The Ethics of Human Rights (86): The Rights of the Dead, Ctd.

Most of you will have heard the story by now: a brain-dead pregnant woman is forced to stay on life support in Texas:

[T]he Munoz family … are being forced to keep Marlise Munoz alive even though she was declared brain dead before Thanksgiving when she was 14 weeks pregnant and despite her clearly expressed wishes to her husband, Erick Munoz, that she did not want this to happen. … [A]s her parents and her husband prepared to say their final goodbyes in the intensive care unit at John Peter Smith Hospital here and to honor her wish not to be left on life support, they were stunned when a doctor told them the hospital was not going to comply with their instructions. Mrs. Munoz was 14 weeks pregnant, the doctor said, and Texas is one of more than two dozen states that prohibit, with varying degrees of strictness, medical officials from cutting off life support to a pregnant patient. (source)

More than a month later, Mrs. Munoz remains connected to life-support machines on the third floor of the I.C.U., where a medical team monitors the heartbeat of the fetus, now in its 20th week of development.

I’m guessing many of us are horrified by this. But what is it exactly that puts us off? Perhaps it’s the fact that the mother is used as a mere means for the fetus and that the doctors ignore her wishes. We find it disrespectful and we think she has a right to be respected and to be treated as a human being rather than just a means without a will, even after death. However, the mother is indeed dead and therefore can’t be harmed in any meaningful way. Perhaps there’s a solution if we recognize that rights aren’t just about the avoidance of harm.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Limiting Free Speech (49): Residential Picketing

Residential picketing is a common form of protest. First you identify someone you don’t like – say an abortion doctor, a bank CEO or a pedophile. Then you find out where she lives, show up with a group of protesters at her home, and stage a long running protest just outside of it. Maybe your group shouts insults or curses every time she goes in or out. Maybe you stay at night as well.

The general rule is that you are allowed to do this. You’re in a public space and you can speak freely, even if your speech is insulting. However, this type of residential picketing can in some cases go so far as to violate the rights of the person who is picketed. Her freedom of movement, her right to privacy and her freedom of residence may suffer. She may feel intimidated, a feeling that forces her to stay at home or away from home. See may feel under siege and no longer safe in the privacy of her home. She may even believe that it’s necessary to move.

The protesters should accept some types of limitation of residential picketing rights when this picketing violates other rights. For example, if they are forced to respect a buffer zone around the residence, then they can still disseminate their message. Their alternatives are much easier and less costly than the alternatives for the person who is picketed. However, they know full well that their message will have a much stronger media impact if it produces some controversy, and harassing someone by keeping her a virtual hostage under siege in her own house is bound to be controversial. Hence they’re not likely to scale down the protest and respect a buffer zone.

The point is that free speech rights are not automatically prior or superior to other rights, especially not if those speech rights are used in such a way that they must violate other rights and that alternative uses are rejected. There’s no hierarchy among human rights and all rights are equivalent. That means that when rights are in conflict with each other, the decision to favor one or the other must take into account the respective costs to one or the other. In this case, the cost to privacy, freedom of movement etc. of allowing free speech is clearly higher than the cost we impose on free speech when we want to protect privacy, movement and residence rights. The protesters can still express themselves outside a buffer zone and in myriad other ways. The person who is picketed can also move to another house, but that is much more costly and possibly futile (given a certain level of persistence among the protesters). The right to free speech does not include a right to maximum impact speech.

The US case law in question is Frisby v Schultz. Something on the related topic of the duty to listen. More posts in this series are here.

What is Freedom? (3): The Paradox of Self-Ownership: The Right to Sell Yourself Into Slavery

Self-ownership, or the property of your own person, is a metaphor for the right to exclusive control of your own body and life. It captures some important intuitions: for example, that you should have a right to end your life as they see fit, that no one should be enslaved and that you generally have a right to decide what to do with your own life. As such it supports the idea of personal autonomy. For some, it also supports the right to abortion and it invalidates taxation.

Others even believe that self-ownership implies a right to sell your own body and life, just as you have a right to sell your other property. If that’s the case, then you have a right to sell yourself into slavery.

However, if self-ownership is understood as merely a metaphor for autonomy then there can’t be a right to sell yourself into slavery. Autonomy, or any other value for that matter, can’t be made to include the seeds of its own destruction. In other words, autonomy can’t include the right to autonomously abdicate your autonomy. Take this quote from Mill:

The ground for thus limiting his power of voluntarily disposing of his own lot is apparent, and is very clearly seen in this extreme case. … [B]y selling himself for a slave, he abdicates his liberty; he foregoes any future use of it beyond that single act. He, therefore, defeats in his own case, the very purpose which is the justification of allowing him to dispose of himself. (source)

If you insist that values or rights should be made to include their own negation, you’ll end up in Absurdistan. Democracies, for example, should then include the possibility to vote democracy away. Freedom should include the freedom to create totalitarian government. Tolerance should include tolerance of intolerance and of the forces intent on destroying tolerance. I don’t think we want to go there.

So, autonomy must include certain limits if it’s not to collapse under its own weight. This means that it’s legitimate to deny the moral value of – and perhaps even to forbid – autonomous actions that forfeit autonomy. Just like democracy is limited and suppresses anti-democratic movements and votes, and just like tolerance is limited and excludes tolerance of intolerance.

More on self-ownership here.

Poverty and Privacy

The poor suffer certain specific violations of their right to privacy, and it’s fair to say that in general poverty means less privacy. Being poor often means having substandard housing. Without a proper house, or without a house at all, it’s much more difficult to be private. Furthermore, poverty often implies that people live together in “extended families”, perhaps even with others who aren’t family at all, strictly speaking. And this also reduces privacy in several ways (most obviously the intimate side of privacy).

