activism, human rights promotion

Human Rights Promotion (23): Moral vs Emotional Persuasion

Doku Umarov showing some moral disapproval

Doku Umarov showing some moral disapproval

(source)

Actions are motivated by beliefs, at least to some extent. (I’ll come back to this in a minute). It’s safe to say that many actions are driven mainly by beliefs, beliefs both about the nature of facts and about how we should act – factual and moral beliefs in other words. Unsurprisingly therefore, many actions that result in rights violations are also caused by beliefs. Certain beliefs are harmful to human rights because they result in actions that violate those rights. I’ll focus here not on harmful beliefs that are self-interested – I find those rather boring – but rather on harmful moral beliefs: rights are often violated because of the view that other people should be forced to do what the coercers believe is the “right thing”. (FGM is an example that comes to mind.)

Beliefs about how we should act are often based on beliefs about “facts” (for example the supposedly detrimental facts that result from failure to perform FGM, such as female promiscuity and bad hygiene). “Facts”, in turn, are seen through a thick interpretative layer of beliefs about morality, which is why I use the scare quotes. For example, if you oppose homosexuality for moral reasons (because “it’s wrong”), then you may tend to see homosexuality as “unnatural”, and this view is often proposed as factual. 

One way to undermine harmful moral beliefs is to attack their factual basis. We can point out the real facts (for example, that the Koran does not require FGM, or that women’s sexual morality and health do not require it). Of course, people who are for some reason intimately attached to certain beliefs will “find” other “facts” to support them. In some cases, however, challenging people’s factual beliefs can make them reject their harmful moral beliefs. At least that’s my belief.

We can also attack harmful moral beliefs directly and try to persuade people to change those beliefs irrespective of their factual basis. For example, we can stress inconsistencies or logical fallacies in ethical beliefs. We can say to racist Christians that the teachings of their God include statements about human equality and rules about neighborly love. And the naturalistic fallacy is abundant (“homosexuality is immoral because it is unnatural”; “we should not care about distant strangers because evolution has programmed us to take care of our own”, etc.). 

disgust

disgust

In short, there’s a whole lot we can say in order to undermine harmful moral beliefs and promote support and respect for human rights. Unfortunately, this will only work in some cases. Ask yourself how often you’ve modified your own moral beliefs. I myself can only come up with two examples: my views about criminal punishment and immigration. (To the extent that I’m quite ashamed of some of the older posts on this blog, to which I won’t link). When we do change our moral beliefs, it’s because we’ve become convinced that the facts on which we’ve based our moral beliefs aren’t what we thought they were (immigration isn’t harmful, capital punishment doesn’t deter, gay marriage doesn’t undermine traditional marriage etc.). When we change our moral beliefs, this is why we do it, not because we now see the moral truth of something (the truth of the rule that strangers have as many rights as we have, that criminal shouldn’t be treated as means to scare future criminals, that sexual orientation shouldn’t determine rights etc.).

So, the best means to change harmful moral beliefs is to attack the supposedly factual basis of those beliefs. However, as I’ve said, this won’t work every time or even a lot of the time, because we constantly try to marshal new facts as a basis of our moral beliefs when the old facts become discredited. If necessary we fabricate the facts. That we do this points towards a deeper problem. Maybe what really motivates us are primordial emotional reactions such as disgust, cleverly dressed up and rationalized by way of beliefs and “facts”.

There’s a great scene at the beginning of Inglourious Basterds about how we can’t justify our disgust of rats on the basis of facts that wouldn’t also justify disgust of pretty squirrels:

If indeed we’re not motivated by moral beliefs or facts, then no amount of moral reasoning or factual discussion can help us avoid rights violations resulting from post hoc rationalizations of our disgust. A more emotional kind of persuasion may be more promising. Telling people stories about the suffering of those who are seen as disgusting can conceivably remove their disgust and hence their need for harmful beliefs and biased selection or creation of “facts”. The chances of something like this succeeding have to be balanced against the “primordial” nature of a lot of our emotional reactions. “Primordial” in the sense of “very old” and “resulting from early human evolution”. That’s a steep climb. 

All this has implications for the legalistic approach to human rights promotion. To the extent that rights violations are actions that have a deep foundation in our emotions – and not all rights violations are like that – legislating them away won’t work. Other strategies have to be employed. 

There’s a good podcast about the same topic by the VeryBadWizards guys here. More about persuasion here and here. More posts in this series are here.

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moral dilemmas, philosophy

Moral Dilemma (26): Killer Robots

killer robots

(source)

If you haven’t been following the debate: “killer robots” are autonomous machine combatants which are currently being developed by a number of countries. These machines are different from unmanned ground vehicles and drones. The important difference is not that UGVs and drones are already in use but that they are controlled by human operators, much like any conventional weapon before them, albeit from a larger distance. Killer robots, on the other hand, will act autonomously and will be able to choose and fire on targets of their own will, so to speak, without any human intervention. The only element of human control will be their programming. (Some of these killer robots already exist, apparently). It would be wrong to think that they’ll look like The Terminator but they will be somewhat similar in their mode of operation.

I personally don’t know what to think about this. Most in the human rights community are adamantly opposed, so my priors should push me in the same direction. However, I can see certain benefits, which is why I believe that we’re dealing here with a moral dilemma. Let me try to explain by listing some of the arguments against killer robots as well as some of the reasons why these arguments aren’t really as good as they sound.

  1. We shouldn’t give machines the power to decide who lives and dies on the battlefield. But is that really what this is about? The machines would still execute a program that has been written by humans, and it’s these humans who, through the act of programming, decide who should be killed or spared. For instance, it should be possible for robots to recognize civilians – or at least to refrain from acting when there’s reasonable doubt about a person’s military standing. However, one might reply that robots can’t be programmed in such a way that they acquire a subtle understanding of all the different and complex circumstances in which they’ll find themselves. They can only apply general rules in a manner that is more or less blind, i.e. that takes into account only a limited set of foreseeable circumstances. They’ll never fully understand the contexts in which they act, and this lack of understanding is bound to cause civilian harm. But then again, can we rely on soldiers in the heat of battle to fully understand the circumstances in which they find themselves? I think not. If anything, a very selective robot should do better.
  2. Robots lack compassion. Maybe removing the emotional element from combat will turn out to be a net benefit. Human fighters can indeed show compassion and spare the lives of the innocent – or even the guilty. But is it not more common for human fighters to be led astray by their emotions? Stress and fatigue may lead to a loss of control. In-group bias and other prejudices may get the upper hand in the thick of a fight. Robots are obviously immune to stress and fatigue, and it should be possible to program them in such a way that they don’t act on the basis of biases. Even the need of self-defense can cause human soldiers to “spray the lot” in order to get out alive. A robot won’t have that instinct.
  3. Killer robots can be given immoral orders by an immoral chain of command. It’s true that robots can be programmed to kill indiscriminately or to kill all brown people. But history is full of human commanders giving exactly the same kind of orders. If robots are programmed in immoral ways, then that’s an easier problem to solve than the prejudices or emotional failures of scores of individual soldiers and commanders. Of course we’ll have to monitor the people who will program the robots. But is this more difficult than monitoring the immoral orders by human leaders? Obviously it’s not. It’s true that monitoring will be easier in democracies, but if dictators want killer robots there’s not a lot we can do to stop them or to convince them to use robots in a ethical manner.
  4. If one side uses killer robots, the other has to as well. No one can risk a disadvantage in the conduct of war. A robotic arms race will be the result. In a sense, this is nothing new. Warring parties have always wanted new weapons and an advantage over the enemy. That’s what war is about, and has always been about. To the extent that an arms race is deplorable, killer robots aren’t more deplorable than any other new weapon. If the new robotic arms race results in all sides only using robots, then that would even be a net benefit because human soldiers will no longer be needed. We often tend to focus on the harm to civilians in the conduct of war, whereas soldiers are also human beings, and in many cases human beings who haven’t chosen to fight.
  5. With killer robots, there’s less risk, less skin in the game. We’re not even seeing what happens. The result will be more war. This is probably the strongest argument, but again not one directed solely against killer robots. Drones have the same effect.

Given these considerations, in addition to many others I haven’t mentioned,

There’s an interesting podcast on the topic here. If you want to add your voice to previous moral dilemmas, you can do so here.

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ethics of human rights, philosophy

The Place of Human Rights in Morality

Morality can be divided into three parts:

  1. the good thing to do
  2. the proper thing to do
  3. and the right thing to do.

1. What you do can be a good thing without it necessarily being the proper or the right thing to do. If your neighbor is ill and you’re washing your own windows, it would be very good of you to also wash his. You would be beneficent. However, it’s obviously not your moral duty to wash his windows and no one will condemn you if you don’t. 

2. A somewhat more demanding type of action is something that you should do (or ought to do, which is basically the same in English). It’s strongly advisable that you help strangers in need. It’s the proper thing to do. You should do it. If you don’t help a stranger in need when you can, you’ll be condemned for your inaction. However, helping a stranger in need is probably not a duty as it is formulated here. It’s too vague. Helping all strangers in need is impossible, and a duty requires the capacity to fulfil it. 

3. Hence a duty is more specific. It’s something you must do – not merely something you should do – and something you have the means to do. Contrary to the good and the proper, it’s compulsory and obligatory. It’s the right thing to do, and you have a duty to do it. In some cases, this duty is based on someone else’s right. You must do something because someone else’s right requires you to do it. For example, you must help the homeless stranger on the corner of your block because that person has a right to a decent standard of living; and you have a duty to pay taxes that will fund a national healthcare system because people – your neighbor but also strangers – have a right to healthcare when they can’t afford it themselves. Or, negatively, you have a duty not to invade your neighbor’s privacy while washing his windows because he has a right to privacy.

However, not all moral duties in this sense have a corresponding right. For example, you have a duty to keep your promises and respect the terms of the contracts you engage in. Like respecting human rights, keeping your promises is not merely a good thing to do or something that you should do. You must do it (unless of course there are good reasons not to; nothing I’ve said here implies that duties should be absolute). But no one has a human right to kept promises. Hence, the class of right actions is larger than the actions (or omissions) required by human rights.

So we have three types of moral actions, each more demanding than the last: the good, the proper and the right. The place of human rights is within the class of right actions. Respecting people’s rights is not merely a good thing to do because you will be condemned if you don’t. It’s also more than the proper thing to do. It’s not just something that is strongly advisable or something that you should do. It’s a duty. You must do it.

Morality is much larger than the duties imposed by human rights, even though respecting people’s rights is obviously a part of morality. Morality is about more than duties, and the duties that are moral are about more than the duties imposed by human rights. 

[This post has been slightly edited post-publication after a remark by ]
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moral dilemmas, philosophy

Moral Dilemma (25): Gone Baby Gone

gone_baby_gone_ver2

First a quick reminder of the purpose of these posts. I’m trying to collect data on people’s views on moral dilemmas. This is the 25th dilemma I post. You would do m a great favor if you could answer the questions below, after having read about the dilemma. I promise that one day, I’ll publish a big analysis of all the data I have collected.

[Spoilers ahead.] Gone Baby Gone is a movie about two private investigators hunting for an abducted four-year-old girl from Boston. The two investigators get on the case after witnessing a televised plea by a woman named Helene McCready for the return of her missing daughter Amanda, who was abducted with her favorite doll “Mirabelle”.

It turns out that a police officer had conspired to stage a fake kidnapping in order to save Amanda from her mother’s neglectful parenting. The investigators do indeed find Amanda living happily with the officer and his wife. One of the investigators threatens to call the authorities, but the police officer attempts to convince him that Amanda is better off living with them than with her mother. The officer is later arrested, and Amanda is returned to her mother amidst heavy publicity.

The investigator responsible for the arrest later visits Amanda as Helene is about to leave on a date with someone she met during the publicity over her daughter’s disappearance. Helene has no babysitter for Amanda. The investigator volunteers to watch Amanda, who is holding her old doll and watching television. Patrick asks Amanda about Mirabelle, only to hear Amanda inform him that her doll’s name is “Annabelle” — implying that Helene did not even know the name of her daughter’s favorite toy.

If you want to add your voice to previous moral dilemmas, you can do so here. I would be eternally in your debt.

