Rather less serious than the normal posts in this series:
Here’s story brimming with irony:
An Air Force officer who led the branch’s sexual assault prevention unit been arrested for allegedly committing an act of sexual assault. Lt. Col. Jeff Krusinski is accused of drunkenly approaching a woman in a parking lot in Virginia and groping her. The woman fought back, and Krusinski’s mugshot appears to show cuts and bruises on his face. The news came on the eve of a new Pentagon report showing the epidemic of sexual assault among servicemembers is continuing to rise. There was a 6 percent increase in reports of sexual assaults in the military in fiscal year 2012 compared to the previous year. The number of people who anonymously said they were sexually assaulted, but never reported the attack, rose dramatically from 19,000 in fiscal year 2011 to 26,000 the following year. (source, 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.
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.
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.
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.
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.
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.
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.
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?
There is a clear correlation between the presence and quality of democratic government in a country and the level of respect for human rights in that country. That may sound obvious but it’s good to have some measured results. This paper for instance offers some clear evidence:
There is a substantial body of research devoted to understanding the relationship between democracy and government human rights performance. Most research centers on physical integrity rights but does not analyze the broader civil liberties encompassed by the category of “empowerment rights.” The dynamics of the relationship between the degree of democracy in a state and protection of empowerment rights might be different and improvements may take longer to emerge. This study examines the effects of democracy and democratic duration on empowerment rights scores, and it also uncovers time thresholds at which different scores are attained. The results show that regime type is more critical to the protection of empowerment rights than it is to physical integrity rights. Even in the earliest years of democracy there is a positive relationship between democracy and empowerment rights, but empowerment rights strengthen as countries gain democratic experience. …
Thus, countries with more institutionalized democratic regimes, as determined by the quality and longevity of democratic experience, are significantly more likely to respect both fundamental human rights and broader classes of civil liberties. … [A]lthough human rights protection is present in early years, it will usually be even greater after countries have had extended experience with democracy. (source)
Two graphs to back this up:
(source, click image to enlarge)
The interesting thing about all this is not that there is a correlation – anyone following the news could have guessed as much. What we should care about are the reasons why there is a correlation. From the studies cited above we can see that the most important causal link is the one going from democracy to respect for human rights. In other words, there is a correlation because democracy causes respect for human rights. Vice versa may also be possible, although the argument is probably weaker. And then there may also be a hidden variable that can partially explain the correlation. For example, it may well be that prosperity and high GDP promote both democracy and human rights.
But then the next question is: how does democracy cause higher levels of respect for human rights? I guess this can happen in several ways:
- Democracies are more likely to be systems based on the rule of law and the rule of law is necessary for the protection of human rights.
- Democratic rulers know that they can’t get away with repression. They’ll be voted out if they try, or, worse, they’ll suffer the consequences of the rule of law, imposed on them by other branches of power in a system of checks and balances and separation of powers.
- Democracies have systems of judicial review which allow courts to void legislation that contradicts basic constitutional rights.
- Democracies have powerful non-violent mechanisms for dispute settlement, such as well-functioning courts. People don’t need to take the law into their own hands. Internal peace and limitations on violent behavior have beneficial effects on a number of human rights.
- Democracy is correlated with high levels of prosperity, and prosperity makes it easier to promote respect for human rights. Rights cost money.
- Democracies need human rights to function adequately (no democracy without free speech, free assembly, free association etc.), so they have an added incentive to respect them.
None of the above is meant to imply the following:
- That we can delay the implementation of human rights norms in non-democratic states. Remember the remark at the beginning that the causal link probably goes in two opposite directions and that human rights can promote democratic government. After all, if people are allowed to express themselves, they will express themselves about the workings of their government, and that is the first step towards democracy.
- That rights are never violated in democracies or never respected in non-democracies. It’s merely a matter of probability.
- That there are no elements other than democracy that promote human rights. Of course there must be. I mentioned prosperity a moment ago. Democracy is not a sufficient condition, although probably a necessary one, at least in the long run, for the full set of human rights and for the equal enjoyment of all rights by all people.
- That the beneficial effect of democracy on human rights is equal for all human rights or for all types of democracy. Well-developed and long-lasting democracies do better, as mentioned above, but perhaps also deep democracies, meaning democracies that provide a wide range of opportunities for democratic say.
The AP is out with an incredible report detailing the stories of undocumented immigrants who were deported by American hospitals, while they were unconscious.
Two of the immigrants profiled, Jacinto Cruz and Jose Rodriguez-Saldana, were unlucky enough to be involved in car accidents and their punishment was being flown to Mexico while still in a coma. The kicker is, they had health insurance, because they had solid jobs, but without documentation proving legal immigrant status, the hospital took it upon themselves to deport Cruz and Rodriguez-Saldana. ….
When the men awoke, they were more than 1,800 miles away in a hospital in Veracruz, on the Mexican Gulf Coast. (source)
More absurd human rights violations here.
If I count correctly, I have blogged about at least 12 ways in which our psychological or mental biases can lead us to violate other people’s rights:
- spurious reasoning justifying our actions to ourselves post hoc
- the role distance plays in our regard for fellow human beings
- the notion that what comes first is also best
- a preference for the status quo
- the anchoring effect
- last place aversion
- learned helplessness
- the just world fallacy
- adaptive preferences
- the bystander effect
- inattentional blindness, and
- stereotype threat
So it may come as a surprise that rationality – in the sense of the absence of biases that distort our proper thinking – can also cause rights violations. But when you think about it, it’s just plain obvious: whatever the irrational basis of Nazi anti-Semitism, the Holocaust was an example of rational planning; many people argue that Hiroshima and Nagasaki made perfect military sense; and others say the same about torture in the ticking bomb scenario.
However, the point is not just that rationality can be harmful, but that biases can be helpful. For example:
Take crime. The rational person weighs the benefit of mugging someone – the financial reward and the buzz of the violence netted off against the feeling of guilt afterwards – against the cost; the probability of being caught multiplied by the punishment.
But we don’t really want people to think so rationally because it would lead them to actually mug someone occasionally. It would be better if they had the heuristic “don’t mug people.” Such a heuristic is, however, irrational in the narrow economistic sense, as it would cause people to reject occasionally profitable actions. (source)
Given the low probability of getting caught for any crime, we would encourage crime if we would favor rationality over bias. If, on the other hand we could adopt a bias that people like us are highly likely to get caught (or, for that matter, another bias, such as the one that rich people deserve their wealth), then crime would go down.
All this is related to the question of whether false beliefs are useful for human rights.
More posts in this series are here.
Are we born as blank slates, and do we get our violent and malevolent inclinations through upbringing and social contact? Or are we born evil? I can’t possibly answer those questions in a blog post, or anywhere else for that matter. But we can get some clues if we focus on one type of rights violation, namely racism.
The available evidence seems to suggest that people are not naturally racist. I’ve discussed some recent findings here. Human evolution has indeed fostered a strong sense of group solidarity, and the dark side of this solidarity is a natural tendency to define outsiders as enemies. This is problematic from the point of view of human rights because it means that the interests and rights of outsiders are routinely discounted. However, “groupism” isn’t necessarily the same as racism. Outsiders can be virtually anyone: foreigners, heretics, infidels, Manchester United fans etc. Race can but doesn’t have to determine the inside-outside border. In fact, throughout much of early human history, when contact between races was the exception, groups have defined insiders and outsiders on other grounds than race. Racism is a relatively recent phenomenon. In the words of Robert Wright:
So it’s not as if the human lineage could have plausibly developed, by evolutionary adaptation, an instinctive reaction to members of different races. (source)
It seems we are ourselves responsible for the rights we violate. We can’t accuse nature or evolution.
In the U.S., 9 states – including Utah, the center of Mormonism – make polygamy a crime, while 49 states have bigamy statutes that can be used to prosecute polygamous families. Polygamy is only legal in North Africa and most of the Muslim world. Does it make sense to promote the right to same-sex, interracial and interreligious marriage, and at the same time oppose polygamy? (By the way, polygamy usually means polygyny: one husband, multiple wives – the opposite, polyandry, is extremely rare).
Marriage is a recognized human right, but does the word “marriage”, as it is used in human rights language, also cover polygamous marriage? From the texts of human rights treaties and declarations, it’s not even clear that it covers same-sex marriage – although it undoubtedly covers interracial and interreligious marriage. The word ”marriage” isn’t clearly defined in the texts. Article 16 of the Universal Declaration merely states the following:
1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full consent of the intending spouses.
3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
Polygamy or same-sex marriage aren’t specifically mentioned as being forms of marriage that are included in the right to marry, but neither is it the case that sexual orientation or the numbers of partners are stipulated as unwarranted limitations to the right to marry. So the phrasing as it stands neither includes nor excludes polygamy or same-sex marriage as a right. Article 23 of the International Covenant on Civil and Political Rights isn’t much clearer.
However, the case for same-sex or interracial marriage can be based on other articles, such as the non-discrimination provisions. Article 2 of the International Covenant states:
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Sexual orientation is not mentioned but it is accepted that the list given here is a list of examples and not exhaustive. “Without distinction of any kind” is clear enough. Article 3 states:
The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.
And Article 26:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
It’s not clear whether polygamists can invoke the same non-discrimination provisions. Perhaps the right to privacy can help them. Article 12 of the Universal Declaration:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence… Everyone has the right to the protection of the law against such interference or attacks.
However, apart from the question whether polygamy can be defended or not on the basis of existing human rights law, there are some good reasons why perhaps there shouldn’t be a right to polygamous marriage, even if it can be established that there is such a right. Wives may be pressured into polygamous marriages or prohibited from exiting them; they may suffer inequality and oppression in their marriage; and young girls may be forced to marry. The same risks exist of course in normal monogamous marriage, but are perhaps more important in polygamous marriage.
Moreover, polygamous marriage poses certain risks that are non-existent in normal marriage: excess boys in polygamous communities are often ostracized and condemned to a life of poverty and homelessness; and there’s a risk that marriage as an institution and as a general right may suffer when polygamy becomes widespread:
Polygamy is bad social policy for exactly the reason gay marriage is good social policy: everyone should have the opportunity to marry. Broad access to marriage is important not only for individual wellbeing but for social stability. And, to oversimplify only a little, when one man gets two wives, some other man gets no wife. There’s no better path to inequality, social unrest, and authoritarian social structures than polygamy. (source)
And yet, if it’s the case that
- polygamy remains a fringe custom
- polygamists are generally exercising their free choice and informed consent
- no children are forced to marry or are sexually abused
- and excess boys are not ostracized
then why would anyone oppose polygamy? Monogamous marriage isn’t illegal because some wives are beaten or because there are some cases of monogamous child marriage. One could oppose polygamy for religious reasons, but those aren’t sufficient in liberal democracies. Polygamy can only be problematic when it’s a practice that regularly and intrinsically leads to rights violations, as it does when child brides are common, when wives are commonly forced into marriage or when widespread polygamy makes it very difficult for men to find brides and marry.
Another thing to consider is gender equality. Even if polygamy is rare enough not to deny men a reasonable chance of marriage, and even if all polygamous wives are adults who freely consent to their marriage and who have equal standing within their marriages, then it’s still the case that the practice itself can signal gender inequality and hence perpetuate it. The reason is that polygyny, by its very nature, signals that men have more rights than women: a man can take several wives, but not vice versa. A legal right to polygamy would of course also entail a right to polyandry, but it’s unlikely that the risks to gender equality created by polygyny would be offset by many cases of polyandry. The more likely result is that polygyny fosters preexisting misogynistic prejudice because polygyny will always be more common that polyandry.
So, in the end a lot depends on how often polygamy results in rights violations. Is polygamy more like child marriage, which by definition is a rights violation (it involves pedophilia, the denial of education, health problems resulting from pregnancy at an early age etc.)? Or is it more like monogamous or same-sex marriage, which may produce rights violations such as domestic violence, but not intrinsically so? If some practice by definition violates rights, it should obviously be prohibited. If the practice only does so by accident and exceptionally, then it should in general be protected, especially when the practice itself is a human right. I claim that there is nothing inherently wrong with polygamy, as long as it’s not set up in such a way that it violates rights – as long as in most cases the wives consent (in an informed way), children are left alone, boys aren’t ostracized, and the practice isn’t so widespread that men can’t marry or that women feel they are second class citizens.
