art, equality, ethics of human rights, justice

The Ethics of Human Rights (88): Justice and Proportionality

disproportionate_world_by_astridle-d541ace

(source)

The notion of proportionality is central to many theories of justice:

But why should “things” be proportional? Perhaps it’s some kind of esthetic ideal: a beautiful body is a proportional one; a tasty dish is one with the right proportions of ingredients. So maybe justice is merely about beauty and taste. The world is just if things are not out of proportion, because if they were that would insult our esthetic taste. The word “fair” in “fairness” – often a synonym for justice – also means beautiful.

But I find that hard to believe. People want justice for other reasons than a desire for beauty, and demands of proportionality are about something more than esthetics. But whatever the reasons, proportionality has it’s place in theories of justice, and it would be illusory to try and get rid of it. The notion seems deeply engrained in moral intuitions.

However, while we should in general accept that proportionality plays a role in justice, we should also criticize some uses of proportionality. It’s hard to deny that more serious crimes should be met with more serious punishments, but it’s equally hard to deny that there should be an upper limit to this (you can’t execute Hitler 6 million times) and that criminal punishment should also serve other goals than people’s desire to have things in proportion. Punishment is used in order to protect the public against the criminal, and if a non-proportional punishment serves this goal then maybe we shouldn’t insist on proportionality for proportionality’s sake.

It’s also possible to criticize the use of proportionality in discussions about economic rewards, redistribution, poverty relief etc. If you want to argue that people who are more deserving have a claim to more compensation – and that undeserving people should receive less or nothing – then you need a good account of desert. However, such an account is elusive if not outright impossible. Effort and skill may not be signs of desert but rather the product of undeserved genetic inheritance. Difficult to know, and very intrusive if you want to find out. Proportional distribution as a method of realizing an idea of justice based on desert depends on desert being a good basis of justice. If it isn’t, proportionality may lead to injustice rather than justice because it may leave the poor to starve.

There’s a third case in which proportionality can undermine justice instead of promoting it. Governments may want to limit certain rights because they believe that this is necessary for a public good such as protection against terrorism, in which case they often make claims about proportionality. The possible consequences of terrorism are supposedly so severe that limitations of people’s right to privacy or right not to be tortured are proportional responses, even if these limitations are far-reaching. You can’t lift a heavy rock with an elastic band. The tool should be proportional to the end you want to achieve, and a world without terrorism requires some heavy tools. But again, proportionality as a method to achieve justice – a just world is a world without terrorists killing innocent people – may achieve the opposite. The harm caused by limitations of rights is often greater than the harm of terrorism (some numbers here about the relative harm imposed by terrorism).

A final example of the way in which proportionality can lead us astray when thinking about justice. Many of us tend to believe that we owe more to those close to us and that justice is in the first instance something between members of the nation state. And it is indeed common to see concerns about human rights violations diminish in proportion to the distance between those who are concerned and those whose rights are violated. However, if ideas about closeness are overemphasized in thinking about justice – and they often are since patriotism, nationalism, racism and other forms of in-group bias are quite common – then proportionality will again cause injustice rather than justice.

The point of all this is not to criticize proportionality as such but the manner in which it is used. Proportionality is one method to achieve justice, and can, given some prerequisites, help us to achieve justice. You can’t fight terrorism with good will alone. You shouldn’t impose life sentences for traffic violations. And you shouldn’t give everyone equal economic rewards. But let’s not overemphasize one very peculiar method to achieve justice, a method moreover that is often based on shaky assumptions such as desert, the moral relevance of closeness or the effectiveness and necessity of certain policies.

More posts in this series are here.

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ethics of human rights, justice, philosophy

The Ethics of Human Rights (80): The Limits of Justice, Non-Discrimination and Equality of Opportunity

treeshark.deviantart.com

(source)

Here are 3 fake and somewhat ridiculous news stories. I’m asking you to suspend your disbelief for a moment – all this has a serious purpose which will become clear afterwards:

1.

Social activists have collaborated with one of the largest chemical companies in the country in order to produce a vitamin supplement for dogs. This supplement will modify dogs’ metabolism so as to produce dog feces that has a consistency similar to rabbit feces: granular and dry, as opposed to lumpy and greasy. The effect will be that when dogs defecate on sidewalks and when pedestrians step into the feces, the harm done to pedestrians will be less. More pedestrians will step into feces because of the granular type of the modified feces, but the damage to each individual pedestrian will be relatively small compared to the damage done by traditional dog feces. Think of it as a redistribution of feces damage. and a small but important improvement in the overall justice of our society. After all, there is no good reason why some of us should bear the full brunt. No one deserves dog shit on their shoes.

