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.

The Ethics of Human Rights (84): Aggregation Across Persons

Is aggregation across persons – making a decision that some people should bear losses so that others might gain more – ever permissible?

On the one hand, studies have shown that people faced with trolley problems would often sacrifice one person in order to save several others. Ticking bomb arguments – in which a single terrorist is tortured so that millions can be saved from an impending explosion – can also count on the agreement of large majorities.

On the other hand, an exchange like this one leaves most of us shocked:

Ignatieff: What that comes down to is saying that had the radiant tomorrow actually been created [in the USSR], the loss of fifteen, twenty million people might have been justified?
Hobsbawm: Yes.

The thinking in both cases is plainly utilitarian – that it’s acceptable to trade off the lives of some so that others can benefit. And yet our reactions to the two cases are polar opposites.

What can account for this difference? In the former examples, the good is more obvious, namely the saving of lives. The good that could – perhaps – have come from communist tyranny is rather more vague, more uncertain and less immediate. Trolley problems and the ticking time bomb scenario also present a balance between the good and the harm that supposedly needs to be done in order to achieve the good that is more clearly in favor of the good: it’s typically just one person that has to be sacrificed or tortured, not millions as in the case of communism.

So there’s a clear, immediate and widespread good that is supposed to come from the trolley sacrifice and the ticking time bomb torture (I say “supposed” because the hypotheticals don’t tend to occur in reality), and the harm that needs to be done to achieve the good is limited. This suggests that we favor threshold deontology: things which we normally aren’t supposed to do are allowed when the consequences of doing it are overwhelmingly good (or the consequences of not doing it are overwhelmingly bad). This theory is different from plain Hobsbawmian utilitarianism in the sense that it’s not a simple aggregation of good and bad across persons resulting in a choice for the best balance, no matter how small the margin of the good relative to the bad. A crude utilitarianism such as this does not agree with most people’s moral intuitions. Neither does dogmatic deontologism which imposes rules that have to be respected no matter the consequences.

However, threshold deontology creates its own problems, not the least of which are the determination of the exact threshold level and the Sorites paradox (suppose you have a heap of sand from which you individually remove grains: when is it no longer a heap, assuming that removing a single grain never turns a heap into a non-heap?).

The moral problems described here are relevant to the topic of this blog because the harm or the good that needs to be balanced is often a harm done to or a good done for human rights.

Other posts in this series are here.

Discrimination (16): When Is It OK to Discriminate?

Discrimination is generally blameworthy and therefore often illegal as well. However, there are situations in which it’s acceptable to discriminate and unacceptable to legislate against discrimination. I’m not referring to rules that apply unequally to different people in order to produce a more equal outcome, such as rules regarding affirmative action (which are sometimes claimed to be a form of positive discrimination); nor am I referring to rules regarding different height requirements for male and female candidate police officers. These are two examples of rules that discriminate in order to make outcomes more equal, and they can therefore, paradoxically, be seen as anti-discriminatory. Conversely, rules that apply equally to all can have a “disparate impact“: e.g. one uniform and “neutral” height requirement for police officers would mean that fewer women will be allowed in the police force and would therefore have a discriminatory impact on women. Even if such rules are not intended to discriminate against women, they obviously do. (I’ll come back to intent in discrimination at the end of this post).

So, I’m thinking about rules like those, or rules that not only have unequal outcomes but also apply unequally (take the rules against gay marriage for instance). Can some such rules, which clearly discriminate some groups of people (given a certain understanding of discrimination), ever be justified?

I think they can. Discrimination can be unobjectionable if the benefits outweigh the harm done by discrimination. “Benefits” meaning not the benefits from the discriminator’s point of view, since those always, by definition, outweigh the harms for others – that’s the point of discrimination. We have to look at the benefits generally speaking, from a neutral point of view. For example, the safety of airline passengers and hence their rights to life and physical security outweigh the discrimination imposed on people who are not allowed to be pilots because of their bad eyesight. Another example: the importance of a good education for our children outweighs the discrimination imposed on people who want to be teachers but don’t have the qualifications. Discrimination of people with a physical disability or intellectual deficiencies is acceptable and even beneficial in these cases, not because those who can become pilots and teachers benefit from the exclusion of rivals, but because society as a whole benefits, and because this benefit outweighs the harm done to those excluded.