In this respect, polygamy is similar to hate speech. In the case of hate speech we are also dealing with a presumptive right, but one that can be abrogated when its exercise becomes too widespread with negative consequences for the rights of others. When a small black minority for instance is overwhelmed by hate speech, to such an extent that black people can’t go outside for fear of constant insult, then their right to freedom of movement should trump the speech rights of the haters.
For a more pessimistic view on polygamy, go here. Below a map showing the prevalence of polygamy/polygyny:
Saudi Arabia is considering changing its standard execution method. Instead of beheading by sword they plan to use the firing squad. One of the swordsmen says he’s not worried about the future of his profession.
[He] has been apprenticing his son in beheadings. He acknowledges, though, that the government’s concerns about a shortage of qualified swordsmen are justified. “This profession is not desired by many,” he told Okaz, “despite the salary and personal reward we gain from it.” (source)
Personal reward of what kind exactly? Pleasure? Accomplishment? Pride? All of the above? You also have to wonder about the age of his son, and about the exact practice method.
The use of so-called drone airplanes to target and kill suspected terrorists is in the news again. Some in the U.S. have voiced what in my view are justified yet somewhat myopic concerns about the supposed authority of the U.S. President to target American citizens on foreign or domestic soil. This is one of many cases in which the value of due process clashes with the need to respond to imminent threats. As usual, the executive has a tendency to focus on the latter.
The concerns that have been voiced recently are myopic in the sense that most drone attacks take place abroad and most victims are foreigners. Let’s therefore limit our discussion to the justifiability of targeting foreigners abroad. (These drone attacks, by the way, are just one form of targeted killing – the British SAS and the Israeli Mossad use or have used human operators to stalk and shoot terrorists at home or abroad).
So, we’re talking about governments carrying out the killings, and the targets are suspected foreign terrorists, insurgents or combatants hiding on foreign soil. Governments try to justify such killings by arguing that they and the targets are engaged in armed conflict: a war if not necessarily a declared one. If indeed we are dealing with a war then the targets do not even have to pose an imminent threat when they are killed. A history of violence and a risk of future violence are sufficient reasons to target and kill them. In a war, it’s deemed acceptable to kill unthreatening and even unarmed enemy forces, as long as these forces are hostile and potentially dangerous elements in an ongoing conflict. Targeted killing is therefore seen as equivalent to the normal and traditionally unlimited wartime right to kill enemy soldiers.
That is also why the possibility of apprehension is not considered a sufficient reason to abstain from targeted killing, although in practice most killings are of people who are difficult to apprehend.
So that’s the governmental story about targeted killing. How should we assess this story? There are some good sides to it, and some bad:
- If indeed we’re dealing with a war, then concerns about extra-judicial killings, about the absence of imminent threats and the failure to apprehend when possible do not seem justified. That’s a bog “if” of course. One has the feeling that the “war on terror” has been called a war not because it is one but because it yields the right to kill. And one can even question the traditional right to unlimited killing of soldiers during wartime, as Jeff McMahan has done.
- Drone attacks evidently minimize the risks of casualties on the attacker’s side, even possibly down to zero. Drones may also provide cover for soldiers in the field during regular operations.
- Although these things are difficult to measure given the secrecy of the whole affair, it does seem obvious that drone attacks, when compared to standard military attacks, should in principle involve fewer civilian casualties. (An attempt to measure this is presented here. A less rosy view on the matter is here and here).
- Drone attacks may produce leadership vacuums and lead to disorganization in the terrorist organization. Organizational decapitation may hurt terrorist groups more than regular attacks.
- Drone attacks – especially if they become widespread – mean that the attacking side no longer has skin in the game. As a result, these attacks may remove an important restraint on war. Wars or military adventures may become more common as they become less costly in human terms on the attacker’s side.
- Positing the equivalence with normal wartime killing implies that the drone operators, who are commonly situated far from the battlefield and close to residential areas in the home country, are legitimate targets for retaliation. Ironically, drone attacks may therefore encourage terrorist attacks.
- As already stated, a lot hinges on the use of words. Killing people who aren’t an immediate military threat may be tantamount to extra-judicial execution. And merely labeling those people “combatants” and the operation a “war” isn’t enough to acquire the right to normal wartime killing. It may often be more precise to label terrorist attacks as normal crimes rather than acts of “war”, in which case normal judicial proceedings are more appropriate, which means apprehension and trial, and killing only when apprehension is impossible and a threat is imminent.
- The choice to kill when apprehension is possible means forgoing the possibility to put the target on trial and demonstrate to the world how a civilized country deals with threats. It gives the opposite message that violence is the appropriate form of defense and retaliation.
- Intelligence that could be gathered by capturing and questioning the targets is lost when they are killed.
- The lack of transparency opens the door to abuse, as does the view that an imminent threat is not required.
- Drone attacks often violate the sovereignty of other countries, setting a dangerous precedent.
- Targeted killing may be fatal to the democratic peace theory (see here for more details).
Some of these points carry more weight than others, and some perhaps none at all. Other points could be added. It’s up to the reader to make up his or her own mind, but my view is the following: compared to the general unpleasantness of war, targeted killing isn’t particularly shocking and can even be seen as a step forward. That is, as long as it is really limited to an actual, uncontested war involving real combatants who pose an imminent threat, and a threat that can’t be averted by apprehension and trial.
What is perhaps more shocking than the attacks themselves is the fact that the whole “war” rhetoric has become so vague that anything can be called a war. Is there a crime with which we’re not “at war”? When ordinary criminals – and I consider most terrorists to be ordinary criminals, ordinary except for their particular motivation – can be targeted like enemy soldiers, what is left of criminal justice? Extra-judicial execution then becomes the only form of crime prevention.
More on targeted killing here.
In Saudi Arabia they use a strictly etymological interpretation of the phrase “capital punishment”. However, there’s now a proposal to abandon beheadings and to look for alternatives:
Last week, the Saudi daily Al-Youm reported that Saudi Arabia is considering transitioning away from the state’s institutionalized method of executing convicts: beheading by sword. Beheading — the approach to carrying out death sentences in the Arabian Peninsula in the seventh century — has long been practiced in the kingdom in observance of its strict interpretation of Islamic law, which seeks to mimic practices at the time of Mohammed. But a committee of Saudi government officials recently ruled that execution by firing squad would also be permissible under the national brand of sharia.
“This solution seems practical, especially in light of shortages of official swordsmen,” the committee explained in a statement quoted by the Egyptian newspaper Al-Ahram. The committee also complained that official swordsmen have been known to show up late to executions. (source)
Letting convicts wait for their execution? Standard practice in other countries, and according to some an extra punishment that is richly deserved.
Does this mean those few remaining swordsmen will be out of a job soon? It turns out the Saudi newspaper Okaz asked one of them: Mecca-based executioner Mohammad Saad al-Biishi. He says he’s not concerned, citing the fact that he’s already received firearms training. In the meantime, he’ll keep on with the beheadings. (source)
[T]he persecution and expelling of Jewish people by pre-modern European states is linked to agrarian variations. Based on historical weather data, evidence suggests that during the 15th and 16th centuries, colder temperatures made it significantly more likely that a Jewish community would be expelled. … [A] Jewish individual from the 15th or 16th century, who lived to 50 years old, faced roughly an 18% chance of being expelled during their lifetime. This risk was almost twice as great during a cold year. (source)
Apparently, persecution of Jewish groups follows from the economic hardship that in turn follows from colder temperatures during the growing seasons (that is, April to September). Agrarian economies were more vulnerable to weather shocks, and these shocks produced negative economic outcomes which then led to the scapegoating of minorities. Cities with poorer quality soil also saw an increased chance in the occurrence of expulsions of Jewish groups.
Interesting, but I doubt it has much relevance for the problems of today.
More posts in this series are here.
As is often the case, there’s public opinion, there’s empirical reality, and there’s a lot of space between the two. One particularly harmful public myth is the one about the “criminal immigrant”. It’s harmful in several ways: it whips up support for immigration restrictions, which help to keep many foreigners poor, and it contributes to feelings of insecurity, which in turn lead to tough-on-crime policies and high rates of incarceration.
First, here’s U.S. public opinion on the matter (via the General Social Survey):
Other countries have similar numbers:
Kitty Calavita’s recent study in southern Europe, for example, reports that in Spain in 2002 a national poll found that 60 percent believed that immigrants were causing increases in the crime rate, while a survey conducted in Italy found that 57 percent of Italians agreed that “the presence of immigrants increases crime and delinquency.” (source)
Now, the facts:
Both contemporary and historical studies, including official crime statistics and victimization surveys since the early 1990s, data from the last three decennial censuses, national and regional surveys in areas of immigrant concentration, and investigations carried out by major government commissions over the past century, have shown instead that immigration is associated with lower crime rates and lower incarceration rates. (source)
More posts in this series are here.
A traditional objection to private property is that it tends to result in very unequal distributions. Wealth begets wealth, and even when it doesn’t it’s certainly the case that luck, effort, injustice etc. can leave some people with too much and others with barely enough property to survive. So, the logical step would be to switch to a system of common property: if something is the common property of all, then everyone, by definition, can make equal use of it and no one is left with nothing or a bare minimum.
However, when taking this seemingly logical step, we’ll fall over the first hurdle. The “tragedy of the commons” makes everyone worse off, even if everyone has equal access. If, for example, everyone has an equal right to use a piece of land for cattle, then no one has an incentive to avoid over-use. On the contrary, it’s in every individual’s interest to brings as many cows as possible. Someone who tries to act in a responsible way and limit his use of the common land bears the cost of his self-restraint while all other irresponsible users benefit from his self-restraint. The benefits of overuse are immediate and certain, while the benefits of restraint are in the future and conditional upon equal self-restraint of all users. Because everyone has an incentive to get as much out of the shared resource and as quickly as possible, the resource will be rapidly depleted, and everyone will be worse off in the end.
The next logical step to remedy this deficiency of common ownership is to switch to collective ownership. Collective ownership means that the community as a whole decides how the commonly owned resources should be used. The self-destructive logic of common ownership results from a lack of trust and collective action among the users. This logic can be countered if there’s a collective decision on the rules that govern the use of the shared resources. For example, a collective decision could prohibit use above a certain level. Such a rule can enforce self-restraint.
The problem is that this step also fails. Collective ownership is perhaps possible when we’re dealing with one or a few resources (e.g. land and cattle), but a modern economy is too complex: there are too many resources and too many decisions to take. It doesn’t seem possible for a single human mind, let alone a very inclusive collective, to take all necessary decisions about resources. (Communist central planning was a failure in this respect, with wasteful resource allocation and huge inefficiencies).
That is why we’ll have to reconsider private property, combined with a market system based on prices. If people own their own things and their own share of the total pool of resources, then resources will not be depleted but instead be used productively. No one has an incentive to deplete their own private property; on the contrary, the incentive is to use it wisely and productively.
When individual owners are then also allowed to trade their surplus production in a free market system based on the price system, then this price system will signal over or under-use of resources (in certain cases at least). Producers and consumers responding to these price signals will then switch to underused resources, something which again promotes efficient resource use and avoids depletion (at least some of the time). But they will only respond to price signals when there is private property and when the loss of not responding or the gain of responding is theirs and theirs alone.
However, this brings us back to our starting point and the initial problem of private ownership: very unequal ownership and unequal use of resources, so unequal in some cases that certain people don’t have enough to survive in a decent way. Of course, those people can sell their labor power in order to acquire some property, but this will not always suffice. Given the various beneficial functions of private property – some of which are commonly neglected – people need more of it than we usually assume. The price system doesn’t always work, and the price of labor (the wage) isn’t always a fair one, or at least not one that allows the laborer to acquire all the necessary private property. Also, one has to take seriously the alienating consequences of wage labor and the unjust distribution of property resulting from luck and theft. Hence, we can only settle on private property as the least problematic form of property in our modern economies if we include a robust redistributive principle.