In addition, being poor means being dependent on government welfare. But in order to benefit from welfare payments, tax credits, subsidies etc. the poor have to prove that they are indeed poor. Hence they have to divulge personal information to the government, and the government has a right to check this information. Some governments even have the right to do home searches in pursuit of welfare fraud.

If you view abortion as an aspect of privacy, then there’s an additional way in which poverty hurts privacy: the poor, because they have less access to birth control, will want to engage in abortion more often, and will therefore have their privacy violated by anti-abortion laws. Because the poor use public transportation more often, they are more likely to be tracked by police surveillance systems. They represent a disproportionate part of the prison population, and prison life obviously isn’t good for privacy. The poor are also more likely to be illegal immigrants, and therefore subject to control by the competent government agencies.

On the other hand, being poor allows people to avoid some types of privacy invasion: they use the internet less and hence are less at risk of internet related privacy violations; the poorest of the poor are less likely to take credit (credit means telling the bank about your income, spending, previous credit scores etc.) or to enroll in fidelity schemes (in which the use of a fidelity card tells the shop what you consume). Perhaps they won’t be taxed as much – or at all – and therefore don’t have to divulge private information to the tax authorities.

Still, on balance poverty is likely to have an adverse effect on privacy. Some even say that the poor are targeted by the government and that they are discriminated in their right to privacy simply because of their poverty. For instance, the way in which governments do home searches in pursuit of welfare fraud would be unthinkable if it were directed at other purposes and other social classes. It seems that the poor don’t only lose their privacy but also their right to privacy.

And poverty often also means the forfeiture of other, non-privacy rights. Simply begging or being homeless can still land you in jail and can get you kicked out of public places. In most countries, the days are gone when poor people were sterilized against their will, excluded from the vote, their children taken away from them etc. But in many parts of the world, poor children are still discouraged from going to school and forced into labor or warfare. Healthcare for the poor is still a problem, even in some developed countries, making it less likely that their health rights are respected. So don’t tell me poverty isn’t a human rights issue.

Why Do We Need Human Rights? (23): Privacy, Justifications and Objections

The right to privacy has become increasingly important and contested. Here are just a few examples of areas in which violations of privacy have become more common over the last decades:

Since it’s always good to cite the Universal Declaration when talking about human rights, here’s the article about privacy (#12):

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Types of privacy

Privacy is what is called a cluster concept: it covers many different things, things which may seem unrelated at first sight. So, before I go on, here’s a short and tentative typology of different kinds of “privacies” (I’ll mention later what they have in common):

  • Domestic privacy. People have a right to remain secluded and alone in their homes, to keep what happens in their homes and houses to themselves, and to repel intrusion. That’s mostly what is protected by the Fourth Amendment in the US. Issues related to obscenity or pornography laws for example also fall under this type of privacy.
  • Personal privacy. People have a right to keep their thoughts, opinions, or feelings to themselves. The secrecy of postal communication for example falls under this type, as does the secret ballot.
  • Physical (or intimate) privacy. People have a right not to expose their bodies, as well as a right to repel physical intrusion into their bodies. Abortion and some security checks belong here.
  • Informational privacy. People have a right to control what happens to information about themselves (or their families), and to limit involuntary distribution or disclosure of such information. Information here means facts, whether embarrassing or not, rather than opinions. The latter are part of libel law. Information about sexual orientation or salaries is an example of informational privacy.
  • Relational privacy. People have a right to keep some of the details about their relationships to themselves. This includes whom they have what type of sexual intercourse with. Sodomy laws violate this kind of privacy, as do laws regulating the use of contraceptives. People also have a right to decide without interference on the type of relationship that suites them best. This covers laws regulating interracial marriages, same-sex marriages etc.

(There’s also the concept of private property, but I think this can be separated from privacy issues, although private property of a home is obviously a necessary condition for domestic privacy, for example).

All these types of privacy have something in common: they are all about independence. Privacy protects an individual’s interest in making independent decisions about her life, family, home, lifestyle, relationships, behavior and communication. All these types of privacy are also about the restriction of access or intrusion. Privacy gives an individual the right to deny access or intrusion by others, more specifically access to or intrusion in her body, her home, her relationships, her mind and certain facts about her life. It’s a right to be let alone.

Justification of privacy

Privacy is justified because it restricts access. Some restrictions of access are necessary for personal identity. There is no “I”, no person, no individual without a border between me and the rest of the world. Such a border is an absolute requirement for the basic human need of personhood and individuality. If people have unlimited access to each other, then there simply won’t be any separate people left. People understood as separate entities require some level of privacy protection. The exact level of privacy and the justified intrusions into people’s private lives are not yet determined by this argument, but the need for some level of privacy and some limitations of intrusions is clear. Other justifications of privacy could be based on the interest people have in intimacy, close personal relationships etc. It’s clear that a world without privacy or even without strong privacy rights would be a horrible world indeed.

Objections to privacy

Some argue that there’s nothing special about privacy and that the concept doesn’t merit an independent existence, let alone legal protection. The many different interests protected by privacy can indeed be protected by other means, such as a right to private property, liberty, bodily security and integrity, or independence.

However, I’m not sure that this is true for all the interests protected by a right to privacy. And an independent notion of privacy gives at least an added protection, partly because of the strong roots of the notion in common language and belief.

Some go even a step further and consider privacy to be detrimental rather than merely superfluous. Marx, for example, viewed privacy as a symptom of an atomized and selfish society, intent on protecting the material self-interest of the haves faced with a possible revolt of the have-nots.

Some feminists as well have forcefully argued that privacy is detrimental to women because of its use as a shield to protect male domination, superiority and abuse. However, it’s not because a right can be abused that it loses all meaning. There wouldn’t be any rights left if that were the case. The challenge is to avoid intrusion in people’s private lives that go too far, while at the same time allowing intrusion that counters abusive private actions. The right to privacy is therefore not an absolute right. But it is a right, and feminists should remember that intrusions into the private sphere can also be detrimental to women (e.g. abortion legislation, forced sterilization etc.).

