The Ethics of Human Rights (92): Rights & the Primacy of the Right Over the Good

There’s a longstanding dispute in moral philosophy about the relationship between the right and the good. One can think about ethical matters in two ways: certain actions or types of character are required or recommended

  • either because they achieve some good (defined as a benefit, a valuable goal or an interest)
  • or because they are the right thing to do or the right way to be.

Examples of the good are wellbeing and happiness. An example of the right is promise keeping. What isn’t good may be bad, “suboptimal” or “Pareto inefficient”; and what isn’t right may be wrong or “improper”.

There’s a sense in which the right is obligatory whereas the good is merely desirable. But there may be degrees to this, and an area of overlap. Motivation as well is closer to the right than to the good. One can imagine the good being done without a single person being motivated to do it. In order to do the right thing, however, it’s almost inevitable that one must be motivated to do it. Doing the right thing accidentally or for the wrong reason isn’t a moral act. On the other hand, selfishly increasing your profit and thereby adding to net social wellbeing – through some form of invisible hand or trickle down mechanism – can be morally good.

A focus on the good is more outcome oriented and results in proposals of means deemed necessary in order to achieve valuable goals. A focus of the right is about rules and laws and produces duties and virtues. You can recognize the split between consequentialism and deontology here. This split is present within virtue ethics as well (a goodness virtue would be beneficence, while a rightness virtue would be obedience to the correct rules).

Although the notion of “right” encompasses more than only “rights”, it’s true that rights in general and human rights in particular can be said to be part of the right (other parts are the duty to tell the truth, the duty to show respect etc.). Human rights are not, at first sight, about the good; on the contrary, they trump some considerations of the good. This has been called the primacy of the right. The right constrains the pursuit of the good.

For instance, a utilitarian calculus of the highest good for the highest number of people – whatever the merits of such a calculus in general – should stop being acceptable when it requires a violation of the rights of some. In the classic example: you simply can’t kill one healthy person in order to harvest her organs for the good of 5 terminally ill patients in need of a transplant, even though doing so would achieve the highest good for the highest number of people.

Another way in which rights trump the good: rights are designed in such a way that they create a society in which people are allowed to form and pursue different conceptions of the good life without discrimination or persecution. One can reasonably assume that people have and always will have different conceptions of the good and that they should have the right to freely develop and pursue these conceptions without negative repercussions. Because rights are prior to the good in this sense – they make the creation and pursuit of visions of the good possible – they are also predominant. If the good were to be able to trump the right, we would undermine the good because one conception of the good would then be allowed to override or even destroy other conceptions. That is the inevitable result of allowing rights to be overridden. Only in a world in which we have access to the truth about the good would this be acceptable. But we don’t live in such a world. Hence we need limits on theories of the good (such as the limits on those forms of utilitarianism that allow forced organ transplants; you can come up with more realistic examples yourself).

This is the standard view of the relationship between the right/rights and the good. Even most utilitarians accept this now. I’m not arguing that this view is wrong, merely that it’s incomplete. In one important sense, the good comes before the right. We have rights because we have values that need those rights for their realization. Rights are intended to maximize the good. Of course it’s a minimal kind of good that we’re dealing with here. And because it’s minimal it can be universal. Rights promote values such as peace, prosperity, thinking etc., which – discounting for a negligible degree of dissent – are universally acceptable. Disagreements arise about the specific ways in which rights do or don’t promote these values, about the possibility that some other means are better suited for the goal, or about conflicts between goals and between means. The goals themselves are unquestioned, and one can make a good case that human rights are, in general at least, the best means we have to achieve those goals.

It’s very hard to justify human rights without recourse to prior values. Rights aren’t good in themselves. This priority of the good comes to the fore in discussions about the extent of rights or conflicts between rights. Such conflicts need to be decided on the basis of which conflicting right does most good to the values that are served by rights.