The NYPD can arrest you for carrying condoms … Trans and carrying condoms? You must be a prostitute, and condoms are the proof! Wearing a tight t-shirt and carrying condoms? You must be a prostitute, and condoms are the proof! A sex worker who is trying to keep herself safe in her work? You are actually a prostitute, so go to jail, or at the very least get your condoms taken away so your work is more dangerous. The condoms-as-evidence policy serves absolutely no one. (source)
Here’s an excerpt of the supporting deposition:
More absurd human rights violations here.
Those of us who believe human rights are important have an intellectual duty to engage with the best critics of human rights. “Engage” may be too big a word for this blog post, but what I’ll do here is list some of the best anti-rights theories and link to previous posts where I’ve dealt with them in some more detail.
By “best” I obviously don’t mean “convincing”. If I was convinced by any (or all) of these theories I wouldn’t be writing this blog. None of the theories I list here, or any other anti-rights theories for that matter, are even remotely convincing on close inspection. I won’t provide that close inspection in this post. In most cases I’ve done so before, and I’ll therefore take the luxury of linking back to older posts.
Utilitarianism comes in many shapes, but the most basic form of the theory is evidently opposed to human rights. Human rights limit the things that can be done to maximize aggregate utility, and the efforts to maximize aggregate utility often – in some forms of utilitarianism – justify harm done to individuals if that harm is necessary for greater gains elsewhere in society.
Of course, there is such a thing as rule utilitarianism which claims that respect for rules (e.g. human rights) usually maximizes utility or is the best proxy for utility in the absence of detailed knowledge about consequences of specific actions. Read more here and here about the link between utilitarianism and human rights.
Cultural relativism doesn’t reject human rights as such, but only their universal applicability and desirability. According to this theory, different cultures have developed their own moral codes, adapted to their own identity, circumstances and history, and moral diversity is therefore something valuable that needs to be protected. Efforts to universalize human rights will destroy moral diversity and non-western cultural identities, and are in fact exercises in cultural imperialism and cultural genocide.
A related criticism views human rights as a tool in outright power imperialism. Human rights talk only serves to justify violent interventions in so-called “rogue states” or other countries that provide a selfish and imperial benefit to the U.S. (but also Europe). The violent interventions in Kosovo/Serbia, Iraq, Afghanistan etc. have all been partially justified by human rights talk but were, according to some, primarily motivated by the strategic interests of the intervening powers. More here.
The economic case against human rights
It’s often argued that economic growth is enhanced by certain policies and actions that imply violations of human rights. The Chinese government in particular is quick to use this argument. And the whole “Asian values” debate – somewhat outdated now – was based on it. Especially developing countries supposedly can’t afford the luxury of human rights. They need discipline and organization in production and consumption, not freedom. Read more here, here and here.
Legal positivism doesn’t claim that there are no rights, simply that there are no human rights. Rights exist only if they are part of the law. Human rights in the abstract, as something that human beings possess independently of their country’s laws, is simply idle talk. It seems I still have to make the case against legal positivism…
According to Marx, human rights are the rights of the egoistic man, separated from his fellow men and from the community. They are the rights of man as an isolated, inward looking, self-centered creature and they are designed to protect the wealthy from the poor. More here, here and here.
More posts in this series are here.
First, there has indeed been a surge in human rights talk over the past decades and even centuries (see here for some evidence). This is particularly obvious for the period since the end of WWII. Human rights have become the lingua franca among the oppressed, the persecuted and the bleeding hearts worldwide, effectively replacing language based on benevolence, honor etc. (No insult intended, I’m a bleeding heart myself). There’s something about the notion of a human right that captures the strength of demands for freedom and equality like nothing else. It makes a claim sound very strong and difficult to ignore.
Other reasons for the popularity of human rights – or better the fascination with human rights – are their clarity and simplicity, their obvious universality and the fact that they cover most if not all areas of human suffering, depravity and failing, including persecution, violence, lack of freedom, discrimination, poverty, work and the family.
A further, and as yet unexplored reason is the so-called intentionality bias. The intentionality bias is a psychological bias where actions are viewed as intentional even when they’re not.
Three studies tested the idea that our analyses of human behavior are guided by an ‘‘intentionality bias,” an implicit bias where all actions are judged to be intentional by default. In Study 1 participants read a series of sentences describing actions that can be done either on purpose or by accident (e.g., ‘‘He set the house on fire”) and had to decide which interpretation best characterized the action. To tap people’s initial interpretation, half the participants made their judgments under speeded conditions; this group judged significantly more sentences to be intentional. Study 2 found that when asked for spontaneous descriptions of the ambiguous actions used in Study 1 (and thus not explicitly reminded of the accidental interpretation), participants provided significantly more intentional interpretations, even with prototypically accidental actions (e.g., ‘‘She broke the vase”). Study 3 examined whether more processing is involved in deciding that something is unintentional (and thus overriding an initial intentional interpretation) than in deciding that something is unpleasant (where there is presumably no initial ‘‘pleasant” interpretation). Participants were asked to judge a series of 12 sentences on one of two dimensions: intentional/unintentional (experimental group) or pleasant/unpleasant (control group). People in the experimental group remembered more unintentional sentences than people in the control group. Findings across the three studies suggest that adults have an implicit bias to infer intention in all behavior. This research has important implications both in terms of theory (e.g., dual-process model for intentional reasoning), and practice (e.g., treating aggression, legal judgments). (source)
If there is indeed a tendency to view actions as intentional, then there will also be a tendency to frame problems in terms of human rights. For example, if the intentional actions of an oppressive majority assisted by prejudiced legislators and law enforcers are believed to be the main cause of discrimination of a racial minority, then holding those intentional actors legally and judicially responsible for rights violations makes sense and may be effective. When, on the other hand, a lot of this discrimination is in fact the result of unconscious bias, or when it is statistical discrimination rather than taste-based discrimination, then judicial action based on human rights is much less effective.
And it’s my opinion that a lot of human rights violations are unintentional, unconscious and statistical. That doesn’t mean we should stop framing the underlying problems in human rights terms, but it does mean that our efforts to do something about them should be non-legal and non-judicial. Story telling, making people aware of their unconscious biases against certain groups of people, incentivizing people and other strategies can then be more successful in stopping rights violations.
The intentionality bias can be understood as an example of the fundamental attribution error: the tendency to over-value dispositional or personality-based explanations for the observed behaviors of others while under-valuing situational explanations for those behaviors. A simple example, if Alice saw Bob trip over a rock and fall, Alice might consider Bob to be clumsy or careless (dispositional). If Alice later tripped over the same rock herself, she would be more likely to blame the placement of the rock (situational).
History has seen many genocides and large scale killings. Some of those resulted in more deaths than the Holocaust. So why is the Holocaust special? It’s special because it was the first and last example of the industrial production of corpses. It was, quite literally, a murder machine. The murders were not the actions of specific individuals who did what they did because of their identity, motives or pathologies. They were not like the brutalities of the Roman Emperor Nero, which were clearly his. Nor were they like the crimes of Saddam Hussein or any other identifiable criminal. In the case of the Holocaust, it was impossible to recognize an identity in the deed. The killers were impersonal, insignificant, loyal, conscientious and hardworking civil servants operating together in an organized, efficient, systematic and planned extermination, characterized by division of labor and the industrial production line. Everyone knew exactly what to do, and often that was a very small part of the process. Shared responsibility is often seen as diminished responsibility, and makes it easier to produce corpses. The detailed planning, organization and execution of the project sets the Holocaust apart from other genocides. Eichmann protested against spontaneous pogroms in the east, not because he was a humanitarian but because those unorganized interventions messed up his bookkeeping and made it difficult to count how many exactly were killed by the otherwise machine-like operation.
The Holocaust was not the action of an individual or a small group of people. Nor was it motivated by egoism, the will to power, money, hate, rage, revenge, sadism, war or the elimination of opposition. The victims were not guilty of opposition or even crime. The perpetrators weren’t motivated by self-interest (for example, the Nazis prohibited private confiscation of Jewish goods for personal use). Neither was it primarily the hatred of Jews that led the Nazis to try to exterminate them. It was the love of humanity – or better what they considered to be true humanity – and the need to protect it. The Holocaust wasn’t a war crime either and wasn’t part of the normal atrocities of war. It started well before the war and the German war effort suffered substantially from it: potentially useful labor forces were eliminated, soldiers and other means that could have been used in the war were diverted to the extermination effort etc. The Jews were murdered, not because that would have allowed soldiers to fight rather than guard prisoners, but because they were Jews. The extermination continued even in the final days of the war, when Germany was losing and all military resources should have gone to the war effort. And, finally, the purpose of the Holocaust wasn’t to instill fear. Normal state terror serves to scare the population and convince it to submit and to behave in ways that are acceptable to the rulers. Not in the case of the Holocaust. Fear had become useless because it couldn’t serve to guide actions and to steer away from danger. Danger would have found you anyway. Everyone knew that you were a Jew, and tactical maneuvering motivated by fear could have helped you escape only in very few cases.
Self-interest, power hunger, sadism, revenge or other utilitarian motives were seen by the Nazis as diversions from the genocidal operation that was undertaken for the benefit of mankind. As was the military self-interest of Germany’s success in the war. The project of extermination of the Jews and the protection of mankind was more important than the risk of a possible military defeat of Germany. Pity as well could not stand in the way of the demands of nature and history. The pleas of the victims were not heard and people convinced themselves of the historical and natural necessity of the Holocaust. Like pity, the taking of money from a victim as a bribe for letting him or her live was a betrayal of nature. Germans had to be the superhumans that they were destined to be, free from all that makes us ordinary humans: pity, self-interest, hate and the will to power.
The Holocaust wasn’t a crime. A crime is a deed that goes against social order and established law and that challenges the powers that represent social order. In this case, we have an atrocity that emanated from the state and that had become the moral and legal law. Murder had become a form of government. Evil no longer had to fight the Good, and no longer had to hide and to be hypocritical. Evil ruled. There was only evil. The world was without a horizon, without hope or salvation. Another reason why the Holocaust can’t really be called a crime is the fact that the perpetrators didn’t have criminal motives. They just carried out the verdict of nature and implemented the laws of nature. A deeper legality defined the actions of government. Murder had become the law of nature as well as the legal law and the law of morality.
More on the Holocaust here.
There are some interesting things to say about the state of mind of the rights violator, and about how this state of mind leads to rights violations and subsequent liability and punishment. There’s malevolence, of course, but that’s just one extreme of a wide spectrum of states of mind that can cause rights violations. We’ll have a look at that spectrum here, and classify states of mind according to the degree of liability and the severity of punishment that should attach to them. (By some accident of the English language, all states have a name that ends in -ence. Makes it easier to remember).
A malevolent violator acts intentionally. She knows the harmful consequences of her actions and acts anyway. In fact, she acts precisely because of those consequences. The notion of mens rea is applicable here. An example of malevolence is premeditated murder.
A non-benevolent or negligent violator also acts – or omits an action – intentionally. She also knows the harmful consequences of her actions or omissions and proceeds anyway, not because she wants the consequences but because she doesn’t care enough about them. An example of non-benevolence is the failure to help persons in need (the classic case of the drowning child). An example of negligence is the factory owner failing to install safety measures for her workers. (There may be a problem with the notion of “failure to help persons in need”: given the large number of people in the world that are in some sense “in need”, we may not be able to help them all without radically changing our own lifestyles. All of us who are not now in Africa working to end poverty may then be liable. Perhaps we can avoid this excessive burden by limiting this liability to face-to-face situations such as the drowning child, but it’s not clear that there’s a sound moral basis for this limitation).
An unintelligent violator acts unintentionally. She doesn’t know the harmful consequences of her actions, but she could have known them without much effort. Because she could have known them, she should have known them. And because she should have known them she is liable for them. It’s a form of negligence: the actor is intellectually negligent. She is not negligent in the sense that she does not care about consequences but in the sense that she does not reflect on them or does not care enough to reflect on them. An example of an unintelligent actor is the bar fighter.