2.

Since High School, X has been almost universally mocked because of his appearance. Social scientist as well have confirmed that he lacks facial traits and bodily features typically associated with “beautiful” people. As a results, X has spent the first 20 years of his adult life fruitlessly looking for a female mate. Not only did he fail to find a willing female of his choice; he in fact failed to find anyone at all who was willing to marry him. Given that there are a considerable number of people in the same position as X, legislators have now proposed a subsidy for these people so that they can afford plastic surgery and improve their chances on the marriage market. Naturally, strict rules will be included in the proposed legislation so as to target the subsidies towards those who really need them. After all, if society pays for the equal opportunity to receive a good education, why not also for the equal opportunity to lead a happily married life?

3.

Mr. Smith (a pseudonym) is not a special case. He is not gay, black, female, indigenous, foreign or disabled. Nor does he belong to a minority religion. And yet, he is suing the Vatican for discrimination. Why? Well, it turns out he is in the habit of wearing short trousers and sleeveless shirts during warm days. Dressed like this, he attempted to enter Saint Peter’s Basilica and was refused entry by the guards. His lawsuit has received considerable support from US tourist organizations and tour operators. Some even suggest that Smith’s discrimination is indicative of the treatment of many US tourists by Vatican authorities. Smith’s lawyers argue that the groups of people protected by current laws against discrimination have been chosen arbitrarily or on the basis of past patterns of discrimination. If new patterns of discrimination occur – as may be the case here – then legislation should evolve.

These somewhat silly stories have the merit of bringing into focus a serious question: what are the limits of justice, non-discrimination and equality of opportunity? It’s clear from the stories that there are and should be limits. There are events that may seem unjust but shouldn’t be labelled as such. Perhaps those events – such as for example the unequal and undeserved infliction of dog shit on people’s shoes – look like they are unjust because the circumstances and structures of the events are very similar to real injustices. But then what are “real” injustices and why are some events not “real” injustices?

The same is true for equality of opportunity: we want to help people achieve an equal opportunity to do or have certain things, but not other things. Education but not a happy marriage. Why this difference?

And again the same in the case of discrimination: we want to help people avoid certain kinds of discrimination but not other. And again the question is why. How do we make the difference?

For me, the answer is clear: all considerations of justice, equality and opportunity are limited by human rights. If an injustice is also a human rights violation then it is a true case of injustice. If not, then not. If someone’s unequal treatment is also a violation of that person’s human rights, then we have a case of discrimination. If not, then not. Is someone unable to have the same opportunities as everyone else to do or have something? That’s a legitimate area of concern if that something is a right. If not, then not. (More here and here).

More posts in this series are here.

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economics, equality, human rights promotion, justice, philosophy, statistics

Human Rights Promotion (13): Human Rights, Pareto Improvements, and a Difference Principle

Human rights activism is rarely zero-sum, in the sense that we can only improve the rights protection of some through the imposition of an equal loss on others. More commonly we selectively improve protection for some without reducing protection for others. For example, if a judge protects a journalist’s free speech rights against government censorship, no one else’s rights protection is proportionally reduced. (This is zero-sum in the sense that more free speech means less censorship, but it’s not zero-sum on the level of different rights).

Zero-sum rights activism does occur, but only in the case of conflicting rights. For example, the journalist’s free speech rights may require restrictions on the right to privacy of public figures (or vice versa). However, most violations or restrictions of rights are not the result of conflicts between rights but rather the result of the non-rights motivated actions of governments or private agents.

We can rephrase this in economic terms. Given an initial allocation of goods among a set of individuals, a change to a different allocation that makes at least one individual better off without making any other individual worse off is called a Pareto improvement. An allocation is defined as Pareto efficient or Pareto optimal when no further Pareto improvements can be made (source).

Vilfredo Pareto

Vilfredo Pareto

This is common in human rights activism. We regularly intervene very selectively to improve the rights of some while leaving others unaffected. This is because there’s always a lack of resources and a lack of power to intervene non-selectively.