The Ethics of Human Rights (36): A Human Right to Existence?

Can people have a right to exist? If there is such a right then it has to be distinguished from the right to life. In fact, what I’m talking about here is a right to be conceived and/or born, not a right to continue your life after you’re born.

The supposed right to exist is sometimes used to invalidate abortion, and indeed we should distinguish between two possible meanings of the right to exist: the right to exist of a fetus and the right to exist of a merely potential or possible human being (e.g. a human being as the potential child of parents considering conception). I personally would argue that neither a fetus nor a potential human being have a right to exist.

  1. A fetus doesn’t have a right to exist in the sense in which we understand that right here, not because we are allowed to “terminate” it at will, but because it is already an existing human being (life for me starts at conception, which doesn’t mean that I rule out abortion completely). However, other people who are more willing to tolerate abortion often equate a fetus with a mere potential human being and for them the distinction I make here may seem to be irrelevant.
  2. Potential human beings, as I understand them (see above), don’t have a right to exist either, in my opinion. If you want to argue the opposite, you would have to claim that all or most possible human beings (given some exceptions) should be born, and that’s physically and biologically impossible. All combinations of sperm and egg should then exist, but once a sperm fertilizes an egg it can’t fertilize another egg. Protecting the right to exist would also mean outlawing spontaneous abortions and male masturbation*, and that’s wildly counterintuitive. It would also mean a correlative obligation to procreate, which is also counterintuitive.

Crime and Human Rights (9): A Human Right to Possess and Carry Firearms?

Well, possessing and carrying firearms certainly isn’t a human right since it’s not mentioned in any global human rights treaty or declaration. Neither is it a right that’s demanded by the majority of people in the world. It seems to be an exclusive preoccupation of many in the U.S., where the Second Amendment to the Constitution declares:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. (source)

Guns and violence

Whether or not this is an example for other countries to follow, or whether or not this is a good thing for the U.S., are questions worth pondering. The fact that Americans kill one another at a much higher rate than do residents of comparable western European nations, and that this gap persists despite a roughly 40 percent drop in the US homicide rate in the last 15 years or so, is a first indication the answer to those questions is likely to be negative. Gun rights in the U.S. has led to widespread gun possession:

The United States has the largest number of guns in private hands of any country in the world with 60 million people owning a combined arsenal of over 200 million firearms. (source)

And it so happens that this widespread possession is correlated with high crime rates. However, this correlation between gun ownership and violence doesn’t have to be causal. Both numbers can have a third factor causing them both, such as high levels of endemic aggression. Reducing the number of guns would then perhaps fail to reduce the levels of violence. However, I don’t believe in such a third factor and there is proof of a causal link between guns and aggression:

Do guns make men more aggressive? Looks like the answer is “Yes, unless they handle guns a lot.” … We tested whether interacting with a gun increased testosterone levels and later aggressive behavior. Thirty male college students provided a saliva sample (for testosterone assay), interacted with either a gun or a children’s toy for 15 min, and then provided another saliva sample. Next, subjects added as much hot sauce as they wanted to a cup of water they believed another subject would have to drink. Males who interacted with the gun showed significantly greater increases in testosterone and added more hot sauce to the water than did those who interacted with the children’s toy. Moreover, increases in testosterone partially mediated the effects of interacting with the gun on this aggressive behavior. (source)

Deterrence

On the other side of the argument, you have people claiming that more guns mean less crime. Gun possession is supposed to have a deterrent effect on criminals. At first sight, that sounds convincing: when potential criminals know that there’s a high probability that their potential victims carry or possess guns, they may think twice before deciding to rob someone. Still, how does this square with the correlation mentioned above? Why is there so much crime in the U.S. if gun ownership deters crime? The only explanation is that crime rates would be even higher in the U.S. without gun rights:

Because … while we hear about the murders and accidents, we don’t often hear about the crimes stopped because would-be victims showed a gun and scared criminals away. Those thwarted crimes and lives saved usually aren’t reported to police (sometimes for fear the gun will be confiscated), and when they are reported, the media tend to ignore them. No bang, no news. It is quite clear that we have not seen any massive increase in crime, even though we have shifted from a situation where about 10 states allowed nearly every law-abiding adult to get a concealed carry license to a situation where 40 states do. So the fears of gun control proponents certainly have not materialized. (source)

The argument is that while guns may be dangerous and lead to murders and violence, gun ownership for self-defense purposes often prevents violent crime and thereby saves lives. Gun rights activists claim that on balance the gain is larger than the loss. Moreover, they argue that other rights can also cost lives (free speech for nazis can lead to authoritarian rule, rights ensuring that people have a fair trial can result in criminals escaping jail sentence etc.).

Supposing all this is true, the question is then what on earth is wrong with the American psyche that even a supposedly massive deterrent effect still produces crime rates that are higher than in other comparable countries that don’t have the same deterrent? I don’t think there’s anything particularly wrong with Americans, and hence this deterrent effect is probably largely imaginary (as are other deterrent effects).

I should also mention that the “more guns, less crime” narrative that claims that the number of lives saved by guns is larger than the number lost, often relies heavily on some seriously flawed research by the notorious John R. Lott (read more about this guy’s methods here and here). If you see or hear anyone defending gun rights and using Lott’s work, you can safely move on.

Self-defense

However, even if it’s not clear that a consequentialist or utilitarian defense of gun rights can work (that in other words gun rights produce overall higher utility levels that gun prohibition or gun control), it’s still possible to make a rights-based case for gun rights. You can argue that people have a right to the means of self-defense, whatever the overall balance of violence. I personally think that this is the strongest of the arguments in favor of gun rights. If you can connect gun rights to existing human rights such as the right to life and the right to physical security, you can make a strong case.