A coincidental violator also acts unintentionally, and also doesn’t know the harmful consequences of her actions. The difference is that she couldn’t have known them, or couldn’t have been expected to know them, within reason. Because she couldn’t have known them, we can’t demand that she should have known them. And yet, in some cases we may still hold her liable. An example is fraternal incest between brother and sister separated at birth. Another example is the drug company selling a product that has been thoroughly tested but still has some unforeseen and unforeseeable harmful effects. Obviously this is a reduced form of liability.
An ascendental violator also acts unintentionally. She may or may not know the harmful consequences of her actions. The nature of this type of state of mind is that she doesn’t know her actions. We’re dealing here with unconscious rights violations. People may violate rights but don’t realize that they do. They may act because of tradition, because certain rules or biases were instilled in them in early childhood etc. In some cases, they can be held responsible for their actions. The word “ascendence” therefore refers to what goes above and comes before. An example is here.
An incidental violator is just there. We don’t know anything about her state of mind. We don’t know whether she acts intentionally or not, knowingly or not, willingly or not. We don’t know whether she could or should have known or done something. For example, we see patterns of discrimination in society, and someone must be discriminating. We may be able to identify that someone and hold her responsible even when we lack all other knowledge about her. An example would be a company systematically paying female employees lower wages.
Here’s a summary representation of the spectrum of states of minds, according to the degree of liability :
More posts in this series are here.
- Accident Liability | eLocal (elocallawyers.com)
According to Steven Pinker, farmer cultures and regions or countries arising from farmer cultures are much more amenable to human rights than herder cultures and their successor societies.
The North [of the US] was largely settled by English farmers, the inland South by Scots-Irish herders. Anthropologists have long noted that societies that herd livestock in rugged terrain tend to develop a “culture of honor.” Since their wealth has feet and can be stolen in an eye blink, they are forced to deter rustlers by cultivating a hair-trigger for violent retaliation against any trespass or insult that probes their resolve. Farmers can afford to be less belligerent because it is harder to steal their land out from under them, particularly in territories within the reach of law enforcement.
As the settlers moved westward, they took their respective cultures with them. The psychologist Richard Nisbett has shown that Southerners today continue to manifest a culture of honor which legitimizes violent retaliation. It can be seen in their laws (like capital punishment and a stand-your-ground right to self-defense), in their customs (like paddling children in schools and volunteering for military service), even in their physiological reactions to trivial insults. (source, source)
It’s an interesting explanation, but also reductionist. Even if the descriptions of herder and farmer cultures are historically correct, it’s by no means evident that present-day people are determined by the mentalities of their distant forefathers.
More posts in this series are here.
An amazing image from Amnesty International, of Beirut City before (June 19, 2006) and after (August 12, 2006) attacks during the 2006 Lebanon war:
Between 12 July and 14 August, 2006, a major military confrontation took place between Hizbullah and Israel, following the capture of two Israeli soldiers, and the killing of others, by Hizbullah in a raid across the border between Israel and Lebanon. Israel conducted attacks throughout Lebanon from land, sea and air, killing some 1,000 civilians. Hizbullah launched thousands of rockets on northern Israel, killing some 40 civilians.
The war caused large scale devastation, with war crimes committed by all parties, and civilians bearing the brunt of casualties. AI found Israeli forces had committed indiscriminate and disproportionate attacks, including the use of cluster bombs in civilian areas. Israeli forces also appear to have carried out direct attacks on civilians and civilian infrastructure, seemingly to pursue a strategy intended to punish Lebanon for not turning against Hizbullah, as well as harming Hizbullah’s military capability. Hizbullah used both indiscriminate rockets as well as direct attacks on civilian populations in towns and villages in northern Israel, which were seen as reprisals. (source)
More posts in this series are here.
Kids at stoplights offering to wipe a windshield for a few coins, or little ones hawking goods at produce markets: In much of the developing world, it’s common to see children as young as eight or nine hard at work.
And it’s no different in Colombia, where an estimated 1.5 million children between the ages of five and 17 work in such situations for more than 15 hours a week. Nearly nine percent of kids aged five to 14 work, a 2011 government census found. Though the government was able to document the scope of child labor in Colombia, finding lasting solutions to end the practice, which can keep kids out of school and place them in dangerous work environments, has proved challenging around the globe.
But in Colombia, a new smart phone crowdsourcing application is helping authorities and researchers tackle the problem. Whenever users see a child working they can take a picture with their phone and log the location, which the app sends to the country’s child welfare agency. …
“It’s a tool that puts the power to report child labor in the palm of anyone’s hands,” says Mauricio García, of the Colombian Family Welfare Institute (ICBF), which receives the information, including photos, global positioning system coordinates, and other details, sent by users.
Since ICBF started using the information gathered by the app last February, about 3,800 reports have been filed, and not all of them from cell phone users in Colombia.
“We’ve gotten reports from Asia and Africa, because anyone can download the app from their phone’s app store,” says Claudia Aparicio, head of Fundación Telefónica in Colombia, the organization that spearheaded the crowdsourcing project as part of a broader campaign to fight child labor in Latin America. The organization maps all reports but only in Colombia is action taken at this time.
Colombia is not, by far, the worst country in the region in terms of child labor. Bolivia for example has rates as high as 40 percent. …
Once a child laborer is identified, officials verify whether the child is enrolled in school, and may call the parents and children in for counseling. (source)
It seems it hasn’t occurred to anyone that children have a right to privacy. Poor people’s privacy is already disproportionally at risk, so no reason to make it worse. If some good came out of it, one might call that an acceptable price, but this doesn’t seem to be the case.
More ironic human rights violations here.
(source, click image to enlarge)
Taj Mohammad tries hard to hold back his tears as he describes the most painful decision of his life.
His wife and mother-in-law sob inconsolably as they try to protect Naghma and her seven siblings from the harsh Afghan winter outside.
“Everyone in the family is sad,” says Naghma’s grandmother, who was herself a child bride. “We cry. We are in pain. But what else could we do?” she asks. …
“To keep my family alive, I took a loan of $2,500 [about £1,600] from a distant relative,” Mr Mohammad says. …
He says he was struggling to come to terms with the loss of his three-year-old son and an uncle, both of whom died in the cold earlier this month, when the distant relative sent a message demanding his money back.
“He wanted his money back. But I couldn’t pay. No-one would lend money to me,” he says.
“Then a relative suggested that I give my daughter in lieu of money.” (source)
The idea that human rights are equal rights is trivial at first sight. However, it becomes problematic after some reflection, and only regains its persuasiveness after even further reflection. When you think about it, equal rights for everyone is a strange idea. Why should all people have the same rights? Why should a preacher of violence and hate have the same right to speak freely as the world’s best poet? Why should a religion that oppresses women have the same right to exist as a religion that loves peace and equality? Why should people who haven’t finished primary school have the same right to vote as experts in government matters?
Agreed, they are all human beings and human rights are the rights of human beings, but that’s a tautology, not an argument. A somewhat more promising foundation for the notion of equal rights goes like this: one can argue that people need human rights in order to realize certain of their most fundamental and commonly shared values. If that is true, then rights should be equal rights.
Most people value the ability to express themselves, to belong to groups, to share a common identity (e.g. a religious one), to govern their own affairs, to enjoy peace and prosperity etc. And we know that they need human rights to realize these (and other) values. Agreed, some of us may not want any of this, but then they can waive their rights. And only THEY can. People should decide for themselves whether they need rights and need them equally; others shouldn’t decide for them. That is probably the only morally sound way to treat people.
We can also justify equality of rights on the following grounds: we don’t want rights just for ourselves and for the things we value for ourselves; we also want other people to have rights and to have them equally – or at least we should want this if we are to reason coherently. This is not a requirement of morality or altruism – although it can be, obviously – but simply one of logic and coherence. The right to express myself, to belong, to live in peace and prosperity, to vote etc. makes no sense if I’m the only one to have those rights. Even if others use their expression or their votes or whatever in a stupid way, they should have the right to do so – as long as this use doesn’t imply rights violations of course. Hence, equality of rights is a logical requirement in the system of rights.
More posts in this series are here.
People of color, women, slaves, Jews, children and other human beings have been regarded, at some point in history, as legal nonpersons. Nowadays they are equal to all other human beings, at least according to the law. It’s not uncommon to hear the argument that certain species of animals, such as primates or dolphins, should also have rights similar to those of humans (at least some of the rights of humans).
Is it not time to do the same for machines? Why should the expanding circle of moral concern stop at living creatures? And what is life anyway? Are not intelligence, self-awareness (or “consciousness” whatever that means) and some form of agency more important in the attribution of rights? If so, then some machines at least should have rights, since they are intelligent, self-aware and capable of agency. And then we should stop treating machines are mere tools used for human ends, just as we – or at least some of us – have now stopped treating slaves, women and animals as mere tools. Otherwise we run the risk of presenting ourselves to future generations much like our bigoted, racist, speciesist, classist and sexist forefathers have presented themselves to us.
However, can we really make the case that the most sophisticated machines that we currently have are “creatures” with artificial intelligence able to make autonomous and self-aware choices? (Notice the use of the word “that” instead of “who”). Is it not more correct to say that, no matter how sophisticated they are, they simply execute instructions given to them by human engineers or programmers and choose whatever their designers have told them to choose? That they are mere extensions of our arms and brains like all machines before them, only more complex?
There are now machines that speak, or seem to speak. Should they have the right to free speech? A Google search result may be deemed protected speech, but not because machines – in this case a computer program that searches the internet – have the right to free speech but because the search result can be considered a form of human speech, in this case speech by a computer programmer. Google is a mouthpiece.
If we refuse the notion of machine rights because machines are not self-aware, autonomous and intelligent agents, then we immediately run into a serious problem. Certain human beings who have lost a significant part of their brainpower – or all of it – and who are no longer self-aware or capable of agency – or who never had those features – are still accorded rights. We don’t systematically euthanize the severely mentally handicapped or patients in a coma.
Maybe then this whole line of thinking is fruitless. Attributes such as intelligence, self-awareness, consciousness and agency shouldn’t be used to accord or deny rights because doing so leads to unacceptable conclusions. And even in the absence of such conclusion would we face a problem. We can’t clearly define those attributes, and even if we could then it would still be practically impossible to decide “who” or “what” has or doesn’t have them. It’s difficult enough with a human being in a coma, let alone with animals or machines. Even if someone or something looks like a thinking, conscious actor, that may be an optical illusion: perhaps it was programmed to look that way. A Turing test may help, but it may not be foolproof, or at least not able to convince us that it is foolproof.
The reason is the inaccessible of the mind. In the words of Daniel Dennett, there is no way to be sure that something that seems to have an inner life does in fact have one. We normally assume that our fellow human beings have an inner life like our own, but that is just an assumption necessary to make everyday life bearable. And it’s even more of an assumption in the case of animals or machines. At least in the case of fellow human beings we can convince ourselves of the proposition that because they look like us on the exterior they must also look like us on the interior.
Hence, we shouldn’t decide whether someone or something has rights on the basis of the presence of attributes such as consciousness and agency. In my own thinking about rights I’ve always avoided this line of thinking. Rights for me are things that we need to realize certain values. They are tools – legal and policy tools – rather than attributes of moral creatures. Hence, we should ask whether animals or machines requires rights for the realization of states that are important to them. Animals value a life without pain and without restrictions to their freedom of movement. Rights that help them to achieve these values would therefore be imaginable. However, it seems more difficult to make the same case for machines. It’s not clear that machines value anything, at least not in the same way that it is clear that human beings and animals value some things.
“Clear” should be understood not in the sense of “factual” or “true”. Like in the case of consciousness, intelligence or agency, the presence of the ability to value something can’t be easily determined: like any other state of mind it can’t be seen, verified or experienced by anyone else. For instance, if an animal seems to value the absence of pain, we may in fact be dealing with a machine that is programmed to impersonate an animal that doesn’t like pain. We can’t know for certain, not even with regard to our fellow human beings. But again, the general similarity between humans and between humans and some types of animals gives us reason to believe that other humans or animals value some of the same things we value. There is no such general similarity between human and machines.
