sale by his or her poverty and isn’t someone who has a moral and unconditional right to the money he or she would get from a sale. For instance, buying an organ from someone means treating this person as an object and a means. It’s a failure to respect the person’s dignity as a being that should be treated as an end in itself rather than as a shop or an organ factory. It’s not outrageous to view organ trade as a new form of cannibalism.

4. Unjust distribution

The previous 3 arguments against organ trade focused on the wrongs it imposes on the sellers. But even the buyers are treated unjustly in a system of free organ sales. If the distribution of organs is regulated solely by way of free trade, then the patients who are most in need of an organ are not the ones who will get the organs. It will instead be those patients able to pay most who will get them.

5. Crowding out altruism

There’s even an argument that points to possible harm to society as a whole. If more and more human relationships are brought within the cash nexus, then giving and altruism will be crowded out. It’s obviously the case that when people can get money for something, they will stop giving it for free. Human nature is what it is. But given what it is, we shouldn’t encourage its darker sides. It’s reasonable to assume that free donation of organs will all but disappear when people can get cash for them. And it’s also reasonable to assume that this reduction in altruism can have a ripple effect throughout society and in many other fields of life, especially when we take account of the fact that more and more activities have already been brought within the cash nexus: sex, reproduction, politics …

No one assumes that everything should be tradable. Even the most outspoken proponents of organ trade draw the line somewhere: they won’t allow people to sell parts of their brains, I guess, or their children and wives, or the parts of aborted fetuses (perhaps fetuses specially conceived and harvested for their parts). So we have to stop somewhere and disallow the trade of some things. Why should it be evident that organs are not one step too far?

Alternatives

If organ sales do have harmful consequences, then what are the alternatives? If we don’t want to allow those willing to sell to go about and legally sell their organs to those capable of buying them, then how do we solve the shortage problem and save the lives of those in need of organs? We can do several things:

• We can try to increase the number of free cadaveric donations, by improving the way we approach bereaved relatives, by introducing a system of presumed consent, by promoting explicit consent (for example through the introduction of regulations that allay fears that doctors will stop life support when they need organs, or through some sort of priority system in which those who have pledged cadaveric donation can jump the queue when they themselves need organs) etc.
• We can try to increase living donation, by way of awareness campaigns.
• We can hope for scientific breakthroughs that make cadaveric recovery of organs easier or live donations less risky, or that make it possible to grow organ in vitro.

Organ sale is certainly not the only solution to the shortage problem.

A final remark: given the fact that proponents of organ trade often rely on the right to self-ownership – the right to do with your body as you please – we may have to tone down the importance of that right. Which is something we’ll have to do anyway: for instance, there’s no welfare state if the right to self-ownership is absolute.

More on organ sales, exploitation, instrumentalization and objectification.

(image source, image source)

The Ethics of Human Rights (67): What Kind of Redistribution Does Luck Egalitarianism Require?

Luck egalitarianism is the theory of justice according to which bad luck that falls on people through no fault or choice of their own, is an injustice that has to be remedied. Whatever the merits of this theory, it does broadly correspond to certain widely shared moral intuitions. When you lose a limb in an accident, or contract a terminal illness, you probably feel like “why me?” and ask yourself: ”what did I do to deserve this?”, “why should I of all people suffer this fate”, and “why should I be worse off than others through no fault of my own?”. You’ll have the same feelings when you happen to be born in a poor country, with a disability, in a dysfunctional family or in a discriminated cast or class. Such instances of bad luck lead to vastly unequal opportunities. And it does seem to be the case that inequality that is attributable to differences in our unchosen circumstances or abilities is less acceptable – morally speaking – than inequality that is wholly attributable to the responsible choices we make.

Of course, bad luck is unavoidable, but we can do something about the unequal opportunities it creates. This will inevitably lead to some kind of redistribution. The redistribution required by luck egalitarianism means that the lucky among us should transfer to those less fortunate some of the advantages that have come to us through luck. For example, we should pay taxes that are used to make life easier for the disabled. We can’t redistribute luck (for example, we can’t redistribute disease, accidents etc.). Hence we have to redistribute the consequences of luck. We should make the consequences of bad luck less severe or a bit easier to carry, and we should do so by skimming some of the beneficial consequences of good luck.

The redistribution required by luck egalitarianism is asymmetric: something must be done to help the unlucky, and that means taking something from the lucky; but it’s not the case that something must be done to make the lucky less lucky. It’s bad when people are worse off because of bad luck, but it’s not equally bad when people are better off because of good luck. Merit is important in life, and we admire people who are better off not because of good luck but because of what they did and who they are. But this admiration doesn’t imply condemnation of those who are better off simply because of good luck. The latter shouldn’t be condemned but they should part with some of their advantages in order to help those who are worse off because of bad luck. Bad luck is objectionable, and good luck is unobjectionable. But unobjectionable doesn’t mean that we are not allowed to confiscate part of the benefits of good luck in order to do something about objectionable bad luck.

And here we encounter one possible objection to luck egalitarianism: it seems like the theory doesn’t allow taxation of those who have acquired their wealth without any good luck (that is, if there are such people). Normally, most of us would want to impose a duty to help also on those who are better off not because of luck but because of what they did.

Other objections are here. More posts in this series are here.

The Ethics of Human Rights (66): Human Rights and “Spontaneous Order”

Friedrich von Hayek

Hayek has famously argued that market economies create a spontaneous order, a more efficient allocation of societal resources than any intentional design or planning could achieve. This spontaneous order is superior to any order the human mind can design due to the specifics of the information requirements. Planners will never have enough information to carry out the allocation of resources reliably. Only individual economic actors can create an efficient and productive economy by engaging in free exchanges and by using as their information source the spontaneously developing price system. They can do so because they act on the basis of information with greater detail and accuracy – namely the price system – than the information available to any centralized authority.

Whatever the general merits of such invisible hand theories for the whole of society (I think those merits are real but often vastly overstated), it’s useful to ask if they also apply in the field of human rights. To what extent and in which circumstances can there be an equivalent of “spontaneous order” for human rights? Can it happen that people’s unintended and selfish actions promote respect for human rights? Or do human rights always require intentional and (centrally) planned policy?

First, this question has to be distinguished from a similar one: it’s true that people do have selfish reasons to promote human rights and often act on those reasons, as I’ve argued here. But in that case their human rights efforts are quite intentional. What I’m asking here is whether there are equally selfish but unintentional processes that promote human rights. And I think there are. Before listing some of them, however, let me make clear that those processes, although they are obviously beneficial and to be encouraged, will not make a huge difference, and that they certainly won’t be sufficient to bring about human rights utopia.

After some superficial thinking about this, I came up with three examples:

• Trickle down economics is by now thoroughly discredited, especially when it’s used to justify tax cuts for the wealthy. Not all boats have risen on the rising tide, and the tide itself has recently come crashing down on all of us, the rich included. However, that doesn’t mean that there’s never any trickling down in an economy. When the government’s tax system allows the wealthy to retain a reasonable part of their wealth (let’s assume we know what “reasonable” means here), then some of their wealth does indeed flow down to those with lower incomes. That’s because the rich are more likely to spend the additional income, through either consumption or investment, thereby creating more economic activity, which in turn generates jobs and higher income for the less well-off. If that’s the case, then the right to a certain standard of living is promoted through the selfish and unintentional actions of the wealthy. Of course, this will never be enough to secure that right for everyone all of the time.
• As Becker has argued, free competition between firms reduces discrimination. A racially biased firm will want to hire whites, even if they are more expensive and less qualified than some non-whites. But a firm will only do so if it’s not under pressure from competitors. In a competitive market, other firms can and will produce the same goods at cheaper prices by hiring the cheaper/better black person. The biased firm will then be forced to do the same. It may remain biased – opinions on such matters are notoriously hard to change – but it no longer has the luxury of acting on its bias.
• There’s a strong tendency towards urbanization in developing countries. Large cities offer more economic opportunities, and jobs in factories, shops or trade offer some advantages compared to agriculture (e.g. weather independence, stable income etc.). When women move to cities and work in factories, they usually have less children – they don’t need children to work the land – and they become more independent of traditional patriarchal structures that are more common in the countryside. This does not only improve the wellbeing of women. Having less children means that the remaining children are more likely to attend school, because school is expensive. Female children in particular benefit from this education. Hence, rights such as education and non-discrimination are automatically advanced by urbanization. More here.

More posts in this series are here.

The Ethics of Human Rights (65): The Deserving Poor and the Spectacle of Libertarianism Eating Itself

“this sauce is so good, I can’t help eating myself”

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It’s a common right-wing complaint, especially among right-libertarians, that the welfare state helps the poor whether or not they have only themselves to blame for their poverty. If there should be a duty to help the poor, it should be limited to the deserving poor (although some libertarians think that even this goes too far since it implies a form of slavery for those who have a duty to help). All the others should suffer the consequences of their own bad decisions – their teen pregnancy, their lack of effort at school, their alcohol problem etc.

One could reply that people’s bad decisions aren’t always their own decisions, in the sense that making good decisions is something you have to learn, and this learning may be difficult in an environment of poverty, especially during childhood. However, let’s bracket this objection, for the sake of argument, and assume that there are indeed some people who only have themselves to blame. They may not be as numerous as those on the right tend to believe, but even if there are only a few we should decide what to do with them – help them or not.

The criticism that our current systems of social security don’t differentiate between the deserving and undeserving poor is sometimes illustrated with an analogy. If we assume that governments fund their welfare system through taxation, and that taxation is a kind of involuntary charity or enforced charity – the government steps in in order to take the money which we don’t give voluntarily to charity – then it’s only right that the government takes every effort to make sure that our money goes only to the deserving poor. If we voluntarily give money to charity, we also want to be sure that it goes to a good cause, and those collecting our money have a duty to spend it well and not waste in on people that aren’t going to use it constructively. Given the libertarian view that taxation is a form of stealing it’s all the more important that the tax money is spent well; you can perhaps argue in favor of stealing if the harm done by stealing is compensated by the greater good that is done with the stolen money, but you certainly can’t if there is no greater good and if the money goes to undeserving poor who are rewarded for their bad behavior.

Isn’t it especially outrageous to misuse charitable funds if the donors cannot legally discontinue their support? (source)

Now, it’s here that the problem begins and that libertarians who follow this reasoning tend to undermine their own libertarianism. If you want to help only the deserving poor, and if you want to be very strict about helping only those people, then you’ll have to accept systematic and wideranging intrusions into people’s privacy. How else would you be able to distinguish the deserving from the undeserving? You’ll need detailed biographies of all potential welfare or charity beneficiaries, records of their decisions and behavior, of their job applications, their diet, their sexual mores, etc.

You’ll have to accept these intrusions whether or not you believe that charity is the perfect and only solution. If you believe, correctly I think, that charity will never suffice, then you have all the more reason to be worried, since it’s the state who will have to monitor deservingness. Either scenario is anathema to libertarians.

The distinction between deserving and undeserving poor isn’t only difficult in practice. It’s also theoretically fraught with problems. For example, if you assume that you have a system to find out which poor person is an alcoholic and which one isn’t, then you still have to answer the question whether an alcoholic is an undeserving poor person or not. This answer depends on the causes of her alcoholism: maybe the cause is a series of misfortunes combined with a weak character, in which case her alcoholism is obviously not deserved. Perhaps she deserves blame for her weak character was, or perhaps not. One can easily make the case that a strong character and a good amount of effort and discipline depend on our upbringing and the social circumstances in which we are born. And no one deserve those circumstances.

And finally, even if we can identify the deserving both in theory and in practice, and even if we accept the anti-libertarian consequences of this work of identification, then we can still argue against the claim that we should not help the undeserving poor. Perhaps it’s a sign of decency and civilization that we help even the undeserving poor. Maybe the claims of the undeserving aren’t as strong as the claims of the deserving, and maybe we shouldn’t help them as much or as quickly as the deserving. But that doesn’t mean we should let them starve.

More posts in this series are here.

The Ethics of Human Rights (64): Value Pluralism Supports Human Rights

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The justification of human rights – the quest for reasons why they are important and why we need them – is probably the most important topic of this blog (some previous posts are here, here, here, here and here). One element of justification is their compatibility with an important tenet of moral theory, namely value pluralism. Value pluralism is, in my opinion, a principle of morality that comes very close to being a “moral fact“.

In short, the principle says the following. There are many different moral values – or different moral “goods” if you want – such as happiness, liberty, equality, loyalty etc. Those values differ qualitatively from each other and don’t seem to be reducible to one super value. And neither is there a clear ranking of importance so that conflicts between values can be easily decided. Different values can’t be compared to each other. Friendship is not clearly more important or a higher value than loyalty; freedom is not prior to equality; being happy is not better than developing your capacities etc. When two values seem to be incompatible, it’s hardly ever certain which of the two should be favored. And neither is it easy to say that a decrease of x in value v is acceptable if it results in an increase of x or y in value w; it’s often even impossible to determine the x and y in this equation because values are quantitatively and not just qualitatively incomparable. An increase of x in friendship is not comparable to an increase of x in loyalty. What does an increase of x in friendship even mean? Furthermore, there are problems in cases that don’t involve incompatible values: in general, is it better to strive towards increases in value v rather than increases in value w? For example, some say a society and a government should promote equality as the prime value; others prefer to maximize liberty. It’s difficult if not impossible to decide if either of these goals is the most important.

And yet, even if value pluralism is true and moral theory can’t therefore offer guidance in cases of incompatible values or in the choice of the single value to pursue in life, people have to solve conflicts between values on an almost daily basis, and they have to decide which value or values should guide their lives. If moral theory is useless in those everyday decisions, then it’s better to let people decide for themselves about what is good and right. People should be left free to live their own lives according to the guiding values they choose independently, and they should be allowed to decide conflicts between values according to their own conscience. If value pluralism is true, then there is no single way of life that is the highest and the best for all, and then it’s also true that people should be given the freedom to decide for themselves.

This is where human rights enter the scene. Human rights support this freedom in two ways, a direct and an indirect way. They allow people to choose a type of good life independently from the pressures of government or society: minority religions are free, people are free to associate, expression is free, they can use their property the way they like etc. In addition, there’s is nothing in the system of human rights that prohibits self-chosen and self-regarding value decisions, as long as the rights of others aren’t harmed (for example, drug use that doesn’t harm others cannot be prohibited on the basis of human rights).

Indirectly, human rights oppose authoritarian governments which favor and enforce one value or one way of life as the only desirable way of life: communist societies that promote equality at the expense of all other values, Catholic dictatorships that prohibit other religions, Muslim theocracies etc. If value pluralism is true, then there is no basis for coercive policies intended to systematically favor one value or one way of life. (Of course, in specific cases of incompatible values, it may be necessary for coercive government intervention in favor of one value or the other, especially when government inaction would cause more overall harm to certain values than government action; but that is the exception to the general rule that people should be free to solve those issues themselves – a rule that is based on morality’s inability to find good general reasons to favor one value over another. An example of such an action would be a government prohibition on religious child sacrifice).

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One problem with the line of reasoning that I set out here is that the opposite can also be true: value pluralism can support authoritarian government. Not the type of authoritarian government that is paternalistic and that favors the realization of one value above all others, but the type that presents itself as a bulwark against anarchy, instability and factionalization. Governments which take the latter approach start with the presumed fragility of the bonds of community. These bonds, it is said, can only be maintained if society is inspired by a single purpose and a single good. The freedom to let people decide for themselves what type of life they want to pursue can undo the necessary sense of community because it erodes the single purpose, but also because groups of people will turn away from each other in disgust over the other groups’ lifestyles. Conflict and a lack of solidarity will destroy society. One purpose should therefore be enforced, not because this purpose is generally superior to all others, but because otherwise society will fall apart. I’ve argued here against this justification of authoritarianism. The crux of my argument is that you can’t enforce a common purpose; this has to come voluntarily and “from within”, and enforcing it merely encourages violent dissent on the side of those who see their own purposes suppressed. If this is correct, then value pluralism doesn’t support authoritarianism.

More on value pluralism here.

The Ethics of Human Rights (63): Human Rights and Moral Subjectivism

calvin and hobbes on moral relativism – subjectivism being a type of relativism

Human rights seem to be vulnerable to a common argument in morality: how can we objectively determine that some action is morally wrong? I may think it’s wrong, but you may think something else. Which one of us is correct? There seems to be no way of knowing. Morality is therefore subjective: if something is wrong, it’s wrong for me, for my religious group, my culture etc. If you, your church or your culture thinks it’s OK, then go ahead and do it.

This subjectivism and relativism seem inevitable in our age of moral and cultural pluralism. Western societies are no longer characterized by a quasi-general agreement on the precepts of the Bible, and our colonial hangover has made us weary of supposedly objective morality. There’s no more “true or false” about moral norms, just “ours” and “theirs”. This coexistence of different and often incompatible and contradictory norms or moral systems should be accepted in a spirit of tolerance, and should even be celebrated as part of the richness of human life.

moral rules cast in stone, the archetype of moral objectivism (Charlton Heston as Moses in the 1955 film The Ten Commandments)

It’s not clear what if anything is left of human rights once we’re done with this. Since these rights are also moral norms, it seems as if they too should be demoted to the rank of personal or group preferences, with no moral force over people holding other preferences. If human rights aren’t true and objective norms, but merely our norms, and if these norms lack any backing more sophisticated than our subjective preference for them or the fact that they are in our holy book, then there’s no point in talking about human rights at all. Drop the “human” part and replace it with “ours” or “mine”. The only good that human rights can possibly do is symbolic affirmation of group membership (“Free speech is a right!” – “Ah, yes indeed, you must be a liberal! Welcome!”). They’ll offer no protection at all, since all violators obviously have different subjective norms, and have an equally valid justification for those norms, namely that they are theirs or that they are in their books.

Fortunately, none of this is inevitable. We may never be able to say that it is objectively “true” that people have this or that human right, or that it is “true” that a particular human right is an important moral norm. However, there’s considerable space between such objective truth claims on the one hand and merely personal, subjective, cultural and relative claims on the other. We may produce good arguments and make a reasonably convincing case that rights claims are good claims. Not true claims, but good claims in the sense that they are strong and difficult to argue against. Rights claims will then perhaps be accepted by people who initially held anti-rights preferences, not because they are forced by the objective truth of those claims – as they may be forced to accept the laws of gravity when the truth of those is demonstrated to them – but because they have allowed themselves to be convinced by the force of our arguments.

More posts in this series are here.

The Ethics of Human Rights (62): Human Rights Consequentialism

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A few additional remarks following this previous post.

A really crude simplification would divide moral theories into two groups: deontological and consequentialist theories; or, in other words, theories that focus on duties and rights and theories that focus on good consequences. At first glance, human rights activists should adopt deontology. We have rights independently of the consequences that follow if they are upheld or not. Rights are strong claims by individuals against society and the state, claims that can’t just be put aside if doing so would yield better overall consequences. You can’t torture one individual if this torture would cure millions of chronic headache.

Consequentialist theories, as opposed to deontological ones, usually do accept the sacrifice of a few – including their rights – for the benefit of many, or they accept a small sacrifice for a larger good even if only one individual profits from this larger good. A larger good can justify a smaller harm. And indeed, there are many circumstances in which violating the rights of some would deliver greater goods for many.

For example, closing down the Westboro Baptist Church would give many people some or even a lot of satisfaction while imposing serious harm on only a few (it’s a small band of crazies). The consequentialist calculus is likely to show that in this case the sum of satisfactions outweighs the sum of harm. The fact that the harm we’re talking about here means a violation of rights (free speech,  freedom of association and freedom of religion for the church members) doesn’t count in the consequentialist calculus. A harm is a harm and it’s the intensity not the nature of the harm that is important.

It’s not surprising that proponents of human rights have problems with this: human rights are important for everyone, but especially for minorities who risk being crushed by the interests of the majority.

It seems, therefore, that consequentialist reasoning is inimical to human rights. And yet, almost all if not all theories about human rights allow for some consequentialism. For example, there’s the case of catastrophic consequences. When faced with the possibility of catastrophic consequences it seems stupid and contrary to moral intuition to hold on to rights, no matter how dear these rights are to you in normal circumstances. The archetypical case is the ticking bomb.

Ticking Time Bomb by BlueEyedDreamerx

Some proponents of human rights – and I’m one of them – go even further and justify rights on a consequentialist basis: rights are necessary because we need them to realize certain fundamental human values. And, in order to limit the consequentialist logic that would allow violations of rights for every tiny marginal good, we do four things:

1. We claim that it is an empirically verifiable fact that human rights are among the best, if not the best means to realize the values in question. This is true on average and, especially, in the long run. Hence, sacrificing rights in order to realize those values isn’t the best short term or long term strategy.
2. Even if there are isolated cases in which the values in question are better served by other means – other means than human rights and other means that require setting aside or violating human rights – then it’s still better to ignore those other means. If not, we will leave human rights with less authority and less force to produce good consequences in the future. Part of the force of human rights lies in their imperative and rule-like character. Setting them aside, even occasionally, because we think that’s necessary for certain goals, destroys their future power. They are not like antibiotics whose power depends on their limited use. On the contrary: the more we use human rights, the more power they have, and hence the more effective they are in doing what they usually do best.
3. We claim that the values protected and realized by human rights are among the most fundamental human values, if not the most fundamental. Hence, consequentialist reasoning will have a hard time coming up with more fundamental values that justify sacrificing human rights or the values protected by human rights.
4. We claim that consequentialist reasoning has some theoretical limitations: for example, we may know in general what consequences tend to follow from certain principles such as human rights, but it’s much more difficult if not impossible to know the precise consequences of specific actions (especially the long term consequences). This is also true for actions that imply human rights violations. Hence, even if there are, in theory, better ways to realize the values normally realized by human rights, and even if there are, in theory, more fundamental values than those realized by human rights, we don’t know if our specific actions aimed at the realization of values do in fact produce those values. Hence, we have reasons not to engage in consequentialist calculations that imply violations of human rights.

More posts in this series are here.

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The Ethics of Human Rights (61): Human Rights and Rule Consequentialism

Erica Brancasi’s “Dura lex sed lex”

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In a previous post, I’ve argued that deontology, when compared to consequentialism, seems to be more amenable to human rights because consequentialism – or at least some forms of it, such as act consequentialism and utilitarianism – tends to focus on the maximization of good consequences (be it welfare, utility or whatever) at the expense of rules, including rules on human rights. Rules, according to consequentialism, are useful only when they maximize the good, and can be put aside when they don’t. Hence they aren’t really rules at all. Conversely, human rights – which really are rules – tell us that we should not do certain things to indviduals, not even if doing those things would maximize overall social utility.

However, in that older post I also pointed to some elements of deontology that are problematic from a human rights perspective. An example: many but not all deontological theories tend towards moral absolutism. Human rights are not absolute rules, for different reasons but mainly because different rights are often incompatible and need to be balanced against each other. This absolutism is a problem that can be overcome by threshold deontology. However, this modified form of deontology creates other problems.

And yet, I forgot to mention the main argument against a marriage of human rights and deontology, namely the fact that human rights are typically justified in a consequentialist manner and that deontological justifications of human rights are extremely unconvincing. When we want to sell human rights to those among us who believe that they are superfluous or perhaps even nefarious we usually cite the good consequences that follow from (or would follow from) respect for human rights. I myself am heavily invested in this effort (see previous posts here).

If you want to justify human rights without reference to their good consequences – if, in other words, you’re looking for a deontological justification – then you’ll have an extremely hard time coming up with something interesting and non-tautological. The claim that humans have human rights simply because of their humanity is true enough (in the sense that humans don’t have to deserve their human rights and don’t have these rights bestowed upon them by their benevolent rulers) but it won’t get you very far persuasion-wise.

Take, for example, the right to free expression. You might argue that free expression is good in itself – whatever the possible consequences (such as epistemological progress) – because humans are essentially expressive beings. However,

Self-expression can take an indefinite number of forms beside speaking, and a deontological right to do whatever we want as a matter of self-expression is ridiculous. The basic reason it is so is because our acts of self-expression can affect others, and often deleteriously. (source)

Consequences are hard to ignore. They tend to creep into all efforts at justification. So, the conclusion of all this seems to be that human require or are a form of rule consequentialism. This is a modification of the original form of consequentialism, also called act consequentialism. Rather than regarding morality as a matter of selecting acts that produce the best overall consequences (good consequences minus bad consequences), rule consequentialism is about selecting rules in terms of the goodness of their consequences. It’s those rules that determine whether acts are morally right or wrong, not the consequences of acts. Of course, the conjecture is that the chosen rules will generally promote acts that produce good consequences. And yet, even if they don’t or won’t in certain cases (or if we think they don’t or won’t), we better stick to the rules anyway because violating them for the purpose of a small benefit can lead to greater long term disadvantage.

Rule consequentialism avoids some of the pitfalls of act consequentialism and simple utilitarianism, such as the tendency to dump rules when a small benefit can be produced by dumping them (e.g. torturing one to save two others from torture); the calculation problem (consequences are hard to assess and compare, especially when the time frame isn’t limited, and it shouldn’t be); the information problem (consequences are difficult to predict, especially for people who lack knowledge of a certain area or who are in a hurry); etc.

I won’t claim that rule consequentialism is without problems (there’s an overview of criticisms here), but compared to act consequentialism, utilitarianism and deontology it sure looks promising from a human rights perspective,

Note that I’m revising here my older opinion on rule consequentialism as I have expressed it in this post.

More posts in this series here.

The Ethics of Human Rights (60): Absolute Human Rights and Threshold Deontology

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There’s this difficult contradiction between two moral intuitions about human rights. On the one hand, we tend to feel very strongly about the extreme importance of a particular subset of human rights. Especially the right to life, the right not to be tortured and the right not to be enslaved are among those human rights which are so fundamental that their abrogation or limitation seems outrageous. Other rights, such as the right to free speech or the right to privacy, are hardly ever considered to be absolute in this sense – which doesn’t mean they are unimportant (something can be a very important value without being a moral absolute). Some restrictions on those rights are commonly accepted.

On the other hand, the horror that is provoked by the mere thought of limiting the right to life or the right not to suffer torture and slavery doesn’t preclude the fact that there are few consistent pacifists. Most of us would decide not to submit to a Nazi invasion and to fight back. Hence, the horrific thought of abrogating the right to life does not stop us from conceiving and actively engaging in killing. There’s also the Trolley Problem: experiments have shown that most people would sacrifice one to save many. The same is the case in ticking bomb scenarios.

True, there are some consistent pacifists, as well as some who oppose torture under all circumstances, whatever the consequences of failing to kill or torture. But I’m pretty sure they are a small minority (which doesn’t mean they are wrong). The more common response to the conflicting intuitions described here is what has been called threshold deontology: faced with the possibility of catastrophic moral harm that would be the consequence of sticking to certain rules and rights (catastrophic meaning beyond a certain threshold of harm) people decide that those rules and rights should give way as a means to avoid the catastrophe.

