The Ethics of Human Rights (76): Human Rights and Desert

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James Nickel has written a highly interesting paper (draft) in which he attempts to broaden the moral base of human rights. As he points out, the notion of desert doesn’t figure prominently in discussions about human rights and he may be able to open a promising line of inquiry. However, at this point I remain unconvinced by his arguments. He briefly mentions two problems with his attempt, an ontological and a political one, but seems to give them less weight than I would. Both problems deserve more attention and may prove to be fatal to his approach.

Regarding the ontological problem, I think desert is similar to love: we’ll never know for sure if there is such a thing, both in the abstract and in particular human beings. And if we want to limit the rights of undeserving people, we’d better be as sure as possible that they are really undeserving. At one point, Nickel argues that negative deserts are the reason why we put criminals in prison and restrict their freedoms. Not so long ago, a majority believed that certain people deserved to be slaves. Why should our current beliefs about desert be necessarily a lot better than theirs? Prudence is required when judging people’s deserts, especially given the likelihood that future advances in genetics, psychology and sociology will show that what we now call bad behavior or lack of virtue is in fact caused by things outside an individual’s power.

The political problem is linked to the ontological one: given the difficulty of finding and judging desert and the importance of getting it more or less right we’ll need lifetime monitoring of individuals’ private lives, possibly even their thoughts and motivations if one day that will be possible. I don’t have to spell out the possible consequences for human rights.

Furthermore, we don’t really need desert. Limitations of the rights of prisoners for example don’t need to be based on desert; the fact that these limitations are necessary in order to protect the rights of others is a sufficient justification. Rights are constantly in conflict with each other and the normal way of dealing with this is to determine the lesser evil: limiting some rights of convicted criminals is acceptable if that is necessary to preserve important rights of potential victims. The same is true for privacy and speech, speech and physical security etc. If you insist on using desert as a justification for incarceration, you’ll also have to deal with the thorny problems of retribution and proportionality. And I think that’s a dead end. (See here and here for instance).

Similarly, using desert as a positive justification for human rights is not necessary, given the many types of justification that are available (see here). Not only is it unnecessary, it may also be dangerous given the risks I cited above. For example, the right of the innocent not to be punished can be based on the fact that they don’t deserve punishment (although, as I’ve argued, the fact-status of this claim may (turn out to) be dubious). But it can just as well be based on their other human rights. Taking the latter option allows us to avoid the ontological and political problems linked to desert.

In short, I have no visceral dislike of the attempt to use desert as a basis for human rights – the more justifications for rights the better. I see some problems, but I’m open to the possibility that I overstate them.

More posts in this series are here. This post is a rewrite of an email I sent to James some time ago, replying to his mail offering me a draft of his paper.

The Ethics of Human Rights (75): Should We Economize on Virtue?

Virtue Coming to the Aid of Christian Faith, by Titian

There’s a lot we can do to raise levels of respect for human rights without appealing to people’s sense of altruism, benevolence and humanity. Since virtues like these are often in short supply, this is a good thing. We can get somewhere even if we can’t make people more virtuous. For example, we can reduce global poverty by removing trade restrictions. That’s a lot easier than asking people in wealthy countries to pay higher taxes for higher levels of development aid. More examples like this are here.

We can sometimes even use people’s vices in order to further the cause of human rights. For instance, if people cherish their own rights – as most of them do – then it may be wise of them to cherish the rights of others because they can reasonably hope for reciprocity. Selfishness can then lead them to involuntary benevolence (much like in other “invisible hand theories). Other examples of selfish reasons to respect human rights are here.

This strategy has been called “economizing on virtue“. It has a special appeal to economists because it means getting done more with less. Realists about human nature – often conservatives – are also fond of it, for obvious reasons. And perhaps it is indeed all we can hope for at the moment. The obvious risk, however, is that people will start to believe that we don’t need virtue at all. Maybe we can go a long way without virtue, but I don’t believe we can go all the way. After all, if automatic mechanisms and undemanding policies would allow us to protect all human rights of all people all of the time, how come we’re not there yet? Also, let’s not forget that virtue is also intrinsically valuable, apart from its possible role in raising levels of respect for human rights. Hence, we have two good reasons to try to foster not only beneficial self-interest but also virtuous behavior.

More posts in this series are here.

The Vagaries of Moral Progress (9): It’s a Living

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If you live in India, you can now get a job staring at a monitor that displays images of American doctors entering hospital rooms thousands of miles away. Your task is to sound an alarm if the doctor fails to wash his hands. … in practice it turns out to be very effective. (source)

I’m sure it is, and it’s potentially a huge step forward for public health in those countries that can afford such a service. Although one would prefer health progress in other countries first, this is a real benefit for people who are no longer infected by their doctors. However, what is more disturbing than benefits that go to the already well-off is the nature of the jobs that have been created here. While some of the Indians who are doing the monitoring may otherwise have been without a job or in employment that is even worse, this sounds like a truely soulcrushing occupation. But then again, any job is perhaps better than no job. There’s always an end to the working day. Progress? I don’t know.

More posts in this series.

The Vagaries of Moral Progress (8): Educating Girls in Afghanistan

Afghan girls listen during class at the Markaz high school in Bamiyan, Afghanistan, in October last year. In the peaceful province of Bamiyan, girls are able to attend school without any fears. Photograph: Paula Bronstein/Getty Images

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Hard to believe perhaps, but in 1974 there were coeducation schools in Helmand, Afghanistan (source). Then in 1996 the Taliban issued a decree that banned girls above the age of 8 from receiving any instruction at all, let alone coed. (And I’m not even mentioning all the other stuff they did and continue to do). About 1.2 million students were enrolled in “schools” during the Taliban regime, with less than 50,000 of them girls. Taliban “schools” were essentially madrasas focused on teaching the Quran at the expense of everything else.

Now, more than 3 million girls go to school; the total number of students is about 10 million. Both access and quality have improved, but are as yet grossly insufficient. Things like this continue to happen.

More on Afghanistan. More posts in this series.

Political Graffiti (232): A Fair Exchange is Not Blind

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More Faith47 here and here. More on asymmetric information and market failure here. More political graffiti here.

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

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

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

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

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

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

The Vagaries of Moral Progress (7): Women’s Right to Vote

women in Turkey, 1934

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In 1934, women in Turkey could vote in national elections, unlike in France, Italy, Belgium, Switzerland… Last year,

Doğan News Agency and Hurriyet Daily News reported that Turkish Prosecutor Veli San acknowledged that over the past 9 years sex crimes in Turkey have increased 400 percent, with 32,988 open cases in 2011 as compared to 8,146 in 2002. Previously Today’s Zaman had reported that the leading cause of death for women ages 15-44 is gender-based violence. (source)

More posts in this series here. A very similar post is here.

Why Do We Need Human Rights? (38): Different Justifications for Different Types of Free Speech

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There are different types of speech, and therefore also different types of free speech. The point I want to make here is that different types of free speech require different justifications. It’s a common error to reject some kinds of free speech because they seem unacceptable from the point of view of justificatory theories that are useful only for other types of free speech.

What does that mean, different types of speech? We can have different goals when we speak: we can try to persuade, to signal our allegiance or identity, to harm, to ostracize, to insult, to express emotions, to promise or to enter into a contract, to state facts, to name something, to order someone, etc.

Each purpose of speech requires a separate justification of free speech, and some purposes may be very hard to justify at all, in which case a limit on freedom of speech may be necessary. However, much talk about limits springs from a logical error. It’s important not to try to use a justification for one type of free speech in order to examine the justification of another type. This may result in the unwarranted conclusion that some type of free speech is not justifiable and that it can therefore be limited, whereas in reality we just use the wrong justification.

Take one type of speech: persuasion. Free persuasion is usually justified on the basis of the marketplace of ideas. In a nutshell: people should be allowed to try to persuade each other freely, because this process of free persuasion will improve the quality of opinions.