One could argue that there are moral limits on the things we can do to machines – not torture robots or robotic toys for instance – not because those machines have rights but because what our actions do to ourselves. But that’s no reason to conclude that machines have rights. Our own rights are at stake here.
South-Carolina is now the only US State where HIV-positive prisoners are segregated in separate housing units with unequal program opportunities, inferior mental health care and fewer work options.
There’s absolutely no reason to do that, unless you want to maintain the reign of sexual terror that is still widespread in US prisons. AIDS is almost exclusively transmitted by way of sexual intercourse and needles. Segregating HIV-positive prisoners makes it easier for prison rapists to pursue their hobby. If you don’t know who’s positive and who’s not, you’ll think twice about raping someone. In the “HIV wards”, since they contain only HIV-positive prisoners, there’s also no more reason to refrain from rape.
Things like this make it hard to believe that legislators and prison authorities are not intent on making prison as horrible as possible.
Human history is often viewed as a widening circle of moral concern. In the olden days, the claim goes, people cared only about their siblings and tribe. Then they started to care about their class, their nation, their religious community, their civilization, and ultimately their shared humanity. Cosmopolitanism, or the equal respect for all human beings whatever their affiliation or location, is then the end-state of morality (although some want to go further and include animals or even inanimate objects in the circle of moral concern). This end-state dovetails with human rights concerns because human rights are also the rights of all humans, whatever country, class or culture they belong to.
The widening of moral concern – if it indeed occurred as described – went in tandem with other and more familiar globalization processes, such as increased international trade, integration of different economies, the development of international law, increased communication through the internet, easier transportation, intercultural dialogue, migration etc. And all these different processes interact: communication and transportation foster trade, trade fosters communication, communication widens the circle of moral concern etc.
This story implies that globalization – of any kind – is always or unequivocally beneficial from the point of view of human rights. However, that may not be true. Let’s look at some of the pros and cons of different types of globalization.
- Increased migration is almost without exception beneficial to the prosperity and freedom of all parties involved, although the migrants obviously benefit most.
- Intercultural dialogue promotes tolerance and agreement on human rights, and this dialogue is not only fostered by new technologies but also by international trade. Better communication as well makes people care more about what happens in the world and makes it more difficult for oppressive regimes to hide their oppression. In this sense, communication and trade drive the widening circle of moral concern.
- Economic interdependence between countries creates a self-interested incentive for governments to promote rights and democracy elsewhere in the world and makes it more likely that international law can impose itself over concerns about national sovereignty. Global economic collaboration requires international regulation, and economic regulation can open the door for other types of regulation, including rights regulation. Countries that depend economically on an international institutional and regulatory system, will have a much harder time invoking their sovereignty when faced with accusations of rights violations, since they already lost a huge chunk of their sovereignty due to economic integration.
- The increasing importance of multinational companies makes it easier for consumers in one part of the world to lobby for corporate responsibility elsewhere in the world.
- Outsourcing, a commonly cited aspect of globalization, can result in people losing their jobs, and the threat of outsourcing can force people to accept lower wages or inferior labor conditions. And work is a human right.
- The threat of cheap foreign labor and cheap foreign products can lead to protectionism and immigration restrictions, two major causes of poverty in developing countries.
- Globalization may erode the welfare state because a large part of the tax base – corporations, financial intermediaries and skilled workers – become internationally mobile and can thereby avoid to pay the taxes that governments need to finance their welfare systems. The tax base can also decrease because governments cut taxes in an effort to maintain the competitiveness of local businesses.
- The previous three phenomena – outsourcing, labor and product competition and pressure on the welfare state – may not only lead to restrictions on international trade and migration, but can also counteract the widening circle of moral concern: politicians and local businesses can and often do use these threats to stir up xenophobia. A xenophobic public is more likely to vote in favor of trade and immigrations restrictions. On the other hand, there’s some evidence that people’s circle of moral concern is wider in countries that are more affected by globalization.
- Globalization implies a certain degree of power deflation: states lose power vis-à-vis the market, multinationals, international institutions and each other. This in turn means that decisions affecting the well-being of people are taken by outside forces. Democratic self-government – which is a human right – is then threatened.
- The interconnectedness of international financial markets increases the likelihood that a local financial or economic crisis spreads to the rest of the world.
- A higher number of increasingly globalized multinational companies also means a higher risk that some of those threaten indigenous cultures, exploite poor workers etc.
On balance, however, I believe that globalization is good for human rights, even though I can’t quantify the pros and cons.
It’s now illegal (again) for women to ride bicycles in North Korea. The country’s leader Kim Jung Un reinstated his father’s absurd law, but only after he lifted the ban last year.
The late Kim Jong Il decreed in the mid-90s no woman should ride a bike after the daughter of a top general, the vice-chair of the National Defense Commission, was killed riding a bike in Pyongyang. (source)
Hardly the worst North Korean rights violation, but absurd enough. And part of a mindset. Transportation restrictions have always been popular in totalitarian regimes. They prevent people from socializing, forming groups and realizing that they’re not the only ones living in misery. They also help to impoverish people, focusing their attention on their own individual survival and away from politics.
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.
- Analysis: Justice in doubt for Congo atrocity victims (reuters.com)
- Action needed to investigate a decade of crimes in DRC (yubanet.com)
People act in all sorts of dubious ways, but they often justify their behavior after the event using imaginary motives or reasons, and then they come to believe those motives and reasons themselves. It’s a kind of cognitive failure and self-deception which, when it occurs in the field of human rights, makes it hard to do something about rights violations. If people can’t even admit to themselves what the real reasons are for their bad behavior – rights violations in this case – then it becomes very difficult – for others and for themselves – to do something about those reasons and to prevent future occurrences of the behavior.
As long as we – and, as a result, others as well - believe that we were motivated by ethical justifications which we in fact constructed and invented after the facts rather than by the often more suspicious justifications that really drove our actions, then we have less reasons to avoid those actions in the future. True, well-intentioned rights violations do exist and good intentions don’t make remedies more difficult – often it’s enough that we become aware of the possible dangers of good intentions. But when bad intentions masquerade as good ones, even to the person having the intentions, then things become more difficult. It’s always good to know the exact and true causes of something if you want to avoid it in the future. When people really know what motivates them but choose to present themselves in another way – perhaps because of shame -we can still try to pierce their cover. But when people fool even themselves, then there’s very little we can do. And it seems that people are indeed frequently unaware of the real causes of their own behavior.
An innocent example of justificational reasoning to begin with:
[M]ale students [were asked] to choose between two specially created sports magazines. One had more articles, but the other featured more sports. When a participant was asked to rate a magazine, one of two magazines happened to be a special swimsuit issue, featuring beautiful women in bikinis.
When the swimsuit issue was the magazine with more articles, the guys said they valued having more articles to read and chose that one. When the bikini babes appeared in the publication with more sports, they said wider coverage was more important and chose that issue. (source, source)
A more harmful case from another experiment:
Managers … have been found to favour male applicants at hypothetical job interviews by claiming that they were searching for a candidate with either greater education or greater experience, depending on the attribute with which the man could trump the woman. (source)
And it’s not easy to imagine the same thing going on in even more harmful actions.
There’s a kind of cognitive dissonance behind justificational reasoning: we want others to think that were are good people and we want to think of ourselves this way. When the facts contradict this belief, we change the facts.
Other posts in this series are here.
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?
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.
It sounds like a somewhat antiquated concept and it may very well be true that it’s useless as a descriptive device for current politics. However, I believe that it remains a necessary tool for the correct understanding of 20th century history. Nazi Germany, Soviet Russia and Mao-era China were very different countries and very different political regimes, but it can be argued that what they had in common was more important than what separated them. And what they had in common separated them from all other authoritarian governments before and after them. (Hannah Arendt was one of the first to notice this). That is the reasoning behind the concept of totalitarian government. Those three governments – and perhaps a few others – can be described as totalitarian states and were therefore instances of a separate type of government, like oligarchy or democracy. They were not just particularly brutal forms of dictatorship. We’re not talking about a difference in degree. Of course, some of the elements of totalitarian rule which I describe below can be found in other dictatorial governments as well, but other elements can’t. (Just like some elements of democracy can be found in non-democracies). And what certainly can’t be found elsewhere is the combination of all those elements.
Totalitarian government is a post-democratic form of government. It couldn’t exist in the era before mass democracy. It’s post-democratic in the sense that it is an outgrowth of modern democratic traditions. Political parties, party ideologies, mass movements and mass mobilization, the pseudo-popular legitimacy of rigged elections and referenda, the mass idolatry, the personality cults, mass indoctrination, propaganda, Potemkin constitutions, show trials etc. all show the totalitarian debt to democracy. The same is true for the focus on re-education and rectification of thought when some parts of the popular will are considered to be deviant: this is proof of the importance of popular consent (when consent is absent, it’s fabricated).
Contrary to older forms of despotism, totalitarianism admits that the state is no longer the natural property of a ruling class, the private tool of a sovereign or a gift of God. It is the expression of the will of the people. Not, as in a democracy, of a divided people or of a people who’s identity fluctuates over time as a consequence of public debate. The will of the people under totalitarian government is permanently defined as a unified whole. The people are defined as a race or a class. The people have a homogeneous project, namely racial supremacy or the liberation of the proletariat. The will of the people, which is also the basis of democracy but which is always kept vague, heterogeneous and fluctuating in a democracy, now becomes a singular, clear and permanent will. All individuals and individual projects or interests are identified with a collective project. Everything which is in accord with this project, is part of the people; everything else is not – is foreign, alien, “entartet”, bourgeois or capitalist – and must be destroyed. If it’s the whole of the people that works towards a certain project, then those with another opinion are enemies of the people and have to be destroyed to protect the people and its project.
That is the origin of the genocidal nature of all totalitarian governments but also of their less extreme forms of exclusion of the other. Every internal division is seen as external. The other is not part of the people. Society isn’t divided but is divided from its enemies. Every sign of internal division is externalized: dissidents are foreign spies, the other is a member of the international jewish conspiracy, a tool of international capitalism, the fifth column etc. For example, long after it was clear that the attack on Hitler in 1939 was the work of a single German individual (Georg Elser) the nazis maintained that the British secret service was to blame. The other attack by von Stauffenberg in 1944 was framed as the work of aristocratic officers who were alienated from the German people. This division between internal and external is consciously cultivated because it confirms the image of the people as a unified whole. If real foreign spies or class enemies can’t be found then they are created. and duly suppressed. Hence everyone can become the enemy, even the most loyal followers.
The fixed will of the people is subsequently represented by the party and the state. The party doesn’t represent a majority, but the people. Hence, other parties have no reason to exist. All people and the whole of the people are represented by a single party. And since this party perfectly represents a perfectly clear and unified popular will, it can infiltrate all parts of society: school, church, labor union, factory, the press, the judiciary, the arts and all other social organizations cease to be independent. The party is everywhere and submits every organization to its will. It believes it can do so because its will is the will of the people. And the party uses the means of the state to be everywhere: the secret service, the department of communications, the police… As a result, the state is also everywhere. Totalitarian government simultaneously bans people to the private sphere – all free and deviant public actions and expressions are forbidden – and destroys the private sphere, to the point that people can’t even trust their friends and family. All private actions are potentially public. Wiretapping, surveillance, public confessions… Even the most private things of all, your own thoughts, are attacked by way of propaganda and indoctrination. Totalitarianism strives for total control of private and public life. All spontaneous and independent individual or social projects are doomed unless they are completely trivial. They can only survive when they are part of the common project, because they make sense only when they are part. When they are not, they are potentially in opposition to the common project.
But we should understand that the identification of the party with the state is only temporary. The state in fact is bound to disappear. That becomes clear when we consider the imperialism that is typical of totalitarianism (to a lesser degree in the case of China). By definition, the projects of totalitarian governments – racial supremacy or a classless society – go beyond the borders of a state. Aryans aren’t only meant to rule within the borders of Germany. They deserve global supremacy in part because they are the best race and in part because the Jews are a worldwide threat. And the classless society can’t exist when it is surrounded by a capitalist world; the proletariat in other countries also deserves to rule.