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cultural rights

Cultural Rights (15): Crimea and the Ethics of Secession

vladimir putin

vladimir putin

(source)

I’m afraid I’m one of those people who can’t remain silent when everyone else is talking about something. So, a few words about the situation in Crimea. The Russian government and some of the Russians in Crimea are making the argument for secession on the basis of national self-determination and the rights of Russian speakers in the region. It may be useful to have a look at the moral merits of that argument, first in a general and theoretical sense and then applied to the specific case of Crimea. (I’m not discussing the legal merits here).

Ideally, the right to secession shouldn’t exist. An ideal state grants individuals and cultural or ethnic groups all the rights they require, including (limited) self-government and self-determination. Even a very large and diverse state could – and probably should – do that. That is why the right to secession can only have a place in non-ideal theory. But what place? I believe it won’t be among the priorities. In the non-ideal world – the current one – the right to secession should not be the first option, mainly because other, less risky means to realize certain rights would often be available. For example: devolution, agitation, representation etc.

Secession is, most of the time, a one-sided decision that doesn’t have the approval of the state from which a territory wants to secede. Hence the risk of violent conflict, and this risk should be balanced against the possible benefits of secession, especially when non-secessionist and therefore less risky means can yield the same benefits. But even if we’re dealing with a mutual decision, secession may not be the optimal solution because the seceding entity can become the kind of state that doesn’t guarantees all the rights of the new minorities living within its new borders. I wouldn’t even call a mutually agreed separation a secession, by the way.

Of course, there will be cases of extreme oppression that warrant unilateral secession on the grounds that other, less risky means are simply unavailable. For example, it’s difficult to make the case that a secession of part of the territory of North Korea – even one that turns violent and deadly – is not the right thing to do, morally speaking. Both the specific right to self-determination of the seceding Koreans and their other rights would seem to warrant a certain cost.

secessionSo what are the reasons that make secession the morally right thing to do? If we agree to limit the concept of secession to a one-sided decision then a secession is justified when:

  1. the purpose is the realization of the human rights of a group of people – including their right to self-government – and this realization is impossible by any other, less risky means within their current state (secession for the purpose of a power grab is then not justified);
  2. the new political entity will most likely grant a higher level of protection of human rights within its territory, including the rights of the new minorities;
  3. and the secession decision is approved by a majority – or perhaps a super majority – of the seceding group. (Self-government is one of the rights that may justify secession, and so it can’t be violated by the act of secession itself).

There may be more necessary preconditions for secession to be ethical, but I believe the combined presence of these 3 are a bare minimum. (The same preconditions would have to be present in the case of bilaterally agreed “secession”, with perhaps the added condition that also a majority of the remaining state should agree. But I’m not sure about that).

The problem, of course, is that much of this is by definition unknown beforehand. The group that wants to secede knows the rights violations it now endures, but doesn’t know the possible effectiveness of non-secessionist means or the possible risks of secession. The nature of the future government of the new political entity is unknown as well, and it’s therefore uncertain how that government will perform regarding the rights of both the new minorities and the majority.

Let’s now return to the case of Crimea. I’m obviously not an expert on the region, but as far as I can tell, none of the three conditions for justified secession are present. It’s clear that the Russian speaking majority in Crimea (if it is a majority) has (or had?) at its disposal other non-secessionist means to further its cause. The upheavals in Kiev did not make long term improvements regarding the rights of the Russian speaking majority in Crimea impossible. There was no reason to believe that the new government of the Ukraine would engage in massive rights violations in Crimea. And, in any case, it’s not clear that the inhabitants of the Crimea – including the non-Russians – will have a higher level of rights protection in the Russian state or in a separate, new state under the tutelage of Russia. If anything, the opposite is more likely. (If Ukraine were to become a member of the EU, that would mean even better prospects for the rights of all Ukrainian citizens).

The second condition for justified secession is equally absent. Whether Crimea will become part of Russia or a separate state in Russia’s sphere of influence, past experience with minority rights in Russia or its dependencies isn’t reassuring.

And with regard to the third condition, we can all agree that the referendum was a sham. Under the circumstances, it’s impossible to know whether or not a majority of the inhabitants of Crimea are genuinely in favor of secession from Ukraine. A rushed referendum under the threat of violence doesn’t tell us anything apart from the fact that even Putin craves the appearance of democratic legitimacy. Perhaps a year ago we could have known. But not anymore.

More on secession here, here, here and here. More on cultural rights here.

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art, equality, ethics of human rights, justice

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

disproportionate_world_by_astridle-d541ace

(source)

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

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

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

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

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

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

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

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

More posts in this series are here.

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ethics of human rights, philosophy

The Ethics of Human Rights (87): General and Special Moral Obligations

partiality

People have two kinds of moral obligations:

  • Some of our duties are duties to all people. We have those duties simply because people are human beings. These are general moral duties that apply regardless of specific relationships.
  • Other duties are duties that we owe to a subset of people. These are special obligations we have to those with whom we have some sort of special relationship.

An example of the former are the duties generated by human rights or the duty not to lie; an example of the latter are our duties as parents, friends and citizens.

Both types of duties have a basis in moral intuition. Most of us believe that we should try to save a child drowning before our eyes, any drowning child, whatever our relationship or lack of relationship with it. But most of us would also allow a parent to save his own child first if it was drowning together with an unknown child and if he had to make a choice. Some special obligations are the same as general obligations, just with an added urgency (as in the case of the drowning child). Other special obligations are totally different from general obligations (we have a duty to raise our children, but we don’t have a similar duty towards the children of others, not even a less urgent duty).

child_drowningThis is all boilerplate. What’s interesting to me is the double nature of human rights duties. These are obviously general duties, but I do believe that in some cases we should prioritize the rights of those with whom we have a special relationship. Human rights create special duties in the sense of general duties that are more urgent in the case of some people. The right to life of our drowning children does indeed create a more urgent obligation than the right to life of the millions of extremely poor and starving children elsewhere in the world. Part of the explanation is that we often can do more to save our own child. We are normally close by, we know the risks and we know exactly what to do when things go wrong. The same isn’t always true in the case of distant strangers. Can implies ought. But that doesn’t really capture the essence of our special obligation, I think. It’s the relationship that generates the special duty, not just the fact that we can offer more immediate and effective help. After all, as Peter Singer has pointed out, immediate and effective help is sometimes also an option for distant strangers.

The problem is that special obligations tend to take over. There’s a lot of in-group bias and the rights of those close to us receive an overdose of attention, sometimes to the detriment of the rights of strangers (“strangers” not always in the literal sense of the word, because most fellow-citizens are literally strangers and yet they often enjoy more rights than foreign strangers). A lot of people only see special obligations and ignore general obligations.

Hence, it’s understandable and commendable that the focus in human rights talk is on the impersonal and general obligations that they yield. This focus, however, should not obscure the very real special obligations that also result from human rights. A lot of immediate good can be done when we admit that human rights create special obligations. There’s often a very tricky balancing act to perform here, but few of us admit it. Many tend to favor special obligations, while others react by speaking only of general obligations. Very rarely do we see people working through the difficulties of when to decide in favor of one or the other type of duty; for example, the difficulties of knowing when it is right to save your own child when you can save hundreds of distant children with the same amount of effort. When do we simply follow in-group bias, and when do we have a good reason to favor the in-group members? When are we real humanitarians and when are we heartlessly blind to the justified demands of those who are close to us? I think we should admit that the choice between partiality and impartiality is often a difficult one, and that those of us who systematically favor one or the other point of view are wrong most of the time.

More on partiality/impartiality here. More posts in this series are here.

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annals of heartlessness

Annals of Heartlessness (55): The Ethics of the Pharmaceutical Industry

Dekkers

Dekkers

(source)

Pharmaceutical companies from Merck & Co. (MRK) to Bristol-Myers Squibb Co. (BMY) face fresh threats to protecting their patents in India as a government-appointed panel prepares to evaluate more drugs for local makers to copy. … [S]o-called compulsory licenses … allow local firms to make low-priced copies in India. … [D]rugmakers are facing a rising threat to their patents as India’s government seeks to make treatments cheaper locally. … Compulsory licensing occurs when a government allows someone else to produce a patented product without the consent of the patent owner, who still owns the rights and receives payment for its use, according to the World Trade Organization. Such licenses can therefore put pressure on brand-name manufacturers to cut prices in response to cheaper generics. …

Bayer Chief Executive Officer Marijn Dekkers called the compulsory license “essentially theft.” “We did not develop this medicine for Indians” Dekkers said Dec. 3. “We developed it for western patients who can afford it. (source)

More in the annals of heartlessness.

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ethics of human rights, philosophy

The Ethics of Human Rights (81): Changing Morality

insight_morality_shallnotPark

(source)

Morality is a moving field. Its scope changes over time. Things which used to be considered an appropriate object of moral approval or disapproval are no longer, and vice versa. It’s difficult to say if the field is becoming larger or smaller. I would guess smaller, but that’s a very uninformed guess. It’s based on my impression that we tend to become more tolerant of each other’s behavior, especially when this behavior is strictly self-regarding and doesn’t involve the risk of harm to others. For centuries, mutually agreed divorce, homosexuality, masturbation, suicide and a large set of other types of behavior were not deemed morally neutral. Many of those could even land you in jail or in hell. Today, in a lot of societies around the world, these things are considered private choices that should not be interfered with and should not even be judged by others. Perhaps some of those behaviors should also be viewed as “rights” (I’ve once written an odd post about the right to masturbate).

But even some types of other-regarding behavior that used to be seen as immoral have become acceptable over time. For instance, many types of speech were once considered harm producing – blasphemy, pornography, lèse majesté etc. – but are now believed by many to be less harmful or not harmful at all.

And yet, the reverse movement has also occurred. Slavery used to be morally neutral or even morally required (see Ephesians 6:5) and is now considered one of the worst evils. Cruel and unusual punishment used to be completely acceptable and even enjoyable. The proper treatment of animals, women and indigenous people has also become part of morality, or has shifted place within morality.

So instead of claiming that the field of morality is shrinking, it’s safer to say that it’s moving. Moving where? I guess morality has been moving away from private and self-regarding behavior and towards social behavior. I think this movement is on the whole salutary. Moral progress? To some extent, and certainly not in all domains. On the other hand, the movement of morality can convince some that all morality is just subjective and relative and that everyone can do as they please. If opinions about morality change, then morality is perhaps no more than subjective opinion. That wouldn’t be progress at all, of course, since it would destroy morality completely. Morality can never be completely subjective since it implies a judgment about how others should act and what others should believe.

More here. Other posts in this series are here.

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law, vagaries of moral progress

The Vagaries of Moral Progress (16): Teaching Criminals a “Lesson”

wagging-finger

Let’s assume that we punish criminals in order to “teach them a lesson”: by imposing pain, suffering or unpleasantness on the criminal we intend to make it clear that he or she has done wrong and that we “as a society” disapprove. This lesson in turn is supposed to prevent criminals from reoffending, and hence it is intended to enhance respect for society’s rules. Punished criminals may not always internalize society’s rules and change their mentalities or criminal convictions as a result of “the lesson”, but at least the unpleasantness of “the lesson” will deter them from acting on the basis of their mentalities and convictions. In short, criminal punishment is a means to achieve moral progress. Perhaps if we’re lucky we’ll achieve moral progress in the minds of people, but if we don’t we’ll certainly see moral progress in people’s actions. Or so the story goes.

This is perhaps the most widely shared view of criminal punishment, which is weird when you think of it. After all, one can very easily identify numerous problems with this view. First of all, we impose criminal punishment for the violation of a wide range of rules, many of which we would not or should not view as moral rules. Some of those rules are perhaps even immoral: for instance, the rule against the use of soft drugs can be and often is seen as immoral because it restricts personal freedom. The imposition of punishment for the violation of such immoral rules is a clear step backward from the point of view of morality. No progress there. (The same is true for merely a-moral rules).

Furthermore, one can argue that many of the punishments we impose even for moral rules are in fact brutalizing. Prison is a school for criminals and prison crime is rampant. To argue that imprisonment deters crime and makes the world more moral is to deny the facts of prison life. Prisoners often just become better criminals and make others better criminals, both inside prison and upon release.