Threshold deontology means that there are very strong and near-absolute moral rules, which should nevertheless give way when the consequences of sticking to them bring too much harm. Threshold deontology can also be called limited consequentialism: rules may not be broken whenever there’s a supposedly good reason to do so or whenever doing so would maximize or increase overall wellbeing; but consequentialism is the only viable meta-ethical rule to follow when consequences are catastrophically bad or astronomically good.

If this is correct, then why not simply adopt a plain form of consequentialism? Do whatever brings the most benefit, and screw moral absolutes – or, better, screw all moral rules apart from the rule that tells us to maximize good consequences. This solution, however, is just as unpopular as strict absolutism. We don’t torture someone in order to save two other people from torture; and we certainly don’t torture someone if doing so could bring a very small benefit to an extremely large number of people (so that the aggregate benefit from torture outweighs the harm done to the tortured individual).

Unfortunately, threshold deontology is not as easy an answer to the conflict of intuitions as the preceding outline may have suggested. The main problem of course is: where do we put the threshold. How many people should be saved in order to allow torture or killing? It turns out that there’s no non-arbitrary way of setting a threshold of bad consequences that unequivocally renders absolute rights non-absolute. At any point in the continuum of harm, there’s always a way to say that one point further on the continuum is also not enough to render absolute rights non-absolute. If we agree that killing or torturing 5 for the sake of saving one is not allowed, then it’s hard to claim that 6 is a better number. And so on until infinity.

We can also think of the threshold in threshold deontology not in terms of harm that would result from sticking to absolute principles, but in terms of harm done by not sticking to them. The threshold then decides when we can no longer use bad actions in order to stop even worse consequences. For instance, we may verbally abuse the ticking bomb terrorist. Perhaps we can make him stand up for a certain time, of deprive him of sleep. At what moment should our near-absolute rules or rights against torture kick in? At the moment of waterboarding?

“It’s not torture when U.S. forces are doing it…” by Carlos Latuff (image depicting waterboarding)

However, the same problem occurs here: a small increase in harm done to the terrorist can always be seen as justifiable, as long as it is very small. Again no way of setting a threshold because of the infinite regress that this provokes. Also, how should we evaluate the following case, imagined by Derek Parfit: a large number of people inflicts a small amount of harm on the terrorist, who is in immense pain as a result, and it’s impossible to tell whose infliction of harm has resulted in the pain threshold being passed. His absolute right not to be tortured is violated, but no one is responsible. This also sucks the power out of our moral absolutes.

Still, the problem of setting the threshold in marginal cases doesn’t mean that there are no clear-cut cases in which harmful consequences have clearly passed a catastrophic threshold. Nuclear annihilation caused by a ticking bomb is such a case I guess. That’s a catastrophe that may be important enough to abrogate the near-absolute rights of one individual terrorist.

However, this means that threshold deontology is useful only in a handful of extreme cases, most of which will fortunately never occur. In the real world, beyond the philosophical hypothetical, most cases of harmful consequences don’t reach the “catastrophe” level. Hence, in the case of a number of rights simple deontology is often the best system, at least compared to threshold deontology – which is most often irrelevant – and plain consequentialism – which would make a mockery of all rights and sacrifice them for the tiniest increment in wellbeing (see here). If we want to protect the right to life and the freedom from torture and slavery in day to day life, we might just as well pretend that they are absolute rights and forget about the catastrophic hypotheticals.

I should also note that although I rely here in part on the ticking bomb case in order to make some which I believe to be important points, the case in question is a very dangerous one: it has been abused as a justification for all sorts of torture with or without a “ticking bomb”. (After all, once you can establish that torture is not an absolute prohibition in catastrophic cases, why would it then be a prohibition in less than catastrophic cases? See the difficulties described above related to the threshold in threshold deontology). And not only has it been abused: one can question the practical relevance of the extremely unrealistic assumptions required to make the case work theoretically. And one can also point out the possibility of a slippery slope. I’ve discussed all this here. (Yes, not all slippery slope arguments are wrong).

More about threshold deontology here.

The Ethics of Human Rights (59): Human Rights and Theories of Justice

Blind Justice, Playboy Magazine Illustration, 1980s

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First of all, my apologies for the ridiculous length of this post, but I wanted to offer a systematic overview of some of the most common theories of justice and to try to figure out which one is best from a human rights perspective. Given the variety of theories of justice this can’t be anything but long.

You could say that this is all wrong and that it’s better to argue the other way around: first establish which theory of justice is best and then see if and to what extent it leaves room for or requires human rights. And indeed, you would have some good reasons for this approach: human rights are

• very specific instructions without an obvious moral justification
• more like a list than a coherent theory, with clear contradictions between the items on the list
• contested with regard to their applicability (some rights may or may not be absolute, basic, universal etc.).

A theory of justice, on the other hand, is

• general, abstract, coherent and internally justified (at least down to a basic level at which morality can’t be justified by even more deep moral values)
• clear about its scope
• and uncontroversially applicable, ideally at least.

However, the latter point just begs the question. Actual as opposed to ideal theories of justice are much more controversial than human rights. There are many of them, and they are more incompatible with each other than the different elements of the system of human rights. So, the more fruitful approach is to start with the system of human rights and see which theory of justice it requires – or which theory is most amenable to it. If we find such a theory, its compatibility with human rights will speak for it, whereas theories of justice that are on important points at loggerheads with human rights are prima facie less attractive.

Theories of Justice

OK, so let me start with a very brief and admittedly superficial ad crude description of some common theories of justice:

1. Theories of justice can stress the importance of the consequences of actions: just actions are those that produce or maximize good consequences and avoid or minimize bad consequences. These are called consequentialist theories.
2. Other theories claim that acting in a just way requires respect for rules. Those are deontological systems of justice.
3. And then there are theories that stress people’s virtues: people act in a just way if they act virtuously.
4. Of course, mixed theories are also common.

These four groups contain a variety of subgroups.

(1) Consequentialist theories differ about the type of goodness that is to be maximized or produced.

(1.1) Hedonist theories say we must maximize pleasure and minimize pain (or, alternatively, happiness and misery respectively).

(1.2) Welfare theories argue for preference satisfaction claiming that people’s preferences can’t always be framed in hedonistic terms.

John Stuart Mill

(1.3) Qualitative theories select a list of admirable or strong preferences (as in John Stuart Mill’s utilitarianism), or “an objective list of goods” that have to be maximized. Instead of treating all forms of good or all types of preferences as equally valuable and equally deserving of maximization (as in 1.1. or 1.2.), qualitative consequentialism selects some goods as more valuable than others and more deserving of maximization: better to be Socrates dissatisfied than a fool satisfied in the words of Mill, because Socrates may have achieved a high level of good in some non-happiness related dimension. Hedonist or welfare theories (1.1. and 1.2) would agree with Bentham: quantity of pleasure being equal, push-pin is as good as poetry.

(1.4) Other theories want to maximize opportunities, or yet another version of the good (power, resources, beauty, freedom, advantage, capabilities etc.), or a combination of goods.

(1.5) Negative consequentialism focuses not on promoting some type of good consequences (as in types 1.1 to 1.4) but rather on minimizing bad consequences. Of course, the maximization of good consequences also involves the minimization of bad consequences, but negative consequentialism sees negative consequences as the priority. One major difference between positive and negative consequentialism is the agent’s responsibility: positive consequentialism demands that we bring about good states of affairs, whereas negative consequentialism may only require that we avoid bad ones. Negative consequentialism can be subdivided according to the type of badness that is to be minimized, and so we would get negative forms of 1.1 to 1.4.

Consequentialist theories differ not only about the type of goodness that is to be maximized (or badness that is to be minimized), but also about the proper level at which to maximize (or minimize).

(1.6) Ethical egoism claims that only the consequences for the individual matter. It prescribes actions that may be beneficial, detrimental, or neutral to the good of others as long as they maximize the good of those individuals  performing them. Ethical egoism – as well as the other types of consequentialism cited below – may be hedonistic (1.1) but may also consider other types of good (1.2, 1.3 or 1.4 above).

(1.7) Ethical altruism requires that individuals sacrifice their own good for the good of others and may even claim that this is the only way to achieve the best overall consequences.

(1.8) Classical utilitarianism claims that we should only be concerned about the aggregate good: if certain persons suffer a reduction of some chosen good, then this can be acceptable if another group of persons gains more in the chosen good (or even in some unrelated good: if killing one can cure millions of chronic headaches, then this harm may be justified if it is outweighed by the good of curing many headaches). Some forms of ethical egoism (1.6) argue that egoism promotes the general or aggregate welfare of a society and that there is therefore no difference between the goals of 1.6 and 1.8, merely in the methods used to achieve those goals: there may be an individual hand guiding self-interested people toward the common or aggregate good, or individuals in general know best how to please themselves and no central effort at maximization is necessary.

(1.9) Distributional consequentialism is opposed to classical utilitarianism because it is concerned about the distributional aspects of the maximization of some goods and about the impact of maximization efforts on individuals. This concern may be expressed in different ways:

(1.9.1) For instance, the aggregate good isn’t all that counts and imposing a high cost on some individuals in order to produce a small benefit for a large number of other individuals means imposing an injustice on the former. Hence, rather than focusing solely on the aggregate good one should take into account the actual consequences for individuals of this aggregate good.

(1.9.2) One may also have to look at other ways of differentiating between costs and benefits imposed on individuals. For example, perhaps we should abandon the aggregate good altogether and maximize the good for the worst off (which can sometimes imply that the aggregate good or at least the good of the best off may have to be brought down). Call this approach prioritarian.

(1.9.3) Other types of distributional consequentialism are egalitarian rather than prioritarian (as in 1.9.2): every individual has an equal right to have his or her good maximized up to a point that is equal to the level of everyone else (and again, the good here may be different things: resources, opportunities, preference satisfaction etc.).

(1.10) Desert based consequentialism incorporates concerns about people’s choices: if those choices pull them below some level of good, then justice may not require that we help them, even if doing so would maximize the aggregate good, would help the worst off or would guarantee equality. If, on the other hand, their misfortune is purely a matter of chance or bad luck, then justice may give them a right to assistance, even if helping them would bring down the aggregate good and even if they aren’t the worst off.

(2) Deontological theories state that moral and just behavior requires following certain rules. Justice is respect for rules even if the good consequences of disrespect are better than the good consequences of respect. Acts themselves are inherently good or evil, regardless of their consequences.

(2.1) Divine command theory is one form of deontology: an action is right and just if God has decreed that it is right. The rightness or justice of an action depends on that action being performed because it is a divine duty, not because of any good consequences arising from that action. The rightness or justice of an action holds even when the consequences are bad. God knows what he’s doing.

Immanuel Kant

(2.2) Motivational deontology claims that an action is right if its motivation is good. Kant for instance has famously argued that it’s not the consequences of actions that make them right or wrong but the motives of the person who carries out the action. He begins with an argument that the highest good must be both good in itself, and good without qualification. He then claims that those things that are usually thought to be good, such as intelligence and pleasure, are neither intrinsically good nor good without qualification. Pleasure is not good without qualification, because people can take pleasure in other people’s suffering. He therefore concludes that there is only one thing that is truly good: nothing can be called good without qualification except a good will. A good will is the will to do good, it’s a self-imposed choice or intention, based on the moral law discovered by reason, to do what is right simply because it is right, not because of the consequences or because God tells us so or because we feel we are under a duty to do so. We are under a duty, but it’s a reasoned and self-imposed duty, not one backed up by the threat of force or damnation. Good consequences can arise by chance or even as a result of bad will, and so they can’t by themselves be called morally good. They are only morally good if they are also the result of good will. And yet, this result need not be a good consequence.

(2.3) Anti-instrumentalist deontology claims that there is one basic moral rule which we should never violate, and that when this rule does not apply common sense consequentialism applies. The rule in question is the one against the use of other people. Larry Alexander has illustrated this with three well-known moral dilemmas: “Trolley”, “Fat Man” and “Surgeon”. In “Trolley”, people usually deem it acceptable to turn a switch which diverts a runaway trolley away from a track where 5 people are standing and towards a track where one person will get hit by the trolley and will die. In “Fat Man”, there’s no switch but you can save 5 people by throwing a fat man in front of the runaway trolley, thereby stopping it in its tracks. In “Surgeon“, a doctor kills one person and uses his organs in order to save 5 other lives. Both “Fat Man” and “Surgeon” are commonly rejected, and the reason, according to Alexander, is that people are being used to save others, whereas in “Trolley” no one is used – turning the switch would do what is needed to be done even if there’s no one on the fatal track. The organ donor and the fat man are used, and this use is what makes the cases immoral. So, as long as there is no use of other people, consequentialist reasoning applies, as in “Trolley”. Another, similar case is the “German Airplane“.

There are of course numerous other types of deontology, but these three will suffice to make my point.

(3) A virtue theory focuses not on rules or acts, and neither on the consequences of rules or acts. It tries to ascertain what respect for a rule or engagement in a certain act says about one’s character. For example, virtue ethicists may claim that consequences in themselves have no ethical content unless they have been produced by a virtue such as benevolence. Ditto for rules: if good rules are followed that is not in itself a sign of morality or justice; the rule follower must follow the rule because of his or her moral character. A better world will result from the improvement of our characters, our virtues and our personal excellence.

In a sense, virtue ethics isn’t opposed to deontology or consequentialism but frames itself as a prerequisite. Instead of focusing on rules, actions or consequences, we should develop morally desirable virtues for their own sake, and then, when the time comes to act morally – either to follow a moral rule or to do what brings the best consequences – those virtues will help direct and complete our actions.

This theory of justice is similar to motivational deontology of the Kantian kind (2.2), but different nonetheless. Kantian good will depends not on personal virtues or excellence, but on reason and the use of reason to discover the moral law. Here’s an example that will illustrate the difference. Suppose you’re visiting a friend who’s in hospital. You may do so because you’ve discovered, through reason, the moral law that tells you to be nice to friends, and because your good will tells you to respect this law and do what is your moral duty. Or you may do so because of the good consequences that will result from doing so: he’s happy when you visit, or he’ll visit you next time you’re in hospital; and even if you’ll never be in hospital it’s good for both of you to remain friends – not visiting him is incompatible with you remaining friends. All these justifications seem to miss something, namely the virtue of caring for friends, of being good to friends etc.

(4) Some mixed theories:

(4.1) Robert Nozick, for example, argues for a theory that is mostly consequentialist, but incorporates a certain set of minimal inviolable rules called “side-constraints” which restrict the sort of actions agents are permitted to do.

(4.2) Rule consequentialism claims that following certain rules in general produces the best consequences, given the calculation and information problems inherent in the assessment of consequences (especially long term consequences). We can’t ask people to calculate the consequences every time they want to do something. We just settle for the second best: experience has shown that some rules generally produce good results, and we stick to those rules even if in some cases it will turn out afterwards that perhaps we shouldn’t have. Rule consequentialism is a modification of act consequentialism (or act utilitarianism).

Henry Sidgwick

(4.2.1) Esoteric consequentialism is often a form of rule consequentialism because it claims that the “common man” should follow rules given his inability to judge consequences and that a caste of philosopher kings able to assess consequences should frame the rules for the common man in such a way that the chosen set of rules produces the best possible consequences compared to other possible sets of rules (not compared to all possible consequences; ideally, given high average intelligence and the absence of calculation and information problems, simple non-rule based consequentialism would perhaps produce an even better world). Sidgwick is famous for his esoteric consequentialism.

(4.3) Threshold deontology wants to avoid the conclusion that it’s justified to kill someone if doing so allows us to cure millions of chronic headaches (a conclusion often accepted by 1.8). It states that, although in general rules (such as “do not kill”) have to be respected even if better (aggregate) results would obtain by violating them, these rules can and must be violated if the level of bad consequences resulting from rule observance passes some catastrophic level (“do kill one if you thereby can save thousands of other lives”).

Human Rights

Now that we have this typology of theories of justice, let’s examine their usefulness from the point of view of human rights.

(1) Consequentialism

Although one can take a consequentialist approach to human rights and see them as something to be maximized – perhaps with a priority for those whose rights are least respected – consequentialism in general doesn’t really fit with the main concerns of human rights. These rights are constraints upon what we can morally do to other people, and these constraints are so strong that it’s difficult to imagine that one can sacrifice the rights of some in order to maximize the rights of others, let alone sacrifice rights in order to maximize some other good such as pleasure or welfare. This doesn’t mean that rights can never be sacrificed – when rights come into conflict a choice has to be made, and that usually is a consequentialist choice: which sacrifice does the least harm to different people’s rights? (E.g. the journalist attempting to divulge private, career ending but politically and legally irrelevant information about a politician). But that’s an unfortunate and probably inevitable shortcoming in the system of human rights, not it’s central logic. It would have been much better were there no such conflicts.

Socrates

Obviously, among the different types of consequentialism, qualitative consequentialism (1.3) is more attractive than hedonistic consequentialism (1.1), because we want to make a difference between harm done to those interests that are protected by human rights and harm done to someone’s interest in pleasure and happiness. Furthermore, human rights are more focused on turning us into a dissatisfied Socrates than on producing a multitude satisfied fools, although ideally we would want a multitude of satisfied Socrateses. The reason for this focus is that a fool doesn’t necessarily need freedom of speech, political rights etc.

The same is true for welfare consequentialism (1.2): people can have preferences for rights violations and we don’t want to maximize those. We also don’t want to treat expensive preferences with the same respect as inexpensive ones because human rights attach more importance to poverty alleviation than to luxury maximization. On the other hand, qualitative theories (1.3) can be paternalistic and paternalism can be an affront to liberty and hence indirectly also to human rights.

Of all types of consequentialism, negative consequentialism (1.5) is perhaps the most amenable to human rights. Human rights protection should start with the attempt to avoid engaging in rights violations. But even if this attempt is universally successful, that won’t result in perfect respect for human rights. People need the resources and capabilities to make use of their rights, and giving them those resources and capabilities requires more than the avoidance of harm. Type 1.4 tries to deliver those resources and capabilities.

Ethical egoism (1.6) is very unattractive from the point of view of human rights, although I don’t deny that selfish and self-interested actions can promote respect for human rights. However, they only do so accidentally, and the good they do is easily swamped by the bad. The opposite, ethical altruism (1.7), looks more attractive, but really is not: usually, there is no need to sacrifice one’s own rights in order to defend the rights of others. And when it is necessary, it is also pointless: rights are inherently relational – we want rights together, we want to practice religion together, to talk and express ourselves together, to govern ourselves together etc.

The focus of classical utilitarianism (1.8) on aggregate welfare is obviously detrimental to the rights of many. People have rights, even if the outcome of those rights is suboptimal on an aggregate level and even if more overall utility could be achieved when some rights are violated in some cases. Distributional consequentialism (1.9) avoids this problem and is therefore more amenable to human rights. Desert based consequentialism (1.10), on the other hand, turns back the clock: people have rights whether or not they deserve them. That doesn’t rule out limitations of rights following deserved punishment for wrongdoing. However, when the rights of convicted criminals are limited, the reason is not that they deserve this limitation. The reason is the defense of other people’s rights.

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(2) Deontology

Compared to utilitarianism, deontology seems to be a theory that is much more amenable and receptive to human rights. Deontology, after all, focuses not on the consequences of actions but on the duties we have; and one man’s rights are another man’s duties. However, the moral absolutism inherent in many types of deontology is a difficulty from the point of view of human rights. It seems to rule out the inevitable balancing between conflicting human rights. That is why threshold deontology (4.3) is better, and yet that theory isn’t without problems either, notably the arbitrariness of the thresholds, the problems posed by cases just above or below the threshold, and the fact that even with thresholds some duties and rules will still be strong enough to produce, in some cases, violations of human rights.

Divine command theory (2.1) is to be rejected since it doesn’t provide space for religious freedom. Motivational deontology (2.2) is attractive precisely because of its focus on motivation: real respect for human rights can’t come from the threat of law; it has to come from within. However, the inner moral law, the motivating element, can also make us too rigid: it forces us to accept catastrophic consequences and makes it impossible to solve conflicts between rights – unless we see the moral law as overcoming value pluralism, which I think is illusory.

Anti-instrumentalist deontology (2.3) is the best form of deontology from the point of view of human rights. Think for instance of the anti-instrumentalization argument against capital punishment.

(3) Virtue theories

These are attractive for the same reason as motivational deontology: respect for human rights ultimately depends on people’s mentalities, attitudes and virtues. However, these theories are completely useless when we have to decide what to do with conflicts between rights, catastrophic consequences etc.

(4) Mixed systems

What can we say about the mixed systems? Nozick’s side constraints look promising, but they are notoriously unhelpful when rights require positive action and assistance rather than mere forbearance. And they often do, as stated above. Rule consequentialism looks inherently unstable, and a bit like a desperate attempt to combine what can’t be combined. Esoteric consequentialism reeks of authoritarianism.

So this is the score card:

Related posts are here, here and here.

The Ethics of Human Rights (58): Economic Human Rights and Desert

Laurel and Hardy taking a stupid risk

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First, a brief reminder: economic human rights are a subset of human rights dealing with poverty, standard of living, food, shelter, work, education, social security and health. They are set out and guaranteed in the International Covenant on Economic, Social and Cultural Rights, but also in other treaties and declarations, notably in the Universal Declaration.

Now, compare Article 11 of the Covenant to Article 25 of the Universal Declaration:

Article 11: The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.

Article 25: Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

Notice the last 4 words: “circumstances beyond his control”. It looks like the drafters of the Universal Declaration intended to refuse aid to the starving if the latter are responsible for their own predicament. The same for the unemployed demanding unemployment benefits, the sick demanding healthcare and the homeless demanding shelter when unemployment, sickness and homelessness are not beyond people’s control. The drafters of the Covenant, on the other hand, seemed to offer unconditional aid, both to those who need aid because of bad luck and to those who need it because of stupid mistakes or risky gambles.

The position set out in the Universal Declaration is, I guess, the most common one. We often hear discussions of the undeserving poor wallowing in a “culture of poverty“. And while it’s unfair to categorize all the poor in this way, it is fair with regard to some of the poor.

There are two conflicting moral intuitions at work here. On the one hand, people should get what they deserve, even if it is misfortune. If misfortune is the consequence of risky gambles, laziness or avoidable stupidity, then people should shoulder the consequences of their choices. They alone are responsible for their misfortune and don’t have a strong claim to assistance. That’s the moral or moralistic argument against assisting the undeserving poor, but there’s also an argument based on prudence: if we were to assist those people anyway, then we would create moral hazard and disincentives: people would start to take all sorts of risks, make silly gambles and be excessively lazy because they know that they’ll get bailed out when things start to go wrong.

looking into the barrel of a gun can be self-destructive

On the other hand, it’s cruel to let people starve even if their starvation is clearly their own fault, and our moral intuitions tell us we should help them anyway. Furthermore, the difference between bad luck that happens to people and misfortune that people bring on themselves is seldom clear in the first place: attitudes such as laziness and excessive risk taking can be genetically predetermined or can be nurtured in certain disadvantaged environments. This lack of clarity results in the practical problem of identifying real desert as opposed to apparent desert: you’ll have to screen individuals’ entire lives, their nurturing as well as their genetic profiles, and that would be a horrendous infringement of liberty and privacy.

So the question for those of us in favor of economic rights is this: do we view them as conditional or unconditional? If we choose the latter, we offend some strongly held moral intuitions about desert. As a result, we may create moral hazard and encourage existing opposition to economic rights. In addition, we may also find ourselves in the unpleasant universe of absolute determinism: if desert is ruled out, then we’ll tend to assume that people’s actions are determined by nature or nurture.

If we choose the former, we will be excessively cruel in some cases, and a threat to liberty and privacy in most cases. (I say most cases and not all cases because some people are clearly undeserving and there’s no need to infringe their privacy and liberty in order to find out. Still, even those people may one day lose their label and hence their privacy with the advances of the science of genetics). We’ll also have some trouble insisting that economic rights are rights: human rights are typically unconditional – people don’t lose their right to free speech because they did something to deserve this loss.

It’s not an easy choice, and whatever we choose we’ll offend some moral intuitions. Of course, there’s no rule against offending moral intuitions, and the correct morality may offend all moral intuitions. However, in the absence of a correct morality, it’s prudent not to offend too many intuitions. A possible solution could be offered by a system of guaranteed basic income: everyone gets assistance, both those in need of assistance and those who are well off, both those who deserve assistance and those who don’t. Since this basic income is not really assistance, the problem about who deserves assistance doesn’t really arise. Of course, we would be giving something to lots of people who probably don’t deserve or need it, but at least there would be no one disadvantaged by this giving and hence no one will be complaining.

More about rights and desert here, and about rights and risk here.

The Ethics of Human Rights (57): Human Rights and Conscientious Objection

Famous conscientious objector Muhammad Ali: "I ain't got no quarrel with them Viet Cong... No Viet Cong ever called me nigger".

A conscientious objection is an objection to engage in conduct that you perceive as being incompatible with your religious or secular beliefs about morality, or, in other words, as being incompatible with your conscience. The conduct in question may be government imposed conduct, such as participation in a war, but may just as well be any other type of conduct like the termination of life support at the request of a patient.

The problem as I see it is the following. Conscientious objection can be necessary for the full protection of human rights in certain cases, and yet detrimental to human rights in other cases.

No doubt this ambiguity is the reason why conscientious objection has no formal basis in human rights law, neither explicitly nor implicitly. Not only is there no recognized right to conscientious objection; it’s also very difficult to derive such a right from other, existing human rights.

There is of course the right to freedom of conscience and thought (art. 18 of the Universal Declaration). However, conscientious objectors don’t claim the right to freedom of thought or to freedom of conscience; they want to be free not to do things that they believe violate their most basic beliefs and their conscience. They claim a right to act in accordance with their thought and conscience, not a right to be free in their thoughts and conscience.

hang your head, by John Terwilliger

If I’m a pacifist and I’m forced to fight in a war, neither my beliefs nor my conscience are violated. I’ll continue to believe that war is always wrong, and I can tell my conscience that I’m doing what I’m doing because I’m forced to do it. I need not have a bad conscience as a result. My freedom of thought and conscience is intact. My thoughts are still independent from others’ thoughts or actions. I can still make up my mind about the wrongness of war and my personal integrity – the coherence of my beliefs and actions – is not harmed in any way. If I’m forced to do something that I believe is wrong, that shouldn’t weigh on my conscience. Hence, the right to freedom of conscience and thought can’t be the source of an implicit right to conscientious objection.