For decades, liberals have insisted that the Constitution assumes—even if it does not explicitly spell out—a right to bodily autonomy. This right, long disputed by conservatives, is a basis for arguments in favor of abortion rights and gay rights. Liberals who support gun rights find a similar implied right to own weapons: after all, they say, what is the right to bear arms but the ability to protect your body from criminals as well as the government? The right to bear arms gives you a mechanism to protect your bodily autonomy from attack. (source)

This link to abortion is an interesting one. Both abortion and gun rights can be defended on the basis of bodily autonomy, self-determination and self-defense. But then again, it’s rarely the same people who defend abortion rights and gun rights. On the contrary, gun rights activists are often decidedly against abortion. There’s an interesting story here about a campaign against abortion in black families.

“BLACK CHILDREN ARE AN ENDANGERED SPECIES,” the billboards proclaim. Posted in dozens of locations in Atlanta’s black neighborhoods, they direct readers to a Web site that denounces abortion as a racist conspiracy. Through them, the pro-life movement is sending a message that it cares about the lives of black people. But does it?

The Web site plays every race card in the deck. It says “abortion is the tool [racists] use to stealthily target blacks for extermination.” It calls on readers to “expose the insidiousness of the pro-abortion agenda and its real target: the black community.” It touts the support of “Dr. King,” a niece of Martin Luther King Jr. “I know for sure that the black community is being targeted by abortionists for the purpose of ethnic cleansing,” she asserts.

What’s the basis for these charges? The campaign points to eugenic ideas and influences in the early birth-control movement. But its chief evidence is abortion rates. “Abortions in the black community occur at 3x the rate of those among the white population and 2x that of all other races combined,” the site points out. “The truth screams loud and clear—we are killing our very future.”

The numbers are provocative. But there’s something odd about the billboards. The child who appears beside the text is fully born. Abortion doesn’t kill such children. What kills them, all too often, is shooting. If you wanted to save living, breathing, fully born children from a tool of extermination that is literally targeting blacks, the first problem you would focus on is guns. They are killing the present, not just the future. But the sponsors of the “endangered species” ads don’t support gun control. They oppose it. … Maybe that’s why blacks, unlike whites, strongly favor gun control. (source)

This example of how gun control can help the black minority in the U.S. is often countered with another example of how it has been used to work against blacks. Gun control does indeed have a history as a tool for subjugation of blacks.

After the Civil War, the defeated Southern states aimed to preserve slavery in fact if not in law. The states enacted Black Codes which barred the black freedmen from exercising basic civil rights, including the right to bear arms. Mississippi’s provision was typical: No freedman “shall keep or carry fire-arms of any kind, or any ammunition.” (source)

Gun control left the freedman defenseless against the KKK and unable to form militias to resist white terrorism. However, I fail to see how a very specific and largely closed period in American history can justify rights more than 100 years later, especially if there are contemporary examples pointing the other way.

A final self-defense argument against gun control is the possible revolution against a dictatorial government. The “people” may need firearms to rise up when government becomes tyrannical. Now, I know that there’s currently a lot of right-wing anti-Obama hysteria and paranoia doing the rounds about a supposed dictatorial plot. However, I think it’s very unlikely that any U.S. government can ever achieve tyranny, even if it very much wanted to. And suppose it did, how can you be so foolish to believe that handguns would allow the people to defeat the superior firepower of the U.S. government?

Regardless of your position on the Second Amendment, whether the Second Amendment’s right to keep and bear arms is “fundamental” to “our scheme of ordered liberty” is severely questionable.  Certainly other countries are able to have something that we would call “ordered liberty” without ironclad protection of firearms ownership rights.  And while historically there may have been instances where the ability of the citizenry to safeguard or expand “ordered liberty” via ownership of firearms, the restrictions that are allowed on the Second Amendment under Heller ensure that the government’s advantage in firepower will be insurmountable in such hypothetical circumstances nowadays. (source)

Gun control

What I personally would favor is not prohibition but extensive gun control, including bans on gun possession by felons or minors etc., bans on the open or concealed carry of guns in certain places such as schools etc. I can understand why some people think they need a gun for self-defense. The question is, however, if restrictions on gun rights will still be possible after the recent Supreme Court case, McDonald v. City of Chicago.

The argument that gun control laws don’t work and don’t bring down the number of crimes isn’t necessarily correct. You would have to measure against the counterfactual, which is very difficult: without gun control laws, crime would perhaps have gone up, so a failure to reduce crime isn’t necessarily a failure of gun control laws. Maybe they simply reduced the growth in crime rates. Also, failure to bring down crime rates may be not the fault of gun control laws but of the way they are designed or enforced. And anyway, there is evidence that gun control laws do bring down crime rates.

Gender Discrimination (22): Gendercide

The Economist has a front page story this week on “gendercide”, the millions of girls missing in the world, especially in India and China. Perhaps as many as 100 million girls have disappeared in the last decades because of

  • selective abortions encouraged by new medical technology (ultrasounds and fertility technology)
  • childhood neglect of girls (nutritional, educational neglect and neglect in health care)
  • prejudice, preference for male offspring and
  • population policies such as the “one child policy” in China.

Interestingly, the skewed sex ratios that result from gendercide (in some areas of China, 130 boys are being born for every 100 girls) are coming back to haunt the men that are responsible (although many mothers probably aren’t without fault either). Because of their relative scarcity, women have found an unlikely source of power. They have a competitive advantage in the marriage market, and can demand more in marriage negotiations, or at least be more selective when choosing a mate.