However, even if Pareto improvements can be a way forward for rights protection, they are not the ultimate goal of human rights activism. This ultimate goal is equal rights, and that’s not something you can reach with Pareto improvements. Inherent in Pareto is that you don’t leave anyone worse off, but equal rights may require that some people give up something: an equal right to private property may imply redistribution for example.

Another reason why Pareto improvements aren’t really compatible with human rights is the lack of urgency, priority or fairness in Pareto terms. Pareto improvements can make those who are already better off even better off. If you make the richest person in society better off or improve the rights protection of the best protected person in society, this can be a Pareto improvement, but that’s hardly the best way forward for human rights. Human rights would require making first the worst placed person better off, even if this means making the best placed person a bit worse off (which, however, is often not even necessary).

Pareto efficient is therefore not the best way to achieve a society with full respect for human rights, although a society that is not Pareto efficient – in the sense that some Pareto improvements with respect to rights protection are still possible and some people may be made better off without anyone else being made worse off – obviously does not fully respect human rights.

john rawls

John Rawls

If we first need to make the worst off better off, then a better principle for human rights may be a variation of Rawls’ difference principle:

enhanced protection of the rights of those whose protection is already better is only justifiable if it also leads to enhanced protection of the rights of those whose protection is relatively worse.

For example, one could argue that a very bright person has a right to more education if it turns out that her enhanced education ultimately benefits others who are less educated (perhaps because this person will become a rights activist or because she will transmit her knowledge). Or one can argue that a higher standard of living for someone already well off will increase economic productivity which in turn benefits the poorer members of society. However, this difference principle will not, by definition, make everyone equally well off or guarantee everyone’s equal rights. But perhaps it will do a better job than Pareto efficiency.

More about human rights and zero-sum games here. More about the original difference principle here.

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aid, equality, ethics of human rights, international relations, justice, philosophy, poverty

The Ethics of Human Rights (78): Our Duties to People in Other Countries

grover near and far

Grover, near and far

If we leave aside the minority view that we don’t have any moral duties to other people, as well as the somewhat more common view that we only have duties to a very limited group of people (our tribe, family or nation for example), then we end up accepting that we owe something to the rest of humanity. But what exactly? I don’t want to discuss whether we owe human beings in general the same as what we owe the people we know or the people we are associated with. What I’m interested in here is simply the nature of our obligations to “distant” people, and the basis or reasons of those obligations. Whether they’re stronger, weaker or just as strong as the obligations to “those nearer and dearer” is not the topic of this post (I have an older post about that).

1. What should we do? What are our obligations?

I think there are basically three types of obligations to distant others:

  • we have a duty to protect their human rights; this implies both abstaining from violating their rights and assisting them in the protection of their rights when those are violated (this is a legal duty)
  • we have a duty to create a more just global order (a duty of justice)
  • and we have a duty to act benevolently (a duty of beneficence).

1.1. Protect rights

This duty is in fact a set of different sub-duties:

  • A negative duty to stop violating rights ourselves. For example, if we apply a strict policy of closed borders, we violate certain rights of people in other countries (their freedom of movement, their right not to suffer poverty etc.). Our duties demand that we stop this policy.
  • A negative duty to stop assisting others who violate human rights. For example, the oppressive government of another country violates the rights of its citizens by means of weapons supplied by us (or by firms established in our country and exporting with our approval). Our duties demand that we stop assisting this government in this way.
  • A positive duty to intervene in order to stop human rights violations. For example, the West should have intervened when the Rwandan genocide was in progress.
  • A positive duty to intervene in order to prevent human rights violations. For example, the West should have intervened when it became clear that a genocide was about to occur in Rwanda.
  • A positive duty to intervene in order to create the preconditions for human rights. For example, when the institutions in other countries are dysfunctional or absent (in the case of failed or weak states) we have a duty to assist these countries’ efforts in institution building, so that they end up with institutions capable of protecting the rights of their citizens.
  • A positive duty to intervene in order to assist people’s efforts to overcome their poverty. Since poverty is a human rights violation, this is not really a separate duty: we shouldn’t create or aggravate poverty in other countries, we shouldn’t assist when others (e.g. foreign governments) create or aggravate poverty, and we have a duty to end and prevent poverty, and to create the institutions that make it possible to end and prevent poverty. However, I mention it separately because some of the specific means of intervention are peculiar to poverty, and don’t apply to other human rights (take for example development aid).