Totalitarianism is a form of rule that goes beyond the state. A particular state is just a convenient tool for a certain stage in the popular project. The people as well is a concept that goes beyond the group of citizens of a given state. There are also Aryans and workers in other states. In non-totalitarian dictatorships, political rule is essentially tied to the state. A normal dictator may attack other countries, but will do so while enhancing his state or expanding his country. His rule will never go beyond the rule of a state, suitably redefined if necessary. If necessary he’ll redraw the boundaries of the state, but he will never go beyond the state as such. Totalitarian rule, on the other hand, is ultimately larger than the state. It’s the rule of a race or a class, on a potentially global level.
As the people and the state are subject to the rule of the party, so the party is subject to the rule of one individual. The leader makes sure that the party remains unified, because a divided party can’t claim to represent a unified people. So there’s a series of identifications going on: the people is identified with a class or a race; this unified people is then identified with the party that represents it; the party in turn identifies itself with the state because it (temporarily) needs the tools of the state to realize its project (class rule or race rule); the state then takes over society and identifies with it; and ultimately a single leader takes over everything in order to guarantee unity.
The people are like a collective individual, a body with a head controlling all its coordinated movements. State terror and genocide can then be seen as the body removing sickness and parasites. The other is often explicitly identified as parasitical or infectious. Violence and oppression are medicines used to safeguard the integrity of the body of the people and their purpose. The Great Purge wasn’t called a purge by accident. The Jews weren’t depicted as pestilent rats for no reason.
The image of the body also means prophylaxis: why wait with punishment until the crime is committed? We know that certain persons are enemies of the people. Crime in the sense of opposition to the project of the people is a fatality for them, sooner or later. There may be good Jews, but we can’t take the risk that they marry an Aryan and defile the race. And some capitalists may be less harmful than others, but why wait until their presence undermines collectivization or until they betray the country and invite an invasion?
Totalitarian government isn’t like a normal lawless and arbitrary dictatorship. Of course, the laws under totalitarian government are regularly broken or changed to serve certain goals. But there are deeper laws that the totalitarian government has to protect, namely the laws of nature (in the case of Nazism, and more specifically the laws of natural selection) and the laws of history (in the case of communism, more specifically the laws that say that economic and industrial development will necessarily destroy capitalism and inaugurate communist production). Those “deeper” laws aren’t human laws; they are historical laws that drive mankind towards the realization of the project that animates totalitarianism. Totalitarian government serves to facilitate and fasten the operation of those deeper laws. Jews are exterminated because that promotes the ultimate and inevitable supremacy of Aryans. Capitalists, bourgeois, kulaks etc. are exterminated (or reeducated in order to become communists) because that promotes the ultimate and inevitable supremacy of the proletariat (the proletariat is doomed to rule given the evolution of capitalism, but its rule can be hastened).
There is no “regis voluntas suprema lex” as in previous forms of despotism. The legal lawlessness covers a deeper lawfulness. Legal laws have to be adapted to best serve the deeper laws. If terror and violence are required for the realization and hastening of the evolution postulated by the deeper laws, then the legal laws will mandate and require terror and violence. Terror and violence don’t only serve to intimidate, destroy opposition, isolate people from one another and coerce compliance. They serve the project of the people.
I think all this justifies grouping Nazi Germany, Soviet Russia and Mao-era China under a separate form of government. That doesn’t mean that everything about those regimes was new and typical only of totalitarian government. Obviously, genocides, terror, show trials etc. have occurred before and since. Those are not inventions of Hitler, Stalin or Mao. There are historical parallels, just as there are parallels between contemporary art and ancient art, but still we prefer to distinguish these two forms of art. We have to look beyond the phenomenology of despotic regimes throughout history, and identify the particular logic of different forms of despotism.
Whereas it’s obvious that distance can be a protection against human rights violations – privacy needs distance, and physical integrity requires a safety zone – it’s equally true that it often harms human rights.
We care more about our friends and family than about strangers, especially distant strangers, about whom we know very little, if anything. Maybe we don’t know their predicament and hence the idea of our possible duty to help them and safeguard their rights doesn’t even arise. Or maybe we know about their predicament but we’re ignorant about the causes. Hence, they could have themselves to blame, in which case we tend to think that we’re not obliged to help. Or if they don’t have themselves to blame, our ignorance about the causes of their predicament inhibits our effective assistance. Maybe we also assume that the causes are local, and hence not our fault.
It’s safe to say that such feelings of detachment increase proportionally with distance, because the further away the less we know and the more we assume that we are not responsible. To some extent at least: the effect of distance flattens out; we’re not more detached from people five thousand miles away than from people four thousand miles away.
Drawing on motivational approaches to emotion, the authors propose that the perceived change in spatial distance to pictures that arouse negative emotions exerts an influence on the significance of these pictures. Two experiments induced the illusion that affective pictures approach toward the observer, recede from the observer, or remain static. To determine the motivational significance of the pictures, emotional valence and arousal ratings as well as startle responses were assessed. Approaching unpleasant pictures were found to exert an influence on both the valence and the arousal elicited by the pictures. Furthermore, movement of pleasant or neutral pictures did not influence startle responses, while the second experiment showed that approaching unpleasant pictures elicited enhanced startle responses compared to receding unpleasant pictures. These findings support the view that a change of spatial distance influences motivational significance and thereby shapes emotional responses. (source)
In other words: perceiving the approach of negative emotion-eliciting scenes intensifies the associated felt emotion, while perceiving receding emotion-eliciting scenes weakens the associated felt emotion.
There’s a less abstract illustration of this point in an experiment conducted by Dan Ariely:
[W]hat causes people to stop for beggars and what causes them to walk on by[?] To look into this question, I called on … an acting student at Boston University. I asked [him] to try a few different approaches to begging and to keep track of the approaches that made him more or less money. He made more money when he was standing and when he looked people in the eyes. It seemed that the most lucrative strategy was to put in more effort, to get people to notice him, and to look them in the eyes so that they could not pretend to not see him. (source)
So a reduction of both the physical distance (standing) and emotional distance (eye contact) resulted in more giving and less poverty.
At some point, something very interesting happened. There was another beggar on the street – a professional beggar – who … said, “Look kid, you don’t know what you’re doing. Let me teach you.” And so he did. This beggar took our concept of effort and human contact to the next level, walking right up to people and offering his hand up for them to shake. With this dramatic gesture, people had a very hard time refusing him or pretending that they did not see him. Apparently, the social forces of a handshake are simply too strong and too deeply engrained to resist – and many people gave in and shook his hand. Of course, once they shook his hand, they would also look him in the eyes; the beggar succeeded at breaking the social barrier and was able to get many people to give him money. (source)
You could argue that this whole distance thing is a red herring. If everyone takes care of those who are close, then distance won’t be a problem. Still, it will be a problem in many cases because not everyone has friends and family who can help. The beggars in the quote above probably only know other beggars and hence have to rely on efforts to reduce distance.
Indeed, one way of solving the distance problem is to try to reduce distance. The beggars’ strategy isn’t the only example. NGO campaigns almost always feature close-ups of the faces of people in distress, as well as personal stories about their predicament and about how the global system has made it worse (implicating better off people far away). These faces and stories reduce distance in a way that is similar to the beggars’ eye contact. Alternatively, instead of trying to reduce distance, one can attempt to discredit the idea of distance altogether and foster a more cosmopolitan approach to caring.
There’s also another way in which distance can cause human rights violations, although you would have a hard time finding a lot of examples at this point in history (perhaps only in failed states such as Afghanistan or Somalia where a violent and extremist rebel movement tries to assert its authority):
Margaret Anderson explains that the best way to understand the dastardly public torture of criminals in early modern Europe is to consider the need of authority to establish itself over great distance, in an era before cell-phones and a legitimate judicial systems. (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.
- Wishful thinking won’t bring equality for disabled people | Zoe Williams (guardian.co.uk)
- More disabled workers file discrimination claims in 2009 (usatoday.com)
- Disability Discrimination – Part I (specialeducationlawblog.blogspot.com)
Corruption, or “the misuse of public office for private gain”, is immoral and bad in numerous ways, but it’s not a human rights violation. At least not as such. To my knowledge, human rights law doesn’t contain an explicit right not to suffer the consequences of corruption. However, it is the case that corruption causes various rights violations. For example, it can often be viewed as a form of theft and hence a violation of the right to private property. And in the case of corruption in the justice system, the right to a fair trial is violated.
Moreover, corruption has a negative impact on GDP (see here) – mainly because it’s a tax on investment – and hence also on poverty reduction (given the correlation between GDP and poverty reduction, see here, here and here). And there is a right not to suffer poverty. Corruption also has an impact on poverty on the level of individuals rather than countries. It’s obvious that individuals – especially those who are poor or near the poverty line – can make better use of the funds that they have to spend on bribes.
Furthermore, corruption eats away at the rule of law. Even in the most corrupt countries, corruption is usually illegal. If illegal activity becomes normal practice, the rule of law is obviously undermined, with possible consequences for judicial protection in general, including protection of human rights. The rule of law is also harmed directly by corruption, namely by corruption inside the judiciary and the police force, and this has an immediate impact on human rights. Even more seriously, corruption is associated with political instability since it tends to reduce citizens’ trust and faith in institutions. It can therefore destroy democracy, and democracy is both a human right and a means to protect human rights in general.
So, if we can agree that corruption is a cause of various human rights violations, then the question is: who is responsible for corruption and hence for the rights violations occurring because of it? I would say that it’s the government officials taking bribes (and possibly the banks safeguarding the proceeds) rather than the private persons or companies paying the bribes, at least in general. The latter would presumably prefer not to pay bribes and often find themselves in situations in which they have no choice.
Now, you could say that some corrupt officials, especially those at the lower levels of government, don’t have a choice either: without the proceeds of corruption they may well end up in poverty. Demanding bribes is then the alternative for a failed economy and a failed state. However, I think it’s fair to claim that they still have, in general, a wider set of options than many of those having to pay bribes. If you’re stopped by the police and they ask you for a bribe, it seems that your options are more constrained than the options of the police asking for the bribe. It seems easier for the police to find additional non-corrupt sources of income than it is for you to escape the demands of the police. Of course, this isn’t the case in all types of corruption. For example, a large multinational company may find it relatively easy to pay a bribe, and may have more options than the official who’s asking the bribe (and it may very well solicit the payment of the bribe in the first place as a way to outsmart competitor companies).
Next question: what to do about it? Everyone agrees that corruption is bad, and many believe that it’s bad for human rights, but almost no one seems to know how to stop it. And it is, indeed, a problem that is as old as history. One thing we could do is spell out the issue of corruption more clearly in terms of human rights. However, human rights claims by the victims of corruption are probably not very effective, since one consequence of corruption is the weakening or destruction of the judicial institutions necessary for the enforcement of human rights. In that sense, linking corruption and human rights may seem futile or at least of limited practical use.
However, human rights claims aren’t just legal claims that depend on functioning and non-corrupt institutions to be enforced. They are also moral claims and they can have some effect as such. They can be used to denounce widespread systems of corruption and thereby help to change a culture and a mentality, especially over the long run. But moral claims will not destroy endemic corruption by themselves. Countries that suffer high degrees of corruption probably need external help in institution building. Also, economic development will probably reduce corruption, given the correlation cited above between low levels of GDP and high levels of corruption. Helping countries to develop will then also help them to fight corruption.