Perhaps freedom of religion can be a more promising source, but only in extreme cases and for some people, as I’ll argue below. This means that a right to conscientious objection derived from religious liberty won’t cover most of the existing claims that are expressed in the language of conscientious objection: no non-religious claims are covered by such a right to conscientious objection, and only some religious claims are covered.

Take the example of the religious pharmacist refusing to sell the morning after pill. Imagine that we want to force her to do so because we believe that the rights and equal treatment of women require easy access to the morning after pill. Imagine also that we are able to force the pharmacist to sell. It’s not obvious that forcing someone to do something that is against her religious rules violates her religious freedom. Few would be willing to argue that forcing a Catholic pharmacist to sell the morning after pill makes it impossible for her to be a Catholic. She can still attend church unhindered and she can defend the integrity of her faith to her fellow Catholics by pointing out the forced nature of her actions. So, like in the case of freedom of conscience, the fact that we force someone to do something does not necessarily destroy her pre-existing right to freedom of religion. This right therefore is not a good basis of a right to conscientious objection.

pharmacist's shop

However, the words “not necessarily” do a lot of work here. Imagine that the pharmacist, on being forced to sell the morning after pill, genuinely believes that she will face either severe divine punishment in the afterlife or ostracism from her church in this life. In both cases, her freedom of religion may be at stake. Hence, she may reasonably claim that her freedom of religion requires a derivative right to conscientious objection, and that she shouldn’t be forced to sell the morning after pill.

Not so fast, says the opponent of the right to conscientious objection: she can just decide to seek another profession, problem solved. Even if her freedom of religion is endangered by our insistence that she sells the morning after pill, that in itself does not create a right to conscientious objection. It merely creates a religious duty to stop being a pharmacist.

Maybe so, but only in examples such as these. Take another case of conscientious objection: refusing to enlist in the army. Conscription, especially in times of war, can’t be avoided as easily as the legal duties of a pharmacist. Hence, in this case, the argument for a right to conscientious objection based on religious freedom is pretty strong. Unfortunately, this argument only produces a right to conscientious objection in some cases, namely those cases in which a religious claim is involved and in which other means of preserving religious freedom – other means short of conscientious objection – are not available. Atheists can also have strong reasons to refuse conscription or the forced participation in certain transactions, but they won’t have a right to conscientious objection if we derive this right from freedom of religion.

Of course, the fact that a right to conscientious objection can’t be derived from existing rights – or only for some cases of objection – doesn’t mean that there are no good independent grounds for such a right. If we want to examine those independent grounds, we’ll also need to look at the other side of the coin, the side of those who are harmed by the conscientious objections of others.

Some argue that a supposed right to conscientious objection would be detrimental to other rights or the rights of others. Take again the example of the pharmacist: it’s not unreasonable to claim that a pharmacist refusing to sell the morning after pill can thereby violate the rights of her customers. Maybe her customers can simply go to the next pharmacy to get their stuff and secure their rights, but this just argues against a general right to conscientious objection. Such a general right would possibly make it very hard to find a willing pharmacist. The same is true for the military draft: your refusal to assist in the defense of your country can adversely impact the rights of your fellow citizens. Furthermore, granting exceptions to conscientious objectors imposes other costs: it can undo equality before the law, propagate a sense of unfairness etc.

However, possible negative effects of a right do not necessarily invalidate a right, just as the difficulty of deriving a right from other rights doesn’t necessarily invalidate it. All rights have negative effects and can possibly even lead to violations of other rights or the rights of others (free speech can violate privacy for example). These negative effects have to be balanced against the positive effects. And a right to conscientious objection would have some positive effects beyond those benefiting the claimant. I said before that conscientious objection can be necessary for the full protection of human rights. It can be a powerful tool against unjust laws or laws that violate human rights. And the alternative burdens that are usually imposed on conscientious objectors (e.g. community service as an alternative to the draft) can offer society a lot of benefits. These alternative burdens do not only weed out insincere cases of conscientious objection; they also restore a sense of justice and fairness in society and if they are correctly designed they can assist victims of rights violations (community service can mean going to work in a safe house for victims of domestic violence for instance).

So, the conclusion would be that even though it’s hard to derive a right to conscientious objection from other rights, there are some good independent reasons to grant such a right. One condition, however, is that there are alternative burdens imposed on objectors, and that these alternative burdens are designed to further the cause of human rights in general.

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The Ethics of Human Rights (56): What’s Wrong With Exploitation?

Coalminers Returning Home by Conrad Felixmüller, 1920

There is no human right to be free from exploitation, but some rights prohibit practices that we normally call exploitative: child labor, unfair wages etc. However, what exactly is exploitation and what is it that makes it wrong? According to Hillel Steiner, exploitation occurs when one party in a voluntary exchange between two (or more) partners gets an unfair price for the goods or services exchanged. Or, in other words, exploitation is the voluntary exchange of two things of unequal value.

Now, what exactly is this unfair price that causes the values of the exchanged things to be unequal? Again according to Steiner, the party transferring the good or service gets a an unfair price when that price is below what she could have had in a fair auction. That’s a convincing argument since you can hardly claim that a fair price is the intrinsic price of something. Nothing has an intrinsic price or value. It’s also convincing because it avoids the extreme and implausible free market position that all voluntarily agreed prices are fair.

I think that this model does indeed cover part of what we usually call exploitation. The voluntary exchange of two things of unequal value is a case of exploitation, but in my view the Steiner model doesn’t really capture the essence of exploitation. But let’s first examine what’s convincing about Steiner’s position:

• It focuses on voluntary transfers. An involuntary exchange would be theft or slavery rather than exploitation. And we want to keep these concepts separate. Hence we limit exploitation to voluntary exchanges. Involuntary exchanges like theft or slavery are not exploitation. They are different from exploitation even if, like exploitation, an unfair price is involved. (Leaving a $10 dollar bill after having stolen an expensive car is still theft; paying my slave with meals and housing still makes her a slave). And they are, a fortiori, different from exploitation if the price is fair. (Paying my slave a fair wage still makes her a slave. If I employ someone against her will, I’m enslaving her, even if I pay her a wage, fair or unfair. Leaving a check for $50,000 after having stolen a car still makes it theft. But neither slavery nor theft are exploitation).
• It focuses on relationships where exchanges of goods or services occur. If we’re dealing with relationships where no such exchanges are involved, it’s counterintuitive to talk about exploitation. Take a relationship where no goods or services are exchanged, but where nevertheless some harm is done. The harm done is then better labeled as oppression, abuse, discrimination, rights violations etc., depending on what actually happens. It’s not because there is harm that there is necessarily also exploitation.
• It focuses on unfairness, specifically unfairness of the price of the goods or services exchanged. That’s coherent with the way we usually talk about exploitation, namely as a case of unfairness or injustice.

In Steiner’s model, these are the three necessary conditions that have to be jointly fulfilled in order to have a case of exploitation. And indeed, the model covers many cases which we normally call exploitative, such as unfair wages, some commodity markets where poor farmers sell their goods at very low prices compared to what they fetch later in the supply chain, child labor etc. However, there’s something missing from the model. It doesn’t describe exploitation in a sufficiently precise way. I’ll argue that there’s a fourth necessary condition missing.

What if someone gets a price that’s merely 20% below the fair price? We wouldn’t necessarily call that exploitation. What about a billionaire not getting a fair price for one of his goods? We don’t call that exploitation either (yet Steiner does; he has to, given his limited model). What about someone not very interested in getting a fair price? Is she exploited?

These questions suggest that the following condition is missing: exploitation only occurs when the party in the exchange that doesn’t get a fair price is already, before the exchange takes place, in a disadvantaged position. Take the example of a family selling its house for an unfair price. Maybe the price is just a tiny bit below the fair price. Maybe the family is very wealthy (the house being just one of many in their possession). Or maybe the family doesn’t care about a fair price (and has decided to go and live in the African jungle and doesn’t need the money). In none of these cases is the sale exploitative.

But maybe the motive for the sale of the house is debt coverage. The urgent need to repay some debts has convinced the family that the best thing to do is to sell the house, even if the price they can get under the circumstances is less than fair. The three elements of Steiner’s model are still present: it’s a voluntary exchange for an unfair price. It’s voluntary since no one is forcing the family to sell and there are some other options left (e.g. sending the kids to public school). Still, the family has decided that selling at an unfair price is better than doing nothing or than any of the other available options. But the exchange is only exploitative if the family comes into the exchange from a disadvantaged position and if someone else takes advantage of – or exploits – their disadvantaged position. And it’s because of this disadvantage that they can’t manage to get a fair price: their disadvantage convinces buyers that they can make a “good deal” since the sellers are in no position to insist on a fair price.

The exploitative sale does make the family better off, and it’s likely that exploitation always makes both parties better off. That could be a fifth necessary condition. Indeed, it’s difficult to conceptualize exploitation where one party is worse off after the exchange; such cases are more likely to be similar to theft, slavery, abuse, oppression etc. and therefore different from exploitation.

A similar example is the case of workers in poor countries accepting to sell their goods or labor power at very low prices (for example to a multinational company). These prices are unfair because the people happen to live in a poor country, which means that they are not able to sell their goods or labor power in a fair auction with different companies bidding. It’s an exchange, and a voluntary one. However, it’s only exploitation because the sellers are in a disadvantaged position, similar to the people selling their house at an unfair price in order to cover their debts, and because this position makes the price unfair and makes the fair auction impossible.

Let’s take a third example that features regularly in writings about exploitation: there’s a sudden blizzard and people scramble to the only hardware shop in town to buy shovels. The owner of the shop reacts in a typical way and decides to charge three times the normal price for the shovels. Is he exploiting his fellow townspeople? No. The price is not even unfair because in an auction, that’s probably the price that people would accept to pay. And in reality as well they do probably accept to pay it. If you want to call this exploitation, all supply and demand pricing is exploitation.

Once you accept all this, you will agree that some of the common definitions of exploitation are incomplete at best and misleading at worst. Exploitation can’t simply be the unfair use of others for your own benefit. That would cover slavery, theft and other relationships that are morally wrong but not exploitative. And exploitation can’t simply mean taking unfair advantage of someone, because we don’t want to call taking advantage of a millionaire a case of exploitation.

Are there some types of voluntary exchange that are inherently exploitative, whatever the price, fair or unfair? For example organ sales, or sex work? No, such transactions are exploitative only when the price is unfair and when the further condition of disadvantaged starting positions is also met (people who decide to sell their organs or their sexual services will often be in disadvantaged starting positions, but the price is often not unfair). Of course, it’s not because these exchanges are not exploitative that they can’t be immoral for other reasons (e.g instrumentalization).

This account of exploitation is different from the well-known Marxist account. According to Marxism, workers are exploited because they are forced into employment status (given that they themselves don’t have any means of production and that the capitalists have monopolized those means). Hence, the Marxist notion of exploitation collapses into the notion of slavery, something which I want to avoid.

I tried to present all this in a drawing, which may help to make things clearer (click the drawing to enlarge):

exploitation model

More on exploitation is here and here.

The Ethics of Human Rights (55): The Widening Circle of Equality

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Allow me to engage in some simplistic historical generalizations. Although, like most us, I have abandoned my youthful illusions about the overall progress of humanity, I still think we’ve taken giant steps towards the moral ideal of human equality. See what you think about this:

• During the 17th, 18th and 19th centuries, with the formation of the nation state in Europe and the development of the virtue of patriotism, citizens of those new states – and their copies elsewhere in the world – stopped acting as if members of neighboring tribes were somehow subhuman. Human equality, equal concern and equal rights were extended from the tribe to the nation.
• After the end of the religious wars in Europe in the 16th and 17th centuries, and the gradual acceptance of religious liberty, adherents of other religions were no longer viewed as sinners who had to be destroyed, but rather as equal citizens enjoying the same rights.
• From the middle of the 19th century (with the abolition of slavery) to the middle of the 20th (with the Civil Rights movement), non-whites gradually won equal rights.
• During roughly the same period, workers and the workers’ movement convinced the other social classes that someone who has to sell his or her labor power for a living isn’t destined to an animal-like life in filth and misery.
• From the beginning of the 20th century (with the suffragette movement) until the end of that century, women gradually won their equal place in many areas of society: politics, the labor market, etc. This movement, like all the previous ones, isn’t complete, but at least nowadays it’s rare to encounter the view that women are lesser men and should be relegated to the home.
• The Holocaust, ironically, resulted in a dramatic acceleration of the emancipation of Jews.
• The end of colonialism in the mid-20th century was the culmination of a long process during which westerners convinced themselves that the people they had colonized were not animals or subhumans but rather human beings like themselves.
• The latest step forward in the history of human equality can be witnessed in our own time: gays and lesbians are now in the process of achieving what other outgroups have achieved before them.

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So these are all consecutive steps during which the circle of people who are considered as “people like us” has been widened again and again. Sure, this is history painted with a very rough brush. I obviously don’t mean to say that the inclusion of new groups into the class of “equal human beings” has been complete or final after each step. There are many racists left after the Civil Rights movement; many intolerant religious fundamentalists after the acceptance of the right to freedom of religion etc. Also, there have been major steps backward: nazism came after a long period of Jewish emancipation; the end of slavery in the U.S. resulted in renewed racism etc. And neither do I mean to imply that prior to the abolition of slavery there wasn’t a single soul who believed blacks were equal human beings, or that there were no women considered as equal before the victories of feminism.

There’s no reason to believe that this inclusionary movement is about to stop. I can see at least three additional steps:

• Our current treatment of criminals may come to be seen as unacceptable. There’s already a strong movement for the abolition of capital punishment, but I’m convinced that our whole system of criminal punishment is without justification. And I’m not just talking about overcrowding, prison rape, excessively long sentences etc. Read more here.
• Migrants as well may become more accepted, to the point that an open borders policy will be generalized. Currently, we still condemn people to misery for no other reason than the fact that they are born in the wrong place, like older generations condemned people to slavery for no other reason than their skin color. The causes of this exclusion are an insufficient awareness of the benefits of immigration and lingering prejudices against outgroups.
• And, finally, the inclusionary movement may one day lead to better treatment of animals: our current system of industrial meat production will then be considered barbaric.

Do I forget something?

The Ethics of Human Rights (54): Torture, Consequentialism and Tainted Goods

scene from the tv-series "24"

Those who defend torture normally do so on consequentialist grounds. They posit cases such as the “ticking time bomb” in which the harm done by torture is insignificant compared to the good it does. The consequences of torture are clearly beneficial, overall: OK, it does some harm to an individual terrorist who has hidden the bomb but at the same time it saves thousands or millions of lives. When so many lives are at stake, a utilitarian calculus will clearly show that the good that will follow from torture outweighs the good that will follow from the refusal to torture.

Usually, we see a kind of threshold consequentialism rather than a pure consequentialism at work in such arguments: if torture can produce one more unit of “utility” (wellbeing, life, etc.) than the refusal to torture, most consequentialists wouldn’t allow torture. The good consequences of torture must far outweigh rather than marginally outweigh the harm it clearly does. Hence the hypotheticals in examples such as the ticking bomb, in which it’s posited that very many lives are at stake. We are allowed to supersede the deontological rule that one shouldn’t torture only beyond a certain threshold of harmful consequences that would result from sticking to the rule. As someone has said, lost lives hurt a lot more than bent principles. Strict moral absolutism, whatever the possible consequences, can indeed land you in all sorts of problems.

a witch being tortured

However, let’s look a bit closer at this seemingly convincing argument. We can overlook some of the possible difficulties and still conclude that the argument is unsatisfactory. Let’s not dwell on the likelihood that in real cases, the numbers of possible terrorist victims is rather small, while the number of people who have to be tortured is probably higher than one: you may need to torture some people before you find the one who has the necessary information about the location of the bomb; then you may need to torture his friends and family because he’s trained to resist torture and because he knows that if he resists for a short time, the bomb will go off. So let’s forget that the utilitarian calculus will most likely be less unequivocal than assumed in the argument above: we’ll never or only very rarely have cases in which torture produces a very small harm and at the same time a very large benefit. The harm and benefit will be much closer to each other.

Let’s also not dwell on the fact that the greater good thinking of the argument puts the torturer on the same footing as the terrorist. The latter also assumes that he fights for a greater good and that the harm he does is small compared to the benefits this harm will produce. The similarity between torturer and terrorist is all the more striking if the torturer has convinced himself that it’s necessary to torture the innocent (when the terrorist himself doesn’t speak fast enough). Putting ourselves on the same level as terrorists means giving up our identity to save ourselves, which really is pointless. If that is correct then we have to remodel the utilitarian calculus: the harm done by self-destruction is probably greater than the suffering caused by exceptional terrorists attacks. So even the utilitarianism of the greater good doesn’t justify torture.

But let’s assume that none of this speaks against the standard consequentialist justification of torture and that we manage to use torture in a way that saves many many lives, that doesn’t impose a high cost, and that doesn’t put us on the same level as the terrorists. So we can save ourselves, our identity and the lives of many of our fellow citizens. Still, the “good” that we achieve through torture is tainted by the methods necessary to achieve it. The notion, inherent in the consequentialist justification of torture, that certain goods can be attainted by problematic means, is itself problematic. We can save ourselves, but once we are saved we believe that our success has been tainted by the immoral methods used to achieve it. We may not be willing to enjoy this success and the goods we have if they have been secured by way of torture.

Jeremy Waldron has interesting things to say about tainted goods. Read this for example.

The Ethics of Human Rights (53): Some Problems With Theories of Justice That Are Based on Desert

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Some theories of justice claim that justice is mainly about giving people (or letting people keep) what they deserve. These theories are opposed to other types of theories about justice, such as those that claim

• that people should have what they are entitled to have (or have a right to have)
• that people should have equal shares (of goods, opportunities, luck etc.)
• or that people’s outcomes should be distributed so as to produce the best aggregate outcome (as in utilitarianism).

These distinctions aren’t always as clear as that, and one could argue that deserving behavior generally maximizes the utility of aggregate outcomes or that people deserve equal shares or equal rights. However, the goal of desert based theories is usually to argue in favor of some form of inequality. Usually this is inequality of wealth, income or financial compensation for effort and success, but it can also be inequality of praise, punishment, positions, admiration etc. I’ll focus here on desert based theories of justice that argue that justice requires inequality of wealth.

Take a look at this quote:

Thomas Malthus

When the wages of labour are hardly sufficient to maintain two children, a man marries and has five or six; he of course finds himself miserably distressed. He accuses the insufficiency of the price of labour to maintain a family. He accuses his parish for their tardy and sparing fulfillment of their obligation to assist him. He accuses the avarice of the rich, who suffer him to want what they can so well spare. He accuses the partial and unjust institutions of society, which have awarded him an inadequate share of the produce of the earth. He accuses perhaps the dispensations of providence, which have assigned him a place in society so beset with unavoidable distress and dependence. In searching for objects of accusation, he never adverts to the quarter from which his misfortunes originate. The last person that he would think of accusing is himself, on whom in fact the principal blame lies, except so far as he has been deceived by the higher classes of society. Thomas Malthus, An Essay on Population

Homer Simpson being lazy

Ideas like these have become somewhat unfashionable, but the basic idea of desert is still very powerful. Many of us accept that inequality of wealth or income is to some and perhaps even a large extent the result of effort, and that justice requires that we respect the results of deserving actions. We also believe that it is wrong to reward laziness or willfully bad decisions. Hence, there are some powerful and widely shared intuitions that makes desert theories rather appealing. Equality based theories that do not provide space for desert seem to be bound to reward laziness rather than effort. And because they reward laziness they create incentives to settle in it. As a result, one runs the risk of creating a permanent and quite large “parasite” class that lives off the efforts of the deserving elements of society. That seems unjust to those deserving elements, but also to those who are undeserving since the latter are not really given an incentive to be deserving: if they are compensated for their laziness and bad decisions, then they are never encouraged to work and decide rationally, and in a sense they are therefore treated unfairly as well.

fable of the ant and the grasshopper

Apart from this moral or even moralistic objection to theories that don’t make room for desert, there’s the economic argument that they can’t provide stable prosperity. Not only is there a non-productive underclass in an economy without unequal rewards for desert, but the productive class will not put up very long with what it sees as unfair transfers from its productive surplus to others who don’t deserve those transfers (which is the basis of the “going Galt” mythology). This rejection may even lead some to the conclusion that transfers are bad in general, including transfers to the so-called deserving poor (those who don’t have themselves to blame for their poverty). However, things may even get worse than that: rather than rebel against transfers to the undeserving (or deserving) poor, people will stop being productive in the first place because absent rewards for productivity they no longer have an incentive to produce. It’s obvious that prosperity will be impossible under those circumstances, as will – a fortiori – egalitarian transfers of prosperity. So it seems that egalitarian theories of justice are economically self-defeating if they don’t temper their egalitarianism with desert-based concerns.

All this would seem to make it very hard to argue against desert based justice, but that’s not really the case. However appealing the notion of desert, it has its own problems:

• First, desert based theories seem to be too unforgiving. A small lapse in effort in your youth may have disastrous long-term consequences. An intuition that’s equally strong as the one in favor of desert says that it’s not fair to make people suffer decades after a youthful error.
• Also, desert based theories are sometimes excessively cruel. Imagine a person starving to death because of her lack of effort and desert: does this person not have a legitimate claim to assistance, despite her irresponsible actions? Does anyone really deserve to starve to death, even if it’s completely and utterly her own fault? But if not, then desert is not sufficient as a criterion of justice and some egalitarian rules have to come in (for instance a rule based on the equal right not to starve to death). Purely desert based theories of justice have some hard bullets to bite.
• And they also run the risk of promoting big government: if we have to reward desert and avoid transfers to the undeserving, then the government has to determine who is who. In other words, the government has to monitor people’s efforts and decisions in order to see whether their poverty is really undeserved and whether transfers are in order. That can’t be anything but very intrusive. Moreover, it’s probably going to be a failure since the information requirements are huge and difficult to meet.
• And even if we would accept such an intrusive government for the sake of desert, we would still be left with some very hard decisions. Take the case of someone who is systematically unable to find a decent job. Suppose we can determine that she is indeed not very industrious in her search (we have records about her activities). Is that enough to claim that she is undeserving and therefore not entitled to transfers? Maybe her lack of effort is not really her free and conscious choice but the result of her upbringing, of long-term employment discrimination against people of her color, of some unknown genetic deficiency, of alcoholism developed during childhood etc. How are we to know?
• Of course, we can confidently determine desert in some cases. Poor children and the severely handicapped almost certainly don’t deserve their predicament and no amount of effort will allow them to help themselves. But we tend to overstate our ability to detect desert. We’re usually too quick to blame and praise. And we’re eager to withhold assistance for people who we believe don’t deserve help but whose lack of desert is only apparent because we lack detailed information about those people’s biographies and endowments. Likewise we’re eager to compensate people whom we admire but whose accomplishments are only apparently the result of their own efforts (after all, not even the greatest genius can do anything without a tight web of support, including infrastructure, national defense etc.). Desert based theories of justice and the practices that they inspire are insufficiently attentive to biographies and to natural and social endowments (or a lack thereof), partly because we rarely have full knowledge of those biographies and endowments. Of course, we can err in the opposite direction and put too much emphasis on endowments, in which case we lapse into determinism. Choices matter, and therefore desert matters as well. The point is simply that desert is often very difficult to determine, and acting on the basis of uncertain desert can be harmful, especially if goods, punishments etc. are distributed accordingly.
• Suppose we are able to know, in general and not exceptionally, who is or is not deserving. Then we still face the fact that we somehow have to decide which activities and pursuits are deserving, and there as well we can err. There’s a notion called “marketable skills”. What if someone’s skills are not marketable (maybe someone is a philosopher)? That person may be very deserving and may invest enormous effort in her pursuits, but is still living on the brink of starvation. If her pursuits are correctly viewed as undeserving or perhaps even immoral by society, then she won’t have a legitimate claim to transfers. But what if we are wrong? What if we should reward the pursuit but don’t? And I don’t have to show that we are regularly mistaken in the way in which we differentiate between deserving and non-deserving or less-deserving activities. Just look here. Proponents of desert based theories of justice might answer that we should simply be careful and thorough when determining which pursuits and outcomes are deserving or not. But that won’t solve the problem because there’s likely to be permanent controversy about the nature of deserving pursuits and outcomes. People with different worldviews will have different ideas about desert.

More about desert here (and more about overpopulation here). More posts in this series are here.

(image source, image source)

The Ethics of Human Rights (52): Human Rights, Transhumanism and the Singularity

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The word “transhumanism” covers a lot of different things, but it’s fair to say that it expresses the belief that in the (near) future, the human condition will fundamentally change and we will be able to overcome human limitations such as aging, dying, moving etc. Technology, science, medicine and psychology will allow us to become posthumans, “Humanity+”, “H+” or “>H”. Biotechnology, brain science, computer technology, robotics, nanotechnology etc. will make a “controlled and assisted evolution” of humanity possible. The word “singularity” marks – somewhat pompously – the hypothetical event occurring when technological progress has reached the stage after which the future will be qualitatively different, and humanity will become something else – perhaps even an immaterial species, uploadable unto computers.

Image via Wikipedia

Whether or not transhumanism is more than techno-utopia, science fiction or a pseudo-religion, it’s worthwhile to ask what the possible implications are for human rights. Will posthumans still need human rights? One can indeed view human rights as solutions to human shortcomings, and when these shortcomings disappear, then so will human rights – an immaterial human will not need a right against torture or against poverty.

Of course, a lot will depend on the specific nature of the posthuman or transhuman future, and that’s where transhumanists have widely different opinions. The implications for human rights are enormous when you believe that in the posthuman future, human minds or human consciousness can be transferred to a computer (“mind uploading“). The uploaded mind can then reside in a computer or “internet”, inside (or connected to) a humanoid or non-humanoid robot, or even inserted into another biological body, replacing its brain (perhaps through cloning). If people no longer need their physical bodies, they obviously also no longer need certain rights that serve the requirements or correct the deficiencies of the physical body: the right to food or shelter, the right to a certain standard of living and the right to physical security and bodily integrity become meaningless.

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If that is true (a big “if”), then transhumanism can be seen as a technological solution to human rights problems. Compared to human rights, transhumanism is then a far better way to solve certain problems of the human condition.

However, even if this is the future, it’s not certain that posthumans won’t need any human rights. Not even the extreme vision of posthumanity in which humans become totally free of their biological bodies and live “inside computers” will make human rights totally superfluous, although maybe these rights will have to be framed in another way. The right to life would then have to become something like “the right not to be deleted”. A right not to suffer poverty would become a right to basic usage of the network or CPU. A right to non-discrimination would be rephrased as a right to equal access to and equal usage of human enhancement technologies. Etc.