Our duties to intervene can cover

  • either only gross violations of some human rights (crimes against humanity, emergency action to alleviate widespread human suffering resulting from war, civil war, famine, drought, natural disasters or other humanitarian crises) – also called r2p
  • or violations of human rights in general.

Gross violations may warrant specific types of intervention that are not allowed for violations in general, for example military intervention. More mundane violations require other types of intervention, such as aid, conditional aid, diplomatic intervention, economic boycotts, universal jurisdiction etc. Intervention can also be either multilateral through the UN, or unilateral. Preferably it’s a legal form of intervention, but if necessary it can also be illegal – morality trumps law.

Uncles from the People's Liberation Army! Quickly go and liberate our little distressed friends in Taiwan, 1955

Uncles from the People’s Liberation Army! Quickly go and liberate our little distressed friends in Taiwan, 1955

1.2. Create a just global order

Perhaps we should do more than just rid the world of human rights violations and extreme poverty. The world is a very unequal place, and will continue to be so even when all human rights are protected and poverty has been eliminated (given a certain definition of poverty). So maybe we also have a duty to create a more egalitarian distribution of wealth, resources and/or opportunities across countries.

However, this duty is much more controversial than the previous one (1.1). Contrary to human rights violations, there is also no legal standard prohibiting an unjust and grossly unequal global order. Hence, given the uncertainty about this second type of duty, it’s safe to argue that we should take it to be a negative duty at most. In other words, we should not make the world more unequal and more unjust than it already is, and we should try to remove or improve institutions that make the world order unequal and unjust. More specifically, we have to

  • remove unfair trade agreements or trade restrictions
  • remove the current system of national border restrictions and allow freedom of movement
  • pay reparations or otherwise correct the lingering effects of a violent and exploitative history
  • improve economic regimes that make it impossible to have equal and fair access to natural resources
  • improve international institutions, shaped by the wealthy countries to their advantage
  • etc.

Obviously, many of these actions also remove human rights violations and are therefore covered by the first type of duty. However, even when they don’t they may be required by morality.

1.3. Act benevolently

peter singer

Peter Singer

The classic description of this duty is Peter Singer’s. He gives the example of a child drowning in a pool. We all believe that there’s a strong duty to save this child, even if there’s a certain cost to ourselves – e.g. it’ll ruin our expensive suit. The equivalent of the drowning child happens all the time in distant places, and there are systems in place that allow us to save people all over the world, at a cost that isn’t much higher than the price of a suit. In many cases, all we have to do is donate some money.

This duty to act benevolently can be interpreted more widely. It can involve more than the requirement to save people from disaster. Singer claims that it implies a radically egalitarian obligation: we ought to help others until the next increment of aid would do more good spent on ourselves than transferred to others. Practically, this means helping others until we are ourselves barely better off than the rest. This is extremely demanding, and very controversial, but the narrow interpretation of the duty of benevolence is widely shared.

Again, these three different duties are not always clearly different. There are overlaps. The duty to act benevolently is partly justified by the rights of the beneficiaries: a drowning child and a starving Ethiopian have a right to life. Creating a more just global order will improve respect for people’s rights, and improving respect for people’s rights will make the global order more just. Still, there are differences between these duties and it’s interesting for human rights activists to consider the possibility that people can appeal to moral obligations that go beyond respect for their human rights.

2. Why should we do what we should do? What is the basis of our obligations?

So, now that we stated what we should do, how can we explain why we should do those things? There may be different reasons why we have obligations to help other and distant people:

  • We may be responsible ourselves for their predicament (or at least partially): we may have violated their rights, helped others to violate their rights, or established and maintained an unjust international order (for example because we have been colonizers or because the international trade system that we have imposed is biased in our favor).
  • People have rights, and these rights by themselves create a duty for everyone else to respect and to promote respect for those rights. The duty to protect other people’s rights is not a duty only for those who are responsible for violating these rights. And neither is it a duty limited to those who have a special relationship with victims of rights violations or to those whose social duty it is to promote respect for rights (e.g. judges or police officers). We all have this duty, and we have it simply because others have rights. Hence, we pay taxes that fund the legal institutions that protect citizens against others who violate their rights, that fund schools and hospitals etc. There’s no reason to think that this does not apply globally as well.
  • We may have an obligation to help other and distant people not because their rights create a moral duty to assist, but because other moral values such as justice and/or benevolence or beneficence create such such a duty. If it is in our power to do something about suffering, injustice and inequality without too much of a sacrifice of our own interests and without violating some deontological demands (e.g. do not kill), then justice and/or benevolence may require that we do it.
  • Duties to help others can also be based on enlightened self-interest: national governments have a duty to protect the rights, security and prosperity of their own citizens, and in some cases this means protecting the rights, security and prosperity of people in other nations. The poor and oppressed may become refugees; civil wars may spread to other countries or may foster international terrorism; unstable economies may harm the global economic system and the environment etc. Conversely, free and prosperous nations benefit the rest of the world because of the gains of trade, cooperation in science and culture etc.
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human rights and crime, human rights violations, justice, law, philosophy

Crime and Human Rights (19): Why Do We Impose Criminal Punishment?

Joseph Stalin's Mug Shots

ca. 1913 — The information card on Joseph Stalin, from the files of the Tsarist secret police in St. Petersburg. — Image by © Hulton-Deutsch Collection/CORBIS

(source)

It seems so obvious that we must punish criminals that we hardly think about the reasons why. And then when we do think about some of the possible reasons, we find that they are of dubious quality, and we start to wonder whether criminal punishment can be justified at all.

1. Retribution

The first reason that springs to mind is retribution: we impose punishment – i.e. pain, suffering or unpleasant consequences – because that is what criminals deserve. Punishment is a deserved and proportionate “repayment” for the crime that has been done. And indeed, the fact that wrongdoers deserve some form of proportionate punishment or unpleasantness seems to be a deep-seated intuition. But if we want to use this notion of retribution as a justification of criminal punishment, we need to define what exactly it is that a particular criminal deserves. Because if it turns out that we can’t decide, in a non-arbitrary way, what it is that a criminal deserves, then it’s useless to place desert and proportional repayment at the heart of the justification of criminal punishment.

And we can’t decide. We can’t determine which punishment fits which crime. Retribution naturally tends towards lex talionis (an eye for an eye). For two reasons: first because that is the easy answer to the question of deserved punishment, and second because of the origins of the word “retribution” (retribuere in Latin means to restore, to give back). However, the brutality of lex talionis is no longer acceptable these days, which is why retribution theorists have tried to find another, less brutal way of determining the deserved punishment. Proportionality is then considered to be a just retributive principle: the punishment must not be equal to the crime, but the gravity of the punishment must be proportional to the severity of the crime; more serious crimes should entail more severe punishments.

Proportionality, like the element of desert in the basic structure of retribution, is hard to argue with, but it’s also useless. It can justify any type of punishment because it doesn’t provide a non-arbitrary starting point or end point of severity. Hence, it fails to answer the basic question raised by retribution: which punishment fits which crime? If this question can’t be answered, then retribution can’t be a justification of criminal punishment.

True, retribution can still be used negatively: some punishments clearly don’t fit the crime, and are not deserved. A $10 dollar fine for a murder, or execution for shoplifting are examples. But a theory of punishment that can only say which punishment are not justifiable is clearly not a complete justification of criminal punishment. After all, such a theory doesn’t exclude the possibility that all punishments are not justifiable.

Stop Sign

(source)

2. Deterrence

With retribution out of the way, we can now consider an alternative justification of criminal punishment. We may decide to punish criminals because in doing so we instill fear in other – potential – criminals and therefore deter future crime. Punishment is then a means to protect society against crime. It’s a stop sign. And, like retribution, this seems to be, at first sight at least, a convincing justification. Like it is intuitively correct that a criminal deserves some kind of punishment, it is also intuitively convincing that people, when faced with the risk of punishment, will have a strong incentive to abstain from crime.

However, we again see that the initial appeal of this justification doesn’t survive closer scrutiny. First, there’s a lack of conclusive empirical evidence for the existence of a deterrent effect. Even the strongest possible punishment – death – doesn’t seem to deter. Part of the reason for this is the fact that crime often isn’t a rational calculation of risks, costs and benefits. And when it is, low conviction rates may have more weight in the criminals’ calculations than the severity or unpleasantness of unlikely punishments.