And finally, there are certain psychological biases present in those who impose criminal punishment, and these biases also undermine the story of “the lesson”. For example:

In graduate school at the University of Wisconsin-Madison, I proctored law school exams to earn extra money.  At the end of one exam, while I was collecting the final papers, I overheard two students discussing their answers on an essay question about sentencing.  One said to the other: “I gave the rich guy a lesser sentence because I figured, since he had such a cushy life, it would take less punishment to get through to him.” … the perception that Black people have already had to cope with a great deal of pain — from racism, poverty, poor health, etc — and, as a result, have a greater pain threshold. In other words, they are less sensitive to pain because they’ve been hardened.

Efforts to parse out whether this effect is due to race specifically or perceptions of whether a person has lived a hard life suggest that it might be primarily the latter. But … we tend to homogenize the Black population and assume that all Black people face adversity. So, whether the phenomenon is caused by race or status gets pretty muddy pretty fast.

In any case, this is perfectly in line with the soon-to-be-lawyer I overheard at Wisconsin. He gave the “hardened criminal” a harsher sentence than the person convicted of a white-collar crime because he believed that a greater degree of suffering was required to make an impact. (source)

The unfair imposition of punishment as illustrated in this case and in many other real cases of punishment makes a joke of the story about moral progress resulting from the “lesson” of punishment. I’m not saying that fair punishment, deterrence or internalization of rules are impossible. What I’m saying is that we are usually too optimistic about these processes and that we shouldn’t view our current system of criminal punishment as a good driver of moral progress.

More about criminal punishment here. More posts in this series here.

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ethics of human rights, philosophy

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

desert

(source)

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.

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

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

Torso and internal organs

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

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

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

1. Coercion by poverty

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

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

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

2. Trade instead of justice

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

3. Objectification and instrumentalization

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

4. Unjust distribution

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

5. Crowding out altruism

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

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

Alternatives

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

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

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

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

More on organ sales, exploitation, instrumentalization and objectification.

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

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

prosthetic limbs

(source)

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

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

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

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

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

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

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

More on luck. More posts in this series.

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causes of human rights violations, philosophy

The Causes of Human Rights Violations (43): Disgust

disgust

(source)

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.

hobbes yikesThat 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. 

disgust face by Andreas Kuehn/Getty

photo by Andreas Kuehn/Getty

(source)

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.

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moral dilemmas, philosophy

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

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.

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freedom, moral dilemmas, philosophy

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

Laurie Holden and Emily Kinney, respectively Andrea and Bethe in The Walking Dead

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

(source)

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.

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ethics of human rights, freedom, governance, philosophy

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

freedom

(source)

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

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

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

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

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

european customs

(source)

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

More on value pluralism here.

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discrimination, economics, equality, trade

Discrimination (12): Is Price Discrimination Immoral?

Marc Quinn's sculpture of Alison Lapper Pregnant in Trafalgar Square, London

Marc Quinn’s sculpture of Alison Lapper Pregnant in Trafalgar Square, London

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Price discrimination – or price differentiation – is a commercial policy. A seller may want to sell identical goods at different prices to different classes of customers in order to increase market shares, reach otherwise unreachable groups of customers or profit from customers’ willingness to pay.

The question is whether we should treat this type of discrimination like we treat other types. In other words, should we label price discrimination as something that is morally reprehensible, and should we also make it illegal (which are two different things – lying is often reprehensible but only rarely illegal)?

The answer is: it depends. Some forms of price discrimination are morally neutral or even praiseworthy. Offering students or poor people discounts for museum tickets or public transport has some moral benefits. Other forms, however, are clearly reprehensible:

[O]ne field experiment examined discrimination against disabled people in the context of car repairs, finding that disabled customers received higher quotes than the non-disabled customers. To get at the nature of this discrimination, the authors first conducted a survey, which revealed that “mechanics believe the disabled approach 1.85 body shops for price quotes while the non-disabled approach 2.85.”  In a second field experiment, the authors instructed participants to say the phrase, “I’m getting a few price quotes.”  This significantly changed outcomes — disabled participants received much lower offers: “Importantly, the lower offers received by disabled testers after signaling a willingness to search are not statistically different from those received by the abled,” write the authors. (source)

This is an example of so-called third degree price discrimination, which is in fact a form of statistical discrimination because the price is differentiated on the basis of an attribute of a customer segment (in this case disability), and this attribute is taken as a proxy of the customers’ ability or willingness to pay (in this case, the disabled are willing – or believed to be willing – to pay more because they can’t or won’t be troubled with shopping around).

Clearly, not all third degree price discrimination or statistical discrimination is wrong (student or senior discounts are cases of third degree price discrimination), but in this example it is wrong. Offering the disabled higher prices simply because they are disabled and hence less likely to shop around, is clearly immoral, even if it’s not based on animus against the disabled. It aggravates the disadvantage that nature has imposed on the disabled, and it’s a typical case of exploitation.

Exploitation occurs when one party in a voluntary exchange between two (or more) partners gets an unfair price for the goods or services exchanged, and when this party enters the exchange from a disadvantaged position. A price is unfair when it is below what it would have been in a fair auction. It is beyond doubt that a fair auction would have allowed the disabled, who enter the exchange from a disadvantaged position, to pay less.

More posts in this series are here.

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economics, equality, income inequality, philosophy, work

Income Inequality (27): What’s Wrong With It? No Moral Justification

income inequality

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The standard “no problem” explanation of income inequality goes as follows: people have different incomes because they have different levels of human capital and productive abilities. Some earn more because they contribute more – to their employers but also to society. They simply deserve, in a moral sense of the word, their higher incomes because of the level and nature of their contributions. Increasing differences in income levels are then simply the reflection of an increasing gap in productivity and human capital between some groups in society.

However, there’s something wrong with this story: it hints at one important element but fails to draw the necessary conclusion from it. Some people contribute more in a quantitative sense of the word, in which case higher returns are probably morally justifiable. If you work more, few would begrudge you your higher income. However, that’s not the type of income inequality that is most common. Usually, people are believed to contribute more in a qualitative sense of the word and get paid more as a result (or vice versa, because they get paid more, they are assumed to have contributed more in a qualitative sense). No one claims that the salary of a CEO should be higher than that of a taxi driver doing two other jobs on the side because the former works more than the latter. He probably doesn’t. The justification people give for a higher salary for the CEO is almost always about quality. (See also here).

income inequalityNow, how does a society decide which types of contributions are of a higher quality and are therefore more deserving of higher remuneration? In part, the “market” decides: skills and contributions that are highly valued by consumers will earn you a higher income. But biases, prejudices and market manipulation are also factors that determine which contributions are valued higher. For example, there’s a widespread bias in favor of people with a university degree even though their objective skills may not always be higher than those of less educated people; advertisement and popular culture instill the perception that beautiful people are more deserving; stars in sport and music are believed to deserve a very high income, higher than that of the “stars” in science for example. And then there’s the perfectly circular reasoning that some contributions are more deserving because they yield higher earnings.

Many of these social decisions about desert are arbitrary, biased, irrational and unjustifiable. And in no case is there an attempt to justify them on moral grounds. Hence, you cannot conclude that more productive contributions are a moral justification for higher income levels if you first fail to justify which types of productive contributions are morally superior and more deserving.

You could counter this by saying that all skills and contributions, no matter in what field, are in and of themselves sufficient to warrant higher pay. But then you admit that all skillful and productive people across different fields should earn similar incomes, and that is plainly not the case. 

G.A. Cohen

G.A. Cohen

So, even if income inequality could be justified on a moral basis – by first deciding in a rational and unbiased way which skills and contributions are morally superior and then paying more to those people who have been identified as having more of those skills and contributions – that is not how it’s done in practice. And I doubt that it can be done, because there will never be agreement on the choice of morally superior skills and contributions.

Of course, the absence and, presumably, impossibility of a desert based argument for income inequality doesn’t mean that there can’t be other, more successful justifications of income inequality. The most common one is based on incentives rather than desert. We want people to do good, worthwhile and valuable things, and generous rewards for the skillful and productive is one way of having these things. Again, there’s the problem of deciding in an unbiased and rational way which things are indeed valuable, but we may assume that the market offers a close approximation: what people want to buy and consume will often be valuable to them. Perhaps not always valuable in the sense of “valuable after rational reflection free of biases”, but that sense may be unrealistic anyway. So let’s accept – grudgingly in my case – that we don’t have to decide what exactly needs to be incentivized and what is worth incentivizing.

However, even if we assume that value and desert equal market success, there’s a problem with the incentive based argument for income inequality. It’s not right to force morality through the payment of incentives. Ideally there should be good will, and people have to do things of value for their own sake, not because they are incentivized to do it (as G.A. Cohen has argued numerous times).

The conclusion is that income inequality as it is now structured in all societies is not justified and probably not justifiable from a moral point of view. And that this is the only point of view from which it should and could be justified. Of course, the lack of a justification is only one thing that’s wrong with income inequality. More on what’s wrong with it is here, here, here and here. There’s also my old paper about it here.

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law, types of human rights violations

Types of Human Rights Violations (8): Active and Passive Violations

wife poisoned

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You can violate someone’s rights, or you can let violations occur. You can kill, or you can let someone die. Someone’s rights are violated either because you did something, or because you didn’t do something; either because of what you did, or because you refrained from doing something; either because you acted, or because you omitted certain actions; either because you caused this violation, or because you allowed this violation to happen.

All these phrases say the same thing: you either actively or passively violate someone’s rights. I agree that these are two distinct types of rights violations. The distinction is similar to the distinction between negative and positive duties. Active rights violations imply a negative duty to forbear or refrain from doing what would otherwise cause a rights violation; passive rights violations imply a positive duty to do something so that a rights violation does not occur.

The distinction is often understood as entailing different levels of moral blameworthiness, but I think this can be misleading. In criminal law, for example, the punishment for killing is often more severe than the punishment for letting someone die. However, the difference in blameworthiness is hard to see in many cases. Take the following example: one man A poisons his wife B, and another man C fails to take his wife D, who has taken poison by accident, to the hospital. (I’m stealing this example from Jonathan Bennett). If this is all the information we have, I guess many of us would not say that C is less blameworthy than A. Letting die is equivalent to killing, at least in this case.

When people argue for a moral difference between committing and omitting, it’s not the difference between types of actions – positive/negative, causing/allowing etc. – that counts, but intention. A probably had the intention of killing, while C may simply have been confused or in panic. If we attribute the same intention to both A and C – A gives the poison to B because he hates her, and C fails to take D to the hospital because he hates her and profits from the occasion – then the difference between the cases disappears, as does the difference in blameworthiness – and the difference between active and passive violations.

Arguments for a difference between committing and omitting can be based on intention, but then it’s intention that makes the difference, not the types of actions. After all, A may have poisoned B unintentionally, while C may have intentionally refrained from assisting D. The distinction between types of actions – positive and negative – doesn’t therefore seem to carry much weight.

Perhaps it can be rescued by looking at the cost element. Active violations are often judged more immoral than passive violations because it’s generally easier and less costly to refrain from acting than it is to help. Hence, failure to refrain – i.e. actively doing something – is more blameworthy than failure to help – i.e. remaining passive. And yet, this is not always true. Let’s take the same example and modify it a bit. If A poisons B and wants to do this, and C involuntarily fails to help D who’s taken poison accidentally, then it’s true that A is more blameworthy than C: A could have easily refrained from giving B the poison, whereas C would have had to overcome his panic, carry D down the stairs, drag her into his car etc. C may even be forgiven altogether for his failure to help. However, what if A killed B because B had threatened to kill his mother, and C let D die because he hated her? The cost to A of refraining would have been very high, higher than the cost to C of not letting D die.

Again, like in the case of intention, cost can be used to differentiate blame, but it’s cost and not type of action that differentiates.

To conclude: the distinction between active and passive types of rights violations is real, but one should be careful when attaching different levels of blameworthiness to these types.

More posts in this series are here.

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culture, ethics of human rights, philosophy

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

calvin and hobbes on moral relativism

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

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

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

Charlton Heston as Moses in the 1955 film The Ten Commandments

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

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

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

More posts in this series are here.