And finally, it’s also possible to view transhumanism as intrinsically hostile to human rights and as the playground for the already privileged. The narcissistic self-improvement of transhumanism can shift attention away from social justice. A lot of transhumanism is about the improvement of human bodies at the individual level, not the improvement of social or economic structures. The focus is also on technology rather than politics or law, and a love of technology shouldn’t obscure the real effectiveness of politics and law when it comes to protecting people’s human rights, and neither should it obscure the dangers inherent in technology (technology can be a tool for oppression and inequality; technological body modifications can be an expression and solidification of oppressive body ideals; and there are environmental concerns about technological development).

More posts in this series are here.

The Ethics of Human Rights (51): Human Rights and Universal Moral Grammar

It seems that human morality is to some extent ingrained in the human mind and that humans possess an innate moral faculty which we can call Universal Moral Grammar (UMG). “Innate” here refers to

cognitive systems whose essential properties are largely pre-determined by the inherent structure of the mind, but whose ontogenetic development must be triggered and shaped by appropriate experience and can be impeded by unusually hostile learning environments. (source)

Perhaps it’s evolution that has wired moral grammar into our neural circuits. Social living requires constraints on behavior and those constraints can be favored by natural selection because of their survival value.

Noam Chomsky

This theory is similar to the linguistic claims made by Chomsky about universal grammar and about the fact that even very young children seem to have the ability to apply grammar rules that they obviously haven’t been taught. Analogously, we know moral rules without having learned them, and this knowledge is universal across cultures.

For example, 3–4-year-old children use intent or purpose to distinguish two acts that have the same result. They also distinguish ‘genuine’ moral violations (e.g. battery or theft) from violations of social conventions (e.g. wearing pajamas to school). 4–5-year-olds use a proportionality principle to determine the correct level of punishment for principals and accessories. 5–6-year-olds use false factual beliefs but not false moral beliefs to exculpate*. (source)

Indeed, even animals have feelings of empathy and expectations of reciprocity.

The UMG can help to explain some universal and cross-cultural intuitive judgments in moral thought experiments such as the Trolley Problem (almost universal acceptance) or Fat Man and Surgeon (almost universal rejection). These universal judgments are best explained by the existence of stable and innate intuitions and tacit knowledge of rules and concepts because the judgments are quick, unreflective, difficult to justify and identical across demographic groups (including children).

Many people cannot articulate the foreseen/intended distinction [between these moral dilemmas] …, a sign that it is being made at inaccessible levels of the mind. This inability challenges the general belief that moral behavior is learned. For if people cannot articulate the foreseen/intended distinction, how can they teach it? (source)

None of this excludes the possibility that a lot of what we think we know about morality comes from teaching, nurturing, our own reasoning or even our self-interest. Furthermore, innate dispositions, if they exist, can be developed or blocked. Hence, the UMG theory is not necessarily deterministic or self-sufficient, and can accommodate other types of moral cognition as well as the less than universal factual morality of mankind (if UMG were all that mattered and if it were as deterministic as it often sounds, then there wouldn’t be immoral acts).

What does all this have to do with human rights? Those rights are outside of the UMG, partly because they are too specific. UMG is more about very abstract and general rules, such as intent, proportionality, people as ends instead of instruments etc. However, some human rights may be a part of UMG: do not kill, rape or steal are universal moral rules and are part of the UMG that even children know, and they are also translated into human rights.

More importantly, however, the existence of a UMG belies cultural relativism and can support the construction of a detailed universal morality. And finally, elements of UMG, such as the notions of intent and proportionality in moral condemnation and of moral exculpation based on false factual beliefs, have important ramifications for criminal justice and hence for human rights. Human rights restrictions on criminal punishment can be independently supported by UMG.

More posts in this series are here.

* For example killing someone because you mistake the person for a deer, as opposed to killing someone because you believe killing is OK.

(image source)

The Ethics of Human Rights (50): Human Rights and Deontological Ethics

Compared to utilitarianism (see this previous post), deontological ethics – or deontology/deontologism for short – seems to be a moral theory that is much more amenable and receptive to human rights. Deontology, after all, focuses not on the consequences of actions but on the duties (“deon”) we have; and one man’s rights are another man’s duties. Deontology does not accept that good consequences override our duties; for example, we have a duty not to torture, even if torturing would yield certain beneficial consequences. The right thing to do is more important than increasing the good in society. And the right thing to do is to act according to a moral duty translated into a moral norm. So the right thing to do is typically encapsulated in rules, as is the case for human rights.

However, the choice of moral theory for a human right activist isn’t as clear-cut as that. Deontology, and especially those forms of deontology that look a lot like moral absolutism – and that’s a big temptation for deontology in general – have been accused of accepting catastrophic outcomes for the sake of respect for rules and duties. The infamous Kantian rule not to lie to a murderer asking about the whereabouts of his intended victim comes to mind. And we’re not just talking about philosophers’ mind games. The oath taken by German soldiers to be loyal to Hitler was a case of an uncontroversial deontological rule – keep your promises – that has arguably cost millions of lives. The power of duties and rules often borders on the absolute.

Of course, deontology doesn’t have to be moral absolutism. It’s not because there are rules and duties that we must always respect them. So-called threshold deontology allows for rules to be overridden once a certain level of bad consequences is reached. Beyond the threshold, deontology is replaced by consequentialism. Granted, the threshold of exception must be high, otherwise it would be futile to speak about rules and duties at all.

Such a deontological theory is not absolutist, and it is more in line with human rights. The system of human rights isn’t absolutist either. Rights can be limited, for example when different rights clash with each other. There are very few if any absolute human rights, i.e. rights which can never be violated. (The right to life is a possible candidate).

torture scene from the movie "Unthinkable"

However, threshold deontological theories are not without problems either. First, even if we use thresholds, some duties and rules will still be strong enough to produce, in some cases, violations of human rights. And second, there’s the problem of the exact level of the threshold. It has to be high, but how high? Take the case of torture: threshold deontology would argue that torturing a “ticking time bomb terrorist” is an acceptable deviation from deontological rules and duties if the consequentialist gains are high enough, for example when this torture will allow us to save a large number of lives. But what is a large number? 100? 1000? And won’t we create perverse effects? (E.g. having a torturer put some more lives at stake as a means to legitimize his torture?). Deontology seems to collapse into consequentialism if it adopts a system of thresholds, because reducing the threshold value by 1 unit (one life in this case) never seems to invalidate the choice of suspending rules or duties. And yet, after a certain number of reductions by 1 unit, there’s no rule or duty left.

More posts in this series are here.

The Ethics of Human Rights (49): Human Rights and the Capabilities Approach

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How do these two approaches to global ethics compare? Strikingly well as it turns out. I can’t possibly give an adequate overview of the capabilities approach in a blog post (if that’s what you’re after, better go here). It is a highly complex moral theory. However, the short version is that the approach focuses not on the resources people should have or on the aggregate utility (happiness etc.) that society should maximize, but rather on the capabilities that everyone should have in order to achieve wellbeing or live a truly human life. “Capabilities” here means real opportunities or real freedom to do and be what we have reason to value.

Martha Nussbaum, photo by Steve Pyke

Proponents of the capabilities approach don’t always agree on the set of capabilities that are important or even on the desirability of determining a set. One prominent proponent, namely Martha Nussbaum, has defined such a set, and for a comparison between the capabilities approach and the human rights approach it’s useful to concentrate on her set and step away momentarily from the intricate details of the capabilities approach. This is a summary of the set (which I’ve stolen from here):

1. Life – Able to live to the end of a normal length human life, and to not have one’s life reduced to not worth living.
2. Bodily Health – Able to have a good life which includes (but is not limited to) reproductive health, nourishment and shelter.
3. Bodily Integrity – Able to change locations freely, in addition to, having sovereignty over one’s body which includes being secure against assault (for example, sexual assault, child sexual abuse, domestic violence and the opportunity for sexual satisfaction).
4. Senses, Imagination and Thought – Able to use one’s senses to imagine, think and reason in a “truly human way”–informed by an adequate education. Furthermore, the ability to produce self-expressive works and engage in religious rituals without fear of political ramifications. The ability to have pleasurable experiences and avoidance of non-necessary pain. Finally, the ability to seek the meaning of life.
5. Emotions – Able to have attachments to things outside of ourselves; this includes being able to love others, grieve at the loss of loved ones and be angry when it is justified.
6. Practical Reason – Able to form a conception of the good and critically reflect on it.
7. Affiliation – A. Able to live with and show concern for others, empathize with (and show compassion for) others and the capability of justice and friendship. Institutions help develop and protect forms of affiliation. B. Able to have self-respect and not be humiliated by others, that is, being treated with dignity and equal worth. This entails (at the very least) protections of being discriminated on the basis of race, sex, sexuality, religion, caste, ethnicity and nationality. In work, this means entering relationships of mutual recognition.
8. Other Species – Able to have concern for and live with other animals, plants and the environment at large.
9. Play – Able to laugh, play and enjoy recreational activities.
10. Control over One’s Environment – A. Political – Able to effectively participate in the political life which includes having the right to free speech and association. B. Material – Able to own property, not just formally, but materially (that is, as a real opportunity). Furthermore, having the ability to seek employment on an equal basis as others, and the freedom from unwarranted search and seizure.

The similarities with the human rights approach are noteworthy, as are a limited number of differences. Let’s go over these one by one:

1. The right to life covers the ability to live to the end of a normal life, since a violation of the right to life obviously means that a life is cut short. However, the norm that one’s life should not be reduced to a life that is not worth living is more difficult to translate into rights language. There is no “right to a life worth living”. However, implicitly; one could combine a set of existing human rights and interpret it as something similar to a “right to a life worth living”: violations of the rights not to suffer poverty, torture, slavery etc. may result in a life not worth living.
2. The capability of bodily health is entirely covered by human rights.
3. The same is true for bodily integrity (see here and here). However, the opportunity for sexual satisfaction is, perhaps unfortunately, not a human right.
4. The capability to engage in thinking, reasoning and imagining is difficult to translate in human rights terms, because there’s no right to be able to think, reason and imagine. We do have freedom of thought and conscience, but that’s more like a negative right, directed at people trying to interfere with our thoughts and conscience; we don’t have a right to develop our capability to think etc. The best approximation is the right to education – indeed, why else would we need education and a right to education if not as a means to develop our capacity to think, reason and imagine? The inclusion of expressive and religious capabilities in capability 4 is clearly compatible with human rights; the avoidance of non-necessary pain and the ability to seek the meaning of life are not.
5. Capability 5 goes way beyond the realm of the human rights approach.
6. As does capability 6.
7. The capability to affiliate is covered by the freedom of association and the freedom of religion. The ability to have self-respect, to avoid humiliation, and to live a life of dignity and equal worth are not explicitly covered by specific human rights. However, it’s common to find self-respect, dignity and equal worth among the values that are supposed to ground the set of human rights. Protection against discrimination, on the other hand, is covered by specific human rights.
8. See capabilities 5 and 6.
9. See capabilities 5 and 6.
10. The capability of control is covered by political rights, property rights and privacy rights.

The capabilities approach, at least the version expounded by Nussbaum, is therefore very similar to and yet more wide ranging than the system of human rights. There are also some meta-similarities: for example, the capabilities approach focuses on capabilities rather than actual functionings, and the human rights approach on the rights people have and not on whether they choose to use or waive those rights.

The capabilities approach covers more space than the system of human rights, but the contrary is also true. There’s no mention in the capabilities approach of the right to a fair trial (or of the more detailed rights that make up this right), the right to a nationality, etc.

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More on the capabilities approach is here, here and here. More posts in this series are here.

The Ethics of Human Rights (48): Human Rights and Honor

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Many human rights violations are perpetrated by people in power for selfish reasons, because they are corrupt or evil, or because they believe they are doing good. In such cases, it often helps to remove those people from their positions of power. Other types of rights violations, however, are deeply ingrained in a society’s everyday culture and are the daily habits of large numbers of people. Think of gender discrimination in traditional patriarchal societies, or homophobia, racism etc.

What can be done about the latter type of rights violation? It’s extremely hard to change cultural customs and beliefs (some say that we shouldn’t even try because we should avoid cultural imperialism). Cultures do change, of course, but very slowly. There’s an inherent inertia. Culture determines personal identity, and people obviously cling to identity. And there’s no identity, it seems, without stability. Culture is also a marker of belonging and community, two other cherished values. When cultures change, the patterns of belonging and community may also change, and that frightens people. The result is again inertia. And finally, there’s the time element: when something has existed for a very long time (or when people believe it has existed for a very long time) it becomes much harder to change because it has the patina of tradition. When something has survived for so long, it surely must have some value.

As a result of all this, appeals to change fall on deaf ears. You can reason, and say that certain practices aren’t in the best interests of anyone, that they aren’t really very old and traditional and that they aren’t anointed by religious texts or cultural transmission. Or you may have other killer arguments. When people’s identity and community are believed to be at stake, all this will fail. You can also outlaw the practices, but then the law will simply be put aside. You can claim that people are being immoral, but they will answer that they have another morality.

Then how to motivate people to do the right thing? Which tools are left? I’ve discussed Rorty’s story telling strategy before. And more recently, another philosopher, Kwame Anthony Appiah, has claimed that appeals to honor may be successful catalysts of change. He

singles out three historic practices that later were stamped out: dueling, footbinding, and the Atlantic slave trade. In each case, he says, a successful public campaign to end the misconduct was based not on questions of right or wrong, but on honor. Dueling swiftly perished when attitudes changed among gentlemen, who went from considering it highly honorable, to disreputable. The excruciating binding of women’s feet disappeared with great abruptness once China began to worry about its reputation among nations, early in the 20th century — national honor seeming at stake. A similar sense of honor led Great Britain finally to ban the slave trade after all appeals to morality had proven futile. (source)

footbinding

Shaming people or nations, and trying to convince them that they bring dishonor upon themselves by way of the rights violations they commit or condone, may indeed be more successful than simply telling them that they are morally wrong or that they act in an irrational manner against their own self-interest. People need the esteem and approval of others. Few of us can survive a constant barrage of contempt.

However, as Appiah also notices, honor has often been a force against human rights, sometimes even a deadly force. It may have contributed to the demise of dueling, but it was also its origin. And then there are the infamous honor killings, when fathers or other relatives kill girls after accusations of sexual or romantic misconduct. That’s a practice that has survived until today. Furthermore, shame and dishonor have often been used as cruel forms of criminal punishment, with convicted criminals forced to endure public humiliation. Hence, honor is a two-edged sword at best. Sharpening one edge may also make the use of the other edge more common.

More posts in this series are here.

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The Ethics of Human Rights (47): What’s So Funny About Paternalism?

In general, those who promote human rights will not be tempted to engage in paternalistic policies. That’s because human rights are about protecting people against each other, not about protecting people against themselves. And one of the foundations of human rights is the moral value of personal autonomy: people have a right to organize their lives according to their own plans and reasons, free from the influence and manipulation of others, even if others believe they are mistaken or self-destructive. Personal autonomy in this sense of the word is the basis of rights such as the right to privacy, property, political participation etc.

So, paternalism can be seen as detrimental to human rights. On the other hand, all societies are to some extent paternalistic, with the apparent consent of all. So what’s the deal? Let’s go through this topic in a systematic way, starting with some definitions, typologies and proposed justifications of paternalism, in order to end up with a clearer vision about paternalism’s temptations, dangers and limits.

Definition of paternalism

Paternalism is

• interference
• usually by the government
• with an agent’s strictly self-regarding actions
• and against the will of the agent.

It’s the use of coercion, force or incentives, against the initial will of the agent, with the purpose of imposing or preventing a certain type of action or lifestyle that has, respectively, positive or negative consequences for the agent and that does not harm or benefit a third party.

The purpose of paternalism is therefore to make the agent who is the object of paternalistic force, better off. She’s better off because she is forced, by the paternalist, to do good things to herself or to abstain from doing harm to herself.

Types of paternalism

This definition allows us to distinguish two types of paternalism: positive and negative (these qualifiers do not imply value judgments):

• positive paternalism means forcing people to benefit themselves
• negative paternalism means forcing people not to harm themselves.

The latter is much more common, I believe. Examples are anti-drug legislation, laws forcing people to wear seat belts or crash helmets etc. An example of the former are laws requiring people to contribute to a pension fund (although that case may not be strictly self-regarding since part of the motivation for such laws is the protection, not only of the future pensioner, but of his or her descendants or society in general).

Paternalism should therefore be distinguished from other types of coercion that aim at preventing people from harming others or forcing people to benefit others (such as laws against murder or laws imposing taxation respectively). Such non-paternalistic types of coercion focus on other-regarding consequences, whereas paternalistic coercion focuses on self-regarding consequences. Paternalism wants to limit the harm people’s actual or possible voluntary actions can do to themselves, and maximize the benefits that people’s possible but not voluntarily chosen actions can produce for themselves.

Paternalists are therefore “do-gooders” who want to maximize people’s utility, benefits, happiness, wellbeing etc. and who believe that this requires more than mutual protection.

(Other typologies of paternalism are, of course, possible: a soft form of paternalism would not intervene if people consciously and with full knowledge harm themselves, and only when self-harm results from lack of information; or would only intervene using incentives or “nudges” rather than coercion; hard paternalism would discount knowledge and intervene anyway; paternalism may be limited to the means people choose for their ends, or may also include these ends etc.).

Justifications of paternalism

Paternalists offer different reasons why they think that people, in some cases, should be prevented from engaging or forced to engage in certain actions.

• As stated a moment ago, there may be a lack of knowledge on the part of the agent forcing the agent to unwittingly harm herself or fail to benefit herself. And this can be a lack of knowledge of different kinds:
  • First, the agent may not be aware of the harmful self-regarding consequences of a chosen or intended action, or may not be aware of the beneficial self-regarding consequences of an unchosen and unwanted action. In such cases, there are two possibilities. Either the simple delivery of information regarding the consequences – for example through education or communication – is enough to convince the agent to avoid harmful action or to choose beneficial action, and then no paternalistic action is necessary. Or this is not enough and paternalistic action is necessary. An example of the latter can be marijuana: according to some paternalists, the consequences of marijuana use are harmful, but this “information” doesn’t seem to register with users.
  • The absence of knowledge may be a deeper problem. The agent may not be aware of her true interests. Example: a terminally ill patient who wants to die may not be aware that her true interest – according to some – is respecting God’s will and God’s rules against suicide.
• In many cases, people justify paternalism not because there’s a lack of knowledge, but because there’s a lack of “character” on the part of the agent. The agent may know very well what is and is not in her interest and what actions have beneficial or harmful consequences, but she just can’t bring herself to engage in or avoid those actions. There’s clarity about her interests and about consequences, but not the will, the courage, perseverance etc. to act correctly.

Most cases of paternalism, I guess, are of the first kind, where it is assumed that there’s a lack of continuous knowledge and a lack of conscious and lasting awareness of the consequences of certain actions, and that someone else, e.g. the state, knows better.

Plato

Hence, paternalism deserves its name. Paternalists assume – much like Plato – that society is divided into two groups of people, the “fathers” and the “children”, those who know better and are more rational, and those who don’t know and can’t be counted on to take their lives into their own hands. However, paternalism goes beyond the father-child metaphor because it believes that the “children” will never fully grow up: knowledge about consequences acquired through information and education, knowledge about which actions are or are not in the best interests of people, or knowledge about how people can act to best serve their true interests will often not be enough to act in a certain way. Apart from knowledge, character can be lacking, and that’s a fault that is much more difficult to correct without continuous paternalistic force.

The temptation of paternalism

John Stuart Mill

So, all that sounds pretty awful, and yet all or most societies engage in some kind of paternalism without much public opposition. The examples given above are quite common. And indeed, some forms of paternalism are quite harmless and difficult to avoid. John Stuart Mill cites the case of a bridge that is about to collapse. The circumstances are such that only engineers are in a position to know this. Regular drivers don’t and can’t know the consequences of their actions – in this case driving across the bridge – and should therefore be prevented from acting by those who know better. This isn’t usually called paternalism, but there doesn’t seem to be a clear difference between this case and real cases of paternalism, such as laws forcing people to wear crash helmets (assuming that the reason why people don’t wear helmets is an insufficient awareness of the possible consequences), or moral rules dictating that we should try to convince our friends not to commit suicide if they are so inclined.

So, paternalism is there to stay. I don’t think there are many “hard anti-paternalists” around. Hence, as is often the case on this blog, we are faced with value pluralism and two contradicting values: in some cases it’s obviously good to protect people against themselves, but at the same time it is generally correct to respect people’s autonomy, their self-determination and their right to make their own decisions and to live according to their own reasons and motives, free from external forces.

Where’s the trade-off? I would say that the burden of proof is on those wishing to limit people’s autonomy, given the general importance of autonomy. Their case can made stronger when, for example, there’s absolutely no doubt that a certain course of action will produce serious harm to the agent. Otherwise the case for paternalistic coercion is less strong and the best we can do is simply warn people of the possible consequences. Their case can also be made stronger when medical opinion about an agent’s neurological or psychological disorders is unanimous.

The dangers of paternalism

The burden of proof is on paternalists because of the risks inherent in paternalism. We also tend to overestimate the effectiveness of paternalism. Generally, individuals are the best judges of their own needs and wants and of the means to realize them. It’s not obvious that a paternalistic class of “fathers” can have better knowledge, given the vast number of people, options and risks involved. And even if individuals make mistakes, the harm done by forcing them into a system in which they are treated like children may be greater than the harm they do to themselves when left alone. Most people value the freedom to decide for themselves and the value of this freedom can sometimes compensate the cost of self-inflicted harm. It’s also likely that mistakes make people better judges.

Does that mean that people should have the freedom to damn themselves? In most cases, yes, if that’s someone’s free and voluntary choice, made in the light of all the information available and accessible to her.

More about paternalism here. More posts in this series are here.

Related Articles

• Paternalism and Australia’s Aborigines (beliefnet.com)
• Jeremy Laurance: We may not like it, but we still need to be told what’s good for us (independent.co.uk)
• What Price Paternalism? (theatlantic.com)
• More on the paternalistic nature of performance measurement (medrants.com)

The Ethics of Human Rights (46): Equality of Opportunity Limited by Human Rights

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The concept of equality of opportunity is incomprehensible as such. It needs some additional words: equality of opportunity is always equality of the opportunity to do something, to be something or to get something out of life. I’ll argue that, if equality of opportunity is to be a justifiable ideal, this “something” can’t be just anything.

So let’s simplify a bit and start with an example that is – I admit – somewhat ridiculous but that will nevertheless be helpful in order to describe the necessary limits on the extent of equality of opportunity. The example is the equality of the opportunity to buy a hamburger at McDonalds. If we think that we should provide everyone with an equal opportunity to do this, then we’ll have to implement some rules. First, we’ll “legislate” (in a hard or soft way, depending) that orderly lines must be formed at the place where people can order their hamburger. Line-jumping or fighting for priority is not allowed if we want to achieve equality of opportunity.

The orderly line can be viewed as a means of achieving equality of opportunity: everyone has to wait for his or her turn, and people who are stronger, who have more guts, who are faster, who have all their limbs or who are otherwise blessed by the lottery of birth, by their upbringing or by their lack of misfortune later in life, won’t have their hamburgers sooner than anyone else.

However, legislating an orderly queue isn’t enough to guarantee equality of opportunity. People have to able to reach the restaurant in the first place. So we’ll have to distribute the restaurants around the country in a fair way, so that people’s equal opportunity to buy hamburgers isn’t undone by distance or lack of adequate transportation capabilities (this is the idea of “food deserts“). The distribution has to compensate for all possible disadvantages resulting from the lottery of birth or the lottery of life, just as the rule regarding queuing compensates for those disadvantages.

All this focuses on the “equality” aspect of equality of opportunity, but we also have to pay attention to “the opportunity to do what exactly”. I imagine that some people don’t care about McDonalds hamburgers. I personally don’t, so I’m not really interested in having an equal chance to get one. Equality of opportunity therefore requires not only some “legislation”, order and distribution, but also the availability of equal opportunities to do different things. In other words, it requires not only equality but also choice. If the only opportunity people have is to buy hamburgers – or, more interestingly and realistically, to submit to a market regime that dictates their desires and needs – many people won’t be or shouldn’t be interested in the equality of those “opportunities”.

Obviously, equality of opportunity doesn’t just require choice but equal choice: if wealthy people have the opportunity to wine and dine at expensive places and to break free from the dictates of need, but the rest of us is condemned to McDonalds either because we’re less powerful to escape those dictates or because we simply don’t have the money to go elsewhere, there isn’t equality of opportunity, not even when we all have a McDonalds close to us and the people there stand in orderly lines.

However, this goes too far for most of us, because it means collapsing equality of opportunity into equality of outcome. We don’t really want everyone to be able to eat in their restaurant of choice. Such a form of equality of outcome would destroy incentives. Or take another example: if all boys in class want to date the same girl, do we tell them to form an orderly queue, do we tell the girl to move to a central location so that all boys live at a more or less equal distance, and do we give all boys equal financial means to woo the girl? This goes too far because equality of the opportunity to do certain things should be limited to the things we have a human right to do and to the things that don’t violate the human rights of others. Forcing the girl to move and to date every boy in class clearly violates her rights. And people don’t have a right to eat at whatever restaurant they want. But people do have a right to education, for instance, and should therefore have an equal opportunity to be educated. This requires some form of prohibition on “queue jumping”, some distribution of education facilities across the country, transportation assistance, choice etc.

More on equality of opportunity here. More posts in this series are here.

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The Ethics of Human Rights (45): Is There A Right To Do Wrong?

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Absolutely, there is. People have a right to vote for incompetent politicians; to express hatred; to organize hate groups; to insult and mock people; to burn books etc. All of these things are wrong in most plausible conceptions of morality, and yet they are part and parcel of human rights, and should be, to the extent that they don’t cause rights violations. Does this make human rights wrong? Objectionable? No it doesn’t, at least not necessarily. Human rights are objectionable if they have bad consequences, but only bad consequences in the sense of rights violations. Hence human rights are objectionable if they produce violations of other rights or the rights of others.

Some of the examples I just gave of the use of human rights may result in bad consequences. Hate speech can harm people’s rights. However, it’s often extremely difficult to measure the consequences of rights. For example, bad consequences can produce good consequences: e.g. allowing people to produce hate speech can convince a lot of people of the unattractiveness or disadvantages of certain ideologies.