The downside of the consequentialist balancing inherent in these examples is that it is seldom clear what the exact harms and benefits of discrimination are. After all, every historical instance of discrimination was once defended on the basis of its beneficial consequences: equal voting rights for women was supposed to lead to irrational politics; legalization of homosexuality would lead to immorality; miscegenation would lead to the downfall of the white race etc. However, these examples don’t prove that there can’t be any forms of discrimination that can have some real and overriding benefits, and in fact we daily assume that they have: we give good teachers a job as a teacher, we give talented people higher wages etc. because we believe that society as a whole benefits from this.

Maybe we shouldn’t talk about discrimination in cases of acceptable and beneficial discrimination. I argued here that we should probably limit the concept to those cases in which the equal rights of those who are discriminated are violated and, more specifically, are violated for no other reason than their membership of a socially salient group. The would-be pilots and teachers in the examples above don’t have an equal right to be pilots or teachers or to any other specific job. There is no such right. There is a general right to work, but that right isn’t violated since people with bad eyesight or without the qualifications to become good teachers have ample opportunities to find a job elsewhere (under normal economic conditions).

Also the second condition for discrimination is absent in these examples: the people in question are certainly not part of socially salient groups (which is another way of saying that people with bad eyesight or without the qualifications to become good teachers are not regularly put at a disadvantage in society). Hence they are not discriminated when they are excluded from certain jobs on the basis of qualifications.

If, however, the would-be pilots and teachers were black – and therefore part of a socially salient group – and if they were excluded for no other reason than their skin color, and if this exclusion would violate their right to work (or any other right), then there would be discrimination. Their exclusion would violate their right to work when they regularly face this kind of exclusion, not when that sort of things happens only exceptionally and when they therefore have ample opportunities elsewhere.

This last point about alternative opportunities is crucial. Single instances of discrimination usually don’t violate people’s rights and therefore aren’t really discrimination according to the definition given here. Discrimination requires violations of people’s rights and violations based on people’s membership in socially salient groups. And violations of rights imply the absence of alternative opportunities  (I once gave the example of one lonely restaurant owner refusing to serve blacks, or the isolated landlord refusing to rent a house to Italian immigrants).

In this older post I argued that forcing some people to stop discriminating would violate their rights, such as their right to free association, to property, to religion etc. and that it can only be acceptable to force them to stop if the discrimination they inflict is so widespread and historically deep that it limits the rights and options of the targets of discrimination.

Nevertheless, this rule still leaves us with a few hard cases. The rights of discriminators may still receive priority even when the discrimination does severely limit the options and rights of target groups. Suppose there’s a general disapproval to marry “outside of one’s race” among the majority white population in a society. Most of us would not want legislation against this kind of discrimination because that would drastically limit the right to marry of the discriminators. Discrimination here severely impacts the choices and opportunities of non-whites, and yet seems acceptable. The whites in question may be immoral and repugnant, but this doesn’t render their rights null and void and doesn’t justify legislation prohibiting an exclusive preference for white husbands and wives. The reason, I think, is that it’s very difficult to do something about the actions of the whites. You can force people to hire blacks, serve them in your restaurant, admit them in your school etc. But you can’t force people to marry someone. So, the system I set up here to separate cases of discrimination from other cases isn’t perfect. It won’t solve some hard cases, but maybe those can never be solved.

A final word about intent. There’s no mention of intent in the definition of discrimination given here. That means that rules with a disparate impact can be cases of wrongful discrimination even if there is no intent to discriminate. Take again the case of height requirements for police officers: a single height requirement for both genders is not necessarily discriminatory, but when it is part of a wider social pattern of gender inequality, then it may violate women’s equal rights because the total set of gender biased rules makes it difficult for women to have ample employment opportunities elsewhere. Women are then a socially salient group. Intent is irrelevant here. Even if the height requirement is motivated by efficiency reasons, it contributes to discrimination and rights violations. The goal of anti-discrimination is equal protection of rights, whatever the causes of rights violations.