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ethics of human rights, philosophy

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

cause and effect

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A few additional remarks following this previous post.

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

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

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

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

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

Ticking Time Bomb by BlueEyedDreamerx

Ticking Time Bomb by BlueEyedDreamerx

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

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

More posts in this series are here.

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ethics of human rights, philosophy

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

erica-brancasi-dura-lex-sed-lex

Erica Brancasi’s “Dura lex sed lex”

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

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

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

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

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

Thou Shalt Not MusicalSelf-expression can take an indefinite number of forms beside speaking, and a deontological right to do whatever we want as a matter of self-expression is ridiculous. The basic reason it is so is because our acts of self-expression can affect others, and often deleteriously. (source)

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

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

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

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

More posts in this series here.

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ethics of human rights, philosophy

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

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

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

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

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

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

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

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

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

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

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

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

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

More about threshold deontology here.

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ethics of human rights, justice, philosophy

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

Blind Justice, Playboy Magazine Illustration, 1980s

Blind Justice, Playboy Magazine Illustration, 1980s

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

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

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

A theory of justice, on the other hand, is

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

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

Theories of Justice

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

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

These four groups contain a variety of subgroups.

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

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

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

John Stuart Mill

John Stuart Mill

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Immanuel Kant

Immanuel Kant

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

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

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

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

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

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

(4) Some mixed theories:

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

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

Henry Sidgwick

Henry Sidgwick

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

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

Human Rights

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

(1) Consequentialism

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

Socrates

Socrates

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

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

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

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

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

morality

(source)

(2) Deontology

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

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

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

(3) Virtue theories

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

(4) Mixed systems

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

So this is the score card:

theories of justice, amenability to human rights

Related posts are here, here and here.

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moral dilemmas

Moral Dilemma (21): Is Suicide While Pregnant Akin to Murder?

Bei Bei Shuai (AP Photo:Indianapolis Metropolitan Police Department)

Bei Bei Shuai (AP Photo:Indianapolis Metropolitan Police Department)

Here’s an interesting dilemma:

On March 14, Bei Bei Shuai will have spent one full year in jail in Marion County, Indiana. Her crime? The prosecutor calls it attempted feticide and murder. What it really is: attempting suicide while pregnant.

In December 2010 Shuai was running a Chinese restaurant in Indianapolis with her boyfriend, Zhiliang Guan, by whom she was eight months pregnant. Just before Christmas, he informed her that he was married and had another family, to which he was returning. When Shuai begged him to stay, he threw money at her and left her weeping on her knees in a parking lot. Despairing, she took rat poison and wrote a letter in Mandarin saying she was killing herself and would “take this baby with me to Hades”; friends got her to the hospital just in time to save her life. Eight days later her baby, Angel, was delivered by Caesarean section and died of a cerebral hemorrhage within four days. Three months later, the newly elected prosecutor, Terry Curry—a Democrat—brought charges, claiming that the rat poison that almost killed Shuai had killed her baby. If convicted, she faces forty-five to sixty-five years in prison. (source)

The important things to consider are:

  • Bei Bei Shuai survived her suicide attempt. No dilemma if she hadn’t, or perhaps a different dilemma. The dilemma we’re considering here is whether Bei Bei Shuai is culpable and this is interesting only because she survived.
  • The issue here is not the legality or morality of suicide as such.
  • The poor woman was eight months pregnant; had she been two or three months pregnant this would have been akin to abortion, and while abortion is certainly controversial and perhaps even a dilemma, it’s not the dilemma we’re interested in here. Our dilemma is not akin to abortion because most proponents of abortion accept a time limit and abortions at 8 months are generally not accepted, not even by most abortion proponents.
  • Time limits on abortion could give way if the child is suffering and has no chance of a decent life. But that is not the case here.

More moral dilemmas here.

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cultural rights, equality, justice, law, philosophy

Cultural Rights (14): Tolerance, a Model

To be tolerant means to accept the existence of and to avoid interfering coercively with beliefs, actions or practices that you consider wrong and objectionable. It means that you do your best to co-exist with people who are very much different from you, and different in a negative sense. You allow or permit these people to remain who they are and what they are. You consider what they are, what they do and what they believe to be wrong and objectionable, but not wrong enough to be intolerable and subject to prohibition, legal or otherwise. You tolerate them because you believe that what they do or believe should not be prohibited, or perhaps because you believe you’re not in a position to effectively prohibit. However, I would personally prefer to call the latter option “endurance” rather than tolerance and limit tolerance to the voluntary acceptance of things you could prohibit if you wanted to.

“Acceptance” here should of course be understood, not in the sense of a positive moral judgment, approval or agreement, but in the sense of a practical, pragmatical accommodation. The negative judgment remains but isn’t strong enough to warrant repression or prohibition.

We may decide to tolerate something for a variety of reasons:

  • We may have a strong general sense of respect for other people and for their identity. We may respect people’s moral standing as agents able to choose their own vision of the good life. We disagree with their choices but we respect them as agents able to choose.
  • We may be motivated simply by a general respect for the law, and the law happens to prescribe tolerance.
  • We may believe that tolerance is necessary for the preservation of civil peace and public order, and these considerations outweigh our disgust for other lifestyles. In other words, we hate conflict more than we hate other people.
  • We may be motivated by an expectation of reciprocity: if we show tolerance we expect to be tolerated. Maybe our own group isn’t in the majority either, or risks not being a majority in the future, and hence we may some day profit from tolerance.
  • We may believe, as did John Stuart Mill, that even false opinions lead to social learning.
  • Etc.

Those reasons can imply either equal or unequal relationships between those who tolerate and those who are tolerated.

Below I offer my own petty model of tolerance. I situate tolerance on a continuum going from what I call guidance on one side to prohibition on the other. Guidance means the attitude of emulating certain practices which you view as being important enough to guide your life and your fundamental opinions. Prohibition, the other extreme, means the attitude of suppressing certain practices which you view as being so depraved that they should be forbidden and eliminated, if necessary with violence.

One level below guidance I situate the attitude which I call positive acceptance. People accept things in a positive way if they consider them to be moral, but not necessarily moral enough to be the guiding light of life. One level below positive acceptance is indifference, which marks the boundary between things that are moral and things that are immoral.

Below indifference is negative acceptance, which means viewing things as being immoral yet not immoral enough to suppress them using the law or any other violent means. As stated above, I distinguish between two types of negative acceptance, endurance and tolerance, the difference being that tolerance means accepting something and yet having the ability to suppress. Endurance means you tolerate despite not wanting to tolerate: you tolerate because you don’t have a choice. If you had the power to suppress or prohibit, you would. You don’t suppress or prohibit and you tolerate because you don’t have the power to suppress or prohibit. Real tolerance means that you have that power but voluntarily choose not to use it, for any (combination) of the reasons mentioned above.

Some would also call endurance a type of tolerance. Personally, I want to keep it separate. (Which is why it is in light gray rather than dark gray in the image below). I distinguish three types of tolerance: people can tolerate things unconditionally, they can tolerate things if they happen only in private, or they can tolerate things that happen in public but only conditionally.

I also place all these attitude, including tolerance, on a moral scale, assuming that people decide to accept, reject, tolerate or prohibit acts or beliefs according to the moral value they attach to these acts or beliefs.

So, all this gives the following model (click image to enlarge):

model of tolerance

model of tolerance

Let’s clarify all this with a couple of examples. First, imagine the case of a moderate American Evangelical. How would he fill in those abstract notions?

  • a: the life of Jesus or Scripture, something morally strong enough to serve as a guiding example for his own life
  • b: the beliefs of his fellow believers or the beliefs of followers of similar faiths (e.g. Catholics); these are not always strong enough to serve as a guiding example for his own life, but morally very positive nonetheless
  • c: the rules of car maintenance, or something else that leaves him morally indifferent
  • d: homosexual love, on the wrong side of morality according to him, but not something that he could prohibit; he just endures it, knowing that it’s not something people can prohibit
  • e: the use of speech to promote a homosexual lifestyle, something he could prohibit but chooses to tolerate instead, given his attachment to freedom of speech
  • f: the use of the public education system to promote a homosexual lifestyle, something he chooses to tolerate selectively and conditionally; for example, when he has the right to remove his children from a certain school
  • g: gay sex, something he will tolerate only when it occurs in private
  • h: polygamy, something which he chooses to prohibit.

Let’s take another example, say a French secularist who is also an atheist.

  • a: he would consider the teachings of Richard Dawkins and other atheists as guiding examples
  • b: he would positively accept teaching atheism and secularism in schools
  • c: again, car maintenance would leave him morally indifferent
  • d: some forms of religious belief he would endure, knowing that he could never suppress them, and since you can only tolerate what you can suppress this is not an example of his tolerance
  • e: religious expression he tolerates unconditionally given his attachment to freedom of speech and religious liberty
  • f: religious dress, for example, he would only tolerate outside of schools and government buildings
  • g: aggressive proselytizing he would only tolerate when it happens in people’s private lives and among adults
  • h: violent exorcism he would prohibit.

More on tolerance is here.

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culture, justice, law, philosophy, what are human rights

What Are Human Rights? (34): Different Things

human rights

human rights cartoon by Julian Pena-Pai

(source)

Another way of phrasing the question in the title of this post: how do human rights exist? They can exist in many forms:

  1. They can be part of the law. For instance, they can be included in a country’s constitution, in the international treaties a country has accepted, in customary law etc.
  2. Human rights can also exist as part of a moral tradition of a certain culture, nation or civilization. They are then shared norms of actual human moralities.
  3. They can exist as part of a religion, or better as part of a religion’s teachings, scriptures etc. (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights…”).
  4. They can exist as part of a justified morality (as opposed to an actual human morality). E.g. some human rights are part of John Rawlstheory of justice. A justified morality is not the existing morality of a group; it’s a moral theory that justifies moral norms such as human rights by way of argued reasons. (There’s my own attempt here).
  5. They can be facts of life: rather than merely moral, legal or religious norms (justified or not), they are part of everyday behavior. Rather than aspirations or goals they are real capabilities. If that’s the case, then people don’t just have a legal right to free speech, or a right to free speech granted to them by their cultural or religious norms. And they don’t just have this right because a justified moral theory gives it to them. They have free speech, period.
forms of human rights

forms of human rights

Depending on where you live, human rights – or certain human rights some of the time – can exist in all 5 forms or in just one. Human rights exist everywhere in form 1: the Universal Declaration has become part of international customary law and is therefore binding on all countries in the world, even the few that haven’t accepted any human rights treaties and that haven’t incorporated human rights in their constitutions. Hence, human rights are part of the law everywhere.

Of course, that doesn’t have to be of much use. Several countries don’t care about the enforcement of this part of the law, or of any part for that matter. Or they are unable to enforce the law because they don’t have the resources, the institutions or popular support for rights. Perhaps the reason why the law is not enforced is the unwillingness of their dictatorial governments. Perhaps the reason is the absence of rights in form 2 and/or 3.

Rights in form 1 are important, however, and it’s preferable that the type of law that includes human rights is more than merely international customary law. That’s a notorious weak form of law. Better to have a country accept human rights treaties and, on top of that, include them in its constitution. If this can be combined with

  • an effective and non-corrupt government – including a good police force and judiciary
  • and with human rights in form 2 or 3 – which gives rights public support

then rights can exist in form 5. Not of course all rights all of the time. There will probably always be rights violations, even in ideal legal, political, governmental, moral and cultural settings.

Regarding rights in form 2 or 3: no existing moralities or religions include all human rights, or at least all rights properly and broadly defined. The full existence of rights in form 5 can therefore not follow simply from their existence in form 2 or 3. A particular disadvantage of rights in form 3 is that they’re unconvincing to non-believers or members of other religions in the community. Or sometimes the rights granted by God are only granted to believers.

A disadvantage of rights in form 4: no two moral theorists seem to be able to agree. They all think their reasons are supported by the best arguments. It seems naive to believe that there will one day be scholarly agreement on political morality. Not even a sincere commitment to open-minded, rational and serious philosophical inquiry seems to make that possible. And without rights in form 4, it’s much more difficult to correct the deficiencies of rights in forms 2 and 3. Or maybe that’s me being naive about the power of philosophy.