Now take another type of speech, namely emotive speech. Examples of emotive speech are “fuck you” (expressing rejection or disgust), “fuck” (expressing disappointment), “shit”, “motherfucker” etc. Such expletives, and emotive speech in general, are often viewed as completely lacking in merit and therefore unworthy of protection. US First Amendment jurisprudence is a case in point. The Supreme Court labels a lot of emotive speech as no-value or low-value speech and has no problem with restrictions of it. (See also here). Speech lacks value, according to the Supreme Court, if it’s no essential part of the exposition of ideas and doesn’t bring us closer to the truth. Any slight benefit it may have is outweighed by the social interest in order and morality.

However, this means focussing on persuasion and the truth seeking purpose of speech, and using the justification of this type of speech in order to reject another type of speech. If, on the other hand, you believe that speech also has an emotional purpose, you would regard expletives as more valuable and more worthy of free speech protection.

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The distinction between low or no-value speech on the one hand and high value speech on the other hand, whatever its merits (and those are not obvious), points us towards a further remark regarding the distinction between types of speech and between types of justifications. Those distinctions aren’t clear-cut: even people who express themselves merely because of signaling needs can be justified to do so because of the value of the marketplace of ideas. Although they don’t want to persuade, the fact that they merely express an opinion without arguing for it is valuable in the marketplace of ideas because it can convince others of the lack of real value of their opinions. Likewise, an order may indicate that persuasion has failed, and this in turn may indicate the relative weakness of an opinion.

More posts in this series are here.

Why Do We Need Human Rights? (37): The Right to Life

a scene from Michael Crichton’s “Coma” (1978)

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Of all human rights, the right to life is probably the least controversial. It’s almost universally accepted and it’s supposed to have absolute or quasi-absolute power: most of us have a hard time accepting or even imagining justifiable limitations of this right. Hence, the question of the justification of the right to life seems relatively uninteresting. Compared to some other rights, it’s clear why we need it: we all want to live, or at least decide for ourselves whether or not we want to live.

If, for instance, you ask people why we need the right to free speech, or why violating this right is wrong, then they’ll have a much harder time coming up with a solid answer (even though there are solid answers). They’ll also assume that they would somehow be able to live without it. Life would perhaps not be pleasant or fulfilling, but it would go on. Not so without the right to life.

So why talk about the justification of the right to life? Well, because on closer inspection things aren’t so simple. If you ask yourself why killing is wrong, the answer is surprisingly difficult. The best attempt to answer the question has some unappealing results. We can argue that killing is wrong because living allows you to do things, be someone, become someone etc. (See here for instance). It’s because life is this fundamental prerequisite and this necessary condition for everything else that a right to life is basic, quasi-absolute and easy to justify in the minds of most people. It’s a justification without which there are no other justifications. It’s axiomatic. You can’t not take it for granted.

But if killing is wrong not because it takes away a life – living in itself is not valuable – but because it takes away the ability to act and be, then it’s OK to kill off people in an irreversible coma, harvest their organs etc. The harm imposed by killing can’t be the mere fact that life stops; a person whose life is ended by way of killing can’t experience the harm of absence of life. This person can’t experience anything. Adead person can no longer have any experiences, and taking away people’s ability to experience, in other words their ability to do things and to be someone, is indeed an imposition of harm. A special harm, yes, but a harm nonetheless. Contrary to the usual type of harm, this harm does not imply the experience of harm – how can it? – but rather the harm of absence of experience.

So it’s the imposition of complete and irreversible disability – the complete and final lack of the ability to do things and be someone – that is at stake, that makes killing wrong, and that justifies a right to life. Not the absence or the taking of life as such: the mere absence of life is not a harm. The disability has to be irreversible, because anaesthesia for example has the same disabling effect, but in a reversible manner. That is why killing the anesthetized and harvesting their organs is still wrong.

scene from Tarantino’s “Kill Bill”

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This answer to the question of the wrongness of killing is discomforting. Many of us would shudder at the conclusion that killing off people in an irreversible coma is right because it doesn’t mean imposing harm (the harm – complete and irreversible disability – has already been done). It doesn’t sound right. We sense that we would still impose a harm. But which harm? It can’t be a harm that they can experience, given that they can’t experience anything (so we’re not talking about cases of locked-in syndrome here). Hence, irreversible coma is the same harm as death. Killing people in an irreversible coma does not mean imposing extra harm. It’s not the loss of anything valuable that hasn’t been lost already by the event of the irreversible coma.

And yet, this still sounds unsatisfactory. Many of us would try to keep comatose people alive. After all, what looks like irreversibility may not be so in the future. But even if irreversibility is a certainty, we still wouldn’t be OK with pulling the plug. I’m afraid I have no solution. I’m stuck. And the absence of a solution complicates the justification of the right to life: if killing off irreversibly comatose people is not wrong, then the right to life loses part of its meaning.

More posts in this series are here.

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

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

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

1. Retribution

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

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

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

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

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2. Deterrence

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

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

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

Buster Keaton in jail

3. Incapacitation

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

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

4. Symbolic confirmation of social rules

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

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

5. Signaling

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

revenge of the creature, UK movie poster, 1955

6. Healing and pacification

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

7. Rehabilitation

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

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

Conclusion

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

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

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

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

More here.

What Are Human Rights? (48): Something That Can Be Bought?

surrogacy advert

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Take a look at this list, helpfully compiled by Michael Sandel:

• In Santa Ana, California, and some other cities, nonviolent offenders can pay for a prison-cell upgrade costing $90 a night. This gives them access to a clean, quiet jail cell, without any non-paying prisoners to “disturb” them – read: rape them.
• Couples believing that their infertility impedes their right to a family life can buy an Indian surrogate mother for $8,000, less than one-third the going rate in the United States. Similar transactions take place between patients in need of organs and willing donors, the latter of course very often poor and desperate.
• In the U.S., patients who want easy access to a good doctor can buy their doctor’s cellphone number for $1,500 and up per year. A growing number of “concierge” doctors offer cellphone access and same-day appointments for patients willing to pay annual fees.
• People wanting to emigrate to the U.S. can do so when they invest $500,000 and create at least 10 full-time jobs in an area of high unemployment. This makes them eligible for a green card that entitles them to permanent residency.
• A single mother in Utah who needed money for her son’s education was paid $10,000 by an online casino to install a permanent tattoo of the casino’s Web address on her forehead.

In all of these cases – and probably in many others I’m not aware of – people pay money or sell themselves – or parts of themselves - in order to have their rights protected, or they get paid in order to help others secure their rights.

I’m sure I’m not the only one who’s distraught by this. It’s true that rights protection costs money – a lot of money – and a large proportion of what we pay in taxes is used by governments to protect our rights (taxes pay for a police protection, judicial protection, welfare, healthcare, education and other rights). So why shouldn’t individuals be able to bypass the state and use their money to secure their rights when the state or others fail to do so? (By “others” I refer to NGO’s, international institutions, private charities etc.). After all, everyone should be happy with better rights protection, no?

Well, yes, unless we start something that will lead to systematically unequal rights protection. We don’t want the wealthy to have better rights protection than others, or to be able to continuously improve their marginal protection (e.g. a gated community as a defense against unlikely attackers) while the poor are left with almost no protection at all. Slightly modifying the meaning of a standard expression: might shouldn’t be right. The advantage of outsourcing rights protection to the state is that we pool resources and use them where they are most needed. The market isn’t always the best place to allocate rights protection.

Even the rich will consent to this. After all, they may be able to buy some of their rights, but not all of them and not all of the time. Participating in government protection mechanisms will secure their rights when their money can’t.

Another problem caused by individuals buying their rights is that we may see crowding out of moral motivation. If other individuals, companies or governments can get money for securing rights, they’ll stop securing rights for moral reasons. And finally, the concept of rights will be corrupted. Rights are not something which should have to be bought. They are something people have a moral duty to give. Allowing rights to be bought and sold corrupts the value and meaning of rights.

More posts in this series are here.

