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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(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).

(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.

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.

(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.

Related posts are here, here and here.


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