More posts in this series are here.

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economics, health, law, philosophy, poverty, what are human rights, work

What Are Human Rights? (33): Something More Than Goals

Jews demonstrate in Lodz bearing banners "we demand the right to work"

Jews demonstrate in Lodz, Poland, bearing banners "we demand the right to work", in protest against anti-Jewish laws prior to WWII

You can often hear the claim that economic rights such as the right to healthcare, food and work are not really rights but merely desirable goals. A first reply would be that all types of rights, not just economic rights, are also goals. Free speech is just as much a goal as healthcare, food and work. But not all goals are rights, so it’s reasonable to ask if economic rights are really rights. What is a right? It can be different things, but it should, minimally, impose a duty. A duty implies feasibility. Ought implies can. There’s no point imposing duties on people which they are unable to respect.

A typical objection against economic rights is that they impose precisely such duties, duties which are not and will not be feasible in many countries in the world. Imposing a right to healthcare, food and work in Somalia, for instance, is imposing an illusion. It’s just too expensive. Hence, because they impose impossible duties, economic rights can’t really be rights. They are merely goals.

Now, I did argue before that the relative expensiveness of economic rights compared to “freedom” rights is often very much exaggerated. Which is why Somalia and other countries have also failed to secure freedom rights successfully. Part of their lack of success is due to their unwillingness to leave people be – which they could at no expense – but another part is due to their unwillingness and inability to fund the institutions necessary to enforce people’s freedom. Yet, no one claims that these failures turn free speech into a mere goal or aspiration rather than a right.

Furthermore, the international treaties that impose respect for economic rights have taken the cost criticism into account. They often frame economic rights in terms of “progressive realization”. Countries don’t violate the treaties if they can show that they have taken all possible measures to ensure the progressive – as opposed to immediate – realization of economic rights.

If we turn rights into goals, we lose a lot. Goals are a lot weaker in terms of moral force than rights. Those who are without food can no longer demand that something is done, that they are the victims of an injustice, and that they have a right to food. All they can do is ask or beg that a certain social goal, one among probably thousands, is taken a bit more seriously.

Finally, is it really so farcical to impose duties that exceed people’s abilities to comply? Aren’t we doing that all the time? It’s common to view “telling the truth” as a moral duty, a very strong one even. And yet, we all know that this exceeds our abilities to comply. We lie all the time, and if you deny this, you’re lying. The best we can do, morally, is precisely “progressive realization”: trying to lie as little as we can, and less than we’re used to. The same progressive realization rescues economic rights as rights: rather than imposing a duty to realize the goal inherent in the rights, they impose a duty to try to realize that goal.

Read more on economic rights here, here and here. And something on the relative cost of freedom and dictatorship is here. More posts in this series here.

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ethics of human rights, philosophy

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

scene from the tv-series "24"

scene from the tv-series “24”

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

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

Image of S/M sexuality

a witch being tortured

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

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

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

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

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terror, torture

Terrorism and Human Rights (36): There Are No Ticking Bomb Cases

time ticking away

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The so-called ticking time bomb case is supposed to prove that there shouldn’t be an absolute ban on torture, and that torture is in some cases justified if it can help to prevent catastrophic harm. Maybe there shouldn’t be an absolute ban, but the ticking bomb case is the wrong way to prove it.

Just a brief reminder of what the ticking bomb case is about. Suppose a ticking bomb has been hidden in a densely populated area and will soon kill thousands or millions if not disarmed. The authorities have managed to capture a terrorist who has either hidden the bomb himself or knows where it has been hidden. (One can replace the “ticking bomb” with another and similar type of deadly device without changing the nature of the argument. The “ticking bomb” is in fact a “pars pro toto”, encompassing cases which do not necessarily involve an actual ticking bomb but which are nevertheless similar with respect to their circumstances and consequences).

The authorities are sure the captured person knows where the bomb is and how to disarm it, but the problem is that he obviously doesn’t want to reveal this information. However, the authorities are also pretty sure that he will do so under torture. There is no other or alternative way to extract the information, and simply evacuating people isn’t an option given the urgency and the lack of knowledge about the exact location of the bomb. Are we therefore not morally allowed to use torture in order to get the information and save numerous lives? Or, a somewhat stronger claim: are we not morally obliged to torture given the enormous benefits for large numbers of people compared to the limited costs for the tortured individual?

Given the choice between inflicting a relatively small level of harm on a wrongdoer and saving an innocent person, it is verging on moral indecency to prefer the interests of the wrongdoer. (source)

atomic explosion

The problem – if it is a problem – is that this thought experiment can’t justify torture. It can’t because it’s loaded with so many hypotheticals that the chances of a case like it occurring in real life are close to zero. People simply have to know too much and yet just – just – not enough. That state of affairs is very unlikely, as is the application of torture that is so effective that it delivers accurate information in a very short time frame (remember, the bomb is ticking…).

Hence, if we won’t see a case like it in real life, the thought experiment can’t justify real life torture. At most it may be able to justify torture in theory. The purely theoretical nature of the whole affair is supported by the absence of ticking bomb cases in history. Some cases that are claimed to have been ticking bomb cases – such as the torture of Abdul Hakim Murad – were in fact, after closer examination, none of the kind. Murad only gave away his information after a month of torture, and it came as a surprise. He was tortured not because of an imminent threat. There was no such threat, and the torturers did not act on the assumption that there was.

Abdul Hakim Murad

Abdul Hakim Murad

In 1995, the police in the Philippines tortured Abdul Hakim Murad after finding a bomb-making factory in his apartment in Manila. They broke his ribs, burned him with cigarettes, forced water down his throat, then threatened to turn him over to the Israelis. Finally, from this withered and broken man came secrets of a terror plot to blow up 11 airliners, crash another into the headquarters of the Central Intelligence Agency and to assassinate the pope. … it took more than a month to break Mr. Murad and extract information – a delay that would have made it impossible to head off an imminent threat. (source)

I assume that all those who come up with the ticking bomb to justify torture want to use the case not to justify ticking bomb torture but other, more mundane forms of torture. After all, when you think you’ve managed to crack open the door a little bit – even theoretically – maybe it will swing wide open.

More about the ticking bomb case. More about torture.

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philosophy, what are human rights

What Are Human Rights? (31): Instrumental and Not Fundamental Moral Principles

medieval tools

It may come as a surprise to regular readers of this blog, but human rights are not fundamental moral principles. That doesn’t mean they are unimportant. On the contrary. There’s a difference between important and fundamental. I wouldn’t be writing this blog if I believed that human rights are unimportant, but nothing written here is incompatible with the claim that they are not fundamental. The place of human rights in morality is at the level of subordinate principles: they are instruments for achieving or realizing other values; values such as peace, wellbeing, prosperity, freedom, equality etc.

The reason why this is the case, is made clear by the lack of meaning and usefulness of the contrary argument. Suppose that human rights are fundamental moral principles. We would then have to adopt some kind of rights deontology or rights utilitarianism:

  • In rights deontology, rights are to be respected in all or most instances (deontology is a type of morality that judges an action based on the action’s adherence to a rule).
  • In rights utilitarianism, the goal is to maximize overall rights protection (utilitarianism is a type of morality that judges an action based on the action’s good consequences).

Both rights deontology and rights utilitarianism demand that rights are protected, not because rights serve some other value, but because rights are the fundamental moral values. Now, this is both meaningless and unhelpful.

  • It’s meaningless because in everyday conversation and thinking, we don’t view rights in this way. I have never seen anyone making a convincing case that people need freedom of speech because freedom of speech is a fundamental value. The common argument is rather that we need that right because it allows us to realize some other values (political freedom, rationality, truth etc.). The claim that a violation of our right to free speech is wrong does not express a fundamental or axiomatic moral principle. It’s the result of complex arguments about the importance of other values and about the ways in which this right protects those other values. (The latter point obviously depends on non-philosophical and empirical claims as well). The opposite claim, that protecting rights has value even if no other value is advanced, has a distinct emptiness about it.
  • Placing rights at the basis of morality is also unhelpful in the sense that it doesn’t tell us what to do in difficult moral cases. In general, we should of course consider human rights as strong rules that we should respect, and we should also arrange our society in such a way that rights protection is maximized. But what should we do when different rights are in conflict with each other and are mutually incompatible? That happens quite often, and neither rights deontology nor rights utilitarianism are of any help when it does. You can only resolve a conflict between rights when there are certain more fundamental values at stake. When two conflicting rights are understood as instrumental values serving the realization of other, more fundamental values, then we can try to ascertain which one of the conflicting rights does a better job. For example, when a tabloid journalist hacks a politician’s cell phone in order to dig up some lurid details about his or her sex life, then one can argue that the politician’s right to privacy should prevail over the journalist’s right to free speech, given the fact that the right to privacy is in this case protecting more important values than the right to free speech. Privacy, intimacy etc. are more important than sensationalism or voyeurism.
privacy scene from Psycho

scene from the movie "Psycho"

(source)

Does all this mean that human rights can and should be ignored or violated if doing so maximizes the values that they normally protect? Yes. Rights are not absolute. However, because it’s generally not the case that ignoring or violating human rights maximizes the values that they normally protect, and because rights normally do a very good job protecting those values, it is best not to cast them aside every time a modest or marginal improvement in fundamental values can perhaps be achieved by doing so. Otherwise we would demote rights and decrease their importance in the general culture. And that would be detrimental to our fundamental values in the long run. Hence, it’s probably not a good idea to argue the case that human rights are instrumental rather than fundamental. If the general public is convinced that they are fundamental, then that is beneficial for our really fundamental values. Hence, maybe you shouldn’t have read this post.

Hence, there is a consequentialism inherent in rights, but it’s not a consequentialism of rights – we should arrange society in such a way that certain values are promoted, not that rights are promoted. Yet, arranging society in such a way that rights are promoted is a good proxy for a society in which values are promoted.

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ethics of human rights, philosophy

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

oath

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

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

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

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

torture scene from the movie "Unthinkable"

torture scene from the movie "Unthinkable"

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

More posts in this series are here.

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ethics of human rights, justice, philosophy

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

stop

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

Martha Nussbaum

Martha Nussbaum, photo by Steve Pyke

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

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

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

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

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

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

(image source)

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

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law, moral dilemmas, philosophy, terror

Moral Dilemma (19): Shooting Down the 9-11 Planes

ronald reagan shooting down the 9-11 planes with his laser eyes

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Germany’s Constitutional Court recently dismissed a law that would allow the federal authorities to shoot down a hijacked plane about to crash into a city. This decision is reminiscent of the usual discussions between Kantian deontological morality and utilitarian calculus of the consequences – take the ticking bomb discussion for example, or the case of the involuntary organ donor.

Let’s make this dilemma, if it is one, a bit more specific. It’s not certain that the hijacked plane will actually reach its target. After all, these things are never certain. Flight 93 didn’t reach Washington. However, let’s assume a case in which it’s very likely that the target will be reached and that catastrophic loss of life will occur. The people who will take the decision to shoot down the plane wait for the last possible moment, in order to make sure that there’s no third option. The people in the plane therefore look like they’re doomed whatever decision is made: let them crash or shoot them down.

A simple calculus of the consequences would favor the latter option, given the fact that the people on the ground are much more numerous. Another reasoning would favor the first option, because shooting down the plane means being complicit with the hijackers, intentionally killing the passengers and thereby treating them as instruments in an operation to rescue the people on the ground. This is similar to what happens to the involuntary organ donor, and equivalent to the treatment they receive from the hijackers, who also treat them as means. There’s an issue of human dignity here. People shouldn’t be instrumentalized. We don’t find it intuitively acceptable that a state can order a fatally ill person to stand between a gunman and his group of victims. So why would the plane case be acceptable? (Assuming that these two cases are equivalent).

So we have two options: shoot or don’t. We could add other options, of course. A third option (one which was actually considered by the Court) could be to let the passengers, knowing that they’ll be killed anyway (with some likelihood) issue a statement of consent and transmit it to the military just in time. However, moral dilemmas are interesting to the extent that they are practical, and this third option is far from practical, I think.

More moral dilemmas here (still open to vote by the way).

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ethics of human rights, philosophy

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

hate

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

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

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

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

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

martin luther king

Martin Luther King

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

More posts in this series are here.