Related articles

• What Isn’t for Sale? ( Michael J. Sandel) (larrycuban.wordpress.com)

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

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

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

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

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

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

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

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

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

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

More on corporate social responsibility here, here and here.

Why Do We Need Human Rights? (36): The Economic Case Against Democracy

wealth in China

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Democracy is a human right. But how do we justify this right? One common argument is that democracies tend to be wealthier than non-democracies. However, there’s some disagreement about this argument: not about the goodness of wealth and wealth-enhancing institutions, but about whether democracies are in fact such institutions. Impressive economic growth rates in non-democratic countries such as China have planted doubts in many people’s minds.

Some time ago, I offered a rather “philosophical” argument against the view that democracies perform worse economically than some types of authoritarian government (i.e. China-style). But in fact we’re dealing with empirically verifiable hypotheses here. So I looked for some numbers and found this article by Dani Rodrik:

The relationship between a nation’s politics and its economic prospects is one of the most fundamental – and most studied – subjects in all of social science. Which is better for economic growth – a strong guiding hand that is free from the pressure of political competition, or a plurality of competing interests that fosters openness to new ideas and new political players? …

Democracies not only out-perform dictatorships when it comes to long-term economic growth, but also outdo them in several other important respects. They provide much greater economic stability, measured by the ups and downs of the business cycle. They are better at adjusting to external economic shocks (such as terms-of-trade declines or sudden stops in capital inflows). They generate more investment in human capital – health and education. And they produce more equitable societies.

Authoritarian regimes, by contrast, ultimately produce economies that are as fragile as their political systems. Their economic potency, when it exists, rests on the strength of individual leaders, or on favorable but temporary circumstances. They cannot aspire to continued economic innovation or to global economic leadership. (source)

Some data on democracy and growth are here.

The darling of the “authoritarian=efficient” crowd is, of course, China. China has indeed performed extremely well economically under a rather authoritarian government. However, that government is much less authoritarian than it was during the post-WWII decades of stagnation and extreme poverty. So maybe it’s the relative move towards greater freedom that is the true cause of China’s economic performance, rather than its authoritarian government per se.

Moreover, China has done very well in terms of growth and poverty reduction, but in terms of levels of prosperity it’s still way behind most countries that are much more free. Its astounding progress is partly due to the very low starting point that was engineered by its authoritarian rulers.

And finally, the supposed economic success of authoritarianism in China – if it exists – isn’t necessarily proof of the economic ability of authoritarianism in general (authoritarian disaster stories are unfortunately far more common than authoritarian success stories). It may not even be proof of the economic ability of authoritarianism in China, since correlation doesn’t imply causation, especially not if there are only very few observations: China’s economic success may be due to other factors – and maybe this success would have been even greater without authoritarian government.

Jesus raises the dead man Lazarus back to the living world (mosaic from Ravenna, 500′s AD)

The economic case for authoritarianism is a bit like this: usually, people don’t return from the dead. But there’s this one guy, Lazarus, who did. Some claim that there was this other fellow, Jesus, who done the deed and made Lazarus walk again. There are no other Jesuses around, and this one Jesus only did his trick once. Nobody quite knows how he did it. Some say he just happened to be around when it occurred and people put one and one together. Lazarus would have walked anyway, perhaps even sooner had this other fellow not stolen all the attention.

More here, here, here and here on the myth of successful authoritarianism.

Related Articles

• The heavy hand (economist.com)
• Where will China’s long march end? (telegraph.co.uk)
• Is Democracy Necessary for Economic Success? (curiouscapitalist.blogs.time.com)
• India or China: Which Model for the Developing World? (curiouscapitalist.blogs.time.com)
• Democracy or Autocracy: Which is Better for Economic Growth? Becker (becker-posner-blog.com)

Religion and Human Rights (31): Polygamy, Right or Rights Violation?

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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.

Who Will Zuma’s first lady be? Pretoria News headline from April 11, 2009

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:

What Makes People Care About Human Rights?

Clark Gable in “Gone With the Wind”

Human rights are not like music or love, things people care about for their own sake or for the pleasure or happiness they provide. If people care about human rights they do so because they view those rights as means to achieve some other goals or purpose. I personally see the following reasons why people care about human rights.

Signaling

Human rights function as signaling tools (see also here). People who engage in human rights talk don’t necessarily have as a first priority the goal of improving respect for human rights, but perhaps only want to convey some meaningful information about themselves and use human rights talk to do that. They may of course improve respect for human rights along the way, sometimes unwittingly (for example because their talk contributes to a culture of human rights), but human rights are valuable to them primarily because they allow them to communicate certain things about themselves. For example, it’s possible that some of the people who are very expressive about perceived discrimination of a particular minority group may be primarily motivated by a possible leadership position within that minority group. Their human rights talk signals leadership aspirations. This kind of reason to care about human rights is not by definition useless for the promotion of human rights – it can advance the cause of human rights – but it’s obviously not the best possible reason.

Self-interest

Human rights promote people’s self-interest. That’s obviously true for their own rights, but also for the rights of others. I’ve written here about the ways in which people may view the promotion of the rights of others as a means to protect their own self-interest. This reason to care about human rights is more beneficial to the cause of human rights than the signaling reason, but it’s still not the best possible reason. People’s self-interest does not advance all human rights of all other people.

Values

People may believe that human rights promote some of their cherished values or ideals, such as freedom or equality, for themselves and for humanity in general. Like the previous two reasons for caring about human rights, this reason will only advance the cause of human rights contingently: if freedom is what you care about, you will only promote human rights to the extent that they enhance freedom, and only those rights that enhance freedom.

It’s not true that freedom is served by all human rights all of the time, at least not if you adopt a restrictive definition of freedom. For example, those human rights that guarantee a basic standard of living are not clearly meant to enhance the freedom of poor people – within the bounds of a certain definition of freedom - and they may even limit the freedom of those who have to contribute the means necessary to guarantee a basic standard of living for others. Conversely, if you’re an egalitarian and equality rather than freedom is what you care about, then you may not feel especially attached to the right to property for example.

Humanity

People may cherish rights because they believe human beings are uniquely valuable creatures who should be treated in a certain way. For example, you may believe that people deserve to be treated with dignity and respect. Or that they deserve to have their autonomy protected. Or that people have been created by God in His image and that this requires a certain treatment. Human rights are then viewed as means to achieve this treatment. Compared to the previous reasons to care about human rights, this reason is potentially more inclusive and wide-ranging and less contingent on facts about personal motivation. However, it depends on a substantive and inherently controversial philosophy about human nature, dignity or religion.

Evil

Conversely, people may cherish human rights, not because of their views about the inherent worth of human beings, but because of the evil inherent in humanity. Human rights are necessary not because they protect the good in people but because they protect people from the evil in others.

Related Articles

• Human Rights and Utopia (filipspagnoli.wordpress.com)

Why Do We Need Human Rights? (35): Why Do We Need Democracy?

The Great Lisbon Earthquake of 1755

Democracy is a human right. In the past, I’ve  listed a number of reasons why we should prefer democracy over other forms of government (here and here for example). I’ve now come across another reason, one that may not be convincing or relevant to everyone, but still it’s mildly interesting:

Lisbon, Portugal, during the great earthquake of 1 November 1755. This copper engraving, made that year, shows the city in ruins and in flames. Tsunamis rush upon the shore, destroying the wharfs. The engraving is also noteworthy in showing highly disturbed water in the harbor, which sank many ships. Passengers in the left foreground show signs of panic.

All things — including wealth — being equal, earthquakes kill more people in dictatorships than in democracies, write NYU political scientists Alastair Smith and Alejandro Quiroz Flores. The reason that democratically elected leaders prepare their countries for disaster better is because they fear they’ll be voted out of office if their governments are caught unprepared. (Dictators obviously tend to worry less about election outcomes.) A recent World Bank study backs up this argument, with an added wrinkle: institutionalized autocracies, like China’s, tend to outperform non-institutionalized or corrupt autocracies as well as young democracies when it comes to preventing earthquake deaths. Still, another study finds that politicians in democratic elections benefit even more from doling out disaster relief after a catastrophe than they do from preparing for disasters yet to come. (source)

More on democracy and human rights here, here and here. More on earthquakes and accountability.