Now, imagine the height requirement isn’t part of a wider pattern of gender inequality. In that case, women have ample opportunities elsewhere and their equal right to work is therefore not violated. Hence there is no discrimination.

What Are Human Rights? (38): Means or Goals?

The justification of human rights is perhaps the most important problem in human rights theory. Why do we need human rights? Why should people respect human rights? Why are these rights so important? Or are they? I think there are essentially three ways to try to answer these questions.

  • There’s the non-philosophical way of pointing to tradition: you could argue convincingly that human rights or at least the values embedded in human rights have always been a part of the world’s major cultural traditions, implicitly or explicitly. I’ve looked at that option here. However, this approach is fraught with problems. For example, it’s not obvious that you can escape Hume’s naturalistic fallacy: you can’t simply go from “is” to “ought”. It’s not because something is the case that it ought to be the case. Hence, you’ll end up with a pretty weak justification of human rights if you go about it this way. That’s why I’ll focus here on the two other options.
  • Human rights can be justified using a consequentialist approach: rights should be respected because that brings about good consequences, for example respect for rights brings about peace, prosperity and truth.
  • Or they can be justified using a so-called status approach: human beings have certain attributes that make it necessary to ascribe rights to them. For example, a person’s body and mind are hers and hers alone. Therefore, it’s up to her to say what may be done to them. Allowing anyone else to decide would be a grave indignity to her. A right to free speech is the only respectful way to treat people with a mind of their own. Status theories say that rights should be respected, not because of the consequences, but because it is fitting to do so. Rather than focus on the consequences that rights can bring about, rights are constraints on the types of consequences we can pursue. Robert Nozick is a well-known proponent of this approach. The status approach is linked to the tradition of natural rights (certain aspects of human nature make certain rights appropriate) and is evident in the famous Jeffersonian phrase about “men being endowed by their Creator with certain unalienable rights”.

I’ve personally used the consequentialist approach in some previous posts on the justification of human rights:

  • there’s one here focusing on the role of rights in the pursuit of truth
  • here is one about political rights
  • here about free speech
  • here about property rights
  • here on rights in general and
  • here on religious liberty.

(I also discussed consequentialist arguments against human rights, here for instance). One of my posts defending the status approach is here.

The consequentialist justification of human rights views these rights not as goals but merely as means. It’s instrumentalist in the sense that it justifies rights as particularly good instruments or means for the achievement of some other goals (peace, truth, prosperity etc.).

The main disadvantage of this approach is that it only provides a weak and contingent justification. If it turns out that, in certain circumstances, other means are more appropriate for the stated goals, then rights may be violated according to the consequentialist approach. The main disadvantage of the status approach is exactly the opposite: it may prove too much. The status approach makes it difficult if not impossible to limit certain rights or balance rights against each other. It’s hard to see how you can argue for limitations of certain rights or tradeoffs between rights without pointing to certain consequences. Because the status approach grounds human rights in attributes that are fundamental to human beings, it’s likely that limitations of rights have to be seen as attacks on fundamental attributes of human beings, and that’s obviously out of the question. And yet, we limit rights all the time in everyday life. We have to, since different rights are regularly in conflict with each other. Hence, a theory that can’t accommodate this normal feature of morality seems incomplete, to say the least.

A combination of the two approaches is therefore more promising. There’s no reason why human rights can’t be means and goals simultaneously.

More posts in this series are here.

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

A few additional remarks following this previous post.

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

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

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

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

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

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

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

More posts in this series are here.

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

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

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

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

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

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

Self-expression can take an indefinite number of forms beside speaking, and a deontological right to do whatever we want as a matter of self-expression is ridiculous. The basic reason it is so is because our acts of self-expression can affect others, and often deleteriously. (source)

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

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

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

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

More posts in this series here.