Another reason why deterrence cannot justify criminal punishment is its inherent immorality: to deter is to use people as means to reduce crime, and that kind of instrumentalization is morally unacceptable.

buster keaton in jail

Buster Keaton in jail

3. Incapacitation

If we can’t deter, maybe we can incapacitate, and justify criminal punishment on that basis. Incapacitating a criminal allows us to protect society without instrumentalizing the criminal (we don’t use the criminal and his punishment as a fear-instilling mechanism; we simply keep the criminal away from his or her future victims).

Again, being able to stop criminals from reoffending is intuitively appealing, but it isn’t enough to justify a system of criminal punishment. If we should decide that incapacitation justifies criminal punishment, we’re still left with the task of deciding the type of criminal punishment it actually justifies. Which actions are necessary and just forms of incapacitation? Like retribution or proportionality, incapacitation leaves open a very wide array of possible punishments: cutting off the hands of thieves, house arrest, ostracism, banishment, imprisonment, chemical castration, etc. A theory that can’t help us to choose among those options can’t possibly be a complete justification of criminal punishment. Ideally, we don’t want a justification of punishment that allows all or most types of punishment. And again, the fact that some forms of incapacitation are clearly not acceptable isn’t ground enough for a justification based on incapacitation, like the fact that some punishments are clearly not deserved isn’t ground enough for a justification based on retribution.

4. Symbolic confirmation of social rules

Perhaps a more promising justification of criminal punishment is based on the social role of punishment. When we punish criminals for their crimes, we may not intend to give them what they deserve, incapacitate them or deter others; we may instead engage in a bit of theater. Which, by the way, is also one of the reasons for having public trials. The public condemnation of wrong actions is a symbolic confirmation of social rules, and this confirmation has an educational function. It teaches people the values and norms of society, in the hope that they internalize these values and norms through repeated public and symbolic confirmation. Furthermore, the punishment of crimes affirms not just certain values and norms (e.g. don’t steal or murder) but the necessity of peaceful social cooperation and therefore the necessity of society itself.

Like desert, protection, deterrence and incapacitation, these are all fine objectives. However, a justification of criminal punishment based on its symbolic role faces the criticism of instrumentalization, as in the case of deterrence. Especially when the stated objectives – affirmation of norms and society – can be reached through other means.

5. Signaling

And the same is true for the justification of punishment based on the need for signaling. Society, and especially the representatives of society, need to show that they care about victims of crime. However, they don’t have to do so at the expense of criminals. Still less acceptable is the use of punishment as a signal of authority. Punishment can’t be justified when it is merely a manifestation of power by those in charge.

revenge-of-the-creature-uk-movie-poster-1955

revenge of the creature, UK movie poster, 1955

6. Healing and pacification

Punishment can be justified as therapy for the victims of crime, their relatives and friends, and even society as a whole. It’s a fact that punishment gives some satisfaction to victims, and responds to their sense of justice. It can also channel anger and revenge away from the more disturbing forms of those emotions, thereby preventing street justice and vigilantism. However, there’s a disturbing circularity to this justification: because people expect punishment, we should administer it, but because we administer it people continue to expect it. Also, when trying to channel emotions such as anger and revenge into socially acceptable forms we unconsciously promote them, whereas maybe we should try to limit those emotions as much as we can.

7. Rehabilitation

The rehabilitation of the criminal in the sense of his or her moral regeneration is no longer a fashionable justification of punishment. For several reasons: it’s expensive, and it upsets our sense of equal justice (successful rehabilitation can imply a radically shorter sentence). Also, some psychiatric excesses have been successfully ridiculed in movies such as A Clockwork Orange and One Flew Over the Cuckoo’s Nest.

In any case, the point is moot whether or not rehabilitation can be a successful justification of criminal punishment, since society has practically given up on it.

a_clockwork_orange_movie_image

Conclusion

It’s extremely difficult to find an acceptable justification of criminal punishment. Hence, I strongly suspect that this is one of those social practices that seems perfectly normal and acceptable to contemporaries but also one for which we will be universally condemned by future generations.

Unsurprisingly, given the lack of solid justifications, people start to look for other reasons explaining the persistence of the practice. There’s talk of the new Jim Crow and criminal punishment being used to maintain oppressive social structures. Maybe it’s time to reread Foucault.

