The Ethics of Human Rights (89): Anti-Consequentialist Consequentialism

There are two words in “human rights”. “Rights” are claims that override the claims, wishes or welfare of a government, a majority, or even the totality of a population minus one. In other words, they are claims that need to be respected whatever other claims are present, such as the claims of law, morality, welfare, religion etc. Rights should be respected irrespective of the law of the land, of someone’s legal status, of someone’s religion, race, gender, citizenship, country of residence or moral conduct. That’s where the other word comes in: all “human” beings have rights and these rights should be respected simply because human beings are human. No other reason is required. No law, no conduct, no welfare consequences. These two words – “rights” and “human” – are connected: both are about priority, overriding importance and lack of conditionality.

This would seem to imply that human rights are the ultimate anti-consequentialist morality. We are not to enslave, torture or murder one person even if that would increase total welfare. Forcibly removing one eye from a series of two-eyed people in order to give blind people one eye would clearly increase overall welfare since the gains for the blind are greater than the losses for the others. And yet human rights prohibit coercive organ transplantations. However, it’s not entirely correct to view human rights as anti-consequentialist. Human rights are also, and somewhat paradoxically, consequentialist. In two ways:

  • First, the welfare of the majority or of the “society” can to some extent be defined as respect for human rights. Torturing one terrorist in order to discover and defuse a ticking time bomb would allow us to safeguard the right to life and bodily integrity of a large number of other people or even of society as a whole. Rights need to be balanced against each other, and when more rights or more important rights for a large number of people can be safeguarded by way of a violation of the rights of one, then that’s the result or the “consequence” we should favor over the alternative, which is protecting the rights of one to the detriment of the rights of many. The balance is clearly in favor of the many, and that’s a consequentialist calculus. (I have to say here that these are not, in practice, the only alternatives and ticking time bomb arguments are often very misleading. But as a theoretical example it will do. I have a separate discussion of the limits of this kind of calculus here).
  • Second, human rights are means to achieve some goods or values. We don’t have rights because it’s good to have rights. We have them because they have good consequences. I need a right to free speech because having free speech results in certain things that are good for me: knowledge, self-development etc.

There’s considerable tension between the consequentialist and anti-consequentialist strains in human rights. It’s a tough problem. I’ve tried to come up with ways to relieve this tension in some older posts.

More posts in this series are here.

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