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

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

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

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

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

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

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

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

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

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

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

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

More about threshold deontology here.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More posts in this series are here.

The Causes of Human Rights Violations (26): Are False Beliefs Useful For Human Rights?

I would say yes, but only some. For example, if we go around and successfully propagate the theory that wrongdoers will burn in hell, then this may have a beneficial effect because fear may inculcate morality (as all deterrence theories about crime have to assume). Similarly, false beliefs about the efficacy of law enforcement and the honesty of law enforcement officials also help.

Many false beliefs about high levels of risk can produce risk-averse behavior which in fact lowers the risk and makes it more likely that human rights are protected. For example, if people wrongly believe that their privacy is threatened in certain circumstances, they will take action to secure their privacy and make their privacy more secure than it already was. (More about human rights and risk here).

Human equality – “all men are created equal” – is obviously a false belief when taken as a fact, and in the quote it is taken as such. People are born with different abilities, talents, endowments, advantages etc. And yet we act as if the phrase is more than just a moral imperative. It seems like it’s easier to convince people to treat each other as equals when we say that they are equals.

Certain forms of self-deception also seem to be beneficial from the point of view of human rights:

Self-deception … may be psychologically or biologically programmed. The psychological evidence indicates that self-deceived individuals are happier than individuals who are not self-deceived. … Lack of self-deception, in fact, is a strong sign of depression. (The depressed are typically not self-deceived, except about their likelihood of escaping depression, which they underestimate.) Individuals who feel good about themselves, whether or not the facts merit this feeling, also tend to achieve more. They have more self-confidence, are more willing to take risks, and have an easier time commanding the loyalty of others. Self-deception also may protect against a tendency towards distraction. If individuals are geared towards a few major goals (such as food, status, and sex), self-deception may be an evolved defense mechanism against worries and distractions that might cause a loss of focus. Tyler Cowen (source)

We can claim that, to some extent, happiness, self-confidence, achievement and risk taking are indicators of and/or conditions for the use of human rights. Happy and confident people who are willing to take risks are more likely to engage in public discourse, to vote, to associate and to exercise their human rights in other ways. If that’s true, and if there’s a link between happiness, confidence and self-deception, then self-deception is another example of a falsehood that is beneficial to human rights.

I could go on, and I also could, very easily, list several counter-examples of falsehoods that are detrimental to human rights (take the 72 virgins for instance, or communism). The point I want to make is another one: should we actively promote certain false beliefs because of their beneficial outcomes?

Most of us believe that there is something like a benevolent lie and that lying is the right thing to do in certain circumstances. A strict rule-based morality is hard to find these days. Few would go along with Kant who said that we shouldn’t lie when a murderer asks us about the whereabouts of his intended victim (“fiat justitia et pereat mundus“). People tend to think that the expected consequences of actions should to some extent influence actions and determine, again to some extent, the morality of actions (“to some extent” because another common moral intuition tells us that good consequences don’t excuse all types of actions; most of us wouldn’t accept the horrible torture of a terrorist’s baby in order to find the location of his bomb).

On the other hand, we should ask ourselves if such an enterprise, even if we deem it morally sound, is practically stable. Some false beliefs have proven to be vulnerable to scientific inquiry and public reasoning (hell could be one example). It’s not a good idea to build the system of human rights on such a weak and uncertain basis. But perhaps we should do whatever we can to promote respect for human rights, even if it’s not certain that our tactic is sustainable.

And yet, actively promoting falsehoods is in direct opposition to one of the main justifications of human rights, namely epistemological advances (I stated here what I mean by that). We would therefore be introducing a dangerous inconsistency in the system of human rights. We can’t at the same time promote the use of falsehoods and argue that we need human rights to improve thinking and knowledge. So we are then forced to promote the use of falsehoods in secret – which is necessary anyway because people will not believe falsehoods if we tell them that they are falsehoods – but thereby we introduce another inconsistency: human rights are, after all, about publicity and openness.

The Ethics of Human Rights (43): Human Rights and Utilitarianism

You often hear the claim that human rights and utilitarianism don’t mix. And indeed, at first sight they are rival and incompatible moral theories that have radically different prescriptions about what we should do in order to do good.