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education, moral dilemmas, philosophy

Moral Dilemma (18): Doing the Right Thing, or Trying to be Successful

calvin and hobbes moral dilemma

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You can read more serious discussions about moral dilemmas in the other posts in this series. More Calvin and Hobbes here.

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causes of human rights violations, culture, human rights violations, philosophy

The Causes of Human Rights Violations (27): Harmful Moral Judgments

superman and batman kissing

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Human rights violations have many possible causes, but it’s reasonable to assume that a lot of them are caused by some of the moral convictions of the violators. For example:

  • One of the reasons why people engage in female genital mutilation (FGM) is the fear that if women are left unmolested they won’t be able to restrain their sexuality.
  • Discrimination of homosexuals is often based on the belief that homosexuality is immoral.
  • The death penalty is believed to limit the occurrence of violent crime.
  • Etc. etc.

The rational approach

It follows that if we want to stop rights violations, we’ll have to change people’s moral convictions. How do we do that? The standard answer is moral persuasion based on moral theory (in most cases, this will be some kind of intercultural dialogue). This is basically a philosophical enterprise. We argue that some things which people believe to be moral are in fact immoral. For example, we could use the Golden Rule to argue with men who support FGM that FGM is wrong (and the Golden Rule is present in all major traditions; Confucianism, Islam, Hinduism, Buddhism, Taoism etc.). We could argue that the consequentialism used in the defense of capital punishment is in fact an instrumentalization of people and doesn’t take seriously the separateness of individuals.

You can already see the obvious difficulty here: this approach appeals to concepts that are strange and unfamiliar to many, and perhaps a bit too esoteric, and therefore also unconvincing. They may appeal to people who regularly engage in philosophical and moral discussions, but those people tend not to be practitioners of FGM, oppressors of homosexuals etc.

That is why another approach, which you could call the internal approach, is perhaps more successful: instead of using abstract philosophical reasoning, we can try to clarify people’s traditions to them. FGM is often believed to be a practice required by Islam, whereas in reality this is not the case. There’s nothing in the Koran about it. Authority figures within each culture can play a key role here. One limit of this approach is that many cultures don’t have the resources necessary for this kind of exegesis or reinterpretation, at least not in all cases of morality based rights violations.

One way to overcome this limitation is to dig for the “deep resources”. We can point to some very basic moral convictions that are globally shared but not translated in the same way into precise moral rules across different cultures. For example, killing is universally believed to be wrong, but different cultures provide different exceptions: some cultures still accept capital punishment, others still accept honor killings etc. One could argue that some exceptions aren’t really exceptions to the ground rule but in reality unacceptable violations of the ground rule.

The emotional approach

David Hume

David Hume

The problem with all these approaches is that they are invariably based on a belief in rationality: it’s assumed that if you argue with people and explain stuff to them, they will change their harmful moral judgments. In practice, however, we see that many ingrained moral beliefs are very resistant to rational debate, even to internal debate within a tradition. One of the reasons for this resistance, according to moral psychology, is that moral judgment is not the result of reasoning but rather a “gut reaction” based on emotions such as empathy or disgust (which have perhaps biologically evolved). (This theory goes back to David Hume, who believed that moral reasons are “the slave of the passions”, and is compatible with the discovery that very young children and even primates have a sense of morality – see the work of Frans De Waal for instance).

Indeed, tests have shown that moral judgments are simply too fast to be reasoned judgments of specific cases based on sets of basic principles, rules of logic and facts, and that they take place in the emotional parts of the brain. This emotional take on morality also corresponds to the phenomenon of “moral dumbfounding” (Jonathan Haidt‘s phrase): when people are asked to explain why they believe something is wrong, they usually can’t come up with anything more than “I just know it’s wrong!”.

If all this is true, then reasoned arguments about morality are mostly post-hoc justifications for gut reactions and therefore not something that can change gut reactions. The rational approach described above is then a non-starter. However, I don’t think it has to be true, or at least not always. I believe moral psychology underestimates the role of debate and internal reflection, but I also think that in many cases and for many people it is true, unfortunately. And that fact limits the importance of enhanced debate as a tool to modify harmful moral judgments. But the same fact opens up another avenue for change. If moral judgments are reactions based on emotions, we can change judgments by changing emotions. And the claim that our moral emotions have evolved biologically doesn’t imply that they can’t change. The fact is that they change all the time. Slavery was believed to be moral, some centuries ago, and did not generally evoke emotions like disgust. If the moral approval of slavery was a gut reaction based on biologically evolved emotions, then either these emotions or the gut reaction to them has changed.

Richard Rorty

Richard Rorty

The most famous example of the emotional approach is Richard Rorty’s insistence on the importance of the telling of sentimental stories like “Uncle Tom’s cabin” or “Roots” etc. Such stories, but also non-narrative political art, make the audience sympathize with persons whose rights are violated because they invite the audience to imagine what it is like to be in the victim’s position.

The problem with the emotional approach is that it can just as easily be used to instill and fortify harmful moral judgments, or even immoral judgments.

Both emotional and rational processes are relevant to moral change, and when the rational processes turn out to be insufficient, as they undoubtedly are in many cases (especially the cases in which change is most urgent), we’ll have to turn to the emotional ones. (The emotional approach can be very useful in early internalization. Early childhood is probably the best time to try to change a society’s “gut reactions”).

The diversity approach

Apart from the rational or emotional approach, there’s also the diversity approach: put people in situations of moral or cultural diversity, and harmful moral judgments will, to some extent, disappear automatically. People’s morality does indeed change through widened contact with groups who have other moral opinions. And widened contact is typical of our age in which travel, migration, trade and political and economic interdependence are more common than ever. This automatic change can happen in several ways:

  • In a setting of social diversity, people see that a certain practice which they believe is immoral doesn’t really have the disastrous consequences they feared it would have. For example, when you see that people who haven’t endured FGM usually don’t live sexually depraved lives, you may modify your moral judgment about FGM. Some moral beliefs are based on factual mistakes. If we point to the facts, or better let people experience the facts, they may adapt their mistaken moral judgments in light of those facts.
  • When people live among other people who have radically different moral beliefs or practices, they can learn to accept these other people because they see that they are decent people, notwithstanding their erroneous moral beliefs or practices. This kind of experience doesn’t necessarily change people’s harmful moral judgments, but at least makes these people more tolerant and less inclined to persecute or oppress others.
  • Tolerance is generally a wise option in diverse societies, from a selfish perspective: intolerance in a diverse society in which no single group is an outright majority can lead to strife and conflict, and even violence. So all groups in a such a society have an interest in being tolerant. Tolerance in itself does not cause people to reconsider their harmful moral judgments, but at least removes the sharp edges from those judgments. However, tolerance can, ultimately, produce change: if you treat others with respect they are more likely to think that you have a point. Hence, they’re more likely to be convinced by your arguments that their moral judgments are harmful.
  • People can get used to things. Being exposed to different and seemingly immoral beliefs or practices can render people’s moral judgments less pronounced and therefore less dangerous.
  • Also,

When we are required to confront things that bother us we sometimes (often?) reduce cognitive dissonance by changing our preferences so that we are no longer bothered.  Thus [we should] encourag[e] the intolerable to come forward, thereby forcing the intolerant to reduce cognitive dissonance by accepting what was formerly intolerable. (source)

Of course, this “contact-hypothesis” or “diversity-hypothesis” doesn’t explain all moral change. For example, it’s hard to argue that the abolition of slavery in the U.S. came about through increased social diversity.

Perhaps there are cases when we shouldn’t do anything. People can get more attached to harmful moral convictions when their group is faced with outsiders telling them how awful their convictions and practices are, especially when the group is colonized, or when they are a (recent) minority (e.g. immigrants). In order to avoid such a counter-reaction, it’s often best to leave people alone and hope for the automatic transformations brought about by life in diversity. However, that’s likely to be very risky is some cases. A lot of people can suffer while we wait for change. Also, one might as well argue that the use of force to change certain practices based on harmful moral judgments will, in time, also change those moral judgments: if people are forced to abandon FGM, maybe they’ll come to understand why FGM is wrong, over time.

More on the causes of human rights violations.

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discrimination, discrimination and hate, economics, equality, justice, law, philosophy, trade, work

Discrimination (8): What’s Wrong With Discrimination?

saloon blacks not allowed

White wife to white husband: "I wish you were not allowed in here"; so we're doing blacks a favor by not allowing them in saloons...

(source unknown)

Let me try out a few possible answers to the question in the title of this post:

  1. Is discrimination wrong because it’s differential treatment of persons? That can’t be the case, because we treat people differently all of the time: some people earn more than others, have better grades in school, have a lot of friends or none at all, etc. None of those types of differential treatment seem to pose a moral problem per se.
  2. Is discrimination wrong because it’s differential treatment of persons based on the mere fact of their membership of a group? That can’t be true either. We don’t allow the blind to drive a car, we don’t allow the mentally ill to run for political office, and we don’t allow inmates to move freely across the country. Again, usually this is done without violating our moral intuitions. Differential treatment based on group membership may be wrong in some cases but it’s not discrimination per se.
  3. Is discrimination wrong because it’s disadvantageous treatment of some relative to others? Again, the answer is no. We certainly impose a disadvantage on inmates when we confine them to a prison building.
  4. Is discrimination wrong because it’s disadvantageous treatment that is morally objectionable? If I, as the sole racist member of a tolerant society, refuse to eat at a restaurant owned by an African American or serve African Americans in my own restaurant, I act in a morally objectionable way, and impose a small disadvantage on some people. And yet these people are not discriminated against in any meaningful sense of the word.
  5. Is discrimination wrong because it’s differential treatment of persons based on some of their immutable characteristics, for example their gender or skin color? Again, the answer has to be no. Sometimes it’s justified to treat persons differently based on their immutable characteristics or on characteristics that are beyond their control. We don’t allow one legged basketball players to compete in the NBA. And, conversely, sometimes it’s not justified to treat persons differently based on their self-chosen lifestyle. Forcing vegetarians to eat meat, for example, is wrong.
  6. Is discrimination wrong because it’s differential treatment of persons based on characteristics that are superficial or irrelevant, for example when we refuse to eat somewhere simply because the restaurant owner is black? That can’t be the case either. If I prefer to marry a blond because I believe blond women are better wives, I’m not discriminating against non-blonds. And if I’m the only one refusing to eat in a black man’s restaurant, it’s hard for him to claim that he’s discriminated against.
  7. Is discrimination wrong because it fails to treat people as individuals and relies on inaccurate stereotypes? For example, because I believe African Americans can’t cook properly and I therefore don’t bother to check out the food of an individual African American restaurant owner? Again, discrimination must be something else, for two reasons. First, there are laws against discrimination based on correct stereotypes, so-called statistical discrimination. Employers can’t just refuse to hire young women simply because young women are more likely to have children and hence be absent from work. Second, I may rely on inaccurate stereotypes and not engage in discrimination. For example, if I organize a successful boycott of German classical music based on the erroneous belief that this music is inferior to French classical music, I don’t discriminate orchestras or record labels that produce German classical music.
racist protester at Little Rock Central High School

racist protester at Little Rock Central High School

So then, why is discrimination wrong? Discrimination is wrong because it is a denial of rights. Not all denials of rights are discrimination – for example I imagine that Kim Jong Il denies the rights of all North Koreans consistently without discrimination. But discrimination is a denial of rights, and a denial of a particular type, namely the unequal denial of rights.

But not every case of unequal denial of rights is a case of discrimination. For instance, if some people in police custody are beaten up and others aren’t that’s not necessarily discrimination. Discrimination is the unequal denial of the rights of members of a socially salient group, and for no other reason than their membership of that group. It must be a socially salient group, i.e. a group that is an important and stable distinction in society, not a fleeting and inconsequential identity such as the group of people with blue eyes or people of the age of 40. Those groups aren’t salient and hence won’t be discriminated.

So, discrimination occurs when rights are granted to some and taken away from others, for no other reason than their membership of a socially salient group.

An African-American child at a segregated drin...