What Are Human Rights? (47): A Hostile Symbiosis

clownfish and sea anemone, photo by Natascia Tamburello

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“Hostile symbiosis” is a concept I borrow from Benjamin Wittes. The idea is that the different human rights that are part of the system of human rights are both mutually dependent (or interdependent) and at the same time hostile to each other. For example, the publicity of free speech can’t exist without the privacy offered by privacy rights (no light without darkness), and yet at the same time respect for a person’s privacy may require limitations of someone else’s speech rights. Religious liberty can’t exist without equality of rights (religious liberty is in fact religious equality) and yet it may be necessary to allow religious groups the right to discriminate against candidate members in order to preserve their religious identity. And so on.

The same rights which are in one case interdependent and which can’t exist without each other, are in other cases mutually hostile and need to be balanced against each other and limited for the sake of each other. Hence the concept of hostile symbiosis.

Symbiosis is a term from biology, and is a combination of the Ancient Greek terms for “together” and “living”. It refers to close and long-term interactions between different biological species, the classic example being the clownfish and the sea anemone. A clownfish feeds on small invertebrates that otherwise have potential to harm the sea anemone and it’s territorial instinct protects the anemone from anemone-eating fish. In addition, the fecal matter from the clownfish provides nutrients to the sea anemone. The clownfish is in turn protected from predators by the anemone’s stinging cells, to which the clownfish is immune.

This is not a hostile symbiosis, as in the case of different human rights. Human rights form not just a hostile symbiosis but also an obligate symbiosis, meaning that both symbionts entirely depend on each other for survival. That is, as I understand it, not the case with clownfish and sea anemones, but some types of fungi and tree symbioses for example are obligate in nature. Many varieties of fungus live in close association with trees and other plants, drawing in nutrients from deep underground and providing them to the tree in exchange for a share of the energy (in the form of sugars) produced by the tree’s photosynthesis. The trees need the fungi in order to gain nutrients more efficiently (source).

Some more examples of what I’m talking about are here and here. More posts in this series are here.

The Vagaries of Moral Progress (6): Capital Punishment in Saudi Arabia

A Saudi executioner prepares to behead a convicted drug dealer in Jeddah in this 1985 image. Photograph: Rex Features

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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)

More on capital punishment in Saudi Arabia is here. More posts in this series are here.

The Vagaries of Moral Progress (5): Dubious Motivation For Tolerance

Rob Portman

Senator Rob Portman (Republican from Ohio) in June 2012: says he doesn’t believe it should be illegal to fire someone for being gay because making this type of bigotry illegal would also make businesses less “comfortable” and less willing to hire (source).

Senator Rob Portman in March 2013: has renounced his opposition to gay marriage, telling reporters from Ohio newspapers Thursday that he changed his position after his son Will told the Ohio Republican and his wife Jane that he is gay (source).

Better dubious progress than no progress you may say. I say it’s a pity that this is what it takes.

More posts in this series are here.

Private Property, Common Property or Collective Property?

photo by Henri Cartier Bresson

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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.

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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).

“Victory of the 5 Year Plan A Blow to Capitalism”, Soviet propaganda poster

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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.

Why Do We Need Human Rights? (34): Which Are the Best Anti-Human-Rights Theories?

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

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

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.

Read more here, here, here and here about cultural relativism and human rights.

Empire

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

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…

Marxism

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.

Related Articles

• Justifying Human Rights (filipspagnoli.wordpress.com)
• Hu: ‘A lot’ still needed on human rights in China (seattletimes.nwsource.com)

Intentionality Bias Causing the Surge in Human Rights Talk

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).

More on human rights and intentionality is here, here and here. More on biases is here.

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

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

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

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

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

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

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

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

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

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

He obviously explains it better than I can.

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

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

The Good Samaritan by Ferdinand Hodler

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

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

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

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

What’s So Special About the Holocaust?

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.

Mengele’s twins

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.

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

Whitney Houston

(source)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Related Articles

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

What Are Human Rights? (46): Equal Rights, Ctd.

infamous hate preacher Abu Qatada

(source unknown)

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.

Human Rights For Machines?

Riker and Data from Star Trek, The Next Generation

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.

Daniel Dennett

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.

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

Reconcilliation cartoon by Dario Castillejos

(source)

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

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

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

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

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

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

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

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

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

Related Articles

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

Why Do We Need Human Rights? (33): A Full Human Life

a choice of lives

(source)

Again, I feel the need to rewrite an older post. Not a good sign. Still, here we go.

One way to look for an answer to the question in the title of this post is to focus on the kind of life we can achieve with the help of human rights. Ideally, most of us want a life that isn’t just mere existence or survival. Not even decent survival or a successful struggle for life is enough. We want a full human life. However, a full human life has a different meaning for different people. It’s a controversial notion, and we probably will never agree on the definition of a full human life.

Human rights won’t be able to help achieve all visions of the good life, and rightly so because some visions are destructive and harmful. However, they do give us the freedom and capabilities to try to achieve a very wide range of visions of the good life. Perhaps part of the good life is precisely this ability to make a free choice between a wide set of visions of the good life, to pursue that choice, to have the capabilities to do so and to have a reasonable chance of success whatever our choice. It’s now widely accepted that “a full human life” should be left to individual choice and can’t logically mean something that would be imposed on people.

Human rights give us the choice of a good life, the capabilities to pursue it, and a good chance to do it successfully. But how exactly do they do that? In order to pursue our self-chosen vision of the good life, we need some degree of freedom so that our life plans aren’t dominated, controlled or imposed by others, by governments, religious leaders, etc. For example, we need to be able to decide freely which kind of religion we want to practice, where to live, what job to do etc. Also, if we are to be able to plan our life freely, our choice of plan must be a real choice. Hence, we need a minimum of education, information and physical resources and capabilities (e.g. good health) in order to make an informed choice from a wide range of options, and in order to try to realize our choice. All these resources and capabilities are protected by human rights.

However, this thin and at the same time all-encompassing vision of a full human life may already be too specific and controversial. Some cultures or individuals may not want to give their female members the choice of deciding to shape their own vision of the good life. So how do we reply to that concern?

(source)

Perhaps we may get somewhere if we rephrase the question in the title of this post so that it states “why do I need human rights?” instead of “why do we need human rights?”. People usually are more willing to accept reasons for the importance of their own human rights than they are to accept reasons for the importance of the rights of others. More specifically, when the possibility to shape your own life is the reason for accepting human rights, there will be few people rejecting this reason as long as it’s about their own lives.

Once we can convince people of such a reason for the importance of their own human rights, we can then try to take the next step and try to convince them of the importance of the rights of others. At that moment, we may use elements outside of the system of human rights. Perhaps we can’t convince them of the importance of the rights of others when we focus on those rights, but maybe we’ll be more successful using other, non-rights based moral imperatives. These imperatives then apply the value people see in their own rights as a means to persuade them of the value of the rights of others.

For instance, the old maxim called the Golden Rule – “do unto others as you would have others do unto you” – does have some power of persuasion, but in this context it requires that we first convince people that human rights are necessary for themselves as human beings and that they view other human beings as human beings. Since we’re dealing with people who deny the rights of others, we may run the risk of including the conclusion in the premise. In other words, people who believe in the Golden Rule probably don’t need to be convinced of the general importance of human rights, and those who need to be convinced may not be swayed by the Golden Rule.

Similarly, we could try to persuade people of the importance of the rights of others by appealing to Kant’s categorical imperative: “act only according to that maxim whereby you can, at the same time, will that it should become a universal law”. But again, this may fail, since it’s very unlikely to find a Kantian who isn’t already convinced by the general importance of human rights, or to find an opponent of the rights of others who can be convinced by Kantian arguments.