Does my point of view imply that there is a harmony or – as Rawls would say – “congruence” of the right and the good? That they are the same thing or part of a coherent whole? I don’t think so. There will still be things that are right but not good, and vice versa.

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.

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.

Why Do We Need Human Rights? (19): Justifying Human Rights

Justifying human rights means answering the question “why do we need human rights?”. In this post I won’t try to answer that question but rather discuss the reasons why we need to ask it in the first place. We need to ask that question because the desirability or necessity of human rights isn’t self-evidently or axiomatically true, like it’s the case with a phrase such as “nothing can both be and not be at the same time and in the same respect”. The latter phrase doesn’t require proof and can or even should be accepted as such. The same doesn’t apply to phrases such as “we need human rights”, “human rights are desirable rules”, “human rights are rules of morality” or “people ought to respect human rights”. Those phrases aren’t self-evident. They require rational and argumentative support. Not proof, of course, since there is never any proof in moral, legal or political matters. What they do require is the support of sound arguments.

Fortunately, it’s the case that many people, perhaps even a majority of humanity, believe that those phrases about human rights are actually self-evidently true. And a substantial part of those people, for a substantial part of their activity, act as if those phrases are self-evidently true. Still, this sociological fact about public opinion and public behavior does not absolve us from the duty of answering the question “why do we need human rights?”. After all, slavery was once believed to be self-evidently necessary by a majority of public opinion (as far as we can tell), and yet this wasn’t, fortunately, a good reason not to ask why it should be necessary. What ought to be can never be settled by pointing to what is (otherwise we would commit the so-called naturalistic fallacy).

In general, people should give reasons for their beliefs and actions. Some would even say that giving such reasons is what makes us human. Giving a justification for human rights is therefore an intellectual necessity. And it would require this even if every single individual believed that human rights are necessary and always acted in accordance with this belief. But, of course, not every individual believes this, or acts according to this belief. Hence the exercise of justifying human rights also has a practical necessity: some of those who don’t believe in human rights, or whose belief isn’t sufficiently strong to guide all their actions, may be persuaded by a good justification. I say “some”, because others are perhaps not open to rational persuasion or argumentation. Good luck trying to convince Ted Bundy or Osama bin Laden of the desirability of human rights. But even when faced with people like them, it’s good to have a sound justification of human rights, not because it will help to convince them, but because it will help us to know what we are doing with them and why we are doing it.

So, if it’s accepted that we have to try to produce a sound and possibly convincing answer to the question “why do we need human rights?”, and that this answer should be based on rational arguments, we still haven’t said anything about the content of such an answer. I think there’s a good reason for keeping that content as open as possible. I don’t believe that it’s possible to find the One or the Best Justification. There are many good ways of justifying human rights, none of them obviously better than all others. Some justifications will be more convincing to some people, others more to other people. Some justifications may even be in conflict with each other, or logically incompatible. And other justifications may be deeply flawed and yet convincing to many. None of this is a problem. None of it implies that human rights are self-defeating, incoherent or wrong. All that matters is that a maximum number of people find their own justifications and are sufficiently persuaded by them.

Justifications may be based on religious revelation or logical reasoning. On utilitarian calculations or on moral and deontological rules. On strong principles or on opportunistic reasons (opportunism on the part of rulers who believe that their rule may be safer when they respect human rights, or opportunism on the part of citizens who believe that their own rights will be safer when they respect the rights of others in a spirit of reciprocity). Justifications may use one moral value (for example dignity, equality or liberty) or may try to accommodate the plurality of human values. They may be based on a conception of a minimally good life which human rights are supposed to guarantee, or on something more. Justifications can also be derivative: like postulating one fundamental human right (e.g. the equal right of all to be free) and then trying to deduce all other rights from this basic right. And, finally, it may not be the content, the postulates, the basis, the structure or the motivation of the justification that can differ, but also its form: justifications may be rational endeavors like the examples cited here, or may ditch rationality altogether and use emotions such as sympathy. Whatever helps.

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.