Drinking fountain on the Halifax County Courthouse (North Carolina) in April 1938

What exactly is a denial of rights? It’s an action (or a law, a custom etc.) that makes it impossible or very difficult to exercise one’s rights. That means that there won’t be discrimination if for example one lonely racist shop owner refuses to service blacks. Those blacks can easily exercise their rights by avoiding the racist shop. Only if the number of such cases is high and those cases occur systematically will there be denial of rights and hence discrimination. The policy of an army to reject homosexuals is discrimination because homosexuals can’t simply go to another army to serve their country. Racial discrimination at the time of Jim Crow and segregation was real discrimination because it substantially reduced the options of blacks who could not exercise their rights elsewhere.

If we revisit some of the examples given above we can see that they are not necessarily cases of discrimination as it is defined here. Giving people low grades or low salaries can be justified if it’s done for good reasons, i.e. not simply because of people’s membership of groups. But even if it’s done because of membership, it’s not discrimination if it’s isolated and if people can easily go elsewhere for their proper grades or salaries. Discrimination isn’t just about unequal treatment but also about options. Not all unequal treatment is discrimination. It’s discrimination when it also takes away the rights of those treated unequally. And their rights are taken away, not when there’s a single instance of unequal treatment based on group membership, but when there are many such instances and people can’t easily exercise their rights elsewhere. Their rights in these examples are the right to education and the right to fair wages. The same is true in the case of the sole racist member of a tolerant society refusing to eat at a restaurant owned by an African American. The restaurant owner isn’t denied his right to sell his food because one guy refuses to eat there.

More on discrimination here and here.

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horror, international relations, moral dilemmas, philosophy, war

Moral Dilemma (17): Neutron Bomb or Regular Atomic Bomb?

no bombs

a Soviet anti-war poster

(source)

Imagine you’re the commander in chief of a country fighting a war with a fascist dictatorship. The enemy army is losing the war but is going to fight until the last man. You have to end the war quickly or millions of soldiers – and a good number of civilians – on both sides are going to die during years of skirmishes. You basically have only one option: one huge explosion killing almost the entire enemy army, but also a large number of civilians. You have two bombs, a traditional atomic bomb and a neutron bomb.

A neutron bomb, or enhanced radiation weapon (ERW), is a type of nuclear weapon designed specifically to release a large portion of its energy as energetic neutron radiation rather than explosive energy. Although their extreme blast and heat effects are not eliminated, the increased radiation released by ERWs is meant to be a major source of casualties, able to penetrate buildings and armored vehicles to kill personnel that would otherwise be protected from the explosion. Most of the injuries inflicted by an ERW come from the intense pulse of ionizing radiation, not from heat and blast. This intense burst of high-energy neutrons is intended as the principal killing mechanism, but some amounts of heat and blast force are also produced. Neutron bombs are commonly believed to leave a good deal of the infrastructure intact.

A neutron bomb is sometimes claimed to be morally superior to a regular atomic bomb since the survivors will be able to rebuild their societies relatively quickly after the end of the war: the destruction it causes is minimal. On the other hand, the neutron bomb is commonly abhorred and has become something like the ultimate horror in popular culture.

More moral dilemma’s here. Those other dilemma’s are still open to vote, by the way. So if you have a couple of minutes, we would very much appreciate your contribution.

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freedom, human rights and crime, human rights violations, justice, law, philosophy

Crime and Human Rights (11): The Preconditions for Criminal Punishment

I know that the worst thing about crime is what happens to the victims of crimes, not what happens to convicted criminals. Still, I want to focus on the latter for a moment. Criminal punishment is almost always a limitation of the criminal’s human rights, so it is a legitimate area of concern, although perhaps not the most important one. Whether we put criminals in prison, kill them, flog them, cut off their hands or put their names and addresses on the internet, we limit some or even many of their human rights.

So, if we want to maintain a system of criminal punishment, and if we agree that people don’t lose their human rights simply because they commit a crime, then we have to formulate a justification of the limits we impose on the rights of criminals. When are such limits justified, and when are they arbitrary, excessive or dictatorial? I believe criminal punishment is morally justified if, and only if, at least the following 8 conditions are met simultaneously:

1. Criminal punishment is necessary for the protection of the rights of others

A particular punishment, involving very specific limitations of the rights of the convicted criminal, has to be necessary for the protection of the rights of others. No other goal can be served by criminal punishment, and no other means or punishments, less harmful to the rights of the criminal have the same effect on the rights of others.

Criminal punishment not intended to protect the rights of others is therefore unacceptable, as is criminal punishment which imposes harm on the criminal that goes beyond what is necessary for the protection of the rights of others. For example, putting someone in prison because she has a certain opinion, is unacceptable because this punishment doesn’t protect the rights of others. And putting someone in prison because she steals a newspaper is also unacceptable because this punishment goes beyond what is necessary to protect the property rights of others. Rights protection in this case can be achieved by other means which are less harmful to the rights of the criminal (a fine for instance).

So both the type of punishment and its severity have to be taken into account when judging whether the punishment is morally justified. Simple retribution, proportionality or lex talionis can, in some cases, satisfy this first condition of morally justified punishment, but only by accident. In many cases, you will not deliver a morally justified punishment when you think only in terms of retribution, proportionality or lex talionis because you won’t automatically consider the effect of the punishment on the rights of others.

For example, take the case of a jealous artist vandalizing the work of a rival. Lex talionis would recommend that the vandals art be also vandalized. However, this punishment may be proportional and adequate retribution, and the vandal will undoubtedly suffer from it like he made his rival suffer, but no one’s rights are protected in this way. On the contrary, if the vandal is a good artist the punishment may even violate the rights of large numbers of people.

A punishment should be designed in such a way that it protects the rights of the victims and possible victims of the criminal who is about to be punished. This is the case when incarceration of a sexual maniac will protect the rights of his victim (although not retroactively) and of possible future victims, and such a punishment does seem to be what is required while avoiding the imposition of excessive harm on the maniac. In other words, there isn’t a more lenient sentence available which would offer the same protections to the rights of others while imposing less restrictions on the rights of the maniac. And neither is the punishment too severe for the purpose it serves, namely the protection of the rights of others.

But these “others” are not only the victims or possible victims of the criminal. Punishment is also signaling: by showing possible maniacs what happens to actual maniacs, we want to deter crime. Deterrence, like punishment, also protects the rights of others, “others” meaning here not the victims or possible victims of an actual criminal but the possible victims of a possible criminal. There is room for deterrence, but only when the deterrent effect is real, in other words when it really helps to protect the rights of others. We should be careful with deterrence, because deterrence means the instrumentalization of human beings. When there is doubt about a deterrence effect, and when at the same time the proposed punishment is very harsh, we should avoid designing the punishment with deterrence in mind. For example, if a very high fine for shoplifting has been shown empirically to deter a high percentage of possible shoplifters, then it would be morally justified to impose such a high fine on a specific shoplifter, even if a much lower fine would suffice to protect the rights of the actual and possible victims of this specific shoplifter. So this is an exception to the rule stated a moment ago.

On the other hand, if it can be shown empirically that the deterrent effect of capital punishment is doubtful, then we should not impose that punishment on a specific criminal, except when it is necessary to protect the rights of the actual and possible victims of that specific criminal. But when is this necessary? Often if not always we can find a more lenient sentence which will offer the same protections to the rights of actual and possible victims of an actual criminal, while imposing less restrictions on the rights of the criminal (e.g. life without parole).

2. The criminal acted with free will

We should assume that people generally have free will. There doesn’t seem to be room for moral responsibility or criminal culpability without this assumption. There can’t be criminals in a world in which everything is governed by “blind” cause and effect. People have free will when they have the capacity to choose a course of action from among a set of alternatives. If a criminal’s will and choice of action are not decided by himself, we can hardly say that he’s responsible for his actions. Only if he could have acted differently can he be held responsible for his actual actions. Imagine a brainwashed spy being sent abroad by his totalitarian government in order to kill political opponents. This person couldn’t have acted differently and didn’t have the capacity to choose from among different courses of action. Hence he can’t be held responsible for his actions.

We should start from the general assumption that people normally act on the basis of free will, but if we find that this assumption doesn’t hold in a particular case, then either criminal punishment is not justified or the punishment should be less severe. People can be determined to will certain ends without having been brainwashed. A drug addict for example suffers from a compulsive and controlling desire and has lost his free will. Addiction impairs the will. If he acts on the basis of this compulsive desire and commits a crime along the way, it’s common to take the absence of free will into account when determining the severity of the punishment. Both external manipulation of our psychology and internal compulsions can force us to do things we don’t desire or choose to do, and they can even force us to desire or choose things we wouldn’t freely desire or choose. (Hypnosis can also be an example). In either case, we are not culpable, or at least the level of our culpability is reduced.

3. The criminal did not act because of “force majeure”

Force majeure is a term for an action that is caused by events or circumstances beyond the control of the agent. For example, someone kills another person because he was instructed to do so by gunmen holding his children hostage. Sometimes, there are external constraints on the range of options we have, and things beyond our control can force us to act (or not act) in a certain way.

This condition should be distinguished from free will. It’s not because some external causes force you to act in a certain way that you lose your free will. You act in a certain way but at the same time you don’t have to want to act in that way.

4. The criminal was aware of alternative courses of action and of the moral significance of those alternatives

For example, if a criminal was convinced that he had no alternative and had to commit the crime, then he may not be culpable, even if in reality there were alternatives. Imagine the same case of the father being forced to kill by gunmen holding his children hostage. Maybe there was an easy and safe way for the police to free the children. However, if the father was unaware of this and executed the demands of the gunmen without contacting the police, then he shouldn’t be found guilty of a crime.

However, the father may have been culpably unaware: reasonable people can agree that he should and could have been aware of the possibility to involve the police, but he failed to do everything possible to examine the alternatives. In that case, he should be found guilty.

5. The criminal acted with intent

If the consequences of an action were not intended by the agent, then either he is not culpable or his culpability is diminished. This 5th condition should be distinguished from free will: an action can be undertaken with free will but without intending all the consequences that occur. A woman who is not acting compulsively (who is not addicted for example), who is not forced by external powers to desire things she would normally not desire or to do things she doesn’t want to do, and who reasonably reflected on possible alternatives, acts in a chosen way. To her surprise, her actions lead to someone’s death. She didn’t intend this outcome, and hence she’s not culpable, or at least her culpability is reduced.

6. The criminal caused the crime

There should be no doubt about the causal link between the criminal’s actions and the crime. Let’s elaborate the previous example: the woman caused the death by hitting the victim with her car. The victim didn’t violate any traffic rules for pedestrians. The woman wasn’t speeding compulsively. She wasn’t under hypnosis or forced to hit the victim by gunmen threatening her children. And she wasn’t culpably unaware of the risk of driving a car in that particular street. Moreover, there’s some medical doubt as to the actual cause of death. It seems that the pedestrian was suffering from a heart condition and a heart attack caused the pedestrian to stumble on the road. Hence the woman driver isn’t culpable.

7. The criminal is found guilty after a fair trial

Only if the rules on the fairness of criminal trials are respected can we impose criminal punishment. A person accused of a crime should be able to use a defense lawyer to guarantee that the judge takes all the 6 previous preconditions into account when sentencing. The trial should be public so that we can all see that criminal punishment is imposed fairly. Etc.

8. The criminal is found guilty on the basis of proper laws

The laws which the criminal is supposed to have violated should be universal laws. In other words, they shouldn’t be targeted at the criminal specifically. The rule of law imposes this restriction. Laws that are not equally applicable to all, including the legislators, are not proper laws, but simply a disguised form of the rule of man. Other rules of legislation should also be respected (no retroactive laws etc.).

Conclusion

If both judges and legislators keep these 8 points in mind when deciding the type and severity of the punishment that has to be imposed for a particular crime and on a particular criminal, then we will, in all likelihood, be able to avoid some of the worst injustices in our current criminal justice system. We won’t have overpopulated prisons, we won’t incarcerate people for silly offenses or lock them up for years and years for a crime that merely requires a few months, and we won’t use capital punishment as often as we do now.

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equality, ethics of human rights, justice, philosophy

The Ethics of Human Rights (37): Luck Egalitarianism

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

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

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

There are two moral intuitions at play here:

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

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

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

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

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

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

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

Some problems

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

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

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

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

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

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

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

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

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

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

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

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

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moral dilemmas, philosophy

What is a Moral Dilemma?

