The Ethics of Human Rights (82): The Link Between Human Rights and Social Mobility

Most of us think about social mobility as some kind of political ideal or even as a necessary feature of a just society. Many theories of justice make space for social mobility, as they do for equality of opportunity, fairness, the wellbeing of the worst off etc. And indeed, it’s hard to be against social mobility. Cynics might say that politicians extol the virtues of social mobility in order to camouflage or even justify actual inequalities (“if people can be socially mobile, then the resulting inequalities are deserved”, or “inequalities aren’t bad because people can be mobile and escape their class”). However, it’s not because a concept is misused for political reasons that it loses it’s theoretical or even practical value. If democracy is used as a cover to invade Iraq, then that doesn’t mean democracy is bad.

Hence, we should embrace social mobility. Human rights as well are often seen as a political ideal or a requirement of justice. How do social mobility and human rights relate to each other? At first sight, there’s no relationship at all, except that both are part of a lot of theories of justice. Social mobility is about the possibility to enter another – usually higher – income class than the one you were born in (the one of your parents). Human rights, on the other hand, are generally silent about income, except in rare cases such as the right to a decent standard of living or the right to unemployment insurance. And those cases are about minimum levels of income, not about the equal opportunity to achieve any level of income. Most human rights aren’t about income at all, let alone changes in income. Hence, social mobility is not required by human rights.

Does that mean that a society without social mobility can be one where all human rights are perfectly respected? It depends. Let’s imagine a kind of Dickensian society in which everyone knows their place. Poor people have poor children. Those poor children also have poor children. And all poor people die poor. Same thing for the rich. At first sight, such a society, or even one closely resembling it, is free of rights violations, and yet it clearly does not value human equality. And if you look more closely, it doesn’t really value human rights either. For instance, it’s likely that this society does not offer equal rights to education, for if it did some poor people would break ranks. Neither does such a society respect non-discrimination rules at work. Companies and government employers are probably very classist in their employment decisions, otherwise one would tend to see some poor again breaking ranks. Non-discrimination rules are human rights, and this is therefore another example of the way in which human rights are violated in a society lacking social mobility.

In short, a Dickensian society like the one described here has to be extremely classist and has to marshal extensive means in order to keep people in their place. It can only do so by way of massive violations of some human rights.

While a society like this is the exception in our modern world, there are many societies that resemble it. As a rule, we can say that societies with less than average social mobility will have more than average rights violations, all else being equal. Hence, social mobility is relevant to human rights in the sense that an effort to suppress social mobility almost always has an impact on the level of respect for human rights.

I guess this means that a society without social mobility can never be one where all human rights are perfectly respected. One can imagine a society in which there’s no discrimination, equal rights, no poverty and equal opportunity, but in which people are still socially mobile. A child of middle class parents can turn out to be a genius and enter the top earning class. Even in human rights utopia, one doesn’t want to enforce equal pay for everyone because incentives are good (in general). Vice versa, the children of genius parents can turn out to be average and end up in a lower income class. If this doesn’t happen, one can assume discrimination and favoritism.

The opposite isn’t the case: a society without social mobility can never be one where all human rights are perfectly respected, but a society with social mobility can be a brutal dictatorship:

Imagine a dictator who imprisons his subjects, but gives wealth and power to some chosen at random. There’ll be a lot of social mobility, but no justice or liberty. (source)

This shows that social mobility, although difficult to dismiss, is not enough because it does not require freedom and rights. It can even hide and justify deeper injustices. It’s also not enough because it removes attention away from the conditions of life in the lowest income strata. Instead of making it easier for people to enter higher income strata, it’s often better to improve their lives where they are: make their jobs better and more pleasant; give them a say in their companies; focus on the content of their jobs etc. Often, that is what they want rather than a higher station in life.

More on social mobility is here. Other posts in this series are here.

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The Ethics of Human Rights (80): The Limits of Justice, Non-Discrimination and Equality of Opportunity

Here are 3 fake and somewhat ridiculous news stories. I’m asking you to suspend your disbelief for a moment – all this has a serious purpose which will become clear afterwards:

1.

Social activists have collaborated with one of the largest chemical companies in the country in order to produce a vitamin supplement for dogs. This supplement will modify dogs’ metabolism so as to produce dog feces that has a consistency similar to rabbit feces: granular and dry, as opposed to lumpy and greasy. The effect will be that when dogs defecate on sidewalks and when pedestrians step into the feces, the harm done to pedestrians will be less. More pedestrians will step into feces because of the granular type of the modified feces, but the damage to each individual pedestrian will be relatively small compared to the damage done by traditional dog feces. Think of it as a redistribution of feces damage. and a small but important improvement in the overall justice of our society. After all, there is no good reason why some of us should bear the full brunt. No one deserves dog shit on their shoes.

2.