Causes

In my view, the word “gendercide” is somewhat overwrought because, contrary to genocide, the word that inspired the neologism of gendercide, there’s no centralized plan to exterminate women. Femicide would be a better term since it’s obviously only one of two genders that’s targeted, but it still sounds like a government organized campaign of extermination. Gendercide is the result of a combination of causes:

  • individual choices based on
  • plain prejudice against girls
  • cultural and legal traditions, or
  • economic incentives that have been formed by historical prejudice.

Perhaps girls still need a dowry, and poor parents may find it difficult to save enough and hence prefer a boy. Or perhaps they prefer a boy because the law of their country or tribe – inspired by age-old prejudice – says that only boys can inherit land or the family business. Again, the parents may prefer a boy for this reason, not because they dislike girls. Or perhaps tradition holds that girls marry off into their husbands families, and parents simply want to be sure to have someone in their home to care for them when they are old (“raising a daughter is like watering your neighbor’s garden”, is a Hindu saying).

Consequences

The consequences of gendercide are mixed. It’s obviously horrible to the girls that are aborted or neglected to death. But, as in the “boomerang” case cited above, gendercide may ultimately empower women. However, the skewed sex ratios also spell trouble: the presence of armies of men who can’t find wives and have children (“bare branches” or “guanggun” they are called in China) may result in more sexual violence, depression, suicide, human trafficking etc. It’s estimated that in 10 years time, one in five young Chinese men won’t be able to find a bride. On the other hand, a shortage of women will encourage immigration, and immigration may help some women escape poverty, and perhaps will also result in more intercultural tolerance.

Solutions

Economic development won’t stop it. In China and India, the regions with the worst sex ratios are wealthy ones, with educated populations. Even in some population strata in the U.S. sex ratios are skewed. When people escape poverty, fertility rates drop, and when families have fewer children, the need to select for sex only becomes more important in order to realize their son preference. In poor societies with high fertility rates, families are almost destined to have a boy at some point. Female children will suffer relative neglect and may die more often and more rapidly (skewing the sex ratios), but selective abortions aren’t much of a risk: families don’t really feel the need to limit the number of children (on the contrary often, because children are a workforce), and ultrasound technology for sex determination of fetuses isn’t as readily available as in rich countries or regions. When families want few children – as they do in more developed regions – or are forced by the government to limit their number of children (as in China), they will abort female fetuses in pursuit of a son.

Ultimately, only a cultural change will help. The son preference has to die out. Education probably will help, as it always does. Ending pernicious policies such as the one child policy will also help, but then overpopulation hysterics will have to be dealt with. This policy didn’t help stop population growth anyway. Other East Asian countries reduced population pressure as much as China without brutal policies.

Old customs and discriminating laws should also be abolished. Think of the dowry system, or inheritance rights. Stigmatizing abortion, especially sex selective abortion, will also help.

Gender Discrimination (21): The Politics of the Body

The politics of the body, or “body politics”, is a concept, originally used by early feminists I believe, to describe government policies or laws and cultural or social practices used by society to regulate and control the human body. Feminists focus on the female body but the case can be made that society controls both the female and the male body, obviously not always in the same way. The concept is also used to describe the opposite: the struggle against the social and political powers that try to control the body and the act of reclaiming bodily self-control, or corporal self-determination. Body politics has therefore a positive and a negative meaning: it’s both subordination and emancipation.

Corporal self-determination is obviously an important value. People should, in general, be able to do with their body what they want, free from interference by the state, by individuals or by groups in society.

Here are some examples of body politics:

Abortion

Whether or not you believe that abortion should be allowed, you have to accept that legal prohibition and moral dissuasion of abortion are examples of body politics. In both cases, women who want an abortion lose their power to decide autonomously what to do with their bodies; society imposes rules on what individuals are allowed to do with their bodies; and power – legal or moral – is used to enforce these rules. You may believe that these rules are necessary in order to protect an overriding value that trumps the value of self-determination, in this case probably the value of the life of the unborn infant, or perhaps even the right to self-determination of the unborn infant. But you can’t dispute that you engage in body politics.

Organ trade

Similarly, legislation or social taboos prohibiting the free trade of organs (see also here) impose restrictions on the things people can do with their bodies. However, the analogy with abortion isn’t perfect, because proponents of restrictions can arguably claim that the sale of organs isn’t an expression of self-determination but of the lack of it: it’s typically poor people who are driven to the extreme of organ sale as a means to stay alive, while the richer you are the easier it is to get an abortion. Organ sale is then not an expression of the freedom to do with your body what you like, without paternalistic interference, but an expression of necessity and lack of freedom. Whatever the merits of this argument, restrictions on organ trade are clearly an example of body politics.

Capital punishment, corporal punishment, imprisonment

The state uses power in order to enforce or enact criminal punishment, and this is often power directed against the body of the convicted criminal and eliminating the criminal’s corporal self-determination. There’s also the quasi-institutional practice of prison rape.

Sex trafficking and slavery, sexual violence, arranged marriages

Cultural norms regarding the acceptability of sexual violence (e.g. rape as a form of punishment and female genital mutilation), of arranged marriages (which can be labeled a form of sexual violence), of the sale of children or wives for the purpose of prostitution are also examples of body politics. The women and children in question obviously lose their corporal self-determination.

Gender discrimination

Gender discrimination, the inferior treatment of women, and the imposition of gender roles, whether legally sanctioned or not, are other examples, although with a twist. Gender discrimination can remove the power of corporal self-determination of the women who fall victim to it – e.g. in the case of gender discrimination as expressed in sexual violence or in rules restricting the freedom of movement of women. But it doesn’t have to. For example, gender discrimination in wages (the wage gap) doesn’t affect corporal self-determination.

The body politics inherent in gender discrimination is more evident in the origins of discrimination than in the results. Gender roles, which often result in gender discrimination, are based on certain convictions regarding the physical inferiority of women (e.g. their lack of physical strength), or on the belief that the female body is made for specific tasks, and is perhaps even better than the male body for these tasks.