Still, no matter what the consequences of the human rights are, we’ll still be stuck with differences between human rights and morality because some of the consequences of some rights will be clearly immoral. The two will probably never completely overlap. Some of the uses of human rights will produce outcomes that are a net negative from a moral point of view, even in the long run. So how should we react to people exercising their rights in an immoral way and in a way that produces immoral outcomes? It’s difficult, at first sight, to contemplate the use of morality to tell them to stop, since they are exercising their rights. However, rights are seldom absolute and can be limited if necessary. It depends on the nature of the immoral outcomes of the use of human rights. When we’re talking about an outcome that is immoral because it offends or hurts the feelings of people, the justification to do something about it is a lot less strong than when we’re talking about an outcome that is immoral because it violates the rights of people. In the latter case we should act and try to find a balance between the rights of different people, namely those people exercising their rights in an immoral way and those suffering the consequences of this exercise. In the former case, our actions should probably be limited to persuasion, education etc.

Another argument in favor of a right to do wrong does not focus on consequences. Rights entitle us to make our own choices, and making your own choices is a moral good in itself. If this moral good leads to immoral choices and these choices are immoral because of the negative consequences for other people, then it’s not necessarily those consequences that are most important. If we force people to do the right thing, we’re taking away their right to make their own choices, and we’d also be acting immorally. Hence, there’s a conflict between two moral maxims, and it’s not obvious that the maxim that says we should limit negative consequences for others is always the most important of the two. It depends on the harm done by those consequences, and the degree of choice limitation that would result from trying to avoid those consequences.

No matter what we do, there will always be cases of rights that result in wrongs, just as there are moral wrongs without corresponding rights (keeping promises is moral but not a right; the same is true for telling the truth, helping friends, being faithful to your spouse etc.). Of course, many actions are both morally wrong and a violation of rights, or both morally right and respectful of rights, so we shouldn’t make too much of an issue of the right to do wrong. But still, it is an issue and it’s good to know that it’s an issue.

Martin Luther King

Does the existence of a right to do wrong imply that rights are divorced from morality? Well, it makes it a bit harder to argue that rights are merely a subset of morality. But it doesn’t mean that we should go to the other extreme and say that rights are an exclusively legal matter separated from moral concerns. That extreme would land us squarely in the territory of legal positivism, or the theory that states that we only have those rights that are recognized in law. And that’s not a pleasant territory since it makes it impossible to challenge deficiencies in the rights recognized by the law. In order to challenge those deficiencies, you need a notion of moral rights, rights that are not yet (fully) recognized by the law (there wouldn’t have been a Martin Luther King in the land of legal positivism for example). But in order to have moral rights, rights have to belong to morality, and it seems that a right to do wrong makes this belonging problematic. However, we can anchor rights in morality by arguing that morality is more than the teaching of what we should or shouldn’t do. We just stipulate that rights talk belongs to morality, and conflicts between elements of morality – in this case rights and wrongs – are nothing unusual.

More posts in this series are here.

Related Articles

• Is Moral Psychology About Morals Or Their Function? [The Thoughtful Animal] (scienceblogs.com)
• Consensus Statement on Morality (wired.com)

The Ethics of Human Rights (44): Human Rights Between Cosmopolitanism and Partiality

James Gillray’s famous political cartoon depicting Pitt and Napoleon carving up the world

Cosmopolitanism and partiality (or parochialism if you don’t mean it in a negative sense) are two very strong and yet contradictory moral intuitions. Let’s start with the former. Most of us have a strong sense of the arbitrariness of national borders. The accident of being born on one or the other side of a border – just like the accident of being born black or female – shouldn’t have any moral weight and shouldn’t determine one’s life prospects, as it unfortunately does.

As a result of this intuition, we believe that all people have the same moral worth, and this in turn convinces us that we shouldn’t condone the notion that the suffering or oppression of a fellow-citizen is more urgent or more important than the equal suffering of someone far away. There is something like humanity and all members of the human species have equal value. Being partial and favoring the alleviation of the suffering of some over the alleviation of the suffering of others, just doesn’t sound like the right thing to do. We should help people because they are human beings, not because they are compatriots. If I see a compatriot and a foreigner drowning in a pool I have no reason to save one before the other.

That’s the cosmopolitan intuition. On the other hand, there’s an equally strong intuition favoring some level of partiality. A father watching his daughter and her friend drown in a pool is allowed to save his daughter first if he can save only one. People care more about their friends and family than about strangers, and that’s completely uncontroversial. A bit less uncontroversial but perfectly common is the fact that citizens of a country – through their tax payments – typically provide relatively generous social security and welfare to their fellow-citizens and much less development aid, even though the beneficiaries of development aid are much less well off than many of the beneficiaries of the welfare state. Countries also impose immigration restrictions as a means to protect the prosperity of their reasonably well off citizenry, even if doing so means condemning foreigners to poverty. And finally, states generally enforce the other human rights of their citizens (poverty is a human right) much more rigorously than the rights of foreigners.

Without staking out my position regarding these two contradictory intuitions, I would argue that imposing strict immigration and aid restrictions means taking partiality too far and that we should have more migration, more global redistribution and more international intervention aimed at the protection of human rights. However, you can demand this and still favor some level of partiality over strict cosmopolitanism.

So, the conclusions people draw from the partiality intuition aren’t always morally defensible, but the intuition itself is. And the same is true for the cosmopolitan intuition. In what follows I will ignore those who draw extreme conclusions from either intuition because they tend thereby to ignore the other intuition. Extreme nationalists, chauvinist patriots, racists, “ethical egoists” à la Rand etc. on one side, and the much less numerous “uprooted” citizens of the world and the corporate or non-governmental “modern nomads” who ridicule origins and meaningful national affiliations on the other side. It’s generally not a good idea to deny strong moral intuitions, and certainly not in this case. So I’ll focus on those who recognize the two intuitions and somehow try to juggle them.

How do people do that? Some choose one as the most important and believe that the other can only be followed in addition. Others just accept this as a case of irreconcilable value pluralism and believe that we can’t solve the dilemma. And still others deny that there’s always a conflict between the two intuitions.

Let’s look at those who favor the priority of partiality, see what reasons they have, and how those who favor cosmopolitanism respond. Many of those who favor the partiality intuition agree that we can and should do more to help others in distant places, but they also claim that we shouldn’t do as much for the billions of poor and oppressed people in the world as we do for our local charity, our relatives and friends and even our compatriots. They believe that once we’ve provided a minimum of care and aid to humanity in general, we’re allowed to focus our attention on a partial group or a limited circle of people that have a special meaning to us. They may provide different reasons for this claim. Let’s look at a few and at the ways in which cosmopolitans can reply:

• Parochialists may argue that we need global institutions similar to national ones in order to provide the same amount and quality of care and aid to humanity as a whole. For example, you need a global welfare state to provide social security to everyone, and an effective global judiciary to punish gross violations of human rights in despotic regimes elsewhere in the world. We can call this the institutional objection to cosmopolitanism. Cosmopolitans could point to the progress in international criminal justice that has already been made, and could also argue that international redistribution of resources doesn’t necessarily require a global welfare state.
• Parochialist can defend their limited partiality by claiming that relatively small groups of people are best placed to help each other, and that long distance help isn’t the most effective. For example, local judiciaries are better placed to judge local human rights violations than “ivory towery” international institutions, and small groups of people are better able and more motivated to give each other material assistance. Closeness means that you can do more, and if you can do more you should do more. It also means that appeals to help will be better heard and be more persuasive. People far away simply don’t have the necessary information or motivation to help effectively. We can call this the effectiveness and motivational objection to cosmopolitanism. Cosmopolitans could reply that there’s a certain circularity in this argument and that globalization has eroded much of the salience of closeness. I can go to an internet site and donate money to a specific person thousands of miles away. And the modern media have made the suffering of such a person much more salient and motivating.
• Parochialists can argue that relatively small groups of people are not only best placed to help each other, but have a right to help each other and should be allowed to do so before the international humanitarians come barging in. This is akin to arguments about self-determination and cultural relativism. Caring about other places on the globe means wanting to intervene in those places in order to promote human rights and alleviate suffering. Such intervention may amount to cultural aggression. We can call this the cultural objection to cosmopolitanism. I’ve argued against cultural relativism elsewhere so I won’t repeat myself here.
• Parochialists may claim that partiality is the result of the importance of community membership. People want to belong to communities. This belonging is important for many reasons, notably for personal identity. In order to maintain a community, there have to be special duties towards fellow members. We can call this the community objection to cosmopolitanism. The cosmopolitan could argue that those special duties are different from the global duties imposed on us by human rights and humanitarianism and don’t diminish or replace those global duties.
• Parochialists can argue that global duties and a global morality are meaningless concepts. Perhaps a real understanding of what a moral duty is can only arise from the communal traditions and language of a particular culture. Morality is then culturally situated, embedded and determined. Moral impartiality and global justice are then oxymorons. This objection to cosmopolitanism is related to the cultural objection, and we can call it the meta-ethical objection. A cosmopolitan could reply that this is a rather strange conception of morality. It’s not uncommon for people to be influenced by moralities from far away. Hence, it’s wrong to claim that morality is completely embedded in culture.
• Parochialists can argue that cosmopolitanism and the need to treat everyone equally imply the imposition of excessive burdens on the wealthier members of humanity and would therefore be both unrealistic and unfair. Treating everyone equally would leave them with little for themselves and for their partial circle of care. None of them would still wear expensive watches or clothes, go on vacations or give their children an expensive education. We can call this the feasibility objection to cosmopolitanism. The cosmopolitan could answer in different ways. First, things aren’t entirely zero-sum as the parochialist seems to believe. For example, a well-educated child can more effectively help humanity. Hence, the two intuitions don’t have to cancel each other out and people don’t always have to choose. Love for humanity and love for certain people don’t necessarily clash. Secondly, even if it’s not feasible to help everyone, that doesn’t mean we have to be partial. The moral equality of all human beings may require that we select a random group of people to help, rather than our inner circle. Such a random choice would guarantee that we help strangers just as much as relatives, friends and compatriots, even though we can’t help everyone equally. The problem with such a random choice is that you need to know about people in order to be able to help (see the effectiveness objection above). The cosmopolitan could reply that random selection isn’t really necessary and that we can help a lot of people a lot more than we may think, without completely undermining our own wellbeing. It’s not absolutely clear that the world doesn’t hold enough resource to give everyone a decent life.

More about caring for what happens in the world, about charity, about arbitrariness and morality, and about moral dilemmas. More posts in this series are here.

The Ethics of Human Rights (43): Human Rights and Utilitarianism

You often hear the claim that human rights and utilitarianism don’t mix. And indeed, at first sight they are rival and incompatible moral theories that have radically different prescriptions about what we should do in order to do good.

Utilitarianism tells us to do what maximizes “utility” (in whichever way “utility” is understood: pleasure, happiness, wellbeing etc.). We should, in other words, try to act in such a way that our actions produce as many good consequences as possible, and that the aggregate of those good consequences outweighs – in terms of “utility” – the aggregate result of whatever different combinations of actions are possible. We should try to maximize utility regardless of whether rights are respected or violated while doing so. The good is prior to and independent of the right or duty. Something is a right or a duty only when it contributes to overall utility, and only when it does so to a higher extent than violating that right or duty.

Conversely, human rights tell us that we can never do certain things, not even if doing those things would maximize overall social utility (happiness, pleasure etc.). Some human rights theories provide exceptions to this rule and don’t use the qualifier “never”. For example, in a situation of extreme danger for the whole of society, these rights theories provide the possibility that some rights are temporarily suspended. However, they typically provide a very high threshold, otherwise it would become difficult to speak about “rights” and the theory would collapse into utilitarianism (if rights can be suspended regularly, they are no longer rights).

For example, even if it were the case that capital punishment has an important deterrent effect, it would not be permissible. Executing people for crimes as a means to diminish the occurrence of future crimes is just not something one can do to people. It instrumentalizes people in an unacceptable way according to most rights theories. The right to life is just too important and a deterrent effect doesn’t lift us above a threshold of suspension of rights.

People have rights, even if the outcome of those rights is suboptimal and more overall utility could be achieved when some rights are violated in some cases. Only when the utility of violating rights is very high do some rights theories allow those violations. These rights theories are threshold theories that allow utilitarian or consequentialist considerations to “kick in” when a certain threshold is reached. For example, they allow torture if a very large number of lives is at stake, even though generally and under non-marginal conditions people have a strong right not to be tortured.

Immanuel Kant

That already shows that human rights and utilitarianism-consequentialism aren’t necessarily incompatible. Of course, some rights theories claim that they are. Those are the non-threshold theories, which are more extreme rights or duty theories that allow no exceptions. An example is Kant’s infamous argument about not lying to a murderer inquiring about the whereabouts of his intended victim – “fiat justitia et pereat mundus“.

Compared to utilitarianism, human rights theories – both strong and threshold theories – have the advantage that they are able to protect strong interests of minorities and individuals against the weight of aggregated and possibly weak interests of large majorities. It’s intuitively appealing to have a theory that protects individual rights against aggregate social utility. Utilitarianism – in its crudest forms – has often been accused of not taking the differences between people seriously and of not caring about individual suffering as long as the total advances.

We don’t even have to look at extreme threshold cases to see that many human rights theories have consequentialist or utilitarian features. Obviously, there is no human rights theory that holds rights hostage to case-by-case utility accounting or that claims that all human rights have optimal consequences all of the time. And yet, most human rights theories claim that human rights are necessary because they generally produce good consequences and promote certain important values. Maybe not happiness, but peace, prosperity etc. (See here). For example, there’s a strong argument that free expression promotes knowledge and that religious liberty promotes communal peace.

Claiming that respecting human rights is generally optimal from a utilitarian perspective doesn’t mean that it’s always optimal. You could argue that even if it’s not always optimal to respect human rights we still should do so, because we’re unable to distinguish between cases in which it is or is not optimal to respect human rights (perhaps because our predictive powers aren’t good enough to judge the suboptimal consequences of rights), or because violating rights once will diminish their authority and will ultimately destroy them, making it impossible to reap the generally positive benefits of rights.

More posts in this series are here.

Related Articles

• Justifying Human Rights (filipspagnoli.wordpress.com)
• What does a utilitarian approach to animal rights suggest? (marginalrevolution.com)

The Ethics of Human Rights (42): What’s the Best Approach to Distributive Justice?

poverty in Chechnya

I don’t often talk about distributive justice on this blog. In fact, when doing a search, I only found one instance till now. I admit, that’s a serious omission, especially for a blog that mentions “poverty” in 349 posts on a total of 1756 (to date) (that’s one in five posts that are about poverty!). So let’s make up for it with one huge monster of a post.

What is distributive justice?

Distributive justice is a set of normative principles designed to guide the allocation of the benefits and burdens of economic activity. These benefits and burdens can be material goods and services, income, welfare or something else. Whatever they are, a theory of distributive justice will claim that they should be distributed or allocated to people according to some morally justified and morally just set of rules.

The assumption is that all government activity in some way affects the distribution of those benefits and burdens, whatever we do or believe, and that it’s important to guarantee that this distribution is done in a just way. So a theory of justice will propose rules for taking some benefits and burdens from people and giving them to others in a way that corresponds to ideals of justice.

Different types of distributive justice

Unfortunately, there isn’t one commonly accepted theory of justice. Different people have proposed different theories that describe different ideal methods of distributing different types of benefits and burdens. Some theories propose a more or less equal distribution of income; other theories focus on a more general understanding of benefits and talk about “welfare”. And some theories do not accept equal distributions and focus on desert. Etc. There are even some schools of thought that deny the justice of any sort of redistribution and argue that justice is about respecting property rights (libertarianism for instance). However, I’ll focus in this post on those who think that some kind of distributive justice is an important concern (which doesn’t imply that I believe that libertarianism is completely wrong about everything).

Let’s look at some of the more common theories and try to assess – superficially, I admit – what their respective merits are.

Strict egalitarianism

This theory of justice claims that all people should have the same level of material goods.

• Advantages. This does seem to correspond to the basic moral rule that all people are owed equal respect.
• Disadvantages. Different people have different needs, and so they need different and different amounts of goods. There’s also the problem of economic efficiency: strict equality removes incentives for economic productivity. Hence, it may result in overall wellbeing at a rather low level, making things worse for everyone. Conversely, everyone, even the worst off, can be made better off if goods/income/whatever are not distributed equally.

The Difference Principle

John Rawls

That last point was probably the origin of the so-called Difference Principle. This principle is part of John Rawls’ theory of justice. It does not demand strict equality as long as unequal distributions make the least advantaged in society better off than they would have been under strict equality. More precisely formulated: inequalities are to be to the greatest benefit of the least advantaged members of society. This principle is also called the maximin rule: an unequal distribution can be just when it maximizes the benefit to those who have the most minuscule allocation.

The justification of this principle is that higher incomes for more productive members of society provide those people with an incentive to be productive. And if they are productive, they produce more wealth, which can be used to benefit the least advantaged.

(Similar ideas can be found in sufficientarianism and prioritarianism).

• Advantages. Contrary to egalitarianism, the focus is on the absolute wellbeing of the least advantaged, rather than their relative wellbeing, i.e. their (un)equal position. Hence, we avoid the egalitarian destruction of incentives and the resulting risk of leveling down.
• Disadvantages. People’s relative positions are to some extent morally important. See this older post for a list of reasons why this is the case. Rawls does have a partial response to that concern because he argues that the inequalities permitted by the difference principle should be consistent with another rule of justice, namely the equality of rights and liberties. For example, high income inequality may make it impossible for people at the wrong end of this inequality to participate in democracy, to have their views represented and to get elected. Hence, Rawls argues for some corrections of inequality when inequality of resources negatively affects equal liberty. However, other disadvantages of inequality receive less attention. Another disadvantage of the Difference Principle is that it ignores desert.

Desert-based principles

It’s plausible to claim that a just distribution of goods should give people what they deserve, at least partially. We intuitively believe that at least some of the inequalities in life are deserved. People who work hard or contribute a lot to society deserve a higher level of wealth/income/welfare etc., even if such inequalities do not improve the position of the least advantaged. The hard working should not be forced to subsidize the lazy. They don’t deserve to be forced in this way, and the lazy don’t deserve to benefit in this way. (Many desert-based theories of justice are based on Locke’s theory of property).

Desert-based theories of justice claim that distributive systems are just insofar as they distribute benefits and burdens according to desert, at least partially. (This goes back to Aristotle).

• Advantages. Desert is a strong moral intuition and it is therefore important to incorporate it in a theory of distributive justice. Theories that fail to do so will always seem unjust.
• Disadvantages. We can make mistakes when deciding that some or other activity is deserving or meritorious. Distributions based on such mistakes will only be just by chance. But even when we don’t make these mistakes, it’s hard to measure and compare desert (is art more meritorious than science?). In addition, we can fail to identify real desert. Apparent desert may in fact be based on undeserved endowments. And that’s where luck egalitarianism comes in. (More problems with desert are described here).

Luck egalitarianism

Luck egalitarianism can be viewed as a desert-based type of justice. It proposes to redistribute the benefits and burdens that people don’t deserve and that result from bad luck, for example the bad luck of being born poor, in a poor country, without talents etc. Bad luck in the initial distribution of natural or social endowments should not affect one’s life prospects or distributions of income/wealth/etc. People don’t deserve those endowments and hence don’t deserve the distributions that result from it. These distributions therefore need to be corrected and equalized. After having equalized people’s starting positions in life, we have to let people free to decide what to do with their lives. Those decisions are their responsibility and hence they deserve the outcomes of their decisions. After corrections for endowments, people who work deserve the benefits of their work, and people who are lazy or careless deserve the results of their laziness or carelessness.

• Advantages. Luck egalitarianism avoids the pitfalls of both crude desert-based justice and strict egalitarianism.
• Disadvantages. There may be cases in which people who bring bad luck or suffering on themselves still have a claim to assistance. Also, luck egalitarianism produces some bad incentives and can be seen as demeaning (go here for more detail).

satellite image of Africa

International distributive justice, or cosmopolitan justice

A small detail in the theory of luck egalitarianism has far-reaching consequences. Among other things, people don’t deserve the places in which they are born. And yet, those places can determine whether you are rich or poor, free or persecuted etc. To some extent, poverty and persecution are just bad luck, the bad luck of being born in the wrong country. Residency and citizenship are as morally arbitrary as race, gender, natural endowments etc. No theory of justice that takes the equality of human beings serious can ignore the unequal distributions caused by the place of birth, and has to correct these distributions. Arbitrary facts about places of birth, border, residency or citizenship – just like genetic defects, race, gender etc. – cannot be allowed to determine people’s lives. Limiting the principles of justice to citizens or residents is unacceptable.

That means that redistribution should be international and not just between citizens of a particular country. Of course, it’s plausible that people have more responsibilities to those closer to them: parents have more responsibilities towards their children than towards the rest of humanity; friends should help each other etc. Closeness is morally relevant because it means more power: the closer you are to someone, the easier it is to help. But equal dignity and equal respect for all human beings is also morally relevant, and closeness therefore doesn’t mean that people who are far away and who are unknown to you and unrelated to you can’t legitimately demand assistance.

Preference to people close to you – and those people can perhaps include fellow nationals rather than just family and friends – shouldn’t be the only or overriding concern. We want to avoid chauvinism, parochialism and egoism. The metaphor of the family can turn nationalism into something very nasty. And anyway, the salience of closeness has been substantially reduced by technology: nowadays, it’s easy to send money abroad for example.

Still, in some plausible conception of international justice there can be room for some form of differentiation of duties towards fellow citizens and foreigners. International or cosmopolitan justice is therefore possibly coherent with the Difference Principle: international inequalities are acceptable if they improve the position of those who are globally worst off (although Rawls himself did not believe this because he correctly pointed to the absence of global institutions, and institutions are crucial to his theory).

• Advantages. International (or cosmopolitan) justice points to the ultimate consequences of liberal egalitarianism. If women, racial or religious minorities and people burdened with bad luck should be treated equally, why not foreigners? Borders are indeed just as arbitrary from a moral point of view as gender, race or talent and they can’t, therefore, determine distributions. International justice assumes all the consequences of the theory of human equality and makes the theory of justice more coherent compared to theories that focus on domestic distribution only.
• Disadvantages. International justice can burden the citizens of wealthy countries with extreme and unbearable responsibilities. After all, we want a coherent system of justice that treats people equally regardless of their place of birth. So it’s not just that rich countries have to prevent starvation and genocide abroad. That seems to be difficult enough already, but international justice makes things even more difficult because it gives people abroad the same benefits and burdens as citizens. That can imply, for example, completely open borders or far-reaching redistribution leading to substantially reduced welfare levels in rich countries. Another problem is more practical: it’s not clear how international redistribution should take place. In the case of national distribution there is a state taking care of it. Not so on the global level.

Distributive justice across generations

The same reasons that argue against the moral salience of closeness in space argue against the moral salience of closeness in time. The fact that some people will be born after our death isn’t a good reason to impose burdens on them. Hence, our distributive principles should take into account the interests of future generations. It wouldn’t be just to design a system of distributive justice that takes care of the least advantaged among us, that removes the influence of bad luck suffered by the living, that preserves a place for desert, that is insensitive to borders, and that at the same harms the interests of future generations (for example because it fails to provide a good system for the management of natural resources). More here and here on transgenerational justice.

• Advantages. Like international justice, transgenerational justice points to the ultimate consequences of liberal egalitarianism. If women, racial or religious minorities, people burdened with bad luck and foreigners should be treated equally, why not future generations? Time is indeed just as arbitrary from a moral point of view as borders, gender, race or talent and can’t, therefore, determine distributions.
• Disadvantages. Again, like in the case of international justice, we run the risk of imposing enormous burdens on the present generations. Moreover, there’s the so-called repugnant conclusion: if we multiply the number of future people – which is potentially a very large number of people – then we run the risk of drowning the interests of present generations. A small benefit for a very large number of future people will then justify a very heavy burden on the limited number of people currently alive. However, this doesn’t mean that we should neglect the interests of future people.

Welfare-based principles

Theories of justice can also focus on welfare. According to welfare-based theories of distributive justice, the only value of goods, resources, desert-claims, equal freedom and even equality is their positive effect on welfare. Distributive principles should then be designed so that they enhance welfare. Welfare maximization is the only criterion to decide distributive rules.

Utilitarianism is the main welfare-based theory of justice. “Utility” can be understood as more or less identical to “welfare”. It can be defined as pleasure, preference satisfaction, happiness etc. According to utilitarianism, distributing benefits and burdens means distributing them in such a way that we maximize overall utility (i.e. overall preference satisfaction, happiness etc.). We have to choose the pattern of distribution that maximizes the sum of all satisfied preferences, of all instances of happiness etc. (unsatisfied preferences or unhappiness count as negatives, and some “higher” or more intense preferences may be weighted higher, depending on the type of utilitarianism we are talking about).

• Advantages. Utilitarianism’s main advantage is its compatibility with freedom: it doesn’t prefer particular types of preferences, pleasure, happiness etc., and it therefore allows people to realize their own visions of the good life.
• Disadvantages. What about evil preferences, such as hate and racism? If those kinds of preferences are widespread and the individual targets of those preferences are a minority, then the latter will suffer because overall wellbeing will be increased by allowing the realization of evil preferences. Also, it’s not because it’s rational for an individual to sacrifice some present preferences for a larger future gain, that it’s moral for a society to sacrifice individuals for the gain of the whole, as utilitarianism often requires. That is why some utilitarians have added rights or rules to their equations: preferences can only be satisfied when they don’t violate the rights of others.

Feminist approaches

Feminism has convincingly argued that the traditional theories of justice described above tend to ignore how distributive principles affect the fate of women, especially given the fact that women still have primary responsibility for child-rearing. Distributions within the family are usually not discussed in theories of justice. Therefore, these theories can be criticized as paternalistic or at least unwittingly supportive of paternalism. Many theories of justice include specific rules about the protection of the private sphere as an area that is off-limits for the government and hence for distributive efforts. So theories of justice have made themselves powerless to address gender inequality.

Conclusion: What’s the best approach to distributive justice?

So, after all this and if you’re still with me, what do we take away? Strict equality and simple utilitarianism seem the least appealing. And any coherent approach has to include rules that apply both nationally and globally, has to be gender sensitive and has to reserve some attention to desert. Intergenerational concerns are also hard to avoid if we want to maintain coherence, although perhaps we could limit the impact of the demands of future generations by claiming that actual suffering is more urgent than possible suffering.

This brings back the concern of the burden justice imposes on people. If we want to take the best of all the previously described approaches to distributive justice, we necessarily end up with a “thick” conception of justice, imposing a heavy burden. We have to take into account all people currently living, not just our fellow citizens, as well as people not yet born. And we have to give special attention to gender. But at the same time we don’t want to have a theory of justice that’s so burdensome that people will say: thank you but no thanks. It’s fine to have a coherent theory of justice but if this coherence leads to impossible demands on people or demands they are not (yet) willing to accept, then the practical use of that theory is nil.