Since High School, X has been almost universally mocked because of his appearance. Social scientist as well have confirmed that he lacks facial traits and bodily features typically associated with “beautiful” people. As a results, X has spent the first 20 years of his adult life fruitlessly looking for a female mate. Not only did he fail to find a willing female of his choice; he in fact failed to find anyone at all who was willing to marry him. Given that there are a considerable number of people in the same position as X, legislators have now proposed a subsidy for these people so that they can afford plastic surgery and improve their chances on the marriage market. Naturally, strict rules will be included in the proposed legislation so as to target the subsidies towards those who really need them. After all, if society pays for the equal opportunity to receive a good education, why not also for the equal opportunity to lead a happily married life?

3.

Mr. Smith (a pseudonym) is not a special case. He is not gay, black, female, indigenous, foreign or disabled. Nor does he belong to a minority religion. And yet, he is suing the Vatican for discrimination. Why? Well, it turns out he is in the habit of wearing short trousers and sleeveless shirts during warm days. Dressed like this, he attempted to enter Saint Peter’s Basilica and was refused entry by the guards. His lawsuit has received considerable support from US tourist organizations and tour operators. Some even suggest that Smith’s discrimination is indicative of the treatment of many US tourists by Vatican authorities. Smith’s lawyers argue that the groups of people protected by current laws against discrimination have been chosen arbitrarily or on the basis of past patterns of discrimination. If new patterns of discrimination occur – as may be the case here – then legislation should evolve.

These somewhat silly stories have the merit of bringing into focus a serious question: what are the limits of justice, non-discrimination and equality of opportunity? It’s clear from the stories that there are and should be limits. There are events that may seem unjust but shouldn’t be labelled as such. Perhaps those events – such as for example the unequal and undeserved infliction of dog shit on people’s shoes – look like they are unjust because the circumstances and structures of the events are very similar to real injustices. But then what are “real” injustices and why are some events not “real” injustices?

The same is true for equality of opportunity: we want to help people achieve an equal opportunity to do or have certain things, but not other things. Education but not a happy marriage. Why this difference?

And again the same in the case of discrimination: we want to help people avoid certain kinds of discrimination but not other. And again the question is why. How do we make the difference?

For me, the answer is clear: all considerations of justice, equality and opportunity are limited by human rights. If an injustice is also a human rights violation then it is a true case of injustice. If not, then not. If someone’s unequal treatment is also a violation of that person’s human rights, then we have a case of discrimination. If not, then not. Is someone unable to have the same opportunities as everyone else to do or have something? That’s a legitimate area of concern if that something is a right. If not, then not. (More here and here).

More posts in this series are here.

The Causes of Human Rights Violations (54): Self-Perpetuating Human Rights Violations

Take the case of slavery in the American South. That’s an obvious human rights violation if there ever was one. Among the causes of this rights violation was the belief in white supremacy and black inferiority.

However, the practice of slavery was also a cause of white supremacy: the living conditions of enslaved blacks, the effect slavery had on the black psyche, the lack or insufficiency of slave rebellions and a series of other facts strengthened the belief in some that whites are indeed superior, and created this belief in others.

Another example is intolerance of religious or ethnic minorities. In many European countries, young Muslims are discriminated in the labor market and elsewhere (see this paper for some evidence). Unsurprisingly, this discrimination fosters feelings of marginalization, which in turn promote retrenchment and radicalization. Radicalized Muslims then become a rationale for further discrimination (see also here).

As is clear from these examples, the self-perpetuating circle of human rights violations typically occurs when violations are massive and systematic. Small scale and individual violations can’t usually be explained in this way, as I argued in this older post.

This is probably a cause for pessimism: the most outrageous human rights violations are also the toughest to deal with. However, slavery did end eventually, as will discrimination.

More posts is 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.

Measuring Human Rights (33): Measuring Racial Discrimination

The measurement of racial discrimination may seem like a purely technical topic, but in reality it comes with a huge moral dilemma. In order to measure racial discrimination, you have to categorize people into different racial groups (usually in your national census). On the basis of this you can then collect social information about those groups, and compare the average outcomes in order to detect large discrepancies between them. For example, do blacks in the US earn less, achieve less in school etc. Only then can you assume that there may be racism or discrimination and can you design policies that deal with it.

Now, categorizing people into different racial groups is not straightforward. You need to do violence to reality. Racial classifications and categorizations are not simply a reflection of factual reality, of “real group identities”. Instead they are social constructions or even fantasies influenced by centuries of prejudice, stereotypes and power relations. If we want to use racial classifications to measure discrimination, then we give people labels that may have little or nothing to do with who or what they are and how they identify themselves. Instead, these labels perpetuate the stereotypes and power relations that were the basis of the racial classifications when they were first conceived centuries ago. For example, “black” or “African-American” is not a simple descriptive label of a well-defined and existing group of people; instead it’s an ideological construction that was once used to segregate certain groups of very different people and subordinate them to a lower station in life. (Evidence for the claim that race is a social construct rather than a natural fact can be found in biology and in the fact that racial classifications differ wildly from one country to another).