Still, you don’t know if you don’t try, so let’s leave aside these worries for the moment and go back to the first step in this strategy: how can we convince people that human rights are important for themselves? I still think a description of the ways in which these rights can help them to achieve a self-chosen vision of a full human life is promising, even if the definition of this full human life has to remain very abstract and vague and can’t include anything more specific than the capacity to choose your own path through life and your own final goals and perspectives.

This kind of justification of human rights, because it builds on a vision of a full human life that is very vague and that only includes the free choice of what it means to have a full human life, holds across a wide range of different individuals, ideologies and cultures. A vision of a full human life that is paradoxically “thin” can justify human rights, at least as long as we limit the ambition to egocentric justification, i.e. a justification of people’s own rights. Justifying rights as something that people need to respect in each other is then the next and more difficult step. Also paradoxically, this thin version of a full human life doesn’t justify a thin set of human rights but rather a set that contains many rights that are still controversial, even among those who generally view human rights in a positive way.

More on justifications of human rights here.

Related Articles

• Justifying Human Rights (filipspagnoli.wordpress.com)

What Are Human Rights? (45): Negative or Positive Rights? Ctd.

(source)

I realize now that this previous post wasn’t any good. I need to do a lot more to clarify the difference between negative and positive rights, and to argue that there are indeed two types. Most people assume that there’s only one type and that human rights are always and only negative rights:

• the right to free speech is a right not to be silenced, not a right to be given the ability to speak (e.g. to have my vocal cords healed)
• my right not to suffer arbitrary arrest is not a right to be rescued from a cave (in the words of Jonathan Bennett)
• my freedom of movement is a right not to be hindered, not a right to roads
• etc.

These examples are meant to make two points, both of which I want to contest:

1. many so-called rights violations are really not rights violations because there is no violator
2. rights require only the removal of constraints, more specifically of human imposed constraints.

It does seem to be the case that there can only be a right when someone can violate it (see here), and in the examples above there is no one violating a right: my vocal cords gave up without anyone’s help, and I got stuck in the cave because of my own stupidity or because of a natural calamity. And indeed, the conventional wisdom is that there are numerous types of inabilities which render rights meaningless but which are nonetheless not rights violations because there is no one who caused the violation. In other words, not all inabilities or harms are rights violations, not even if they render rights meaningless.

However, this conventional wisdom is wrong for several reasons. Often there is a violator lurking in the shadows and his or her presence is not clear at first sight. For example, many believe that poverty isn’t a rights violation because no one causes poverty; poverty is just the unfortunate outcome of economic circumstances, like my falling into a cave is the unfortunate outcome of my own stupidity. But that’s not necessarily true: poverty is often the direct result of purposeful and conscious actions by dictators, by the designers of international trade or migration policy etc. So one should be careful when arguing that something is not a right or not a rights violation because there’s no violator. Often there is one but you just fail to notice it.

The second claim implicit in the examples above is that rights require the removal of constraints, not the provision of abilities: free speech requires the removal of censorship, not the provision of the ability to speak; freedom of movement requires the absence of government imposed restrictions on movement, not the provision by the state of roads (even if the absence of roads makes freedom of movement meaningless); etc. However, even the removal of censorship requires the provision of judicial systems, of a police force etc. Hence, it requires the provision of abilities: the ability to sue censors, to send the police to them etc. I see no reason why these abilities should be limited to the ability to remove constraints, and why they should exclude abilities such as education. If rights are important, then people should have the abilities to make their rights real; sometimes this means removing constraints, but often it means providing abilities. Why should it be a big thing when someone is censored, but not when someone is denied the education necessary to make speech possible and meaningful in the first place?

The conventional wisdom – quoted above – that not all inabilities or harms are rights violations, not even if they render rights meaningless, is only partly true. Not all inabilities or harms are rights violations: my broken heart is not a rights violation. But there are many inabilities and harms – even some for which we can’t identify a human agent causing the inability or harm – which are still rights violations because they render rights meaningless. Rights violations don’t always require the presence of a violator and require more than the removal of constraints.

More posts in this series here.

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

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

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

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

1. Coercion by poverty

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

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

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

2. Trade instead of justice

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

3. Objectification and instrumentalization

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

4. Unjust distribution

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

5. Crowding out altruism

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

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

Alternatives

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

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

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

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

More on organ sales, exploitation, instrumentalization and objectification.

(image source, image source)

What is Totalitarianism?

Scene from the movie 1984

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.

Photomontage of Stalin and Hitler

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.

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

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

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

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

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

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

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

Friedrich von Hayek

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

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

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

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

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

More posts in this series are here.

What Are Human Rights? (44): External Constraints on Politics, Means of Politics, or Objects of Politics?

inside/outside by Ronen Berka

(source)

People describe and define human rights in lots of ways, but perhaps the most common definition is this: human rights are external constraints on politics. They determine the boundaries that political action – action by both authoritarian rulers and democratic majorities – should not cross. I want to use the metaphor of the ring to clarify this, because that will help us later on in this post. Political action – including legislation – is constrained by a ring of rights:

This definition – let’s call it definition 1 - places human rights squarely outside of and even prior to politics. This is why oppressive actions by authoritarian rulers who have not enacted human rights law can still be condemned by human rights talk. If rights were just a part of politics, this wouldn’t be possible because they would be on the same level as authoritarian politics and they would therefore lack constraining power. (Of course, it is a fact that human rights often fail to constrain, but I’m dealing here with the moral and not factual status of human rights).

The same logic applies to democratic governments that have enacted human rights law: their actions as well should, ideally, stay within a realm defined by a ring of rights. The difference with authoritarian governments is that democracies have more efficient extra-political means to keep their governments within the ring, at least some of the time (for example judicial review; in the case of authoritarian governments there are also means – such as foreign intervention, rebellion etc., but those are normally a lot less effective).

So that’s definition 1, and it’s good as far as it goes. The problem is that it doesn’t quite capture the essence of human rights in a democracy. Rights are not just or not merely outside of politics in a democracy – they are intrinsic to it. Democratic politics can’t function without human rights; rather than external constraints on politics, rights in a democracy are essential means of politics. They are the foundation on which democratic politics can function. That may be obvious in the case of some rights – no democratic politics without free speech, assembly or association rights and the right to vote – but it’s true for all rights (for example, I argued here that violations of the right not to be tortured can undo democracy).

So let’s call this definition 2 and represent it like this:

The ring has become the foundation. Now, it may look as if these two definitions are contradictory and incompatible: something is either an external constraint or a means, but never both. However, rights should be both: we need rights as foundations and means of democratic politics, but at the same time we want rights to be able to constrain democratic politics when necessary (for example when the majority wants to violate rights). I think we can have both.

Things get more complicated when we consider a third definition: rights as objects of politics. The two previous definitions assume that rights are uncontroversial, but that is untrue. Human rights are objects of frequent and reasonable disagreements. They are not self-evident, God-given or axiomatic. They need justifications and arguments, and different people will have different justifications and hence different definitions of rights. The only way to deal with these disagreements is through politics: discuss them in public, and let the majority vote. (E.g. should work be a right, should unemployment insurance be, should incitement be protected as free speech? etc.) As a result, the width and strength of the ring of rights changes over time:

One could argue that it’s not up to politics to decide these disagreements, and that instead a constitutional court should deal with them. However, we know from experience that this doesn’t work: politics will continue to interfere, either directly through legislation or indirectly by way of interference with the workings of the court.

And there’s an even more fundamental problem. Definition 3 looks like it’s incompatible with definitions 1 and 2. If rights are supposed to function as constraints on politics, then we shouldn’t place rights within the political process which they should constrain. When we allow rights to become objects of politics then majorities can easily destroy the  constraints that bind them. Similarly, when majorities are allowed to vote on the fundamental means of politics they may well decide to destroy those means.