One possible reaction to this concern about the burden of justice is the adoption of a prioritarian approach, and more specifically a global gender sensitive prioritarianism with a time preference: the worst off should get the most attention. For example, poor women currently living in a patriarchal society should be the first beneficiaries of redistribution. The disadvantage of this is that it will force us to abandon, temporarily, a lot of people we don’t want to abandon, for example welfare beneficiaries in rich countries. Or we could bite the bullet and say with Peter Singer that the burden is what it is and we should carry it. Morality may be more demanding than we had initially thought. Rather than adapting morality in order to diminish its burden, we just accept the burden.

More posts in this series are here.

The Ethics of Human Rights (41): Human Rights of Past Generations?

(source, image by Andrew J Krug)

In a previous post I discussed the claim that future generations of people have human rights claims against those of us who are currently alive. I argued that they probably have. The “sister-claim” is, of course, whether the same is true for past generations. Obviously past generations had human rights, just like you and me and everyone who comes after us. The question however is whether current generations can violate the rights of past generations.

For starters, it’s obvious that past and future generations should be viewed differently. Future generations can incur harm following our actions, and can therefore, prima facie, invoke rights claims against us (namely for those types of harm that are rights violations). Past generations, on the contrary, can’t be harmed by current actions, since they are dead (assuming, theologically, that deceased people are gone; if you believe that your ancestors are in heaven watching you, your actions may still harm them in some sense, although I doubt they need human rights in heaven).

If past generations can’t be harmed by current actions because they are dead, then current generations shouldn’t and even can’t adapt their actions so as to respect the rights of past generations. However, perhaps we should carve out an exception here. Maybe there are cases in which we can convincingly speak about harm done to people in the past.

Take the following example. It’s reasonable to assume that past generations – like all generations – valued the future and posthumous state of their society or the world. For example, if freedom was important to them when they were alive, they may have felt distressed about the possible prospect of a posthumous totalitarian world government. They may have been distressed because they valued freedom and/or because they were concerned about the fate of their descendants. The harm to one’s descendants is typically viewed as something of concern to oneself. We all care about the fate of our children’s children’s children, even if we may never see them. So, past generations can be harmed by current (or future) generations if the latter are seen as a threat by the former.

However, I object to calling this harm a rights violation. The harm we’re discussing here may be immoral and even unjust, but the infliction of distress still isn’t a human rights violation. The actual totalitarian government and the harm it does – as opposed to the threat – are imposed on living generations, not past generations. So unless someone comes up with a better example, I guess it’s indeed useless to speak about present generations violating the rights of past generations.

More posts in this series are here.

The Ethics of Human Rights (40): Human Rights of Future Generations, Ctd.

Do future generations of people have human rights claims against those of us who are currently alive? Can we who are currently alive violate the human rights of future generations? And if so, what should we do to avoid it?

Future generations – as opposed to past generations – can incur harm following our actions, and can therefore, prima facie, invoke rights claims against us (namely for those types of harm that are rights violations).

One thing to keep in mind when discussing the rights of future generations is the following assumption: future people have the same values and preferences, and the same impediments to these values and preferences. Human rights are in essence tools to realize values and preference, and often take away impediments to values and preferences. Following this assumption, future generations can be said to require human rights to the extent that those currently alive impede their values and preferences. However, that need not be the case. Maybe future generations will have other values or preferences, or maybe they will face different impediments that can’t be removed by human rights, or maybe they’ll have found other ways to remove certain impediments. Maybe in the future there won’t be religion, scarcity, states or animosity, but different values and impediments. Still, I’ll keep the assumption in place, both because I think it’s likely that future generations will be much like ourselves, and because the concept of “human rights of future generations” wouldn’t make any sense if that is not the case (and I really want to write this post).

Actions which affect the human rights of future generations

The easy thing to understand about the harm we, the present generations, can do to future generations is the consequentialist part: it’s fairly obvious that, given the stated assumption, some of our – potential and real – current actions can or will have negative consequences for future generations, and that some of these consequences can become worse as time goes on (see this post on the effect of time on rights violations).

Take resource depletion for example. If we now squander all or a substantial part of the earth’s oil reserves, it’s likely that future generations, and particularly those generations somewhat further in the future, will have a standard of living far below the minimum required by human rights (again, given the assumption that they need fossil energy because their preferences haven’t changed or because they haven’t found an alternative).

Present generations therefore exercise power over future generations, much like a state exercises power over its citizens. And much like a state, the present generation can be said to be bound by the human rights of those who are subjected to its power. With the exercise of power comes the duty to respect the rights of those who are subjected to power.

Risk

There may be a problem with all this, however. Contrary to the harm that is inflicted on currently living people, by their state or their powerful fellow citizens, the harm inflicted on future generations is rarely if ever a certainty, and never verifiable.

If we again take the example of resource depletion (but many other examples would do just as well), it may be the case that future generations will have invented the technology necessary to adapt to a world without oil. The chances of this happening may be small or may be large – we just don’t know and so we can’t take it into account in our considerations as to whether to adapt our behavior as a way to respect the rights of future generations.

We may assume that our actions (or inactions) can lead to rights violations in the future, but we’re never certain. So should we adapt our current behavior or not? We can verify if certain types of behavior lead to rights violations in the present, and – if they do – consequently adapt our behavior. (If lowering taxes increases poverty then we should avoid that policy). We can never verify if certain types of behavior lead to rights violations in the (distant) future. We can only guess that there’s a risk, perhaps based on similar past or present experiences. But the quality of those guesses remains uncertain.

Hence, it would seem that future rights violations can’t have the same moral standing as present and real rights violations. Or maybe they’re not even rights violations at all. Indeed, we normally don’t view the risk of a rights violation as equivalent to or as equally damaging as a real violation. Or maybe a very, very high risk of a future rights violation – assuming a good guess – equates an actually occurring rights violations?

I think all this is to some extent moot. When faced with a risk of a rights violation – or better the perception of a risk – the moral thing to do is to try to avoid the rights violation from occurring in the future, and adapt one’s behavior, in the same way as one would do when faced with a risk of causing a violation of the rights of people currently living. So the uncertainty of violations of the rights of future generations makes them no different, in some respects, from violations of the rights of current generations. Also the latter are – ex ante – uncertain, and the moral thing to do is always to adapt one’s behavior in order to minimize the risk of immoral behavior.

Some would claim that comparing future violations of the rights of living people to future violations of the rights of future generations is a mistake. Living people have rights which can – given a certain risk – be violated in the near or distant future (depending on the lifespan of those people) by our current behavior. Future generations on the other hand don’t exist, yet (and may never exist, see below), and hence can’t have anything, including rights. However, they will have rights in the future, when (and if) they live. To claim, as I do here, that we can violate future rights now doesn’t mean that we have to claim that these future rights have to exist now.

Tradeoffs between the present and the future

What to do when faced with a tradeoff between violating the rights of future generations and violating the rights of present generations? It depends on the best risk estimate of either, as well as the gravity and the number of people involved in either case, keeping in mind the fact that risk, gravity and number estimates of violations of the rights of present generations are probably better (because we can test them). Given this relative ease, we should give additional weight to the simple fact that we are dealing with really existing people as opposed to potential future people.

For example, we know that closing down an opposition newspaper is very likely to stifle free speech for a significant number of currently living people. We’re not absolutely sure of this consequence, but the risk is very, very high. We know this risk because we or others have tested it in the past. Now, suppose that we should choose between this policy and another one, for example allowing a substantial increase in green house gasses. Suppose also – I know, it’s weird but bear with me – that these two policies are, for some unspecified reason, mutually exclusive. The policy of increasing green house gasses risks putting future generations in danger of survival. When comparing the costs of both policies, we conclude that the level of risk is roughly similar (say 90% probability that the expected consequences – respectively stifling free speech and increased global warming – will indeed occur), but the gravity of the consequences is obviously much greater in the case of the second policy, as are the number of people concerned. Yet, we may still reasonably choose to implement the second policy and avoid the first because we’re more certain of our risk estimate for the first.

Actions which affect the existence or composition of future generations

Let’s take another example of current actions that have an impact on future generations: in this example, our actions do not deplete resources but have an influence on the very existence of future generations. We may destroy the earth for instance, making the very existence of future people impossible. Or we may intervene in procreation in such a way that future people will be completely different people than those who would have lived had we not intervened (that’s Derek Parfit’s so-called non-identity problem).

In both cases, our actions affect the very existence of future people, rather than their rights. And an effect on the very existence of people can’t, in itself, be considered a rights violation since there’s no right to exist. I’ve argued elsewhere why this is the case. (Of course, actions which affect the existence or composition of future generations can have, additionally, other consequence beside the existence or composition of future generations, and some of those other consequences can imply rights violations).

In other words, only the rights of actually existing persons – whether they exist now or in the future – are important. Potentially existing persons who will never exist because of our actions, do not count. Or, putting it in yet another way: the non-identity problem is not a problem in this context. The fact that the very existence or composition of future generations depends on our actions doesn’t have, in itself, any consequences for the human rights of future generations. The impact of our current actions can result in rights violations of future generations, but not if this impact is limited to the existence or composition of future generations. And the reason for this is the absence of a right to existence.

Duties instead of rights?

In order to avoid the problems created by talk of rights of future generations – namely the problems of uncertainty and of tradeoffs – it would perhaps be better to abandon all talk of rights of future generations, and focus on the duties of present generations towards future generations. And yes, there can be duties without corresponding rights: if I have a duty to respect the promises I make to you, you don’t have a corresponding human right to have these promises respected.

More on the rights of future generations here and here. More on risk and human rights here. More posts in this series are here.

The Ethics of Human Rights (39): The Effect of Time on Human Rights Violations

What is the effect of the passage of time on violations of human rights?

1. Perhaps there’s no effect: a crime remains a crime, and a rights violation remains a rights violation, even if all the victims have died long ago and their descendants don’t continue to suffer from the fact that their ancestors were wronged.
2. Perhaps the passage of time erodes the severity of rights violations.
3. Or perhaps the passage of time makes rights violations worse.

I think all these three effects can occur. Let’s look at them in turn.

Time has no effect

We have to distinguish this kind of case from cases in which the descendants continue to suffer from the harm done to their ancestors (I’ll deal with those latter cases below). What we’re talking about here are rights violations that have occurred many years ago, perhaps centuries ago, but don’t have an impact on the distant descendants of the initial victims. (All severe rights violations are likely to have some impact on a generation or two of descendants, but the question here is how the passage of time affects rights violations, and hence we need to imagine a sufficiently long period of time).

An example could be the execution some centuries ago of a group of political dissidents. Contrary to the case of slavery for example, you can’t reasonably claim that the descendants of the dissidents still suffer from the original rights violation centuries after it has happened. What you could claim, however, is that the passage of time didn’t reduce or increase the importance of the original rights violation: it’s still a stain on the nation’s self-image.

Image via Wikipedia

The significance of the original rights violation doesn’t lie in the impact it has on descendants who are presently living – like it’s arguably the case with the impact of slavery on currently living African Americans for instance. It’s significance lies in the impact on the whole of the nation. The rights violation took place in the past, but it didn’t end there. The victims are dead, but the crime reverberates throughout time.

So what should we do? We obviously can’t compensate the victims. They’re gone. We can’t compensate the descendants because they don’t suffer like for instance the descendants of slaves suffer. What we can do to make things right is to acknowledge, to apologize, to memorialize etc. Otherwise, no amount of time will reduce the impact of the original rights violation.

Time erodes the rights violation

Case number 2 seems counterintuitive. How can the simple passage of time make things better? We’re not talking here about things getting better simply because people forget or have a lack of historical sensitivity. Something more profound can cause historical rights violations to dissipate or even disappear. Jeremy Waldron has given an interesting example of the way in which the passage of time diminishes or even removes the impact of an injustice.

Say tribe A steals a water hole from tribe B after it has used force to remove tribe B from the territory. That’s, in some sense, a violation of the property rights of tribe B. However, after some time, an ecological catastrophe occurs, resulting in the said water hole to become the only one in a vast area. It can be argued that tribe A now has a right to use the water hole, and to do so to the same extent as tribe B. If tribe A grants equal access to tribe B there is no longer an injustice.

Another example is a rights violation that has an impact on the descendants of the original victims, say slavery. These descendants continue to suffer from the harm done to their ancestors, as is arguably the case for slavery in the U.S. However, even if the descendants suffer, it’s likely that the suffering diminishes over time. We can assume that both suffering and the struggle against suffering are to some variable extent attributable to people’s own actions (or inactions) and to current events, and not entirely to historical events. So if we decide to pay restorations to descendants of the victims of historical rights violations because the consequences of these rights violations reverberate to some extent throughout time in the sense that they still harm people today, we should apply a so-called discount rate.

Time makes things worse

An example of case number 3 is resource depletion. If past (or current) generations squander(ed) all or a substantial part of the earth’s oil reserves, it is likely that their descendants will have a standard of living far below the minimum required by human rights, and that the standard of living will go down as time goes by.

The Ethics of Human Rights (38): Should People Be Equal or Should They Have Enough?

There are people who believe income inequality is a major problem – and I’m one of them – and there are others who say that the real problem isn’t a relational one but rather one of absolute means. Harry Frankfurt for example argues that it’s not important whether a person has less than another regardless of how much either of them has. What is important is whether people have enough of what they need for a decent human life.

Sufficientarianism

This so-called sufficientarian approach – as opposed to the egalitarian one – is supposedly not comparative or relational but humanitarian. It focuses on the alleviation of absolute suffering and deprivation instead of relative inequalities. Rather than diminishing the distance between the worst off and the best off, it wants to improve the situation of the worst off. The latter goal can be the result of the former, but doesn’t have to be. Or it can promote the former but doesn’t have to. For example, imagine a society where incomes are highly unequal but where none of the people at the wrong side of this inequality are below a threshold value of wellbeing (the threshold determines the difference between suffering and non-suffering). So, according to the sufficientarian approach, there’s no need to diminish inequality in such a society. There’s no need to do anything, in fact. Conversely, you can have a society – not so imaginary perhaps – with low levels of inequality but almost all of the people live below the threshold. Tinkering with inequality will not do much good in that society. What you have to do is raise the living standard of almost all the population.

Income inequality for sufficientarians is relevant only to the extent that the wealth of those who are better off is a useful means to alleviate the suffering of the worst off. Diminishing inequality isn’t a goal in itself, and inequality doesn’t do any harm in itself.

Image via Wikipedia

It’s an appealing view, and I have been tempted myself. Even if you believe, as I do, that inequality can be harmful no matter what the income levels of the worst off are (harmful to democracy for instance) and that more equal societies almost always do better, you may still agree that the most urgent priority is the suffering of those who are worst off. Income inequality should then only be tackled afterwards. Anyway, tackling that first priority is a good step on the way to more equality; helping the worst off will reduce inequality almost automatically I would believe.

However, appealing though it may be, is sufficientarianism really all that much different from egalitarianism? As soon as you talk about the “worst off”, you have already engaged in comparative and relational analysis, by necessity. Another problem with sufficientarianism is the setting of the threshold: that is bound to be somewhat arbitrary. Of two people in very similar situations only one will receive help. You may say that cut offs are always inevitable, and perhaps that’s true, but sufficientarianism makes them painfully obvious to those concerned. People just above the threshold are told that they don’t matter, even if their neighbors who are just below matter a great deal. And finally, basic needs change over time, hence also the meaning of “suffering”. Will sufficientarians keep the threshold fixed, or allow it to rise over time? In the latter case, the difference between their approach and that of egalitarians is again rather small.

Prioritarianism

Some of these problems are sidestepped by a similar view called prioritarianism, made famous by Temkin and Parfit: benefiting people is more important the worse off they are. No need for a threshold here. When having to choose between two policies, you always take the one that is best for the worst off, whatever their level of well-being.

Benefits to the worse off matter more than benefits to the relatively better off. A benefit has greater moral value the worse the situation of the individual to whom it accrues. If we have some benefit to distribute, and this benefit has a value of x (no matter how we define “value”), it’s better to give this to the worst off than to anyone else. Strict utilitarianism, as opposed to prioritarianism, doesn’t care about who gets the benefit of x, because who gets it doesn’t change overall well-being. However, utilitarianism does take into account the possibility of the diminishing marginal utility of something: lots of money for a rich person isn’t as useful as the same amount of money for a poor person. But when comparing two people who would benefit just as much from such an amount of money, utilitarianism – as opposed to prioritarianism - doesn’t care who gets it; either person, the better off or the worse off, can get it. Prioritarianism doesn’t merely say that the worse off person should get it, but also says – contrary again to utilitarianism – that we should benefit the worse off even if that means diminishing total well-being; e.g. we can harm the interests of the better off if that means improving the well-being of the worse off:

Imagine choosing between two outcomes: In outcome 1, Jim’s well-being level is 110 (blissful); Pam’s is -73 (hellish); overall well-being is 37. In outcome 2, Jim’s well-being level is 23; Pam’s well-being level is 13; overall well-being is 36. Prioritarians would say that outcome 2 is better or more desirable than outcome 1 despite being lower than outcome 1 in terms of overall well-being. Bringing Pam up by 86 is weightier than bringing Jim down by 87. If we could move from a society described by outcome 1 to one described by outcome 2, we ought to. (source)

So prioritarianism avoids some of the counterintuitive implications of strict utilitarianism. And it also avoids the equally counterintuitive implications of strict egalitarianism. The latter may demand bringing everyone down to the level of the worst off while benefiting no one. Prioritarianism on the contrary does not propose a move toward more equality if that doesn’t benefit the worse off. And finally, it avoids some of the practical problems of sufficientarianism, while maintaining the appeal of the sufficientarian focus on the absolute deprivation of the worst off.

More on income inequality and relative poverty. More posts in this series are here.

Related Articles

• The Spirit Level: how ‘ideas wreckers’ turned book into political punchbag (guardian.co.uk)
• The Spirit Level is not on the level | Natalie Evans (guardian.co.uk)
• Un-Level Ground (online.wsj.com)
• Income Inequality: Who’s Really to Blame? (time.com)
• Income Inequality and Financial Crises (nytimes.com)
• America Should Rethink Self-Destructive Income Inequality: Financial Times Deutschland, Germany (themoderatevoice.com)
• Letters: Spirited defence of a level playing field (guardian.co.uk)

The Ethics of Human Rights (37): Luck Egalitarianism

Luck egalitarianism is a school of thought in moral philosophy that focuses on the injustice of bad luck, and one type of bad luck in particular: it wants to eliminate as far as possible the impact on people’s lives of bad luck that falls on them through no fault or choice of their own. One type of luck that we don’t bring on ourselves is the luck – or lack of it – associated with the circumstances into which we are born. We don’t deserve the circumstances, family, class or country of our birth. We don’t even deserve our talents and abilities (or lack of them), to the extent that these are not developed through effort.

There’s a natural lottery (the lottery that decides which talents and other biological potentials or inabilities we are born with) and a social lottery – as Rawls called it – (the lottery that decides which political, social and economic circumstances we are born into, including our family and country of birth). Bad luck in either of these lotteries can lead to vastly unequal opportunities and outcomes, none of which we deserve.

Luck egalitarianism states that only those inequalities that are wholly attributable to the responsible choices we make, and not to differences in our unchosen circumstances or abilities, are morally acceptable. The focus on responsible choices means that, once you’re an adult and capable of responsible choices, luck egalitarianism considers that its work is done. Its focus is on birth and early life, because that’s when misfortune of circumstances and nature take effect, and that’s when their unequal consequences have to be corrected. Opportunities have to be equalized. What people do in adult life with their equalized opportunities is their responsibility and of no concern to society or justice.

There are two moral intuitions at play here:

• It’s a bad thing for people to be worse off than others through no fault of their own. People shouldn’t be disadvantaged if they don’t deserve it.
• It’s a good thing for people to be better off than others if that advantage is the result of their efforts. People should be rewarded when that’s what they deserve.

In other words, we should avoid unjust punishment and promote just reward. Inequalities and different opportunities that are the result of luck rather than choices are unjust. Inequalities produced by merit are just.

In the ideal luck egalitarian society, there are no inequalities in people’s life prospects except those that arise through processes of voluntary choice or faulty conduct, for which the agents involved can reasonably be held responsible. Richard Arneson (source)

That means, positively stated, that disadvantages for which a person is not responsible and which result merely from bad luck, establish a claim to correction or, if correction is impossible (e.g. blindness), compensation (e.g. provision of guide dogs).

[I]t is the responsibility of society – all of us regarded collectively – to alter the distribution of goods and evils that arises from the jumble of lotteries that constitutes human life as we know it … Distributive justice stipulates that the lucky should transfer some or all of their gains due to luck to the unlucky. Richard Arneson (source)

Some such disadvantages are physical disabilities, lack of talent, inadequate parents, being born in a poor African country etc. All other disadvantages, inequalities or differences are the outcome of choice and are therefore the individual’s responsibility. She should bear the costs of her own choices and can’t demand compensation. And when compensation is required, it should come only from that part of others’ good fortune that is undeserved.

If we manage to redress or compensate inequalities resulting from luck, the luck egalitarianism perspective can accept all remaining inequalities, because those remaining are deemed to be the result of people’s own choices and relative merit. Only equality of opportunity counts. Once people are adults, and all opportunities have been equalized, no further intervention is needed.

Some problems

Luck egalitarianism is appealing because of its focus on undeserved misfortune. We are appalled by people suffering from circumstances or endowments which they don’t deserve because they didn’t choose them and were simply born with them. It’s also appealing because, contrary to many other egalitarian theories, it provides room for merit, personal responsibility and choice.

However, luck egalitarianism is also problematic. First of all, it doesn’t seem right to abandon people who suffer deeply because of their own choices. Even if suffering is people’s own fault there are times when it is morally required to help them. Not always of course, because we don’t want to give people incentives to act irresponsibly (moral hazard etc.), but sometimes. So luck egalitarianism seems incomplete, to say the least, because it offers no aid to those it labels as irresponsible, whatever misery they happen to find themselves in.

Does it offer aid to those who act responsibly but have bad luck anyway? For example, those who chose to take a risk in a very prudent fashion, but ended up miserably because they misunderstood the risks, because the risks were unknowable, or because a risk is a risk after all? Some versions of luck egalitarianism do, fortunately, but that means they have to complicate the theory: luck has to become a much broader concept than simply the lottery of birth or nature.

And it’s a serious complication: if more kinds of bad luck than simply bad luck at birth or bad luck because of nature are unjust, then we can only abandon people who have acted very carelessly. People who, after prudent assessment of risk, engaged in an activity but suffered a bad outcome notwithstanding an initial positive assessment of risk, can demand compensation of their bad luck, like people having the misfortune of being born blind or in a poor family or without talent. None of them deserve their bad luck or are responsible for it. The imprudent, however, still deserve what they get. They can’t be said to have bad luck since they engaged in an activity knowing full well the risks. But how can we possibly assess the level of prudence? Doesn’t it mean that we have to take people at their word? That doesn’t sound very practical. And how is this extended version of luck egalitarianism different from normal egalitarianism? It seems to encompass almost as much equality.

Luck egalitarianism is not only unnecessarily cruel in some cases – unnecessarily because we often can do something to help the undeserving sufferers – but also dangerous. It’s not always so clear whether people act responsibly or not. That means that luck egalitarians risk abandoning a miserable person deemed to have acted irresponsibly, when in reality – who knows? – her misery was perhaps not (entirely) her own responsibility. For example, a person can have an unknown genetic predisposition to risk taking. So she will only appear to act irresponsibly.

Because of the very common difficulty to separate responsible actions from irresponsible ones, luck egalitarianism provides an incentive to deny responsibility and to hide it. If you can convince people that you weren’t responsible, then you can claim compensation. This incentive in turn provides an incentive to the state – which is supposedly the agent who should correct for bad luck – to snoop and invade people’s privacy (even their genes) in order to separate the really responsible from the merely apparently responsible, or the prudent from the imprudent.

And also those who really have bad luck aren’t treated very fairly by luck egalitarianism. In the words of Elisabeth Anderson: it offers humiliating aid to those it labels innately inferior. People who have had bad luck in the natural or social lottery of birth have to reveal to the whole of society that they have no talent, for example.

Another problem with luck egalitarianism is the exclusive preoccupation with inequalities resulting from luck. What about inequalities resulting from government policy, capitalism, discrimination etc. Oppression and discrimination are replaced by bad luck as the main egalitarian concern. The natural inequality in the distribution of luck overshadows the artificial inequalities resulting from social interaction. This is quite a loss, indicating again that luck egalitarianism is at best an incomplete theory.

This problem with luck egalitarianism has to do with vagueness of “choice” in the theory. Elisabeth Anderson again: if a robber offers someone a choice between her money and her life, is the outcome just? According to luck egalitarianism the answer is “yes” because the outcome is not the result of the lottery of birth or bad luck, but the result of choice. The fact that inequalities are the product of choices hardly justifies them: a choice within a set of options does not justify the set of options itself. More relevantly for equality: the choices can be limited, not by a robber, but by racism for example.

So we need more than equality of opportunity at the start of life; equality also means focusing on institutional arrangements that protect, widen and equalize people’s choices over the entire course of their lives (with the exception of those people who voluntarily, through their own choices or excessive risk taking, have reduced their choices; the exception to this exception being people who landed themselves in a situation in which “diminished choices” equals utter suffering, see above).

Also, what does “being born with” mean? Can you be born with a disagreeable character? And if it’s so disagreeable that nobody wants to give you a job or buy your goods or services, should you be compensated for this “bad luck”?

More on desert, merit, risk, equality of opportunity, and equality in general. More posts in this series are here.

Related Articles

• Equality & the talent myth (stumblingandmumbling.typepad.com)
• Do people think of themselves as further left than they really are? (crookedtimber.org)
• Epistemic Egalitarianism (andrewsullivan.theatlantic.com)
• Meritocracy Concept Starts at Grade School, Says Study (time.com)

The Ethics of Human Rights (36): A Human Right to Existence?

Can people have a right to exist? If there is such a right then it has to be distinguished from the right to life. In fact, what I’m talking about here is a right to be conceived and/or born, not a right to continue your life after you’re born.

The supposed right to exist is sometimes used to invalidate abortion, and indeed we should distinguish between two possible meanings of the right to exist: the right to exist of a fetus and the right to exist of a merely potential or possible human being (e.g. a human being as the potential child of parents considering conception). I personally would argue that neither a fetus nor a potential human being have a right to exist.