Utilitarianism tells us to do what maximizes “utility” (in whichever way “utility” is understood: pleasure, happiness, wellbeing etc.). We should, in other words, try to act in such a way that our actions produce as many good consequences as possible, and that the aggregate of those good consequences outweighs – in terms of “utility” – the aggregate result of whatever different combinations of actions are possible. We should try to maximize utility regardless of whether rights are respected or violated while doing so. The good is prior to and independent of the right or duty. Something is a right or a duty only when it contributes to overall utility, and only when it does so to a higher extent than violating that right or duty.

Conversely, human rights tell us that we can never do certain things, not even if doing those things would maximize overall social utility (happiness, pleasure etc.). Some human rights theories provide exceptions to this rule and don’t use the qualifier “never”. For example, in a situation of extreme danger for the whole of society, these rights theories provide the possibility that some rights are temporarily suspended. However, they typically provide a very high threshold, otherwise it would become difficult to speak about “rights” and the theory would collapse into utilitarianism (if rights can be suspended regularly, they are no longer rights).

For example, even if it were the case that capital punishment has an important deterrent effect, it would not be permissible. Executing people for crimes as a means to diminish the occurrence of future crimes is just not something one can do to people. It instrumentalizes people in an unacceptable way according to most rights theories. The right to life is just too important and a deterrent effect doesn’t lift us above a threshold of suspension of rights.

People have rights, even if the outcome of those rights is suboptimal and more overall utility could be achieved when some rights are violated in some cases. Only when the utility of violating rights is very high do some rights theories allow those violations. These rights theories are threshold theories that allow utilitarian or consequentialist considerations to “kick in” when a certain threshold is reached. For example, they allow torture if a very large number of lives is at stake, even though generally and under non-marginal conditions people have a strong right not to be tortured.

That already shows that human rights and utilitarianism-consequentialism aren’t necessarily incompatible. Of course, some rights theories claim that they are. Those are the non-threshold theories, which are more extreme rights or duty theories that allow no exceptions. An example is Kant’s infamous argument about not lying to a murderer inquiring about the whereabouts of his intended victim – “fiat justitia et pereat mundus“.

Compared to utilitarianism, human rights theories – both strong and threshold theories – have the advantage that they are able to protect strong interests of minorities and individuals against the weight of aggregated and possibly weak interests of large majorities. It’s intuitively appealing to have a theory that protects individual rights against aggregate social utility. Utilitarianism – in its crudest forms – has often been accused of not taking the differences between people seriously and of not caring about individual suffering as long as the total advances.

We don’t even have to look at extreme threshold cases to see that many human rights theories have consequentialist or utilitarian features. Obviously, there is no human rights theory that holds rights hostage to case-by-case utility accounting or that claims that all human rights have optimal consequences all of the time. And yet, most human rights theories claim that human rights are necessary because they generally produce good consequences and promote certain important values. Maybe not happiness, but peace, prosperity etc. (See here). For example, there’s a strong argument that free expression promotes knowledge and that religious liberty promotes communal peace.

Claiming that respecting human rights is generally optimal from a utilitarian perspective doesn’t mean that it’s always optimal. You could argue that even if it’s not always optimal to respect human rights we still should do so, because we’re unable to distinguish between cases in which it is or is not optimal to respect human rights (perhaps because our predictive powers aren’t good enough to judge the suboptimal consequences of rights), or because violating rights once will diminish their authority and will ultimately destroy them, making it impossible to reap the generally positive benefits of rights.

More posts in this series are here.

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.

The Ethics of Human Rights (26): The Repugnant Conclusion and Human Rights

The Repugnant Conclusion is a moral dilemma for utilitarian and consequentialist moral theories. The dilemma was first presented by Derek Parfit in his 1984 book Reasons and Persons. The “repugnancy” in question refers to the consequence of a thought experiment. Imagine a society with a large amount of total utility resulting from a very large number of people all living at near-zero levels of utility. In other words, these people have no more than a marginally worthwhile life – Parfit calls it a life of muzak and potatoes but we can of course define “marginally worthwhile” differently if we want. And yet, because they are so numerous, the total utility of this society is very large.