The solution is not the removal of rights from politics – that’s both illusory and undesirable – but rather the creation of a distinction within politics: normal political decisions should be absolutely constrained by human rights and should respect rights as the fundamental means of politics; and then there is constitutional politics, which is a periodical – and not a day-to-day – form of politics that tackles society’s basic rules, including human rights. Normal majoritarian procedures don’t apply here. Special majorities are required as well as other safeguards against the destruction of rights.

More posts in this series are here.

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

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

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

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

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

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

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

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

More on luck. More posts in this series.

Related Articles

• 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)

The Causes of Human Rights Violations (43): Disgust

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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. 

photo by Andreas Kuehn/Getty

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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.

What is Freedom? (9): The Ability to Act Otherwise

Freedom is often defined as the ability to act otherwise. If you do something, you’re acting freely if and only if you can also omit the action or do something else. In other words, you’re free if you have a choice and if your actions are not somehow forced, for example by others, by external obstacles, by internal inhibitions or passions, by the laws of nature, by the law of cause and effect etc.

This definition of freedom sounds obvious – even boring – but once you think about it a little bit, it quickly loses its appeal. After all, how do we know that we can act otherwise? Maybe we think about earlier and similar experiences when we did act otherwise – I feel an urge to have a Scotch right now and I know that’s a free action rather than a compulsion because I remember similar urges in the past, some of which I resisted.

But having acted otherwise in similar circumstances in the past is hardly proof that we can now also act otherwise. In fact, we can only be certain that we can act otherwise if we effectively act otherwise. But that is pointless, because we don’t want to act otherwise; we chose to act in one way, and not another, and we want to know if acting in one way rather than another means that we act freely. We may be able to determine our freedom in the case of unimportant actions: if I put my right hand in my pocket, I may try to act otherwise and put my left hand in my pocket. Acting otherwise isn’t costly in this example because it doesn’t really affect my will and because we’re not talking about something that is important to me. The difficulty arises when we want to know if our important actions are free: actions such as marrying, choosing a career, having kids etc. We don’t want to act otherwise in those cases, and often don’t even have the time or the opportunity to act otherwise.

Acting otherwise is not just pointless but also circular: imagine that we do act otherwise, then as well we want to know if we are free, and this we can only know if we act in yet another way. And so on. (More about this here).

So I guess that we need to say something more than “ability to act otherwise” if we want to know what freedom is.

More posts in this series are here.

What Are Human Rights? (43): A Bit of Etymology

Left, Right & Wrong, 2011, by Haavard Pedersen

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There’s an interesting story to tell about the word “right”. It’s of course a homonym. The word has at least three completely different meanings:

• right as opposed to left
• right in the sense of correct (“consonance with facts and reality”)
• and, obviously, right as an entitlement or moral title, i.e. a moral claim or a legally permitted action grounded in a moral claim.

However, these meanings, although apparently unrelated, have a common core:

How did it come to mean “the opposite of left” and also ”something to which one is legally, morally or naturally entitled”?  This wouldn’t be so weird—words have multiple meanings all the time—except that Spanish “derecho”, French “droit”, Portuguese “direito”, German “Recht” and other words all carry the same double-meaning. In German, you can also say “Du hast Recht”, “you’re right”, so “Recht-recht-recht” has the same triple meaning in German as “right” (entitlement), “right” (not left) and “right” (correct) in English. In Slavic languages, the correct/not-left/entitlement words also share the same root (“prav”), which yields Russian “pravda” (“truth”) to boot. The connections between the different senses of “right” are old, and deep.

What links all the words? The answer is a sense of naturalness, appropriateness, correctness. In a world where goodness (right) prevails, people will get what they are morally due (their rights), and will be correct (right) in their thinking and doing. …

Where does the not-left meaning come in? Simply, as the OED explains, because the right hand is the stronger and more appropriate one for most people to use for most tasks. Tellingly, the word “left” in several languages is cognate to English sinister, like “sinistra” in Italian. In many cultures, including non-European ones, the left hand is considered debased, suspicious, perhaps appropriate only for dirty tasks. (Items should not be handed over or received with the left hand in many Asian cultures, for example.) “Left” itself in English comes from a root meaning “weak” and so, in some contexts, “worthless”.

With all this history, it’s no surprise that left-handers have long found the world less than congenial. The Wikipedia article on “Bias against left-handed people” is thousands of words long. (source)

I’m surprised this isn’t a more common line of attack in politics.

More posts in this series are here.

Moral Dilemma (23): An Eye For an Eye, With a Twist

The movie Valhalla Rising tells the story of an 11th century, one-eyed brawler (Mads Mikkelsen) who falls in with a group of Christians journeying to the Holy Land

We have before us two people: one is blind, the other one has perfect eyesight. Let’s assume that eye transplants are simple and safe. If we were to take one eye from the latter – who, we assume, is an unwilling participant – and give it to the former, overall wellbeing would be greatly enhanced. The former would now be able to see with one eye, whereas the sight of the latter would not be substantially reduced, except perhaps for depth perception. Anyway, any losses for the latter are easily outweighed by the greater gains for the former. The difference between 0 and 1 eye is a lot bigger than the difference between 2 and 1 eye.

Before I can have a look at your answers, my guess is that most of you will not find this acceptable. If that’s the case, we’re not dealing here with a real moral dilemma – something is only a dilemma when the choice is difficult for most of us normal folk. But for those of you who did indeed answer “no” – and I would be one of you – let me make the choice perhaps a tiny bit more difficult by asking a further question: why? What exactly bothers you so much in the proposed procedure? Here’s a list of possible reasons:

1. You object to the implied objectification of the unwilling donor: we shouldn’t treat people as means to someone else’s ends, however laudable those ends. People are not mere organ repositories.
2. You fear a slippery slope: why not also vital organs? If we were to take the heart, lungs and liver from an aging person and give it to a younger person who’s terminally ill, the net benefit would be large: the older person can only enjoy life for a small number of years compared to the younger person, and hence overall wellbeing would be greatly enhanced by the involuntary transplant. The older person will die, but the loss in wellbeing is small compared to the gain for the younger person.
3. You are simply disgusted by the proposed procedure.
4. You value the right to physical integrity, and you value it to such an extent that no other considerations – including the physical integrity of others – should be allowed to override it.
5. You’re opposed to the utilitarianism that is implicit in the proposed procedure. We shouldn’t always or simplistically strive for the greatest overall good.

Now, before I’ll ask you to vote for any – or several for that matter – of these reasons for your “no” answer above, allow me to sow a few seeds of doubt.

1. Perhaps you’re a proponent of capital punishment. Not, let’s say, of the type of capital punishment as it is practiced in China or the US. Or – God forbid – in Saudi Arabia. But you can imagine yourself endorsing capital punishment as an extreme but sometimes necessary act of justice. Capital punishment is usually justified as a deterrent, but I showed here that this justification failed because it objectifies the criminal, just as the eye removal objectifies the involuntary eye donor. If you’re against objectification in the case of the eye transplant, it seems you should also be against capital punishment. Think about that before checking answer #1 below. If you still check that answer, then you may need to revisit some of your strongest opinions.
2. Regarding the slippery slope answer: don’t forget that the slippery slope argument is of very dubious quality. It has been used to defend marriage restrictions for gays, the criminalization of homosexuality, racial segregation etc. Like all metaphors, it has its limits and we shouldn’t automatically assume that one step down the hill will land us nose down in the valley.
3. The disgust reason is also problematic: emotions are usually not the best basis for thoughtful arguments.
4. Physical integrity, while undoubtedly highly important, is not usually considered an absolute right: we regularly incarcerate criminals without thinking a second about the fact that we sentence them to prison rape. And even if there were no physical assaults in our prisons, incarcerating someone is akin to an amputation. A prisoner’s legs are, for all intents and purposes, amputated when we restrict their use to the confines of the prison. If this “amputation” is deemed necessary for the greater good of society, when not also the eye removal?
5. Even if you have your misgivings about utilitarianism – as have I – you still have to accept that you’re a utilitarian in many cases: otherwise you wouldn’t support defensive wars, taxation or immigration restrictions.