1. A fetus doesn’t have a right to exist in the sense in which we understand that right here, not because we are allowed to “terminate” it at will, but because it is already an existing human being (life for me starts at conception, which doesn’t mean that I rule out abortion completely). However, other people who are more willing to tolerate abortion often equate a fetus with a mere potential human being and for them the distinction I make here may seem to be irrelevant.
2. Potential human beings, as I understand them (see above), don’t have a right to exist either, in my opinion. If you want to argue the opposite, you would have to claim that all or most possible human beings (given some exceptions) should be born, and that’s physically and biologically impossible. All combinations of sperm and egg should then exist, but once a sperm fertilizes an egg it can’t fertilize another egg. Protecting the right to exist would also mean outlawing spontaneous abortions and male masturbation*, and that’s wildly counterintuitive. It would also mean a correlative obligation to procreate, which is also counterintuitive.

More about human rights and sex is here.

* Congratulations readers, you’re the first people to discover the link between masturbation and human rights!

The Ethics of Human Rights (35): The Global Origins and Foundations of Human Rights

As Jacques Maritain put it when discussing the work on the Universal Declaration of Human Rights:

the nations should and could reach practical agreement on basic principles of human rights without achieving a consensus on their foundations. (source)

In other words, different countries and cultures in the world can – and could in 1948 – agree on the list of human rights as long as nobody asks them why, because they all will have different reasons. Even if we take the charitable view and assume that no one accepts the UDHR and human rights in general for opportunistic reasons (because it reduces international pressure and confers legitimacy for example), we still have to say which substantial reasons different nations, cultures or religions tend to use in order to justify the importance and acceptance of human rights. These reason will emanate from their own culture, religious texts, traditions and history.

To some extent, different cultures can and do find their own foundations of human rights. In this sense, human rights aren’t simply western rights which are imposed on or adopted by the rest of the world. Of course, some of these foundations will be universal because some values are universal in the sense that they belong to all cultures in the world. Homicide, for example, is universally considered to be immoral. In other cases, however, different cultures will find different reasons to justify human rights. For example, the right to free speech in the West will be viewed as justified by the necessity of counterbalancing government power, whereas in other cultures it may be viewed as something to promote prosperity or religious tolerance.

There’s a nice German term for this: human rights are said to be Begründungsoffen, their justification or foundation is open in the sense that they can be justified by different religious, cultural or intellectual traditions. That’s a big advantage. One can legitimately object to making universal claims grounded on such particularized foundations as Christianity, dignity, likeness of God etc. Muslims probably won’t accept human rights if they can only be justified by the teachings of Jesus. They can be justified in this way, and that’s a powerful justification for Christians, but they can also be justified in other ways. There isn’t one ultimate justification for human rights. All different justifications have a particular plausibility for a certain group of human beings, whether this group is a culture, a nation or a religion.

These different cultural paths to human rights, based on different cultural and historical resources, should, however, not discourage dialogue. If you’re convinced that different cultures can find their own way to human rights, you may conclude that intercultural dialogue isn’t necessary. It is necessary, because it’s utopian to believe that each culture will find its way to an identical set of human rights or an identical understanding of human rights. The moralities of all or most cultures or groups will condemn homicide, torture and slavery, but will perhaps provide different exceptions. And other values, such as free speech or freedom of religion may not find an equally strong justification in all cultures. It’s unlikely that the entire set of human rights as present in the Universal Declaration will find a strong and broad justification in all cultures. There’s still a lot of disagreement between cultures on the foundation, importance and extent of things such as discrimination, religious freedom etc.

That is why human rights treaties and declarations don’t just codify a universal moral consensus but also try to steer different moralities into a certain common direction. They want to change norms rather than just describe them. In other words, they formulate a justified morality rather than an existing morality. They want to create a consensus, not describe one. Creating a consensus is impossible if all cultures limit themselves to independently and solipsistically justifying human rights using only their own resources. Intercultural dialogue is necessary, and this dialogue will not just be the exchange of descriptions of different moralities but will try to go beyond existing moralities and formulate a consensus that is wider that the sum of existing norms. It will contain a set of norms that are based not solely on existing moralities but also on justified reasons. Not just on the sum of different moral codes but on the agreements of people discussing about good reasons for human rights, reasons that go beyond “my God/prophet/history/tradition says …”. This dialogue will result in a wider global agreement on the importance of human rights, an agreement that can ultimately result in greater respect for human rights.

For the benefit of those who don’t even believe in the first step – finding the sources of human rights in different cultures – here’s a sample of those sources:

• Christianity, and more generally the Abrahamic religions – so that includes Judaism and Islam – postulate the equality before God. All human beings are equal creatures of God, and created in the image of God. That notion bestows a sacredness to life that is not a function of national origin, status or affiliation. This is also apparent in the Judaic maxim that he who destroys one person has dealt a blow at the entire universe and he who saves one person has sustained the whole world.
• Protestantism has developed the freedom of conscience, the right and responsibility of every man to worship as his conscience dictates, to make his own judgments, uninhibited by a religious hierarchy.
• The Indian emperor Ashoka (third century BC) is famous for the Edicts of Ashoka, a collection of 33 inscriptions on the Pillars of Ashoka, as well as on boulders and cave walls found throughout India. These are social and moral precepts in favor of tolerance and individual freedom, the doing of good deeds, respect for others, generosity, fairness in the exercise of justice, caution and tolerance in the application of sentences, and kindness to prisoners. His was the first welfare state, providing free education and hospitals.
• Akbar, the great Mughal emperor in sixteenth century India, was famous for his religious tolerance.
• The Qur’an claims that there can be no compulsion in religion. Islam also knows the principle of equality and generosity: “Not one of you (truly) believes until he wishes for his brother what he wishes for himself” (An-Nawawī’s Forty Hadith). Caliph Omar, in the 7th century: “Only decide on the basis of proof, be kind to the weak so that they can express themselves freely and without fear, deal on an equal footing with litigants by trying to reconcile them”.
• Mencius, arguably the most famous Confucian after Confucius himself, has said: “Try your best to treat others as you would wish to be treated yourself, and you will find that this is the shortest way to benevolence”.
• Lao Tzu, a central figure in Taoism, has said: “Regard your neighbor’s gain as your own gain and your neighbor’s loss as your own loss”.
• In the Mahabharata, one of the major Sanskrit and Hindu epics, it says: “This is the sum of duty: Do naught unto others which would cause you pain if done to you”.
• Siddhartha (the birth name of the founder of Buddhism, Gautama Buddha) has said: “What is displeasing and disagreeable to me is displeasing and disagreeable to others too. How can I inflict upon another what is displeasing and disagreeable to me?” In Buddhism, the human perfection that is sometimes called “enlightenment” consists, in part, in discerning the transcendent truth that the Other is infinitely precious and in acting toward the Other in accord with that discernment, namely, with compassion (in the words of Thich Nhat Hanh).
• Baha’i, a monotheistic religion founded in nineteenth-century Persia, claims: “Lay not on any soul a load which ye would not wish to be laid upon you, and desire not for any one the things ye would not desire for yourselves. This is My best counsel unto you, did ye but observe it”.
• Jainism is an ancient religion of India that prescribes a path of non-violence towards all living beings: “One should treat all creatures in the world as one would like to be treated”.

Granted, not all of these moral precepts can be immediately translated into recognizable human rights, and many precepts underlying human rights are difficult to find here. Yet, we can claim that all these cultural sources can be used, to some extent, to justify human rights.

More posts in this series are here.

Related Articles

• Human Rights in History (3quarksdaily.com)

The Ethics of Human Rights (34): Human Rights, Moral Universals, and Cultural Relativism

The universality of human rights is arguably their most important attribute. I won’t repeat my arguments in favor of this claim (if you’re interested, go here, here, here and here). “Universality” here obviously means something like “universal value”, “universal importance”, “universal moral claims” or “universal desirability”, not factual universality. Human rights aren’t universally protected. If they were, we would hardly need them. I also won’t repeat what I’ve said before on the means to go from merely moral or legal universality to actual universality (some posts here, here and here).

Now, I’ve gone so far as to claim that human rights not only should be universal values (for reasons specified elsewhere), but in fact are universal values (see here and here for instance). The fact that they are regularly violated doesn’t change the equally salient fact that they are universally recognized as important moral goals.

However, claims of the existence of so-called moral universals, and especially claims that some moral values should be universals, immediately provoke the counter-claim of cultural imperialism. Supposedly, different cultures have developed their own moral codes, adapted to their own identity, circumstances and history, and moral diversity is a more important goal than moral universals. This counter-claim is often categorized under the heading of cultural relativism.

Personally, I believe that moral diversity and cultural identity are indeed important values, but also that moral diversity and relativism can be and often are used as a justification for rights violations that are contingently rather than culturally motivated (see here, here and here for my criticism of cultural relativism). And anyway: the existence or the promotion of moral universals in some areas of life doesn’t have to exclude moral diversity in other areas. It’s not because some values are or should be moral universals that all other values, cultures or identities are in danger of disappearing altogether. We can have both: moral universals and moral diversity. And both can reinforce each other if we manage to argue convincingly that some moral universals aren’t just export products, or the result of colonialism or of the omnipresence of the western type of state. Indeed, I believe that globalization, assimilation, colonialism, trade and universality of the modern nation state all contributed to the existence of moral universals, but also that some universals are the product of a global convergence of genuinely local moral rules. (I’ll try in a future post to give an overview of the origins of human rights in different cultures of the world). If we can show that all or most cultures in the world have independently arrived at the same or similar moral rules, then we have moral universals that are build on respect for moral diversity and not just on the export and imposition of one morality on the rest of the world.

However, that’s extremely difficult to prove. It’s relatively easy to show that some moral values are in fact moral universals, but it’s much harder to show why they are moral universals: are they because they have been imposed through colonization, promoted through trade etc. or because they have grown “organically” from within the different cultures that have converging rules? Still, what we can argue is that when there are universals, the burden of proof is on those wanting to argue that they are not genuine but the result of external imposition. The existence of universals is a prima facie argument for their “genuineness”. Also, what’s genuine? Even values that have been imposed or imported a long time ago can have become the genuine morality of the people concerned.

Some evidence of the actual existence of moral universals comes from a paper about a comparative law investigation into the universality of the prohibition of homicide. Such a prohibition is an indication of the moral value of the right to life. The paper shows that this prohibition is in fact universal. Of course, the paper focuses on the law, and the law is at best an imperfect witness of morality (Marx would argue that it is rather an instrument of immorality). But the law is easier to find than morality. And – again – the burden of proof is on the opposing side: if the law indicates universality – as it does in this case and in many others – then it’s up to those claiming non-universality to give counter-evidence.

More posts in this series are here.

The Ethics of Human Rights (33): Different Types of Justice and the Link to Equality

same height shoes

(source, some people are still looking for their size)

What I want to do here is list some of the types of justice that are commonly identified, and see how they are connected to the concept of equality in order to find out if the traditional link between justice and equality holds up to scrutiny. So let’s first have a look at some possible meanings of the word “justice”.

1. Distributive justice

Distributive justice (often called social justice) is about the allocation of resources and burdens. Justice may require that this allocation is done in accordance with certain rights (e.g. an equal right to a basic standard of living), merit or other criteria. This type of justice is about the fairness of what people get (e.g. basic goods, recognition, rewards etc.).

2. Contributive justice

Contributive justice is the opposite: it’s about what people are expected or able, not to get, but to contribute to society. It’s mainly about work: should people be required to be productive members of society, and if they are, should they have a right to organize their contribution in a fair and just way (for example, is it fair or just that some people are bound to menial tasks while others have much more interesting work?).

3. Criminal justice

Criminal justice is about rectification of interpersonal harm, about the restoration (when possible) of an initial position disturbed by harmful behavior, about retribution and punishment, and about restitutions or reparations of previous harm. Criminal justice is therefore often called corrective justice, rectificatory justice or punitive justice. And sometimes these words are supposed to refer to entirely different (sub)types of justice because there can indeed be substantial differences: criminal punishment may be intended to correct or rectify a wrong (e.g. theft), but it can also be used as plain retribution or even vengeance when the wrong is such that it can’t be corrected (e.g. murder).

Some argue that criminal justice is a type of distributive justice. One interpretation of distributive justice sees it as the distribution or allocation of rewards and punishments according to merit or desert. Punishment for a crime is then distributive justice. But that seems to be stretching the meaning of the word “distribution”. A judge in some case does not distribute anything from the offender to the victim and the victim recovers nothing (e.g. in the case of murder). Those are precisely the cases in which criminal justice is not corrective. I think it’s preferable to keep these concepts separated.

Criminal justice includes the work of the Courts, but also less formal corrective or reparative models, such as truth commissions, apologies etc. Transitional justice, some forms of transgenerational justice, mob justice or vigilante justice also fall under this header.

4. Procedural justice

Procedural justice, unlike the previous types, isn’t about certain just or fair outcomes (just distributions, contributions or punishments), but about fair procedures. The focus is on the processes of arriving at a certain decision (judicial, political etc.). The rules governing the fairness of trials are an example of procedural justice, as are the rules governing legislation in a democracy. People will differ over the fairness or correctness of the legal or political decisions, but they can agree on the fairness of the process. In many cases, defendants in criminal trials or losers in democratic elections may be disappointed in the outcomes but accept them nonetheless because they see that there was fairness in the process; for example, they were allowed to make their case in public with equal resources, there was an impartial judge who weighed the different arguments and so on.

5. Other types

Other types of justice include divine justice (usually a mix of distributive justice for the poor and criminal justice for the sinful), poetic justice (the fateful infliction of harm upon the harm-doer), instrumental justice (doing justice in order to achieve something else, e.g. deterrence) etc.

The link to equality

How are these different types of justice linked to equality?

Distributive justice is often seen as the most egalitarian type of justice, because most interpretations of distributive justice see it as a kind of equalizer of basic goods. Everyone needs a fair share of basic goods, and that means an equal share. Poverty reduction is typically seen as an exercise in distributive justice. However, distributive justice doesn’t need to be egalitarian. Aristotle for example claimed that justice wasn’t merely equality for the equal but also inequality for the unequal: we usually sense that there is an injustice when a teacher gives the same grades to everyone, the meritorious as well as the lazy. However, you could say that even this merit-based type of distributive justice implies equality, namely equality between reward and merit.

Contributive justice as well focuses on an equal contribution in life’s pleasant and unpleasant tasks. Regarding criminal justice the picture is more blurred. Originally, criminal justice focused heavily on equality. The biblical lex talionis – an eye for an eye – was an explicitly – and horrendously – egalitarian form of punishment. The wrongdoer should suffer the same injury as his victim. That’s not fashionable anymore, but still we see that criminal justice strives towards some degree of equality or at least proportionality or correlation between the type of harm inflicted and the nature or weight of the punishment. It’s unfair to impose a life sentence for the crime of not paying your debts, or a fine for murder. Strict equality is, of course, often impossible: you can’t execute Hitler 6 million times. But sometimes it’s possible – i.e. in the case of theft or property damages – and we can demand full correction or rectification from the criminal. Most of the time, some kind of proportionality is more appropriate, not only because we want to avoid cruel punishments but also because we don’t have any other choice.

Procedural justice as well relies heavily on equality: an equal right to call witnesses, equal weight given to testimony, equal duration of arguments, equal access to courts and media etc. Even poetic justice is a form of equality because the wrongdoer suffers the same harm as he inflicted on or intended for someone else. In the story of Esther, for example, Haman is executed on the gallows he prepared for someone else. Something similar can be seen in all examples of poetic justice.

So, whereas justice is not the same as equality, the links between these two concepts are quite strong.

The Ethics of Human Rights (32): Human Rights and the Chain of Causation

Who causes human rights violations? Causation is a key factor in the attribution of moral and legal responsibility, so it’s an important topic in human rights talk. The problem is that there is often not one single cause of rights violations, and hence not one single violator. Rights violations can be the collective responsibility of an entire group or a government for instance, but the issue I want to focus on here is another type of collective responsibility. It’s possible that there is a chain of causation: a series of events taking place over a period of time, and one event causes the next one until a rights violation occurs. The question is then: is it only the last moral agent, the last one in the chain of causation that results in a rights violation, who is the violator and the morally and legally responsible party? Or do some of the agents earlier in the chain of causation also carry some responsibility?

Let me give an example. Take the case of a drunk driver causing a fatal accident and thereby violating the right to life of his victim. Just before the accident, a pub-owner willingly sold the visibly intoxicated man more alcohol. You could argue that both persons caused the accident: the drunk because of his drunk driving, and the pub-owner because he sold the drinks. Both could have taken action to avoid the accident (assuming that the driver wasn’t sufficiently intoxicated before he bought the extra drinks from the pub-owner). And because they both could have acted otherwise, they are both responsible – morally and legally – for what happened. Both have violated the rights of the victim.

Causing something isn’t a sufficient condition for responsibility. You could go further down the chain of causation and claim that the pub-owner’s parents also caused the accident, because they had the choice of having or no having a child. By having the child, they initiated a chain of causation that led to the accident. They could have taken action to avoid the accident. However, no one would claim that they are thereby responsible for the accident. The difference between the parents on the one hand and the pub-owner and the driver on the other hand, is that the parents could not have foreseen the possible consequences of their actions. Hence, responsibility requires causation plus foresight rather than simply causation (some would say that intent should be added as well). (Of course, in some legal contexts, cause is sufficient for liability: if I drive my car into another one, I may be liable for the damages even if I didn’t intend what happened and could not have foreseen it. Product liability is another example. In other legal contexts, cause is not necessary: if my dog bites you, I’m liable, even though I didn’t cause the harm. But those aren’t the cases I’m interested in).

The pub-owner and the driver could have and should have foreseen the possible consequences of their actions, and probably did foresee them in some part of their brain. We all learn that some consequences flow from some actions, with high degrees of probability. And yet they still went ahead with their actions. Hence both are responsible for what happened because they caused it, because they could have acted otherwise, and because they could have foreseen the consequences. The chain of causation leading up to the rights violation goes back many steps (and many years if not centuries), but the chain of responsibility stops somewhere along the road. It stops with the first person in the chain of causation able to foresee the ultimate result of the chain and able to act otherwise. In our example, the pub-owner.

But, of course, this example is too simple. Often we have to go back more than two steps in the chain of causation to find the first point of responsibility. Suppose the pub-owner bought his pub from some other guy who knew at the time about the reckless way in which the pub-owner serves his customers. (Suppose the pub-owner did something similar before he bought his current pub). How far back in time and in the chain of causation should we be allowed to go in order to attribute responsibility? And do all responsible parties share the same “amount” of responsibility? Probably not; that would violate our moral intuitions, which tell us that the driver carries the heaviest burden. He had many alternative options: he could have decided not to drink so much, not to go to the pub in the first place, or take a taxi home etc. The pub-owner could of course have decided to stop selling booze, but maybe he didn’t know that the drunk was intending to drive back home. And if he knew, how could he have stopped him driving back home? The person selling the pub also could have decided to sell it to someone else, but perhaps there wasn’t another possible buyer, and perhaps he believed in redemption and didn’t want to judge a person’s future on the basis of past mistakes.

But if not all responsible parties share the same “amount” of responsibility, how do we differentiate between the levels of responsibility of the different parties and calculate each party’s share? Does time play a role? Does responsibility diminish as time passes? Those are terribly difficult questions and most of the time we just forget about them and simply punish the last link in the chain and accord him or her the full weight of responsibility, whether this is just or not. One example in which we do try to answer these questions is when a judge or a jury takes attenuating circumstances into account when sentencing: for instance, a criminal may receive a more lenient sentence when it is clear that childhood neglect or abuse contributed to his actions. However, we rarely give the parents their part of the punishment in such cases.

These questions are relevant is a huge number of human rights cases. Take the more important example of world poverty. To some degree, one can argue that the West shares some of the responsibility for poverty in the Third World (Thomas Pogge is famous for this argument). It imposes trade restrictions, it supports corrupt dictators and deficient institutions, and it inflicted colonial rule. Some of these actions go back some steps in the chain of causation. For example, a corrupt dictator may be the last cause in the chain leading to poverty, but support for this dictator by the West is an earlier cause. In the case of colonialism, the chain of causation is complicated by the transgenerational aspect: to what extent are the people in the West who are currently alive responsible for the actions of their forefathers? More on this question here.

More on the causes of rights violations here, and on transgenerational chains of causation here and here. More posts in this series are here.

The Ethics of Human Rights (31): Reparations for Violations of the Human Rights of Past Generations

(source)

How should we deal with the violations of the human rights of past generations? This question is similar to one I already discussed here and here, namely the rights of future generations. The difference, however, is that our current actions can influence the well-being of future generations, but cannot mean anything for past generations since the people in questions are already dead. However, many people favor reparations for past rights violations that benefit the descendants of the deceased victims of those rights violations. It can be argued that these descendants still suffer the consequences of the violations inflicted on their deceased relatives.

Such reparations – also called restitutions – can take different forms:

• restoration of lands owned by previous generations but expropriated
• financial compensation for goods that cannot be restored (such as desecrated burial grounds)
• financial compensation for financial loss (theft)
• merely symbolic restoration (public apologies or amendments to textbooks etc.)
• etc.

This kind of intergenerational justice is – just like but even more so than the forward looking kind – fraught with difficulties. I’ll describe some of those problems below, but if you want a more systematic treatment there are two good papers by Tyler Cowen here and here.

Since we have to deal, necessarily, with the descendants of the victims rather than the victims themselves, we have to take into account the time element. The claim that the descendants should be compensated somehow, at least in the case of gross violations with lasting effects such as slavery, quickly faces the difficult question of “how much?”. How much did the descendants exactly lose as a result of the ancient theft, and how much should be given back? That’s extremely difficult to determine. First you have to calculate the initial loss for the original victims. In the case of slavery for example, how much did slavery represent in financial terms: how much value did slaves produce for instance. That’s already very difficult.

But then you have to calculate the loss over generations: imagine the counterfactual that slaves could have kept the proceeds of their work, weren’t deprived of education opportunities etc., then how much would their capital have grown over time, given investments, savings etc., and how much would they have profited from their education had they received it? It’s clear that the descendants of the original victims have lost more than the initial sum of the theft that was caused by slavery. They have forgone investment opportunities, educational opportunities that can also be translated in loss of income, etc. But how much? If you take all the lost opportunities – investments, education and many others – into account, and if you deal with an original crime that is relatively far in the past, you can arrive at huge sums, perhaps even sums that are larger than the current wealth of a society.

Likewise, the descendants of the thieves – the slave owners in this case – have gained more than the amount of the initial theft, since this theft has allowed them to invest, and their better education has allowed them to compete inequitably with the descendants of the slaves. And so on. But how can you possible calculate all this? Also, how can you ever know what the descendants of the slaves would have done with the capital – financial and human – if it hadn’t been stolen from their forefathers? Can you just assume that they would have done the same thing as anyone else and use market interest rates? No, I don’t think you can. There is an infinite number of possible counterfactuals.

And that’s just one problem. You also have to make some dubious assumptions. First, you have to assume that you can unequivocally identify the original victims and their descendants, and the original perpetrators and their descendants. How else can you redistribute? If you just assume that all whites in the U.S. are to blame for slavery and all blacks are to benefit from reparations for slavery, you’ll be punishing and rewarding people who don’t deserve it. Some whites fought against slavery and some blacks collaborated. The descendants of those whites don’t deserve to pay restitutions. Also, you have to assume that there hasn’t been any genetic exchange between the victims and the thieves, and that’s demonstrably wrong. How will you treat the descendants of a child born from a slave and her owner? As a victim or a perpetrator, or both? That doesn’t make any sense.

Derek Parfit

There’s also the point, made by Derek Parfit, that the exact individuals who comprise the descendant generations would not have been born had the initial violation not occurred. A state of slavery for instance has enormous consequences for marriage, intercourse etc. In other words, since the descendants would not have been born without the initial violation, in a sense they can be said to have benefited from the violation. They now exist, where otherwise they wouldn’t have existed. To exist is obviously better than not to exist. In another counterfactual you can claim that the descendants of slaves for instance don’t actually benefit from slavery, but that the negative consequences they suffer from the slavery of their forefathers don’t grow worse over time (see above) but tend to fade away. Their current predicament is caused by more recent events rather than old history.

And there are numerous other problems (for example, if you go back sufficiently far in time, all of us have ancestors who were oppressed; should we all receive restitutions?). So, given all this, does justice require some form of reparation for the most serious and widespread human rights violations of the past? We may not know exactly how much we have to pay or what exactly we should do to right the wrong. We also don’t know exactly who should benefit or pay. And maybe there are conflicting movements: for some reasons, the injury grows over time, but perhaps for other reasons it diminishes (genetic exchange, diminishing rates of return on capital etc.). Nevertheless, it may be good public policy to admit the mistakes of the past and also to put your money where your mouth is, especially when it’s obvious that current generations continue to suffer to some extent (as is the case for African-Americans for instance).

However, personally I feel that the focus should be, not on restitutions for violations of the past but on protection for violations of the present. If African-Americans in the U.S. are currently in a disadvantaged position (which is often the case), then their current rights are violated and we should do something about that, whatever the causes of those violations. These causes are in part the violations of the rights of their ancestors, which still have an effect today and produce violations of the rights of descendants. If these descendants suffer from poverty and poor education, it can be helpful to know the causes, even if some of these are far back in time, but ultimately these causes don’t change the nature of the current violations, or the nature of current obligations. These people have a right to assistance and education, just as much, not more or less, as other people who suffer the same violations but who are not descendants of people who suffered centuries ago. So in a sense we don’t need restitutions to do something. Current rights violations are sufficient reasons to act.

Something on the related topic of affirmative action is here. More on slavery is here. More posts in this series are here.

The Ethics of Human Rights (30): Organ Donation and Presumed Consent

(source)

Health and survival are human rights. Many people’s health and survival depend on organ transplants. However, there are more people requiring organs than people donating them. Hence, the question of how to increase organ availability, which I have discussed many times before on this blog (see here for instance). My favorite policy is presumed consent : if people during their lifetime don’t explicitly opt-out and deny the use of their organs after death, it is assumed that they consent to this use. There’s evidence that presumed consent raises donation rates by perhaps 20-30%:

(source, the chart shows that Iran leads the world in live donation, and that’s because it compensates donors)

However, presumed consent may perhaps not be enough to eliminate the shortage. And although it may solve part of the problem, it may also create some problems. Some people might feel uneasy when the state can automatically decide what happens to their bodies or to the bodies of their loved ones after death. The public might also start to wonder whether surgeons would become too eager to harvest organs, stop life support somewhat early and move the border between life and death (the definition of the moment one dies isn’t an unchanging variable throughout human history). But that’s also a problem with opt-in systems.

Another problem with presumed consent, but also other types of cadaveric donation such as opt-in, is the constraint imposed by the number of people who die in a way that makes their organs available for transplant.