Utilitarian and consequentialist theories must rank this society higher than other more desirable societies with higher average utility but lower total utility resulting from lower population levels. They must because they state that the best society is the one in which there is the greatest total quantity of utility, and utility is defined as whatever makes life worth living. The muzak and potato people have a life worth living – just barely – and if they are numerous enough they will constitute the best society because the sum of their individual utilities will be higher than any other total utility in any other society.

There is always a muzak and potatoes society that has a higher total quantity of utility or welfare than any other possible society: just add more marginally worthwhile lives and you produce a society that outperforms any other in terms of total welfare. That such a society should be preferable is repugnant. The people in that society have lives only barely worth living and yet it’s a superior society compared to one with fewer people all living a better life. The emphasis on “total” welfare or “total” utility means that any loss in the quality of the lives in a population can be compensated by a sufficiently large gain in the quantity of the population. (Note that the lives added are marginally worthwhile. These lives are worth living. We’re not adding lives of continuous pain for example. That would diminish total utility and that isn’t the purpose of this thought experiment.)

The question here isn’t whether such a society is practically possible or likely, but whether we should indeed prefer it, as utilitarianism posits (implicitly). It doesn’t seem intuitively correct to prefer a society of people living a life that’s barely worthwhile over other highly attractive alternatives, just because the former has a very large population.

To some extent, the thought experiment is convincing because we do believe that every human being is valuable (has some value), however low this value may be (remember we’re not talking about lives that aren’t worth living because of continuous pain for instance). Therefore we do tend to believe that addition of new lives does increase total utility (“we” meaning even the non-utilitarians among us, and that probably includes myself). It would be equally repugnant to try to avoid the repugnant conclusion by claiming that after a certain number of additions the lives added don’t bring any more value.

Given the unacceptability of not counting the lives after a certain number of additions, there’s another possible way of avoiding the repugnant conclusion, namely invoking non-utility values such as justice, dignity, desert etc. But according to Tyler Cowen, non-utility values can always be overwhelmed by total utility:

It might be the case, for instance, that the less populated society has significantly greater amounts of justice, aesthetic beauty, or dignity. If this is true, the Repugnant Conclusion alternative simply needs to make up for this deficiency by having more people to increase its utility total. (source)

Any moral theory must weigh conflicting ends, such as utility and justice. There’s no escape. You don’t have a moral theory if you can’t do that. The non-utility value(s) must receive some “value” or importance. And the same for utility – even non-utilitarians can’t say that utility has no value whatsoever because then you would say that a marginally worthwhile life of muzak and potatoes has no value (and that’s intuitively wrong because then you would be allowed to end such a life). Hence you need to compare the total value of the less populated society with high non-utility values to the total value of the more populated society with very low average utility. Just add more people to the latter and it will always be a better society. And this will always be repugnant.

However, I do think non-utility values show us a way out of the repugnant conclusion. The first thing we can say is that without emphasis on non-utility values there won’t be a way out. If utility is all that counts, if in other words you’re a pure utilitarian then you are a value absolutist, just like a libertarian, a socialist, a hedonist etc. One value, in this case utility, trumps all others. Necessarily you’ll end up accepting the repugnant conclusion.

If, on the other hand, you accept value pluralism, then you reject hierarchical or lexically ordered value system in which one value trumps all others. And then you probably also don’t believe that large losses in one value can be balanced by equally large gains in another value, as happens in the repugnant conclusion. That seems to me to be the error in the Cowen quote above: the muzak and potatoes society can simply compensate for the deficiencies on non-utility values by adding more marginally worthwhile lives. I believe – contra Cowen – that invoking non-utility values can help us to avoid the repugnant conclusion, but not if these non-utility values are simply accorded a certain value (possibly a very high value) and then compared to the value of utility. If we only do that, utility can always overwhelm the other values by just adding more persons, and gains in utility can always compensate losses in other values.