Still, it’s uncontested that society can’t function and people can’t thrive without respect for certain norms, especially the norms included in human rights. Those norms are regularly violated, and a society has the right and the duty to enforce compliance. A rejection of this right and duty means tolerating victimization and rights violations. But if punishment isn’t the right way to enforce compliance, which is? We can’t just accept punishment and to hell with justifications, because punishments do impose costs, both on the criminals being punished and on society as a whole. Imposing costs without justifications isn’t the right thing to do. Also, an unjustified system of punishment will lack legitimacy and will therefore be ineffective, something which will further undermine its legitimacy.

Hence, we’re left with the following choice: look harder for a justification, or find an alternative, non-punitive system of norm enforcement (maybe a system that is able to prevent violations of norms). Only half-jokingly: why not give law-abiding citizens prize money?

More here.

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ethics of human rights, justice, law, philosophy

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

Reconcilliation cartoon by Dario Castillejos

Reconcilliation cartoon by Dario Castillejos

(source)

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.

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economics, ethics of human rights, health, justice, law, poverty, trade

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

Torso and internal 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

organ traffickingIf 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)
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ethics of human rights, justice, philosophy

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.

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discrimination, economics, equality, health, justice, law, philosophy

Discrimination (13): Is Disability Just a Case of Bad Luck or Is It Discrimination?

prosthetic limbs

(source)

When people think about disability they usually don’t see it as a moral issue. A disabled person supposedly suffers from bad luck, and the problems she encounters while living her life with a disability don’t result from the decisions or actions of her fellow citizens. They are instead caused by ill health or by biological and anatomical inadequacies, things for which no one is to blame. Brute misfortune, that is all.

Of course, a disability can be caused by someone else’s misconduct, for example industrial pollution or paralyssis following an accident caused by someone else. However, let’s focus on blameless disability, the kind that is not anyone’s fault.

There’s a problem with the view that this kind of disability is no more than misfortune. The threshold level of normal human functioning that determines the difference between disability and non-disability isn’t just determined by biological facts, but also by social practices and the artificial social environment. For example, imagine a society that has developed technologically up to a point where people don’t have to use their hands anymore. No more computer keyboards, steering wheels in cars, remote controls etc. Let’s assume that everything that needs to be done can be done by programming and brain power (not a far-fetched assumption). A person who loses her hands in an accident will not be considered “disabled” in such a society. This accident will not push her below the threshold level of normal human functioning. In fact, most likely it won’t even be viewed as an accident, but rather a small nuisance, depending on the level of pain involved. Much like we in our existing societies react to a bee sting. It’s usually not disabling.

Now, when we take the same example of a person losing her hands, but situate her in a country such as the U.S. today, then we would say that she is disabled and that she has fallen below the threshold level of normal human functioning. But the reason we say this isn’t simply a biological or anatomical one, otherwise she would also have to be disabled in the imaginary society described a moment ago. The reason we say that she is disabled depends on the social circumstances and the social system in which she finds herself after losing her hands. Because U.S. society has been designed in such a way that people need to use their hands a lot of the time, we say that someone without hands is disabled. The decision to count someone as disabled has less to do with biology and anatomy than with the social practices and the artificial social environment we live in. The level of functioning a person can achieve depends less on her biological or anatomical abilities than on the artificial social environment in which she finds herself.

Hence, disability isn’t just something that happens to people; it’s something that we as a society have decided should happen to people. There’s nothing about our society that necessarily relegates people without hands to the category of the disabled. On the contrary, we have willingly designed our society in such a way that people without hands are disabled. We could just as well design our society in another way. Technology permitting, of course, but technology is also – up to a point – a choice: we just simply decided to develop technologies and the wider social environment in such a way that they don’t really take into account the needs of people without hands.

The fact that we designed our society in the way we did seems to indicate that we don’t care a lot about the disabled, at least not enough to do something for them. And such an absence of care can be viewed as a type of discrimination. After all, until some decades ago, men didn’t much care about the education of women, even though society was quite able to give women the same kind of education as men. The relative lack of education of women wasn’t a necessary fact of life but a choice. And that choice was a symptom of discrimination.

Of course, the analogy is shaky because gender discrimination was and is often a conscious choice, whereas the disabled are only rarely consciously disadvantaged. However, as I’ve stated before, the fact that discrimination is unconscious doesn’t automatically excuse it.

More on luck. More posts in this series.

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