This is an interesting talk about ways to fight corruption (the relevant part starts around the 5th minute):
- Human Rights Watch: Police Corruption in Nigeria (huffingtonpost.com)
- Report: Bribes fuel corruption in Nigeria police (sfgate.com)
Disgust can be good or bad for human rights. It’s probably true that no amount of rational argument against torture, incest, cannibalism etc. is as strong as the feelings of disgust produced by such actions. Some, such as Leon Kass, have therefore conceptualized disgust as a kind of moral wisdom: wisdom which can’t necessarily articulate itself or reason about itself, but which nevertheless guides our actions in a morally sound direction and guides them better and more effectively than rational argument. Disgust or nausea often makes us shudder, literally, at the immorality of others or ourselves. As a result, it helps to bring about a better world, and it does so more effectively than reasoning or persuasion (in this sense, disgust is similar to other emotions such as sympathy and shame).
Disgust is not an argument, but that’s a strength rather than a weakness if you believe the likes of Kass. It grips us, whereas arguments can be boring or unconvincing. (This can also explain why many of us have a love-hate relationship with disgust: we’re disgusted by some things, but at the same time we relish this disgust). Because of its gripping force, disgust is the human psyche policing itself and other psyches, keeping desire and passion in check and in the process making life in society a lot easier.
That is why some view disgust as the evolutionary origin of morality and law. Initially a protection mechanism against putting bad, rotten or infected stuff into our mouths, disgust quickly evolved from an emotion focused on physical health to one including morality. Moral disgust came about as one of society’s self-preserving forces, and human evolution favored the emotion because it produces social benefits such as taboos, rules and order. Human evolution favored this extension of the feeling of disgust into the realm of morality because it made social life easier, more orderly and more peaceful. These supposed evolutionary origins of moral disgust give it an added advantage compared to more rational approaches to morality: the latter can be unconvincing but most people in the world will even fail to hear them, whereas the evolutionary origins of moral disgust means that it drives all people, even those who will never hear a moral argument in their entire lives. Moral disgust therefore delivers immediate, reflexive and almost universal moral judgments.
Complicating this simple evolutionary theory is the fact that disgust doesn’t seem to be innate, at least not in all cases: children are notoriously lacking this emotion and don’t develop it until they are three years old or something. This diminishes the strength of the evolutionary part of the argument. However, a more important problem with the argument is the fact that the objects of disgust are not the same throughout history and across societies. What was disgusting centuries ago isn’t anymore – or vice versa – and different societies find different things disgusting. Agreed, the range is somewhat limited: disgust is mostly about things related to the human body (e.g. torture), and more specifically to metabolism (eating and excreting disgusting things with our disgusting intestines), sex (doing disgusting things with each other with our disgusting organs) and mortality (being a disgusting corpse). But within this range many different things can be viewed as disgusting, and it’s not obvious that all the things we would label immoral from a reasoned point of view are always and everywhere disgusting, or that everything that is seen as disgusting by some is also immoral upon reflection.
For all these reasons, we have to conclude that disgust isn’t a very reliable moral faculty. It can make mistakes, and often has. Not so long ago, the supposed body odor of blacks, their curly hair and facial features routinely provoked disgust among whites (still today but less commonly so). And I’m convinced that this disgust was a major cause of the subjugation of blacks. The same is true for some, now less pervasive beliefs about the disgusting nature of homosexual activity.
So it’s clear that disgust can be either beneficial or detrimental for human rights. Lack of disgust where disgust would be appropriate can lead someone to violate someone else’s rights, but inappropriate disgust can have the same result. One would therefore be wrong to label disgust as a kind of moral wisdom, superior to rational thinking about morality.
The problem is then how to distinguish good disgust from bad disgust. For example, why is disgust directed at pedophilia appropriate, whereas disgust about interracial sex is not? Whatever the answer, we won’t get there without reasoning. Hence, reasoning reclaims its position at the top of moral faculties. Disgust, rather than a type of moral wisdom, seems to be a socially transmitted and culturally specific substitute for the absence of reasons.
This is why many argue against the use of disgust as a tool for human rights protection. In theory, it could work, just as the incitement of shame and sympathy can work. But it’s dangerous:
maybe we should try portraying racism and racists as disgusting. The powerful influence of this emotion might help push racism to the edge of society or eliminate it altogether, but my response is that we still shouldn’t do it. It’s not ethically appropriate to deliberately depict any group of people as disgusting because disgust makes it very easy to dehumanize, and that would do the very thing we seek to undo. (source)
More posts in this series are here.
The human right to free speech protects people against compelled silence, but can and should it also protect them against compelled speech? I think in general the answer is yes. Free speech guarantees freedom, and freedom in any definition of the word should include both the freedom to do and not to do. Hence free speech rights include both the right to speak freely and the right to remain silent – or, in other words, the right not to be anyone’s coerced messenger. (In general, it’s true that a right to do something also includes a right not to do it. More here).
A sophist might reply: “Isn’t free speech about being allowed to speak your own mind? If so, wouldn’t that leave it open for the government to compel you to utter what is not on your mind, as long as this is not incompatible with what is on your mind?” Precious little of our freedom would be left if this were true. This kind of justification for coercion requires more than the statement that what people are coerced to say is not incompatible with the views of those who are coerced.
So, if we accept that free speech in general includes the right not to be compelled to speak, what about possible exceptions? Are there not some forms of compelled speech that are legitimate exceptions to free speech? Most of us (outside the US at least) have little trouble accepting health warnings on cigarette packaging. The same is true for legal requirements that fundraisers disclose their donors, or advertising rules mandating the display of the total fare – including taxes and fees - in bigger type than other fare information.
However, we can just as well cite examples of legally compelled speech that are much more troubling. Some states in the US requires doctors, under the rubric of “informed consent”, to warn abortion patients that the procedure places them at “increased risk of suicide”. Other US states issue car license plates with religious symbols or messages. I find this difficult to understand: those are two forms of compelled speech that are allowed under US law whereas warnings on cigarette packaging are not, even though the latter are obviously less troubling from a human rights point of view.
Perhaps the factual truth of the speech that is being compelled should determine whether or not the compelled speech is legitimate. In that case, cigarette warnings are OK, but the above cited abortion warning is not. Still, that’s not satisfactory: few of us would want to live in a state that compels us to say 1+1=2 before each meal. And what is truth anyway? Also, what about compelled messages that aren’t about truth, such as the pledge of allegiance?
A much better rule is the following: compelled speech is allowed only if it is necessary and effective in order to protect human rights. Cigarette warnings would still be OK (health is a human right), to the extent that they are necessary and effective (this is an empirical matter). Disclosure requirements for fundraisers would also be OK (democracy is also a human right), under the same conditions. Even false information could then be part of compelled speech, as long as it furthers the cause of rights: one can imagine a situation in which forcing someone to lie to a terrorist can save lives.
A final remark: compelled speech is not always compelled by the government. Someone distributing leaflets in a restaurant, giving the impression that the restaurant owner endorses the content of the leaflets, is also engaging in a form of compelled speech. This form is equally unacceptable, at least as long as the leaflets don’t serve an important human rights goal, and one that is important enough to override the right to free speech and the right to private property of the restaurant owner.
Someone’s been taking a course on military history, in particular the chapter on the “scorched earth policy“:
Hundreds of homes were destroyed in the city of Kyaukphyu, Rakhine state. The Digital Globe satellite image shown above, from October 25th, captures the aftermath.
In the Rakhine state (also called “Arakan” by some) of Myanmar, the unfortunate evolution of discrimination, unequal application of the law, and forced displacement into violence and humanitarian crisis has come to bear. Since June, fits of violence between Buddhist and Muslim Rakhine, and Muslim Rohingya communities have likely left tens of thousands displaced and scores dead.
[This post originally appeared on Openborders.info as a guest post.]
Luck egalitarianism is a school of thought in moral philosophy that argues in favor of interventions in people’s lives aimed at eliminating as far as possible the impact of luck. If you have the bad luck of being born into a poor family, your prospects in life should not be harmed by this and society should intervene in order to correct for it.
I’m not going to endorse luck egalitarianism because it’s a theory that suffers from some serious defects. However, the basic intuition seems sound to me and can be used to argue against immigration restrictions. Your country of birth is also a matter of luck, good luck or bad luck, depending on the country. It’s either good luck or bad luck because the place where you are born has a profound impact on your life prospects. The mere fact of having been born in Bolivia rather than the U.S. makes it statistically more likely that you will be poor, uneducated and unhealthy. Since no one chooses to be born somewhere, no one can be said to deserve the advantages or disadvantages that come with being born somewhere.
Hence, if Americans for example are just lucky to have been born in the U.S. and didn’t do anything to deserve being born there, what right do they have closing their borders and allowing access only to a chosen few selected according to criteria that they have unilaterally decided and that mainly serve their own interests? None whatsoever. In claiming that right they make it impossible for others to do something about the misfortune of having been born in a poor country. Hence, they double other people’s disadvantage.
As Joseph Carens has put it, immigration restrictions are the modern equivalent of feudal privilege, inherited status, birthrights and class rule. In our current, so-called modern and Enlightened societies, the good luck of being born in a wealthy country supposedly gives you the right to exclude others, just as in the olden days the fact of having been born in the class of nobles or aristocrats gave you the right to condemn others to the class of paupers. The lottery of birth yields unfair advantages in both cases.
One may claim that none of this necessarily argues in favor of open borders. The fortunate of this earth could compensate for their good luck by other means. For example, they could have a duty, not to open their borders, but to transfer money and resources to those who have had the bad luck of being born in the wrong country.
Obviously, assistance is a moral duty, but I fail to see how the fulfillment of this duty could grant you the right to close your borders. Those who argue that assistance is enough often use a domestic analogy. Consider Hugh Hefner, for example. The point is not that he probably wouldn’t have had the wealth he has now if he hadn’t been born in a country (or granted access to a country) where the average citizen is wealthy enough to spend large amounts of money on soft porn. The point is that there are millions of other people in the U.S. who, through no fault of their own, are burdened with bad luck, a lack of talent or a lack of education opportunities making it difficult or impossible for them to collect a Hefnerian amount of wealth, or even just a fraction of it. These people don’t deserve their lack of talent etc., just as poor Zimbabweans don’t deserve to have been born in Zimbabwe. Should Hefner therefore open the doors of Playboy Mansion? Or is it enough that he pays taxes to fund the welfare state? Most would choose the latter option.
What’s the difference between this domestic situation and the international one? If Hefner doesn’t have to welcome thousands of unfortunate U.S. citizens to his Playboy Mansion, why should the whole of the U.S. citizenry have to welcome millions of immigrants onto their territory? Well, because it’s not their territory, at least not in the way Playboy Mansion is Hefner’s property. People don’t have property rights to a part of the surface of the earth like they may have property rights to things. I have a long argument here in favor of the common ownership of the earth, and I invite you to click the link and read it. It’s too long to repeat it here, but suffice it to say that it leads to a strong presumption in favor of open borders without destroying the possibility of having borders and states in the first place.
More on open borders here.
On May 18, 2012, Sudanese security forces burned and looted the village of Gardud al Badry in the remote Nuba Mountains, just north of the volatile border between Sudan and South Sudan, according to evidence gathered by the Satellite Sentinel Project.
The Sudanese government accuses the South Sudanese government of backing rebels in the Nuba Mountains, charges the South denies. Many inhabitants of South Kordofan fought for the south against the north during a civil war that lasted over two decades, and are ethnically linked to the south. (source)
This is what it looks like from above:
And this is a ground view:
A gripping video testimony is here:
Based on the proven rate of exonerations among U.S. death-row prisoners in the past two decades
U.S. courts appear to have an error rate in capital cases of between 2.5 percent and 4 percent. (source)
Since the reinstatement of the death penalty in the U.S. in 1976, more than 140 men and women have been released from Death Row, some only minutes away from execution (source). That’s a not insignificant number of wrongful convictions. DNA testing has a lot to do with it, and one can see similar patterns in non-capital cases:
researchers examining biological evidence from hundreds of Virginia rape convictions between 1973 and 1987 determined that new DNA testing appeared to exonerate convicted defendants in 8 percent to 15 percent of cases. (source)
Taking into account that DNA evidence is not available in all criminal cases or in all types of crimes, the real error rate in U.S. justice is probably even higher. One can only imagine the rates in other, less developed criminal justice systems in other parts of the world.