Likewise, rules that discriminate against women and restrict the things they can do, are generally based on dubious theories regarding the nature of the female body. Women are said to promote carnal lust, and their equal participation in life would have disrupting and destructive consequences.

Homophobia

Similarly, legislation or social taboos against homosexual relationships remove corporal self-determination and are based on certain beliefs about the nature of the human body.

Clearly, this isn’t a complete list of all possible cases of body politics, but it can serve the purpose of illustration (other examples could include rules prohibiting interracial marriage, bestiality taboos, legislation against assisted suicide etc.). What is also clear is that every case isn’t equally detrimental for self-determination. Some cases can even be justifiable from a liberal perspective. Self-determination, after all, isn’t the only value, and neither is it a value that necessarily trumps other values.

Gender Discrimination (18): Missing Women and Gendercide in China and India

The word gendercide describes the results of sex-selective abortions that take place on a massive scale in some countries, particularly India and China. These abortions have led to the “disappearance” of perhaps more than 100 million girls and women (or about 1 million a year). Evidence of this can be found in the abnormal sex-ratios in both countries:

The sex ratio at birth was only 893 female births per 1,000 male births in China and India and 885 in South Korea (as compared to 980 for Kenya and South Africa and 952 for Cambodia and Mexico). … In India, the juvenile sex ratio (often defined as the sex ratio among children aged 0-6 years) has been falling … over the last 3-4 decades – from 964 females per 1,000 males in 1971 to 927 in 2001. … In China, too, the problem has become more acute over time. A study based on a survey of over 5 million children in China found that among children born between 1985 and 1989, there were 926 female births for 1,000 male births. But, among children born between 2000 and 2004, the number had fallen to 806. Thus, in both countries, the situation appears to be worsening. (source)

The main reason for these gendercides seems to be a strong cultural preference for male offspring. This makes it difficult to do something about it. Cultures change very slowly. Outlawing sex-selective abortions and prenatal ultrasounds doesn’t seem to work very well. It has been tried in both China and India, but the sex-ratios don’t seem to improve much.

It might seem that improving literacy and schooling among women might reduce the parental preference for sons. However, here, too, the evidence is not encouraging. There is disturbing evidence from India which points to a worsening of the juvenile sex ratio with increased female education and literacy. Why the perverse effect? A possible explanation has to do with the negative effect of female literacy on fertility. Educated women tend to have fewer children than less-educated women, and, in the context of a strong son-preference culture, the lower levels of fertility lead to greater pressure on couples to have boys instead of girls. This relationship between fertility decline and lower juvenile sex ratios has also been observed in South Korea and China. (source)

The only successful counter-measures are those that tackle gender discrimination at the root. There will no longer be parental preference for male children when man and women are considered equal human beings.

It is important to recognize that one (although not the only) reason for son preference is that, historically, inheritance laws in both countries have favored sons over daughters. While both countries now do not restrict women’s access to parental property, customary practices which consider sons the natural heirs of land are still prevalent in much of rural China and India. India only recently (in 2004) removed the discriminatory provisions of earlier legislation and allowed parents to bequeath their property to their daughters.

What is needed in both countries to combat the scourge of low juvenile sex ratios is a package of interventions that includes stricter enforcement of equal inheritance laws, economic incentives for parents to have daughters and educate them, and an educational curriculum at the primary and middle school levels that highlights the importance of equal treatment of boys and girls in the family. Even with such a package, it will take years for attitudes to change and for the practice of prenatal sex selection and neglect of the girl child to end. (source)

Freedom of Expression, or a Duty of Expression?

I often have the impression that people transform the right to free expression into a duty to free expression. And I don’t think that’s a good thing. For example, Muslims in western countries are often told that they should distance themselves from the more violent members of their religion. We require them to speak out against Muslim terrorism.

Another example: politicians, especially in the U.S., are required to speak out on a number of subjects, e.g. abortion, same-sex marriage, their faith in God etc. As if it would be a disaster to elect a politician who happens to doubt about abortion. After all, many people do (myself included).

A somewhat exaggerated view on democratic transparency is undoubtedly a small part of the explanation for this. Democracy can’t function without public knowledge of politicians’ opinions, or without some sense of what our fellow citizens believe (part of democracy is group formation, and group formation is based on discussion and persuasion; and you can’t persuade someone if you don’t know what he or she believes).

But the most important cause of this “duty of expression” is, I think, the manichean nature of contemporary politics. Every issue is painted in black and white, good and evil, for or against. We force people to express themselves on issues so that we can see if they are with us or against us. And if someone expresses him or herself in a nuanced way we automatically assume that he or she takes a position opposite from our own. For example, if Muslims reject Islamic terrorism but at the same time point to the situation in Palestine, we assume that they really think terrorism is OK, or justifiable given certain circumstances. We can’t accept muddled or nuanced middle ground positions, or positions which change according to the circumstances. Gray isn’t an option.

Clarity, simplicity and certainty are important human objectives, but often they aren’t appropriate in thinking. Of course, sometimes manicheism is the only possible position: you either believe the holocaust is a fact of history or you don’t; there’s no middle ground, and those who don’t believe in it are either stupid or evil. But when it comes to political or moral opinions (rather than facts), those who really think about them often find themselves occupying a gray, complex and uncertain position.

I suspect that the difficulty to let go of manicheism and to accept uncertainty and nuance has something to do with the nature of democratic politics. It’s hard to vote for nuance, and easy to vote for or against a clear and simple proposition. And simple propositions get more attention, sell better and make it easier to mobilize large constituencies (see the cartoon below). But then again, when we look at political reality, manicheism is much more common in autocratic societies. The public debate on issues which is made possible by democratic societies forces nuance to appear.