Does all this mean we have to abandon cadaveric donations in general and presumed consent in particular? And rush towards a free market in organs for the living? That could perhaps eliminate the shortage completely, at least for those able to buy the organs and on the condition that there are enough desperate souls “willing” to sell. The latter is of course a condition that’s easily met when we allow international free trade – many places in the world are vast resources of desperateness.

(If you doubt the risk of free trade pushing desperate people to sell their organs, look at Iran. Most donors in Iran are extremely poor. Maybe you think it’s good that poor people have options to do something about their poverty. I agree, but I prefer that they have other options and aren’t forced to commodify themselves, especially when this commodification entails health risks).

I don’t think free organ trade of live donations is a good idea, given the problems with that option outlined here. (Although I might be persuaded by the argument that prohibition of a widespread activity is always futile and a regulated market a lesser evil; e.g., one could offer tax credits for live donations). There’s still a lot of elasticity in presumed consent and the few problems it raises can be solved, in my opinion. The horror story of doctors switching off life support and plundering bodies is precisely that, a story. Countries that are reluctant to implement presumed consent because of such reasons can be convinced, I think, especially given the success of other countries that have it.

Even in countries that have presumed consent and that have therefore increased organ availability, things can be improved. The rights of relatives to veto could be restricted. (Personally, if I would have made the conscious choice of opting in or of not opting out, I wouldn’t be comfortable with the possibility that my relatives have the right to disrespect my will after death). In addition, the transplant system (logistics, transport, availability, procurement etc.) could be made more effective, including in countries that decide to stick with opt in.

Beyond presumed consent of cadaveric donation, live donation of certain organs could be encouraged (though preferably not through market systems). Countries that don’t want to go to presumed consent could make it more likely for people to opt in in a system of cadaveric donation: Israel for example allows opt-in donors and their families to jump the waiting line for transplants when they should need an organ themselves. That’s an interesting idea, but it could throw up some other problems. Also, technology could come to our aid; perhaps in some time we can make organs from stem cells.

The Ethics of Human Rights (29): Should Taxation Be a Tool For Economic Efficiency or For Social Justice?

(source, source)

Taxation is a recurring theme in political discussions between people of the left and right. People of the left see taxation as a tool for social justice. They tend to prefer rather high taxation rates and a progressive taxation system:

• High taxation rates bring in revenues that are large enough to enable the government to spend on programs and transfers that are designed to promote social justice: unemployment benefits, poverty reduction policies, education, healthcare etc.
• Progressive taxation rates are just because they impose relatively (and not just absolutely) higher taxes on people who are more able to pay, and, in addition, reduce income inequality and hence realize another goal of social justice.

People on the right usually favor low tax rates and a non-progressive taxation system (either a proportional system in which everyone pays the same share of their income, or a regressive system in which everyone pays more or less the same amount in taxes). Rather than on social justice, they focus on the economic effects of taxation.

• They reject high taxation rates because they claim that these high rates discourage people and are a disincentive to hard work, effort and investment. Because high rates limit effort and investment, they also limit productivity, innovation, international competitiveness and job creation.
• They also reject progressive tax rates because high tax rates for high incomes discourage those people who work relatively hard (they work hard supposedly because they earn a lot) and who are most likely to innovate, to be productive and competitive and to create jobs.
• However, they don’t necessarily favor regressive taxes because they are equally hostile to high tax rates for low income people, albeit for other reasons. High taxes for low income people discourage them from entering the labor market and hence inflate unemployment. Still, they claim that the worst damage is done by high taxes on the higher incomes, which is the reason they reserve particular scorn for progressive taxation systems. Because high tax rates for the wealthy punish the most productive elements in a society, the whole of society suffers. More productive people will limit their productivity because they don’t want to fall into a higher tax bracket, and the money they pay in taxes can’t be invested in the economy. High tax rates, especially for the rich, have an unacceptable cost in terms of economic efficiency. Keeping taxes low, on the contrary, and allowing wealthy people to use their money in the economy, will ultimately benefit everyone (this is the so-called Trickle-Down theory).

Of course, this distinction between left and right is a caricature. Most people on the left are also concerned about economic efficiency, and most on the right are not insensitive to questions of social justice. The extremes are hardly ever encountered in real life: no one wants to limit taxes to such an extent that economic efficiency is promoted but no money is left for justice, and no one wants to put tax rates at such a high level that there is ultimately no more economy to tax. (The latter concern is expressed in the famous Laffer Curve arguing that beyond a certain level of tax rates government revenues in fact decrease instead of increase. At very high rates there is no longer any incentive for a rational taxpayer to earn any income and hence tax revenues will decline while tax rates increase. However, it isn’t clear what “very” in the previous sentence actually means and where exactly the tipping point is situated).

Graphically, we can represent this in the following image:

Normal political discourse takes place in the light-gray area.

Personally, I believe that the concerns of both right and left are justified and need to be balanced, and that too much focus on either the element of efficiency or justice is detrimental to the other element. On the one hand, there’s only so much money a government can raise without wrecking the economy, and justice isn’t only about spending money (there can even be perverse effects such as unemployment traps, welfare dependency etc.). On the other hand, there’s only so much an efficient economy can do to realize social justice all by itself and quasi-automatically (remember the invisible hand…). To quote Matthew Yglesias’ sarcastic comment on the skyrocketing incomes of the U.S. top 400 earners in the decades leading up to the 2009 recession:

As is well-known, the Top 400 are considerably more talented than the rest of us. And [the] decline in their tax rates has created exciting new incentives for them to apply their talents. And that, in turn, is why the 2000s were a so much more economically successful decade than the 1990s, not just for the Top 400 but for the rest of us as well. Thanks to their skyrocketing incomes and falling tax rates, we’re currently [during the 2008-2009 recession, FS] all enjoying the fruits of prosperity, rapid growth, and low unemployment. Thanks rich guys! (source)

A similar sentiment is expressed in this clip from the Daily Show (I’m unable to embed it; skip to the 4th minute or so).

Here’s one very specific example of the way in which taxation can promote social justice:

Again, personally, if I lived in the U.S., I would probably be on the left side of the arrow in the efficiency v justice graph above, since I believe taxes in the U.S. are relatively low and can be raised without too much harm to economic efficiency. The resulting government revenues could then be spent on improving the social safety net and promoting social justice. It’s difficult to imagine for a European that a country such as the U.S. doesn’t offer health insurance to millions of its citizens. Also, unemployment benefits are quite stingy in the U.S., both in terms of eligibility and duration: only one third of the unemployed qualify for benefits and only for 26 weeks (extendable during recessions if the Republicans don’t object, as they infamously did beginning of 2010):

share of unemployed receiving benefits in the US

(source)

The system of unemployment benefits could easily be improved without perverse effects or harm to economic efficiency. And there are other areas of possible improvement as well.

However, as a European in Europe, I think I’m probably more to the right of the graph since there’s a strong argument that the social safety net in Europe (at least in some countries) has harmed European competitiveness, labor market participation and innovation.

Still, is there evidence of this? What do the data say about high tax rates harming economic efficiency, in Europe and in general? Is the conservative case against taxes as strong as it seems? I’m afraid not. In this previous post, I already presented some evidence that the effect of reasonably rather than extremely high rates on economic efficiency is minimal at best. I now present some more evidence from Lane Kenworthy about the U.S. and other affluent countries (always keeping in mind that correlation doesn’t imply causation and that the absence of a large negative effect of high taxes doesn’t preclude the possibility that lower taxes would have had a large positive effect). One measure of economic efficiency is economic growth. If we plot economic growth rates for the U.S. against tax rates for the wealthy we get the following picture:

effect of tax rates on economic growth in the US

(source)

If anything, higher tax rates lead to more growth. But of course there can be catch-up effect: higher rates producing their effects only years later. That’s taken into account in the following graphs, which also show that an international comparison doesn’t prove that countries with higher tax rates have lower growth:

effect of tax rates on economic growth international comparison

(source)

If we have a look at the data about the effect of high tax rates on unemployment (another conservative concern), we also see that we shouldn’t panic about taxes:

effect of tax rates on unemployment international comparison

(source)

Now, if there is no good reason not to tax at a moderately high level, based on concerns about economic efficiency, the question remains whether there is a good reason to tax based on social justice reasons. Given the caveat that social justice isn’t all about government spending (I argued here that it is primarily about something else) and that such spending can in some cases have perverse effects (see above), I do believe that some spending is necessary in some cases, and that relatively high tax rates are necessary to produce the revenues required for this spending.

Again following Kenworthy, I believe that relatively high tax rates are acceptable and even necessary to create the revenues required for social justice policies, but that progressive tax rates in themselves don’t do the job of reducing income inequality, contrary to what is often claimed as a justification for progressive rates. That doesn’t mean that we shouldn’t reduce income inequality (it’s quite high in the U.S.) – there are good reasons to try. It just means that progressive taxation in itself won’t do the job. The important thing is to have high tax revenues which can then be spent in transfers and services that reduce income inequality and achieve other goals of social justice. Yet, I still think a progressive system is required, not because of its supposed effects but simply because it is just in itself, compared to proportional or regressive systems. A person with more income can afford to pay, not merely more in an absolute sense but more in the sense of a larger share of his or her income.

More posts in this series are here.

The Ethics of Human Rights (28): Private Charity vs the Welfare State

In previous posts (here and here), I wrote about my personal views regarding the best ways to help the poor. In a nutshell, I favor private philanthropy or charity over the welfare state. Some of the reasons are:

• The welfare state imposes certain costs on the economy, thereby damaging the prospects of the future poor.
• Closeness and affinity imply a greater ability to help. And he or she who can do more, should do more (can implies ought). Citizens are better placed than the government to help poor people in their community/family because they better understand the needs.
• Spontaneous mutual assistance fosters community spirit. Allowing poverty reduction to take place at the level of citizens’ relationships will strengthen feelings of belonging.

When all this fails – as it often will – and only when this fails, can a state intervene and can the welfare mechanisms and redistribution systems based on taxation begin to operate (these merely enforce deficient private philanthropy).

However, some claim that the welfare state crowds out private charity. If you don’t care about private charity and want a government monopoly on care for the poor, you won’t mind if there is crowding out. And if you don’t care about private charity or about government assistance to the poor, you won’t mind either. But I guess most people agree with me that both charity and the government have a part to play (although they may not agree with my chosen priorities). So it’s good to see that

government welfare programs [do not] appear to displace an equivalent amount of private charity. Private giving does not vary inversely with the size of government programs and there is little evidence for a “crowding out” effect. Many private charities, in fact, rely on government funding to some extent. Private charitable giving to the poor, defined in narrow terms, runs in the range of $10 to $15 billion a year [in the U.S.], and few observers believe that this sum is capable of significant augmentation in the short run, regardless of government policy. Tyler Cowen (source)

More posts in this series are here.

The Ethics of Human Rights (27): The Human Rights of Future Generations and Poverty

I’ve argued many times before that poverty is a human rights issue, so I won’t do that again (you can read this or this for example). For those who are not convinced, just assume arguendo that I am right, otherwise the rest of this post won’t make a lot of sense. I’ve also presented my views on the types of duties produced by the human right not to suffer poverty, and on the moral agents that carry those duties: is it a face-to-face thing, or does the government have a role to play by way of redistribution and the welfare state? Etc. You can read about this here and here for instance, so that’s something else I won’t repeat.

I do believe the welfare state is an important institution because it can fill the gap left by deficient private charity. But my view is that private charity should come first and should be promoted. The welfare state should be a fallback option rather than the starting point. So I guess I don’t think it’s as important as people from the left usually think it is. In order to bolster my view, I can point to some problems with the welfare state. In fact, it can be argued that the welfare state is another case of a self-defeating human rights policy, in the sense that it reduces poverty but at the same time produces poverty. Tyler Cowen, in a very interesting paper, has argued that while the welfare state does indeed reduce the levels of poverty of those people currently living (at least if we focus on the level of the state and forget the global impact of the operation of a welfare state in a particular country), it also has a negative impact on the poverty of future generations.

The argument goes as follows. It’s reasonable to accept that economic growth lifts people out of poverty (see also here) and that the welfare state lowers the rate of economic growth, perhaps not by much annually but small reductions of economic growth over several years may amount to a large cumulative reduction. Now, how does the welfare state lower the rates of economic growth? There are at least four effects:

[1] A welfare state will cause some people to substitute welfare dependency for private work, thus lowering the number of individuals in the active work force or causing them to work less hard. … The poor could be engaging in more productive exchange with other individuals in the economy, but to some extent they desist, for fear of losing welfare benefits. …

[2] The taxes used to support the welfare state discourage taxpayers from working or otherwise creating economic value. …

[3] The extensive welfare states of Western Europe typically are bundled with labor market protections and interventions. It is not politically or economically feasible to give the non-working significantly more risk protection than the working. Western European welfare states therefore tend to create a privileged class of working “insiders,” with high real wages, high benefits, and near-guaranteed positions of employment. This practice, of course, lowers the number of new jobs that are created, limits labor market mobility, and raises unemployment.

[4] [The welfare state] causes the economy to develop new technologies and new ideas at a slower rate. … A welfare state will plausibly have a negative effect on innovation. By withdrawing individual labor from the productive sector of the economy, the rate of discovery is likely to fall. Both the poor and the taxpaying non-poor will work less when a welfare state is in place [see 1 and 2 above]. If we think of research and development, broadly construed, as one kind of work, we can expect the rate of growth to decline. Even if the poor do not participate in ideas production directly, they do so indirectly. To provide a simple example, to the extent it is harder or more costly to hire good janitors, and other forms of cheap labor, fewer research laboratories will be opened. … The welfare state permanently discourages various individuals from contributing to technological development and thus lowers the rate of economic growth in lasting fashion. (source)

One can argue about the importance or even the existence of these four effects, and there may even be counter-effects (welfare recipients may move in the underground economy, unemployment may lead to better parenting and hence better education etc.). But even if the effects are small, it’s sufficient to spread them towards the very long term future in order to produce a lowering of the economic growth rate and an increase in future poverty. Given that the future contains an infinitely large population, the welfare state will always produce more poverty than it eliminates (given that the current population and hence also the current poor are a limited number). That would mean that the concept of the welfare state is doomed. And if that’s the case, it would seem I have proven too much (I merely wanted to buttress my argument that the welfare state should come second, after private philanthropy).

However, I don’t think it’s obvious that we should value the rights of future people the same way as the rights of existing people. After all, these future people may never come into existence. If we try to protect their welfare by giving up the welfare state, we will harm real people for the rights of people who may never exist. Furthermore, the future may bring a novel solution to the poverty problem.

More about the rights of future generations. More about the related topic of population metrics. More posts in this series are here.

The Ethics of Human Rights (26): The Repugnant Conclusion and Human Rights

The Repugnant Conclusion is a moral dilemma for utilitarian and consequentialist moral theories. The dilemma was first presented by Derek Parfit in his 1984 book Reasons and Persons. The “repugnancy” in question refers to the consequence of a thought experiment. Imagine a society with a large amount of total utility resulting from a very large number of people all living at near-zero levels of utility. In other words, these people have no more than a marginally worthwhile life – Parfit calls it a life of muzak and potatoes but we can of course define “marginally worthwhile” differently if we want. And yet, because they are so numerous, the total utility of this society is very large.

Utilitarian and consequentialist theories must rank this society higher than other more desirable societies with higher average utility but lower total utility resulting from lower population levels. They must because they state that the best society is the one in which there is the greatest total quantity of utility, and utility is defined as whatever makes life worth living. The muzak and potato people have a life worth living – just barely – and if they are numerous enough they will constitute the best society because the sum of their individual utilities will be higher than any other total utility in any other society.

There is always a muzak and potatoes society that has a higher total quantity of utility or welfare than any other possible society: just add more marginally worthwhile lives and you produce a society that outperforms any other in terms of total welfare. That such a society should be preferable is repugnant. The people in that society have lives only barely worth living and yet it’s a superior society compared to one with fewer people all living a better life. The emphasis on “total” welfare or “total” utility means that any loss in the quality of the lives in a population can be compensated by a sufficiently large gain in the quantity of the population. (Note that the lives added are marginally worthwhile. These lives are worth living. We’re not adding lives of continuous pain for example. That would diminish total utility and that isn’t the purpose of this thought experiment.)

The question here isn’t whether such a society is practically possible or likely, but whether we should indeed prefer it, as utilitarianism posits (implicitly). It doesn’t seem intuitively correct to prefer a society of people living a life that’s barely worthwhile over other highly attractive alternatives, just because the former has a very large population.

To some extent, the thought experiment is convincing because we do believe that every human being is valuable (has some value), however low this value may be (remember we’re not talking about lives that aren’t worth living because of continuous pain for instance). Therefore we do tend to believe that addition of new lives does increase total utility (“we” meaning even the non-utilitarians among us, and that probably includes myself). It would be equally repugnant to try to avoid the repugnant conclusion by claiming that after a certain number of additions the lives added don’t bring any more value.

Given the unacceptability of not counting the lives after a certain number of additions, there’s another possible way of avoiding the repugnant conclusion, namely invoking non-utility values such as justice, dignity, desert etc. But according to Tyler Cowen, non-utility values can always be overwhelmed by total utility:

It might be the case, for instance, that the less populated society has significantly greater amounts of justice, aesthetic beauty, or dignity. If this is true, the Repugnant Conclusion alternative simply needs to make up for this deficiency by having more people to increase its utility total. (source)

Any moral theory must weigh conflicting ends, such as utility and justice. There’s no escape. You don’t have a moral theory if you can’t do that. The non-utility value(s) must receive some “value” or importance. And the same for utility – even non-utilitarians can’t say that utility has no value whatsoever because then you would say that a marginally worthwhile life of muzak and potatoes has no value (and that’s intuitively wrong because then you would be allowed to end such a life). Hence you need to compare the total value of the less populated society with high non-utility values to the total value of the more populated society with very low average utility. Just add more people to the latter and it will always be a better society. And this will always be repugnant.

However, I do think non-utility values show us a way out of the repugnant conclusion. The first thing we can say is that without emphasis on non-utility values there won’t be a way out. If utility is all that counts, if in other words you’re a pure utilitarian then you are a value absolutist, just like a libertarian, a socialist, a hedonist etc. One value, in this case utility, trumps all others. Necessarily you’ll end up accepting the repugnant conclusion.

If, on the other hand, you accept value pluralism, then you reject hierarchical or lexically ordered value system in which one value trumps all others. And then you probably also don’t believe that large losses in one value can be balanced by equally large gains in another value, as happens in the repugnant conclusion. That seems to me to be the error in the Cowen quote above: the muzak and potatoes society can simply compensate for the deficiencies on non-utility values by adding more marginally worthwhile lives. I believe – contra Cowen – that invoking non-utility values can help us to avoid the repugnant conclusion, but not if these non-utility values are simply accorded a certain value (possibly a very high value) and then compared to the value of utility. If we only do that, utility can always overwhelm the other values by just adding more persons, and gains in utility can always compensate losses in other values.

My point here is that there are certain other values for which no losses can be accepted or tolerated, not even with near-infinity gains in utility. That is why these other values – such as freedom, dignity, equality and justice – are protected by human rights, and human rights are unconditional and untradeable. No matter how many people with barely worthwhile lives we add to a society, this will not compensate for violations of human rights. Nothing ever will. You can call that value absolutism if you want, but it’s the absolutism of plurality.

More on the related topic of overpopulation. More posts in this series are here.

The Ethics of Human Rights (25): Free Organ Trade and the Commodification of the Body

Organ trade cartoon by Dario Castillejos

(source)

The case for allowing free organ trade seems a no-brainer. Many countries, including the U.S., now forbid the sale and purchase of most organs, and, as a consequence, sick people die because of organ shortages, and poor people stay poor because they can’t “monetize” their organs. Poor people suffer a “double injustice”:

[We say] to a poor person: “You can’t have what most other people have and we are not going to let you do what you want to have those things”. (source, source)

Organ-GATT?

However, when organs are freely tradable, many extremely poor people, especially those struggling to survive, will be tempted and even forced to sells parts of their bodies. Moreover, the rich will be able to benefit disproportionately from the market because prices will be high, given that demand will outstrip supply in an ageing society. The most obvious means to balance supply and demand, and to force down prices and allow the less than wealthy patients to participate in and benefit from the market, is to create a global market without trade restrictions, an organ-GATT if you want. This will bring in the masses of poor people from Africa and Asia, pushing up supply of organs and hence bringing down prices. This will supposedly benefit both the less than wealthy patients and the very poor donors. The latter will benefit even with prices for organs falling because of increased supply, because they start at extremely low levels of income. Even the sale of a cheap kidney can mean years of income for them.

The problem with this global market is that organ extraction will take place in sub-optimal medical conditions, creating risks for donors (if you can still call them that), also in the case of renewable tissue donation. Paradoxically, the poor are driven to risk their lives in the process of saving their lives. Even in the best healthcare systems in the world, organ extraction is often very risky. In the U.S., the extraction of a section of the liver, for example, carries a risk to the donor’s life of almost 1 percent (source). That’s not negligible. I doubt anyone would cross a street if that were the odds of getting hit by a car.

I’m convinced that an opt-out regulation for cadaveric donors (meaning that everyone’s a donor after death unless an explicit opt-out), combined with non-financial encouragement of voluntary pre-death donation, is the best way to solve the organ shortage problem. A free organ market will obviously also solve the organ shortage problem, but will create new problems instead.

Renewable and non-renewable organs

The distinction between renewable tissue such as bone marrow, and non-renewable organs such as kidneys, eyes, etc. is a relevant one. If the donation of renewable tissue can take place in medically safe conditions, I can’t see a problem with being allowed to trade, on the condition that poor patients have the same opportunity and power to buy as rich ones (and that’s a pretty big “if”). The needs of the sick or disabled who risk dying or suffering because of a lack of available organ, clearly outweigh any remaining concerns.

Commodification

One of those remaining concerns is the problem of the commodification of the body. Organ trade is obviously commodification, and commodification is dehumanization. I don’t want to imply that organ trade liberalization necessarily results in “organ farms”, dystopian places where people are “cultivated” solely for the harvesting of their organs – although the Chinese criminal justice and capital punishment system for instance comes awfully close. (I sometimes wonder if deterrent and punishment is the real goal of executions in China). But people can commodify and dehumanize themselves.

The logic of economics tends to overtake all other domains of life, even those where it doesn’t belong and can do serious harm. Why is it so evident to so many that body parts are something that it supposed to be tradable? Even the most outspoken proponents of organ trade draw the line somewhere: they won’t allow people to sell parts of their brains, I guess, or their children and wives, or the parts of aborted fetuses (perhaps fetuses specially conceived and “harvested” for their parts), not even if this would fill a great social need. And yet they accept as natural that non-vital body parts should be tradable and seem to forget that irreplaceable body parts form our body and that we can hardly exist without our body. If we allow total freedom of organ trade, we will have to accept the case in which a poor father decides to sell off every single one of his organs for the survival of his family. After all, he is the master of his own body, he has a right to self-determination, and the government has no right to limit what masters of their own bodies should be allowed to do with it. If you don’t accept the legitimacy of this extreme case, you accept limitations on the freedom to trade organs. Since most opponents of organ trade also accept certain types of trade – e.g. renewable organs such as bone marrow and skin – the disagreement isn’t a principled one but one about degree.

Underlying the argument in favor of organ trade is the fiction of a market populated by free, equal and self-determining individuals who make free and rational economic decisions and agreements on what to sell and buy, free from government interference. The reality is of course that organ trade isn’t an expression of self-determination or autonomy but rather of the absence of it. And that organ trade, just like a lot of other trade, is radically asymmetrical: some are forced to sell in order to survive, especially if the price and hence the reward is very high, as it will be relatively speaking for the poor. And others will sell without rationally examining the benefits for or risks to their interests (absence of informed consent). It’s beyond my powers of comprehension that all this can be denied:

It’s true that I don’t find any of the arguments about the coercive effects of money on peoples’ decisions particularly compelling.  Megan McArdle (source)

Any potential paid organ donor is always free to decline the transaction, and is left no worse off than before. What next, will you tell me that I “coerced” Apple into sending me a Macbook? (source)

This seems to me to be more correct, or at least less outrageous:

Talk of individual rights and autonomy is hollow if those with no options must “choose” to sell their organs to purchase life’s basic necessities. … Choice requires information, options and some degree of freedom. (source)

transplanting of teeth

Free trade except for the poor?

Of course, some would say: if someone is forced by poverty to sell her organs, would you stop her and make her worse off by imposing legal restrictions on her autonomy and “reducing her resources”? That’s again the myth that markets always make things better. What if she does get some money, has a better life in the short run, but gets sick because of the operation (or do we also assume the myth of perfect healthcare for the world’s poor?) or because of the lack of an organ? Who would make her worse off? The one allowing her to sell, or the one stopping her? And anyway, there are better ways to protect the poor than to allow them to harvest their organs.

So, if we’re afraid that free organ trade might be exploitative for the poor, why not allow free trade but exclude the poor from selling? Because the poor will be, in general, the only ones tempted to sell. A wealthy person has no incentive to sell organs. Hence a free trade system restricted in this way will not solve the shortage problem, the main concern of proponents of free trade.

I’ve stated before that government interference can promote rather than restrict freedom. In the case of organ trade and donation, two specific types of interference can help:

• Restricting the freedom to trade non-renewable organs, as well as renewable organs in circumstances in which extraction poses a health risk to donors, will protect the freedom of the poor. Not their freedom to sell organs obviously – which isn’t freedom for them anyway but compulsion – but the freedom to live a healthy live.
• Imposing default cadaveric donation with an opt-out clause will protect the freedom to live a healthy live of patients in need of replacement organs. Of course, if it’s the case that for some organs cadaveric donation isn’t possible medically, I’m willing to accept an exception.

Trade restricted to post-mortem trade?

How about allowing people to sell their organs after death? This would evidently remove the health risks for donors. It could be considered a kind of life insurance for the deceased’s family. That would indeed remove all the concerns from the donor side. (The counter-argument that such a system would encourage families to kill their members for the “insurance money” seems a bit weak, and just as weak as the similar counter-argument against generalized organ trade liberalization, namely that people would murder in order to sell organs; I guess they already do).

Photo by Jonathan Cook

But assume that we would allow free post-mortem trade: what would happen with the organs? They would be sold of course, but to whom? The most wealthy first, and hence we still have our problem on the beneficiary side: wealth yields better health. Of course, that’s already the case in healthcare in general: rich people also have better dental care etc. But do we want to add to the existing injustice by allowing wealth to determine who gets an organ?

If we allow limited organ trade of deceased’s organs, we’ll have to do something on the beneficiary side in order to neutralize the effects of wealth. A lottery system could be an option. Or subsidies for the poor, or price caps etc.

More on organ trade here and here. More posts in this series are here.