Of course, miscarriages of justice are particularly painful in capital cases where we are not just talking about wrongful convictions but also wrongful executions. The latter will be less numerous than the former given the sometimes extended periods of time between conviction and execution, time which can and sometimes is indeed used to expose miscarriages of justice. Still, we have to assume that there’s also a significant number of wrongful executions: DNA is not always available – it depends on the circumstances of the homicide – and other means of proving innocence are not always successful even when lawyers have years to do their work.
This is why I believe that any error rate, however small, should be unacceptable in the application of capital punishment. You cannot correct a wrongful execution. You can, to some extent, correct a wrongful imprisonment: you can release people, even if you can’t give them back their lost years. You can’t bring people back from the dead. Given the evidence of error rates, it must be beyond doubt that the criminal justice system in the U.S. – and elsewhere as well – has executed innocent people. The most prominent known cases are those of Carlos DeLuna and Cameron Todd Willingham. And nothing Scalia or any other delusional proponent of the death penalty believes changes the facts.
It’s my opinion that capital punishment as such is unacceptable, even if the error rate were 0, but an error rate higher than zero makes it all the more unacceptable. And it should make it unacceptable even for proponents of capital punishment. After all, if you think that an error rate of, say, 2% is OK, then why not 2.1? 2.2? And so on. Human life loses all value once you accept an error rate, however small, and most if not all proponents of the death penalty are motivated by their love of human life.
More posts in this series are here.
Psychological tests have shown that the first experience in a series of two or more is cognitively privileged. The order in which people experience things affects how they evaluate them: they tend to think the first option is the best.
Here’s an experiment showing how people decide that a criminal presented first is more worthy of parole:
Two criminals’ photographs, from the Florida Department of Corrections website … were used. Photos depicted 29 year-old males known to have committed the same violent crimes. Criminals were wearing identical correctional facility outfits; photos were pre-tested to be equally attractive and both expressing neutral facial expressions. …
Thirty-one participants … were asked to evaluate [the] two criminals and to determine who should “stay in jail” versus “be released on parole.” … [P]articipants automatically associated the first criminal with being more worthy of parole (rather than prison) compared to the second criminal. Regardless of which photo was presented first, it was the one presented first who was judged to be more worthy of parole. (source)
This is a form of order effect: people’s choices are often sensitive to differences in the order in which the options appear. (“First is best” is only one form of order effect; in some other cases, order effects show that the last options are privileged). As is clear from the example above, order effects can have consequences for human rights: if people are given parole on the basis of the psychological biases of those who decide rather than on the merits of the case, then equality before the law is done with.
It wouldn’t be very difficult to imagine and test other cases.
More posts in this series are here.
Maria Bashir, according to Time magazine on of the 100 most influential people in the world, is Afghanistan’s only female head prosecutor. She is renowned for her daily struggle against abusive husbands and cultural or religious traditions harmful to Afghan women.
However, it appears that she is also a prolific prosecutor of women accused of so-called moral crimes such as adultery.
More ironic human rights violations are here.
The theory of path dependence refers to the way in which our current sets of possible decisions are limited by the decisions we have made in the past. The classic example is the QWERTY layout of typewriters and computer keyboards. QWERTY was originally designed to avoid the “hammers” of typewriters interlocking when people type very fast. There’s no reason why computers should still use QWERTY keyboards rather than other layouts that permit easier and more ergonomic typing with less finger movement and less long term health effects, and yet they do. When typewriter users started to get used to QWERTY, switching costs and the cost of learning other systems went up. Consequently, the keyboard became more common, and the more common it became the more useful it became to learn to use it. When more people learned and used it, it became more profitable to sell this keyboard instead of competitors. Office managers worked with people trained in QWERTY and were therefore encouraged to buy QWERTY machines. And so on.
What does this have to do with human rights? Well, it seems to be the case that path dependence is the cause of a number of human rights violations. In an older post, I mentioned a study arguing that present-day poverty can be explained in part by the lingering effects of the slave trade (slavery fostered ethnic fractionalization in Africa and undermined the development of effective government institutions).
Acemoglu and Robinson make a similar claim about colonialism:
[T]he organization of colonial states, though it typically built on absolutist structures, often intensified these structures. … [T]he “Gate-Keeper” state … was designed for extraction and order but not for development or the provision of public goods. All of these ideas rest on some form of path dependence linking the institutional and political strategies of colonialism with those of post-colonial states. Second, the arbitrary way in which the European colonial powers put together very different ethnic groups into the same polities created countries which would be difficult to govern and very conflict prone after independence. Colonialism itself probably intensified notions of ethnicity and made them more rigid. (source)
The path dependence in this case is evident from the reluctance of post-colonial rulers to modify colonial borders even when those borders defy ethnic realities. It’s also evident from the way in which an authoritarian style of government was maintained after independence.
In fact, once you start thinking about it, you see path dependence everywhere. Take for example my native country, Belgium. It’s hardly the worst place in the world for human rights, but it is systematically governed in a bad way, making a mockery of political rights. Demographic minorities and minority interest groups weigh heavily on policies and legislation. The levels of taxation are much higher than justifiable, with negative effects on property rights and incentives. Linguistic minorities are not oppressed but they are often harassed. And I could go on. Add to that the dismal climate and the general ugliness of the country, and you can be forgiven for asking why people still live there. After all, within the European Union, it’s very easy to move to a nicer country. The answer, of course, is path dependence: people know the language, and switching to another language is difficult for many; people’s ancestors are buried there; they have friends and family, and often a good job. That’s alright as far as it goes, but we need to be more vigilant in those areas where path dependence causes significant harm. Of course, the word “dependence” means that it’s often difficult to do something about this harm. But difficult doesn’t mean impossible.
More posts in this series are here.
The Malaysian government has begun holding seminars aiming to help teachers and parents spot signs of homosexuality in children, underscoring a rise in religious conservatism in the country.
So far, the Teachers Foundation of Malaysia has organised 10 seminars across the country. Attendance at the last event on Wednesday reached 1,500 people, a spokesman for the organisation said.
“It is a multi-religious and multicultural [event], after all, all religions are basically against that type of behaviour,” said the official.
The federal government said in March that it is working to curb the “problem” of homosexuality, especially among Muslims who make up over 60% of Malaysia’s population of 29 million people.
According to a handout issued at a recent seminar, signs of homosexuality in boys may include preferences for tight, light-coloured clothes and large handbags, local media reported.
For girls, the details were less clear. Girls with lesbian tendencies have no affection for men and like to hang out and sleep in the company of women, the reports said. …
Official intolerance of gay people has been on the rise. Last year, despite widespread criticism, the east coast state of Terengganu set up a camp for “effeminate” boys to show them how to become men.
The latest seminar for the teachers and parents was run by deputy education minister Puad Zarkashi, his office confirmed.
Zarkashi wasn’t immediately available for comment but national news agency Bernama quoted him as saying that being able to identify the signs will help contain the spread of the unhealthy lifestyle among the young, especially students.
“Youths are easily influenced by websites and blogs relating to LGBT [lesbian, gay, bisexual and transgender] groups,” he was quoted as saying.
Ominously, the story doesn’t tell us what they plan to do with the detected children, apart from sending them to a reeducation camp. I’m afraid it may involve something like this.
In the case of human rights treaties, we face a tough choice: should we aim at universal/near-universal acceptance and ratification, or should we instead limit ourselves to the goal of “real” or meaningful acceptance and ratification? The problem with human rights treaties is that ratification is almost costless. A country can ratify them even if it has no intention of respecting their provisions, because it knows that lack of respect will not result in any serious harm. The same is not true for other types of treaties: a country ratifying a military collaboration treaty, a fishery treaty etc. knows that non-respect of the treaty provisions can lead to harmful retaliation by other treaty signatories or fines imposed by some international institution.
The relative costlessness of human rights treaties means that most if not all countries will readily accept them. They can only gain: signaling support for human rights by way of treaty ratification can even reduce outside pressure for better rights protection. After all, a country that signals willingness to respect human rights should have more leeway than a country that openly and willingly violates those rights.
Hence, near-universal ratification rates are a natural outcome in the case of human rights treaties. Some argue that instead of pursuing the commonly accepted goal of near-universal ratification of human rights treaties, we should instead aim for “real” and meaningful acceptance; in other words, acceptance only by states that do intend to implement the treaties’ provisions. States that would sign the treaties simply to signal a positive attitude towards human rights and to relieve outside pressure should therefore be excluded from ratification.
Exclusion means raising the cost of ratification – for example by way of preconditions for acceptance incorporated into the treaties or by way of effective sanctions in case of non-respect. This in turn means that treaty ratification rates will be brought down.
All of this sounds reasonable at first sight, but it does create a dilemma. Treaty ratification, even if it is at first mere signaling by an authoritarian state that doesn’t have any intention of respecting the treaty, can have beneficial effects over time. By making “fake” or “shallow” ratification more difficult we would also destroy those beneficial effects. What kind of effects am I talking about? Well, for instance, a treaty can promote a human rights culture. When a state accepts a treaty, even if only for the purpose of international signaling, it also signals, inadvertently, to its own population: it signals that human rights are becoming universal moral norms. The state therefore can’t help but increasing the legitimacy and salience of human rights, and its oppressed population can use this fact: it can wield the language of human rights in a more effective way than before, both against the state and in order to rally support.
Hence, we may see an effect of treaty ratification going in two opposite directions: shallow ratification my reduce outside pressure against the ratifying state, but may also increase inside pressure.
So it’s not obvious what we should do. Should we aim at near-universal ratification, or at meaningful ratification? Both strategies have pros and cons. Near-universal ratification may reduce the meaning of human rights – if even the worst dictator can ratify a human rights treaty without any significant cost, then human rights will lose their appeal. We may even increase the number and severity of human rights violations because states that signal adherence to human rights will see a reduction of international pressure. On the other hand, making ratification more costly will reduce the number of ratifications, which in turn will reduce the moral stature of human rights and will make it more difficult to argue that human rights are universal.
I’m not ashamed to say that I can’t see an easy way out.
The government has been warned it must urgently fix flaws in its support system for successful asylum seekers, after a destitute child starved to death in temporary accommodation in Westminster. … [T]he family had become dependent on “ad hoc” charitable handouts despite a successful asylum claim because of “significant problems” transferring the family from Home Office to mainstream welfare support services. The family of three was forced to “actually become homeless” before local authorities could offer official help. (source)
[T]he Connecticut State Supreme Court overturned the sexual assault conviction of a man who had sex with a woman who “has severe cerebral palsy, has the intellectual functional equivalent of a 3-year-old and cannot verbally communicate.” The Court held that, because Connecticut statutes define physical incapacity for the purpose of sexual assault as “unconscious or for any other reason … physically unable to communicate unwillingness to an act,” the defendant could not be convicted if there was any chance that the victim could have communicated her lack of consent. Since the victim in this case was capable of “biting, kicking, scratching, screeching, groaning or gesturing,” the Court ruled that that victim could have communicated lack of consent despite her serious mental deficiencies. (source)
This is outrageous. Lack of physical resistance is not evidence of consent, nor should it be. If you require rape victims to fight back you’ll only cause more violence and more harm since attackers will answer violence with violence. Rape victims should not be asked to go to such lengths in order to prove that they did not consent. And in any case, one has to assume lack of consent in the case of people with a mental defect, as in the example above. The same is true for people under the statutory age of consent.
More absurd human rights violations here.
You can’t tell by looking at someone whether he or she is living with HIV. That is, unless you catch a glimpse of a man who’s living with HIV in the state of Alabama’s prison system.
There are over 200 male prisoners living with HIV in Alabama. The Alabama Department of Corrections requires each of them to wear a white armband at all times, making their health status obvious to other inmates, prison staff, and visitors. The practice is a huge affront to prisoners’ privacy and confidentiality. (source)
Let’s list some of the other things that are wrong with this:
- Why on earth would anyone want to protect prison rapists? Or is it true that the modern day prison system is merely a sanitized front for the perpetuation of medieval punishment?
- Measures such as these nourish the stigma of HIV patients.
- They promote false beliefs about HIV transmission.