The difficulty to let go of manicheism also has something to do with the fear of the other extreme: the paralysis that follows from endless nuancing and thinking. Politics is a realm where decisions have to be taken, contrary to philosophy where thinking is unending in principle.

However, it doesn’t follow from this that decisiveness has to be manicheism. Decisions can be based on nuanced thinking. The risk of paralysis is averted by the realization that our decisions, often taken under the pressure of urgency, are necessary yet provisional, based on the best thinking available at the time, and open to revision when time has improved our thinking.

Limiting Free Speech (26): Incitement to Violence and Pro-Life Activism

In the margins of the most recent case of political violence against an abortion doctor in the U.S., some people claimed that the media was in part to blame. The doctor in question was indeed publicly vilified on many occasions, and during many years, by certain conservative and pro-life pundits, on television and elsewhere. Especially Fox’s Bill O’Reilly was targeted as having some responsibility. His frequent outbursts against the doctor may have incited the attacker to eventually commit murder. Singling out this one doctor may have made him into an icon of abortion, and putting him squarely in the public eye may have made him the focus of a movement with a history of violence.

Of course, there’s nothing new to discussions about speech that openly calls for violent acts against political, religious or ideological opponents. For example, it was claimed that the infamous Muhammad Cartoons were directly responsible for violent acts against Muslims and/or violent reactions by Muslims. Another example is Radio Mille Collines, the Rwandan radio allegedly responsible for calling on Hutus to go out and murder Tutsi.  Part of the debate around hate speech has to do with speech that is perceived to be incitement to violence.

I generally believe that some circumstances allow for limitations of the right to free speech, although I also believe that this right is of such importance that limitations must be exceptional and carefully considered. I invite you to read my general argument here. Basically, for me this is a problem of contradictory human rights, and of balancing rights so as to avoid the greater harm. In the case I’m discussing in this post, the right to free speech has to be balanced against the right to life and physical security of the people who are the targets of speech (e.g. abortion doctors and others).

The important thing to consider, in my view, is the causal relationship between speech which calls for violence, and the actual subsequent violence itself. Without such a causal relationship, the argument in favor of limitations can’t get anywhere. However, such causal relationships never easy to establish. How do we know to what extent a perpetrator of a violent act was influenced by others calling upon him to act? And that this influence was the main and overriding cause of his actions? In some cases, this causal relationship may be more convincing than in other cases. Mille Collines is probably easier to label as an accomplice in crime than Bill O’Reilly, whatever you think of the content and the style of O’Reilly’s rants. But even in the most obvious cases there is a very large grey area. Human motivation is very complex, influenced by many different things, some of which can go back very far in the past.

However, it’s one thing to determine, after the fact, that someone who said something was partly responsible for acts of violence committed by others. It’s quite another thing to use this responsibility as a justification for limiting speech and thereby preventing future acts of violence. Even if we can, beyond some measure of doubt, agree that there is a causal link between certain violent words and violent acts, this is always and necessarily after the fact, and without much use for the future.

Human affairs are unpredictable. They aren’t in any way like the laws of gravity or the laws determining the movements of objects in space. Previous causal relationships in human affairs can seldom if ever be distilled into laws of behavior. Even if we agree that there was a causal link between certain violent words and violent acts which we observed in the past (and that’s already quite difficult, given the numerous possible causes of human behavior and the difficulty of separating them from each other), this in no way justifies preventive anti-speech measures. Using previous causal relationships between speech and acts as precedents in order to limit similar speech which we feel can produce similar acts, means, in fact, assuming a causal relationship between speech and acts that haven’t even happened yet. And this is, evidently, even more difficult than determining causal relationships between speech and acts which have happened.

If we return to our example, this means that we would limit what O’Reilly can say in the future about abortion doctors. First we assume that Dr. Tiller, the doctor whose murder started this discussion, was murdered in part at least because of what O’Reilly said, and then we assume that if O’Reilly continues to say similar things about other doctors that these too will be murdered. That’s two very tentative assumptions.

I’m personally convinced that incitement to violence can indeed make violence more likely, that free speech can be one of the causes (but never the only cause) of violent acts, and that those who speak or write in public have to take this risk into consideration if they want to live responsible lives. However, I’m not (yet) convinced that it’s possible to find a way to limit freedom of speech so that we can avoid violent consequences, and without doing more harm than we (hope to) prevent. I don’t see how a law limiting incendiary speech can do justice to the crucial differences between cases. Such a law would most likely be overkill and, in addition, create a chilling effect. However, this shouldn’t stop us from calling on all public figures to cut out the hate. Hate and vilification boost the ratings, but they never do any good.

Religion and Human Rights (2): God is Alive and Kicking; Mostly Kicking

This is a post on the logic of religious terrorism.Those who listen to the daily news, and that’s about all of us, know it very well: God is not dead, whether you like it or not. Many of the major news stories are about religious conflict: Islamic terrorism, Muhammad cartoons, the Pope insulting other religions…

It seems that God is directing world affairs, or at least the God in the minds of the numerous religiously inspired actors who initiate the world events that reach our news programs. In many cases, these events are violent and bloody. God is alive, and He’s kicking, of course not personally but through His representatives on earth. And of course He’s kicking the unbelievers or the believers of a rival God.

So it is not uncommon to hear complaints about the pernicious effects of religion. I want to argue that it is not religion as such which should be blamed for religiously inspired suffering, but the status of religious beliefs in the minds of those causing the suffering. There is an enormous difference between the action patterns of those who think that their religious beliefs are their personal opinions and those who think that their beliefs are exact images of the Truth.