We have a long running series on this blog asking people to tell us what they think about particular moral dilemmas. However, since this is (in part) a philosophy blog, it’s useful to take a step back and ask ourselves what we are talking about. What precisely is a moral dilemma?

Definition of moral dilemma

Well, it’s obviously a conflict of some sort. If you’re stuck in a moral dilemma you have some good moral reasons to do each of two different things (“dilemma” comes from the Greek for “double proposition”). The problem is that you can’t do both. You do either one or the other, and by failing to do one you fail morally. A moral dilemma condemns you to moral failure. You have an unpleasant choice to make between two moral duties and therefore you’re forced to violate one duty.

Plato

Plato

It’s important to note here that both the moral duties are equally important. When it’s clear that one of the conflicting moral obligations easily overrides the other, we don’t have a moral dilemma. For example, you have the moral duty to repay your debts, but giving back a borrowed weapon to a deranged friend will make you an accomplice in murder. (That’s the classic example in Plato’s Republic). This isn’t really a dilemma since the obligation to prevent murder clearly overrides the obligation to honor your debts.

Because the two (or more) options in a dilemma are (or seem to be, see below) equally important, a dilemma presents you with an impossible choice. Hence the typical characteristic of a dilemma: you can’t get out of it. A dilemma is inescapable and inevitable. You have to make a choice but you can’t. You are thrown from one side to the other: from the obligation to make a choice to the impossibility of making a choice and back again and again.

Moral dilemmas and value pluralism

The equal importance of both (or more) options has to do with value pluralism. There are many important values in life – love, loyalty, honor, freedom, equality etc. – and those are generally – but not specifically – equally important. According to value pluralism – a moral theory I personally accept – there’s no way of establishing a hierarchy between these values so that we know which one to choose in case of conflicts (such as moral dilemmas). Some values are sometimes more important than others, depending on the context (see the example from Plato above). But those others are also sometimes more important.

The same value pluralism is the basis of the theory of balancing human rights. Human rights are basically moral values and they often contradict each other – the privacy of a public figure and free speech of a journalist, for example. It’s not obvious to claim that some human rights are more important than others (although there have been attempts) and therefore you’ll have difficult choices to make between respecting the rights of one person or another.

sophie's choiceBut let’s get back to the topic of moral dilemmas. Value pluralism is one cause of moral dilemmas, but not the cause. In some cases, moral dilemmas involve only one value. Take the example of Sophie’s Choice: Sophie is instructed by a guard in a Nazi concentration camp to decide which one of her two children will be killed, and if she doesn’t decide, both will be killed. There’s only one value at stake here and no conflict between values. (You could argue that there are a few values at stake: love, life, equality etc. but anyway, there are no conflicts between values, only conflicts between the choice of one child or the choice of another).

Types of moral dilemmas

So this brings us to a typology of moral dilemmas. We can indeed differentiate between types of moral dilemmas. The first distinction is the one described above, between dilemmas involving conflicts between values (usually two) and dilemmas involving a conflict within one value. Some would say that the latter aren’t real dilemmas. Take Sophie’s choice again. The solution is easy: give up one of the two children, no matter which one (assuming that there’s no difference in life expectancy etc.). That’s the best Sophie can do, because the other option – not choosing – will result in the death of both. The choice of which child is morally irrelevant. (Personally, I don’t believe things are as easy as that. We do have a real dilemma here).

Jean-Paul Sartre

Jean-Paul Sartre

Another distinction is the one between so-called epistemic dilemmas and non-epistemic dilemmas. The former are dilemmas created by the absence of knowledge, the latter would exist even with perfect knowledge. Perhaps you’re faced with a choice between participating in a war or staying home and caring for your sick mother (Sartre’s example). This dilemma is caused – in part at least – by the absence of knowledge. If you knew that your participation in the war would have a major effect on the outcome of the war, and if you knew that your mother would be OK without your help, the dilemma would disappear and the choice would be obvious. So in this case it’s the absence of knowledge about the consequences of either choice that creates the dilemma. Some people would say that we don’t have a real dilemma in this case because the provision of knowledge solves the dilemma, and a real dilemma has to be impossible to solve even given perfect knowledge. (Again, I don’t think it’s as easy as that. In real life, knowledge is often missing and it’s useless to say to someone facing a dilemma that knowledge could solve the dilemma).

Another type of epistemic dilemma is the one in which a dilemma appears because of the factual uncertainty about a case. For example, you could be faced with the choice of helping a friend vs informing the police of this friend’s crime. The conflicting values here are friendship/loyalty and your duties as a citizen. However, there’s a dilemma only because you’re unaware of the fact that this “friend” isn’t really a friend and just abuses your trust. Better knowledge would solve the dilemma.

And finally, another type of epistemic dilemma arises when the person faced with the dilemma isn’t sure about the particular moral principles that (should) apply. For example, you may believe that loyalty to a group of criminals is an important moral value but there isn’t any good moral theory available that produces justified moral reasons for such a moral principle. When this “moral principle” conflicts with another, better principle (e.g. snitching), you may find yourself believing that there’s a moral dilemma. Again, better knowledge would solve the dilemma.

Some other distinctions between types of moral dilemmas:

  • dilemmas can be self-imposed (making two mutually exclusive promises for example), or imposed by the outside world (Sophie’s choice for example)
  • dilemmas can result from your own wrongdoing (again the promises) or by chance (Sartre’s example)
  • there can be obligation dilemmas in which more than one feasible action is obligatory (Sartre’s example) or prohibition dilemmas in which all feasible actions are prohibited (Sophie’s choice)
  • dilemmas can be within one system of morality or across systems of morality (there can be a conflict between our general moral obligations – e.g. do not be an accomplice to murder – and our role-related obligations – the duty of a priest to protect the secret of confession, even when a murderer comes to confess her crime)
  • dilemmas can be single-agent dilemmas (Sartre’s example and Sophie’s choice) or multiple-agent dilemmas (should the US bomb Hiroshima?)
  • etc.

By the way, you can still vote on our moral dilemmas here and we’ll add some new ones soon.

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culture, ethics of human rights, globalization, law, philosophy

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

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

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

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

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

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

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

More posts in this series are here.

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democracy, moral dilemmas, philosophy, work

Moral Dilemma (16): The Senator and the Bus Ticket

Suppose you’re a US Senator (no, not this one) and you’re on your way to an important Senate session where it should be decided if there will be an extension of unemployment benefits because of the high levels of unemployment resulting from the recession. What’s more, you’re most likely to cast the deciding vote in favor of an extension. However, your chauffeur is sick and you have to take the bus. You’re at the bus station with a few minutes to spare but unfortunately you notice that you forgot your wallet at home.

You try to persuade the officials in the bus station to let you on free of charge, without success (you’re not a pretty famous Senator, yet). Your attempts to convince fellow travelers to lend you the money are also unsuccessful (unfortunately for you, the bus station is packed with Tea Party Protesters on their way home and you made the mistake of explaining what you’re up to).

You sit down and hang your head in despair when you spot a wallet lying on the ground just beside the handbag of a woman sitting next to you. The woman looks reasonably well-to-do. The wallet may be hers, but perhaps it’s not. You notice a ten dollar bill sticking out and you realize that this is your only chance to get to the Senate on time.

If yes, and afterward a journalist finds out what happened,

In general, do you think that small harms are a reasonable price to pay for large benefits and that some moral rules (the rule against stealing for example, or – as it may be – the rule of giving back found property) may be sidelined when larger moral issues are at stake?

If yes, how far are you willing to go? Would you allow the Senator to kick people out of the bus and thereby harming them or perhaps even killing them, in order to secure a place inside?

Do you believe that the Senator picking up the wallet is just the same thing as the government taxing people to pay for other people’s unemployment benefits?

Do you think that the bystanders who refused to lend the Senator money, even if they were politically motivated, were guilty of selfishness?

Or do you perhaps think that they wrongly “gamed” the democratic process and should not have intervened out of respect for proper democratic procedures, even if these procedures would lead to an outcome they don’t like?

And you can still vote on our previous moral dilemmas here.

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philosophy, why do we need human rights

Why Do We Need Human Rights? (16): You Always Hurt The Ones You Love

Saint Sebastian by Guido Reni (c. 1616)

Saint Sebastian by Guido Reni (c. 1616)

Inflicting suffering on people is wrong. This simple and basic moral rule is a large part of the justification of human rights (although there are many other justifications). And yet, the parents among us – the large majority of human beings – simply by bringing children into existence, guarantee that those children will suffer. No life is without suffering. And they do so wittingly and willingly. So ignorance or impotence do not excuse this imposition of suffering. These children don’t get born because they have a right to be born. Non-existent people don’t have a right to come into existence. The opposite sentence would have some really scary and dizzying consequences. They are born because of parents’ choices. And those are informed choices. We all know that no life, not even the best one, is without suffering. Hence, the parents are, to some extent, responsible for this suffering (read more about the chain of causation here).

The fact that people keep reproducing without so much as an ounce of remorse, indicates that the willful infliction of suffering is an acceptable part of life, even if it is an infliction upon those closest to you. Perhaps we can explain this strange fact by the generally rational belief that the good that comes out of life compensates for the suffering we inflict on our children. Life’s suffering is just the price to pay for a greater good. Overall, most people do indeed find life worth living, notwithstanding the occasional suffering. Otherwise suicide would be much more common, I guess. But that kind of cost-benefit analysis is something we usually find repugnant. Many of us shudder at the decision to incinerate thousands of Japanese in order to end WWII.

But perhaps this cost-benefit analysis is much more acceptable when the cost for one persons isn’t intended to benefit another person. In our topic, the costs and benefits that are weighed against each other are for one and the same person. And yet, it’s not this person that does the weighing; it’s her parents. This is a case of literal paternalism: we decide for another person that some harm we do to her is necessary for a greater good. Like we decide that people can’t smoke cannabis (doing so is imposing a harm) because we believe that it’s in their interest and for their benefit. And paternalism is generally only acceptable when dealing with children, and with children as long as they are children. When reproducing we of course also inflict suffering on our children when they are grown up.

If you think all this is just a load of pretentious pseudo-philosophical BS, then maybe you’ll like this instead:

More on the rights of future generations, on children’s rights, and on suffering.

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health, moral dilemmas, philosophy

Moral Dilemma (15): Separating Siamese Twins

There was a famous case in the UK some years ago, of a pair of Siamese twins (not in the image above) joined at the waist and sharing a heart and lungs. By the nature of their condition, only one of the pair – the one with the fully developed heart – could survive an operation to separate them. Doctors insisted that the girls be separated, because both would die within three to six months if nothing was done. The heart of the one of the twins could not go on to support both of them forever.

The parents, however, refused to go through with the operation, claiming that they could not save one of their children by killing her sister. They wanted nature and God’s will to take its course. The doctors challenged the parents’ decision, claiming inaction meant death for both girls. The case went to the courts and a judge ruled in favor of the doctors. The operation went ahead and, predictably, one of the girls died. The other one now leads a healthy life.

One of the judges deciding the case even stated that an operation to save the most viable of the pair – the one with the fully developed heart – would also be in the interest of the other girl. This other girl’s life would be hurtful and short anyway and to prolong it would be “very seriously to her disadvantage”. Killing her would not be an act, but an omission – the interruption or withdrawal of the supply of blood

which she received from her sister. As such, the surgery could go ahead by analogy with those cases where the courts have authorized the withholding of food and hydration. Ultimately, however, this reasoning wasn’t followed by the court when upholding the decision to operate. (source)

This is reminiscent of the trolley problem, a famous moral dilemma in which people are asked if they would push a fat man on a track in order to stop a runaway trolley or tram heading for a group of five people unaware of the danger. When you answer the question below, you should know that in most surveys about the trolley problem, people refuse to push the fat man. We also had another dilemma in this series that featured a similar problem: should a surgeon sacrifice some innocent people in order to harvest organ for a dying patient?

And you can still vote on our previous moral dilemmas here.

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ethics of human rights, justice, law, philosophy, poverty

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

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

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

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

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

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

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

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

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

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