My point here is that there are certain other values for which no losses can be accepted or tolerated, not even with near-infinity gains in utility. That is why these other values – such as freedom, dignity, equality and justice – are protected by human rights, and human rights are unconditional and untradeable. No matter how many people with barely worthwhile lives we add to a society, this will not compensate for violations of human rights. Nothing ever will. You can call that value absolutism if you want, but it’s the absolutism of plurality.

Capital Punishment (16): The Lesser Evil Argument for Capital Punishment

Let’s assume, arguendo, that capital punishment has a deterrent effect. (I stated here that this is far from obvious). It’s important for proponents of capital punishment that this effect exists, because other justifications for capital punishment are no longer widely accepted (e.g. justifications like, for example, those based on the conviction that murderers somehow deserve to be killed).

My point here is that, even if we assume that deterrence works and reduces the overall number of killings (and we shouldn’t assume this), it doesn’t justify capital punishment. I will argue this on the basis of one of my previous posts and on elements of this paper.

The expression “deterrence works” means that there are fewer overall killings in a society with capital punishment than there would have been without capital punishment. In other words, capital punishment deters more killings than it inflicts. The taking of a life by the state reduces the number of lives taken overall. This is what is called a “lesser evil argument”. Proponents of this kind of justification of capital punishment do not believe that executions are a good thing, or a moral thing to do. Executions take people’s lives, and are evil, but they are a lesser evil than not engaging in executions, because failing to execute would mean failing to deter more murders than the murders we commit by executing killers. If an execution saves more than one life (and there are studies claiming that every execution saves around 18 lives), than it is morally required. It may be immoral and evil, but less so than the failure to execute because it leads to a net gain in terms of numbers of lives saved compared to the failure to execute.

This lesser evil argument is what is called a consequentialist moral argument. Consequentialism is opposed to deontology. The latter states that some acts are intrinsically wrong and can’t be justified by the value of their beneficial consequences. Consequentialism, as the name suggests, claims that beneficial ends justify the means. Of course, neither position is ever defended as an absolute. No one, I guess, believes that a more beneficial overall outcome always justifies certain acts. I think it’s hard to find someone who accepts that it’s moral to kill someone if his or her organs can save the lives of two others. Saving two lives at the cost of one is an overall gain, but it seems that sacrificing someone in this manner just isn’t something you can do to a person. On the other hand, absolute deontologists are also a rare species. At some point, negative consequences have to be taken into account and to hell with the principle then.

The deterrence effect is said to justify capital punishment because of consequentialism: the overall result or consequences of capital punishment are better than the alternative, namely failing to inflict capital punishment. Whereas a deontologist would reject capital punishment regardless of the beneficial consequences, a consequentionalist will not. He will admit that executions are no better than private murders, and just as evil, but still acceptable and even morally necessary if it can be shown that they deter more murders than they inflict.

The problem with this argument isn’t so much that it’s based on dubious deterrence statistics, but that it supposes that state murder is the same as private murder, and that a lesser number of the former is acceptable and necessary if they make it possible to deter a higher number of the latter. Of course, state murder is worse than private murder, and, as a result, the consequentialist calculus of the lesser evil argument is corrupted. If a state murder is worse than a private murder, it’s no longer obvious that capital punishment is a lesser evil.

Why is state murder worse than private murder? As I stated in a previous post, capital punishment is the instrumentalization and dehumanization of people. Private murder of course also instrumentalizes and dehumanizes the victims because these victims are used for some kind of gain, but state murder pushes this instrumentalization to the extreme and makes it the norm of behavior, rather than a criminal exception. Individual criminals are used as instruments to advance the collective interest. They are sacrificed for the greater good and a resource for the benefit of others (namely the intended future victims of future murderers). And this is even made worse if we consider that the lesser evil argument seems to justify the execution of innocent people, as long as this deters a higher number of private murders.

When the state instrumentalizes people in this way, it sends a clear message that this is a normal way of treating people, with possibly disastrous consequences.