Thanks for voting. More moral dilemmas are here.

What Are Human Rights? (42): Individual, Not Individualistic Rights

Lisbeth Salander, arch-individualist

Opponents of human rights often define them as expressions of the individualism and antagonism that is typical of the West. Human rights are viewed as claims against society made by individuals who want to be left alone and who need rights in order to live their peculiar kind of lives free from the intolerance and interference of the larger community. As such, human rights are believed to be incompatible with, detrimental to or at least utterly useless in non-Western societies that are more collectivist, more communitarian, more focused on harmony and less interested in protecting and fostering peculiar lifestyles.

I don’t want to argue for or against these characterizations of Western and non-Western societies, although I do believe that they are wrong and simplistic. I’m also not expressing myself about the relative moral value of individualism and antagonism as opposed to community. What I want to do here is object to the portrayal of human rights as individualistic rights or as rights that promote individualism. Although human rights are the rights of individuals and not the rights of groups, there’s nothing in human rights that makes societies necessarily more individualistic or antagonistic. Many human rights are designed to protect communities, bind them together, and allow them to co-exist with other communities. That’s the case for the right to religious freedom and the assembly and association rights, but also, perhaps less obviously, for freedom of speech. A major function of speech is persuasion. People speak in order to persuade and bring outsiders into a group that holds certain beliefs. This is even more evident in the case of the right to political participation. I don’t understand how anyone can fail to see the importance of community in the system of human rights.

Human rights even have a collectivist side to them. Collectivism is

any philosophic, political, religious, economic, or social outlook that emphasizes the interdependence of every human being. (source)

Indeed, everyone’s rights are dependent on everyone else’s rights. Few if any of my rights make sense if I’m the only one having them or the only one being able to exercise them. If I can speak but nobody else can, then what is the point of me speaking? I will just be talking to walls. If I have freedom of religion but nobody else has, then with whom will I worship and congregate? If I have a right to a fair trial but everyone else is forced to give false testimony or no testimony at all, then I won’t have a fair trial. Etc. The effectiveness of my rights depends on everyone else having equally effective rights. Individualistic rights are therefore nonsensical.

A remark that’s probably superfluous: I’m in no way defending collectivist politics or disparaging the value of individualism. My point is limited to the proper definition of human rights. Calling them individualistic rights or tools for the promotion of individualism at the expense of community, harmony and belonging is just plain wrong and betrays a lack of understanding of their true nature. On the other hand, pointing to the collectivist strand in the system of human rights doesn’t imply a value judgment about collectivism vis-à-vis individualism. It’s just one strand among many, and one that should be mentioned in order to counter some common mischaracterizations of human rights.

(By the way, Marx as well was guilty of these mischaracterizations).

More posts in this series are here.

What is Freedom? (8): Generic and Specific Freedom

how the police used to pull you over

People from both sides of the political divide are in favor of more freedom, it’s just that they often talk about different kinds of freedom: those on the left usually want to promote generic freedom, while those on the right favor specific freedom. Of course, they don’t use these terms, since I just made them up. What I mean by them is this:

• Generic freedom: I lack generic freedom if I never have the freedom to do certain things, for example because I don’t have the capabilities, resources, education or whatever that is necessary for me to normally be able to do these things.
• Specific freedom: I lack specific freedom if I normally have the freedom – i.e. the generic freedom, which is the ability or the resources – to do certain things but if in certain specific circumstances or on certain specific occasions someone or something prevents me from doing these things.

In the case of specific freedom, I both can and cannot do certain things (in the words of von Wright): I cannot do them now or here, but I could have done those things had it not been for some obstacle or interference. The “can do” is given and the problem of freedom only arises afterwards, namely when I can’t do, in some specific circumstances, what I normally can do.

In the generic type of freedom, on the other hand, the “can do” is problematic, and problematic in a generic rather than a specific sense: I can’t do certain things, not because I normally can but I now and here face some impediment, but because I normally can’t.

Promoting someone’s generic freedom means increasing the range of different things that person can do, generically. For example, it means teaching people to do things, allowing them to learn to do things, giving them the resources and opportunities to do things etc. Promoting someone’s specific freedom means reducing the range of impediments that force this person to omit certain actions. For example, it means reducing legal prohibitions, social pressure etc.

It’s tempting to conclude that generic freedom is in a sense prior to specific freedom: you won’t encounter impediments while trying to do what you already can do if what you are trying to do is not something you already can do. If you can’t do something, whether or not there are impediments, you don’t care about possible impediments. However, maybe specific and generic freedom are not so different after all: lack of capabilities or resources can also be viewed as an impediment.

Still, if we maintain the distinction between these two types of freedom – or these two understandings of freedom – then it seems to me that it can help to explain many of the differences between right and left wing politics. If you’re worried about generic freedom, you’ll want to help people pay for their healthcare and education; you’ll favor generous social security benefits etc. If, on the other hand, your main worry is specific freedom, you’ll favor less regulation and legislation, free markets and other policies that may or may not promote equal generic freedom for everyone.

More on the similar distinction between positive and negative freedom is here. More posts in this series are here.

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

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

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

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

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

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

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

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

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

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

More posts in this series are here.

Migration and Human Rights (45): Open Borders, Luck Egalitarianism, and the Common Ownership of the Earth

[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.

The Vagaries of Moral Progress (4): Equal Rights Vigilantes

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Good or bad? Given the lack of a strong and fair police force, even after the revolution, self-appointed citizens patrols now try to protect women against harassers on Cairo’s streets, often with violent means.

The young activists lingered on the streets around Tahrir Square, scrutinizing the crowds of holiday revelers. Suddenly, they charged, pushing people aside and chasing down a young man. As the captive thrashed to get away, the activists pounded his shoulders, flipped him around and spray-painted a message on his back: “I’m a harasser.”

Egypt’s streets have long been a perilous place for women, who are frequently heckled, grabbed, threatened and violated while the police look the other way. Now, during the country’s tumultuous transition from authoritarian rule, more and more groups are emerging to make protecting women — and shaming the do-nothing police — a cause. …

[S]ome of the men were surprised to find they could no longer harass with impunity, a change brought about not just out of concern for women’s rights, but out of a frustration that the post-revolutionary government still, like the one before, was doing too little to protect its citizens. …

[S]ome activists criticized others for being too quick to resort to violence against suspects and encouraging vigilantism. … Sometimes the patrol acted after seeing a woman being groped. At other times, it justified its attacks as preventive. (source)

The backlash against harassment is moral progress of some sort, or maybe not. More posts in this series are here.

What Are Human Rights? (41): No Right Without a Remedy

strip search

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Ubi jus ibi remedium: where there is a right, there must be a remedy in case of violation of the right. It’s an old but somewhat misguided principle. If you focus too much on it, you’ll miss the essence of human rights. It has some superficial appeal: when nothing can be done about a rights violation, you might just as well not have a right at all. Conversely, the presence of remedies may deter future wrongdoers.

However, if you dig deeper, you’ll notice some problems. First, the principle is often used to disparage economic human rights: what’s the use of promulgating a right to work, when the presence of work depends on economic circumstances rather than on decisions by judges or on government policy? Compare this to the right to free speech: when a government shuts down a newspaper, a judge can – ideally – order the government to step back. Or compare it to the right to property: when someone steals your stuff, a judge can order to thief to give it back or compensate you financially. If we want to hold on to economic rights – and I think we should – we have to soften the remedy principle.

But there are problems even if we don’t care about economic rights. A remedy is often inadequate or even unavailable. Judges are ineffective or complicit in dictatorships. Do we say that the citizens of those dictatorships do not have rights simply because they don’t have remedies? I don’t think so.