Opinions are, by nature, non-despotic: they cannot be forced on you. The truth can. No one can escape the truth. The laws of physics for example have a despotic character. You have to accept them. Opinions can be accepted or rejected, depending on the force of the arguments for or against, on your personal disposition, your intellectual powers of understanding etc. Another characteristic of opinions is that they are part of a contradictory world of different opinions. An opinion exists only as long as its contrary also exists. If the latter ceases to exist, then the former becomes what we may call some form of truth, at least to the extent that we may give this label to an opinion that is the object of a worldwide consensus. The laws of physics for example have attained this level of consensus and therefore can be labeled truth rather than opinion. Religion obviously has not.

Truth implies consensus. Who dares to resist the truth? Only a fool or a moron. Truth eliminates debate because no one contradicts the truth. As long as someone who is neither a fool nor a moron contradicts the truth and gives good reasons for doing so, we have not yet attained the level of truth and remain in the world of opinion. This world is one of plurality and contradiction; the world of truth is one of uniformity. Only when everyone is convinced and no good reasons or arguments against are left can we claim to have something like the truth. Even when some opinions are predominant, they remain mere opinions as long as good arguments against are available, or, in other words, as long as contradictory opinions based on good arguments and not mere prejudices are available.

As everyone who expresses an opinion, I also would like to see my opinions elevated to the status of truth. But that depends on many things: the force of my arguments, the disposition of my readers etc. It is not a result that I can determine or even predict. If I would force this elevation on the condition that I would have the power to do so then I would not be acting democratically. Democratic politics does not take place in the world of truth or the world of uniformity and despotism. Opinions are the fabric of democracy.

Democracy is the game of different and contradictory opinions, some of which become temporarily predominant because they are backed by the better arguments or the arguments that can convince a majority, on the condition that we speak about a perfect democracy unhindered by manipulation. The predominant opinions then inform government policy, but non-predominant ones continue to exist and continue to make their case in an effort to become predominant themselves. If these other opinions no longer exist, then it is not opinion but truth that informs government policy. Which can and does happen, even in the case of perfectly democratic governments. But it is not typical of a democracy and not its essence. One can even say that the job of a democracy is finished when it happens.

For example, the fight against inflation is no longer an opinion. There are no longer good arguments for the opposite policy and everyone is convinced that it is a good policy. Hence, there is no democratic debate for or against the fight against inflation. The policies of all governments, including democracies, are inspired by this truth, but this has nothing to do with democracy. Democracy can only enter the stage when different actors present different and contradictory opinions, for example opinions regarding abortion. There is intense debate about this subject. The predominance and hence also government policy shifts from one side to the other and back again.

But what we see in the example of abortion and in many other examples in the field of religion, is that democracy does not only stop when an opinion is elevated to the level of truth. It also stops when contradictory opinions continue to exist but are no longer argued. Proponents and opponents of abortion have practically stopped to give reasons and arguments. They just throw citations from the Bible or general and vague claims of rights at one another. In fact, their opinions have not been elevated to the level of truth but have rather descended to the level of prejudices or feelings or beliefs. Democracy requires opinions, not something more or less. Opinions are based on arguments and reasons, not on evidence, proof, certainty, prejudices, feelings or beliefs. Democracy only has a function when there can be debate and there can only be debate when there are opinions, not when there is more or less, not when everything is either truth or belief. Of course, beliefs should not be excluded from democratic politics, just as truth should not be excluded. Beliefs can be a powerful force behind debates. They can inspire thinking and discussion, but they will never be the essence of democracy. If there is nothing more than beliefs, then there is no democracy.

So truth can enter democracy; democratic governments would be literally stupid not to allow this but it will never be its essence. When truth becomes the essence of politics, democracy dies. This can happen when people forget that what they believe is not an opinion but the truth, and this often happens in the case of religious beliefs. People become unable or unwilling to see that other, contradictory opinions based on good arguments continue to exist, and try to transform politics from a space of discussion into a machine for the application of the truth. Other opinions are suppressed and violence is used against people who hold them, because these other opinions are not recognized as valid opinions based on arguments. Instead, they are seen as mistakes or errors or even lies because they contradict the beliefs of those who believe to posses the truth. And who would not admit action against errors or lies?

This unwarranted renaming of opinions into truths and the subsequent actions against opinions that are not in fact errors or lies but real opinions based on sound arguments, not only destroys debate and democracy but destroys the very lives of many people. Politics becomes a tool to transform reality, to shape the world according to some theory or utopia considered to be the true teaching. Islamic fundamentalism is a typical example of this approach. The adherents of this ideology are convinced that they possess the truth and are unable or unwilling to recognize the views of others as valid opinions based on sound arguments. Everything outside of their worldview is false and needs to be corrected or destroyed.

If you see yourself as the carrier of truth rather than one who holds a particularly well argued opinion, then you have to suppress other views. You are morally obliged to act against mistakes and lies. Allowing someone to lie or to live a life of mistakes is immoral. This person is not someone who happens to hold another opinion based on arguments that according to you are less successful, and who has to be respected for this. He or she is clearly stupid or even of bad faith, and has to be re-educated in order to access the truth. Democratic argumentation and discussion will not help in these cases because argumentation requires a target that is either sensitive to good arguments and hence not stupid, or of good faith. And in any case, truth does not need arguments. It is self-evident and, if not, merely requires explanation. But explanation does not help either when the target is stupid or of bad faith. Force is then the only means left. This is the fatal logic that drives people who believe to be the holders of truth away from democracy and in the arms of tyranny and terrorism.

All this does not mean that democratic politics cannot or should not be based on strong beliefs. Participants must believe that their opinions are valid and that they have good reasons for believing in these opinions, and they can act according to these opinions. Democratic action can be inspired by beliefs and theory, and even should be if it wants to be intelligent and something more than pure activism. But it should never forget that others may be inspired differently and have sound reasons to follow other opinions. Action inspired by theory has to take place within the democratic game of competing opinions and should not replace this game by the effort to impose something that is mistaken for the truth and that is in fact merely one opinion in a setting of many competing opinions.