Even if we focus on states with a well-functioning rule of law, there are many rights without remedies. Suppose the police harrasses you repeatedly for no good reason. They regularly invade your house and strip search you. As a result, your sense of security and privacy is gone. You live in constant fear and humiliation. You appeal to a judge who manages to stop the police and who awards you financial damages. And yet, you’ll probably be traumatized for the rest of your life. In short, you have no real remedy. The same is even more obvious in the case of a violation of the right to life. There’s obviously no remedy, but that doesn’t make the right to life useless. It’s still a strong moral claim that often has beneficial effects.

Even when real remedies are possible, they may require more than a few words spoken by a judge. Take for instance racial segregation in the U.S. Courts have repeatedly ruled it unconstitutional in the 1950s and 60s, but it took decades of complex laws and policies to diminish its effect. Again, the difference with economic rights tends to disappear. For instance, a healthy environment for job creation in the private economy also requires good and complex government policies maintained over many years.

More posts in this series are here.

The Vagaries of Moral Progress (3): To Hang or Not to Hang in Sri Lanka

The Hanging of John Brown, 1860, Drawing by Victor Hugo

Sri Lanka hasn’t hanged a man in 35 years. Although suspended in 1977 (the last execution took place the previous year), capital punishment remains in the statute books. There are currently 369 convicts on death row while a further 471 have appealed their sentences.

With nothing happening at the two gallows, the prisons department wasn’t rushed to find replacements when one hangman retired and another was promoted, a year ago. But a wave of serious crime, including the rape and murder of a seven-year-old girl, has reopened the debate on capital punishment. …

This … hasn’t yet translated into Mahinda Rajapaksa, the president, actually authorising an execution. The law requires him to sign the death warrant. Nevertheless, prison officials, not wanting to be caught out, hurried to advertise for hangmen. As P.W. Koddipili, the commissioner general of prisons, explained, they had to be ready. …

Ironically, neither of the two previous executioners hanged anybody during their tenure. Training the new recruits, therefore, poses a challenge. (source)

No surprise therefore that several of the shortlisted hopefuls asked an unexpected question of the board of interviewers: what exactly would they be expected to do?

More posts in this series are here. More on capital punishment here.

Moral Dilemma (22): Should Suicide Be a Free Choice?

Laurie Holden (left) and Emily Kinney (right), respectively Andrea and Bethe in “The Walking Dead”

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Suicide watch seems to be relatively uncontroversial. Prisoners or patients who are believed to be suicidal are routinely monitored in order to prevent suicide attempts or to be able to engage in a successful rescue when an attempt occurs. There’s been an interesting story in the press lately about NYC’s “Jumper Squad“, a police unit specialized in trying to talk people out of jumping from bridges and rooftops.

Suicide watch is clearly paternalistic in most cases: if there are no dependent children or others who may incur serious harm resulting from someone’s suicide, then a suicide is strictly self-regarding. If a suicide does not, in general, harm anyone – apart from possibly the perpetrator – then why should anyone be allowed to stop it? Is deciding that someone else has to continue living not an unethical attack on people’s agency and free choice? Most of us have conflicting moral intuitions here: on the one hand, we feel strongly that we have to respect people’s right to make their own fundamental choices regarding their lives – especially when these choices do not harm others; on the other hand, when faced with an actual potential suicide – especially in the case of a loved one – we’ll do almost anything to stop it. We look for any shred of evidence that the person about to commit suicide isn’t clear-headed, hasn’t thought it through, isn’t really able to make an informed choice etc.

Let’s look at a fictional example. In the TV-series “The Walking Dead”, a young girl called Bethe is unable to cope with the zombie apocalypse and lies despondent in bed for several days. She ultimately decides to try to kill herself. When her friends discover her intentions she is placed on suicide watch. Friends take turns watching her. [Spoiler alert]. When it’s Andrea’s turn, she slips outside and leaves Bethe alone. Bethe then does indeed try to slit her wrists. It’s not clear if it’s a serious or half-hearted attempt, and neither do we know if Bethe is delusional, unstable or clearheaded. Andrea afterwards justifies her actions by saying that Bethe should be allowed to make her own choice and to find out whether she wants to die or live. The fact that the attempt failed proves to Andrea that Bethe really wants to live.

Given the following uncertainties about the case:

• Bethe’s state of mind cannot be correctly assessed – she may be either very clearheaded or completely delusional
• Bethe is a very young person, a fact which may render a judgment about her agency somewhat more difficult
• It’s not clear whether the attempt is “for real”, and neither can we tell whether the failure of the attempt proves that Bethe really wants to live

can we decide that her suicide watch was justified, or should we follow Andrea in letting her be?

More moral dilemmas here.

The Compatibility of Freedom and Equality (14): Equal Relationships as Prerequisites for Freedom

One way to solve the traditional conflict between freedom and equality is offered by Elizabeth Anderson. If you want to live a free life, you have to stand in relations of equality with others. Oppressive or exploitative relationships are both unequal and unfree. Historically, unequal relationships such as “natural” hierarchies between social groups (sexes, races, classes etc.) and exploitative economic structures (slavery, early capitalism, colonialism etc.) have often if not always caused a lack of freedom among those on the wrong side of the unequal relationships.

The inequality inherent in those relationships implies the right of the superior to inflict violence on the inferior, to segregate them, to force them to obey, to exclude them from politics and public life, or to conquer and colonize them. These rights claimed by the superior over the inferior result in diminished freedom for the inferior. If you’re subjected to violence, force, segregation, conquest or exclusion then you’re unfree in any sense of the word: you can’t do what you want, your choices and opportunities are restricted, you lack autonomy and the power to govern yourself etc. Conversely, if you are equal then by definition you’re not subjected to those harms and you are free. Hence, if we want to be free we need to be equals.

This argument also sheds some light on the longstanding controversy about the nature of equality. “Equality of what?” is an important battleground in philosophy (see here and here for instance) but the terms of the argument are usually restricted to resources, opportunities, welfare, preference satisfaction, capabilities, rights etc. Equality of social position and equality as the absence of domination or exploitation are often sidelined by less relational forms of equality. Anderson is right to be unhappy with the focus on equality of resources, capabilities or preference satisfaction. People can have equal resources, equal capabilities and equal preference satisfaction and still live under the domination of groups that consider themselves superior.

Perhaps the capabilities approach can handle this problem, assuming that one of the required capabilities is the capability to escape domination. Maybe the same is true for preference based theories assuming that a preference for non-domination counts just as much as or more than other preferences. Still, let’s not forget that preferences can be adaptive, that people can enjoy a wide range of capabilities in very authoritarian systems, that people’s expectations of capabilities are socially framed by the most powerful voices in society, and that non-relational notions of equality in general can cement relationships of superiority and inferiority by giving too much attention to people’s lack of resources, capabilities and preference satisfaction. Anderson has famously argued that non-relational notions of equality make

the basis for citizens’ claims on one another the fact that some are inferior to others in the worth of their lives, talents, and personal qualities. Thus, its principles express contemptuous pity for those the state stamps as sadly inferior and uphold envy as a basis for distributing goods from the lucky to the unfortunate. Such principles stigmatize the unfortunate. (source)

The difference between notions of equality focused on resources, capabilities and preferences on the one hand, and more relational notions on the other can’t be found in their different approach to freedom; both notions of equality are concerned about freedom. Those who argue that equality is primarily a matter of resources, capabilities and preferences do so because they believe – correctly – that people need resources, capabilities and preference satisfaction for their freedom. And those, like Anderson but also Philip Pettit, who argue that equality should be viewed through the lens of relationships, also do so because they believe that freedom depends on equal relationships.

The difference therefore between the two groups is a different assumption about the requirements of freedom. One argues that freedom requires an equal level of resources, welfare or capabilities, while the other argues that it requires equal, non-oppressive, non-exploitative and non-dominating forms of relationships. Both arguments are persuasive, but it’s the former that runs away with most of the attention. The latter is therefore a useful reminder that equal relationships count for freedom. Both arguments, however, give the lie to the contention that there’s a very deep and unsolvable conflict between freedom and equality.

More posts in this series are here.