In other words, the “statistical representation of diversity is a complex process which reveals the foundations of societies and their political choices” (source). In this particular case, the foundation of society was racism and the political choices were segregation and discrimination. If today we use the same racial and ethnic classifications that were once used to justify segregation and discrimination, then we run the risk of perpetuating racist social constructions. As a result, we may also help to perpetuate stereotypes and discrimination, even as we try to go in the opposite direction. It’s a form of path dependence.

Statistics are not just a reflection of social reality, but also affect this reality. Statistical categories are supposed to describe social groups, but at the same time they may influence people’s attitudes towards those groups because they contain memories of older judgments that were once attached to those groups. The dilemma is the following: the use of racial classifications to measure discrimination means giving people labels that have little or nothing to do with who they are or what they are; but they have something to do with how others treat them. It’s this treatment that we want to measure, and we can’t do so without the use of classifications. Using such classifications, however, can help to perpetuate the treatment we want to measure and avoid.

More posts in this series are here.

Human Rights Promotion (9): Most Urgent Human Rights Policies

If you’re a political leader, a church leader or anyone else with the ability and willingness to change some people’s behavior and promote respect for human rights – to some extent that includes all of us – what should be your policy priorities? On which human rights violations should you focus? Ideally, you would like to be told something more specific than “reduce suffering and violence and enhance liberty and equality”. So here’s my attempt at something specific.

I’ll list a few domains that require urgent action. Not all of these domains are equally amenable to action, because there may be strong resistance in some quarters. Nevertheless, I consider all these domains to be equally important. I’ll list them first (and include links to older posts arguing why action is important) and afterwards distinguish between those domains where immediate progress is realistic and where it’s not. Of course, it’s not because progress isn’t realistic that we should remain passive.

  1. Promote free trade. Standard arguments for protectionism sound a lot like the Count complaining that there are beggars at the door. Protectionism may even harm citizens of the protecting country. It certainly harms producers in poorer countries. More here.
  2. Abolish capital punishment and reduce incarceration rates. Capital punishment doesn’t deliver on its promises, and even if it did it wouldn’t be acceptable. “Tough on crime” policies go beyond what is required for public safety and the rights of victims.
  3. One way to reduce incarceration rates is to end the war on drugs. Ending the war on drugs will also reduce racial discrimination because it leads to strong imbalances in incarceration rates by race, impoverishing and even destroying many black families.
  4. Abolish existing laws and practices that lead to discrimination of all types. Some laws, however, may be necessary to combat discrimination.
  5. Guarantee social safety nets through a fair and efficient system of benefits and progressive taxation – perhaps including a basic income guarantee – but also encourage private charity. Design the taxation system in such a way that it reduces income inequality.
  6. Help the poor by way of Conditional Cash Transfers.
  7. Rethink development aid.
  8. Combat malnourishment and hunger and improve the water supply.
  9. Reduce immigration restrictions. The supposed negative consequences of increased immigration are largely fictitious, and the benefits for migrants are huge. Also relax asylum rules for refugees.
  10. Improve education and healthcare.
  11. Enhance the scope of humanitarian intervention in order to avoid Rwanda style atrocities.
  12. Promote democracy, the rule of law, the separation of powers, federalism, and the separation of church and state, and improve those institutions where they already exist. Human rights are typically safer in democracies and obviously require the rule of law.
  13. Declare victory in the war on terror, but continue the capture terrorist and subject them to fair criminal trials. Abandon torture, targeted killings if alternatives are available, and extrajudicial incarceration, and limit invasions of privacy to those strictly necessary to capture terrorists.
  14. Abolish freedom-restricting laws such as those prohibiting assisted suicide and euthanasia. Relax abortion laws where necessary.
  15. Guarantee the freedom of the internet.

Now, which of these actions are realistic in the short term, and which are not? The latter part of the list, namely actions 9 to 15, seems to be the most difficult. Substantial progress is already under way for 1, 2, 4 (take the case of same-sex marriage and the repeal of DADT), 6, 7 and 8. Also, 3 may be heading in the right direction. 5 depends to some extent on the general economic climate.

It’s obviously a long list of often very difficult policies, even when we limit ourselves to those areas where progress is relatively easy. Also, in some countries, progress may be easier in some areas than in others. That’s why this list is still too general and different actors may have to choose a subset.

More on progress in the field of human rights here.

The Ethics of Human Rights (66): Human Rights and “Spontaneous Order”

Hayek has famously argued that market economies create a spontaneous order, a more efficient allocation of societal resources than any intentional design or planning could achieve. This spontaneous order is superior to any order the human mind can design due to the specifics of the information requirements. Planners will never have enough information to carry out the allocation of resources reliably. Only individual economic actors can create an efficient and productive economy by engaging in free exchanges and by using as their information source the spontaneously developing price system. They can do so because they act on the basis of information with greater detail and accuracy – namely the price system – than the information available to any centralized authority.

Whatever the general merits of such invisible hand theories for the whole of society (I think those merits are real but often vastly overstated), it’s useful to ask if they also apply in the field of human rights. To what extent and in which circumstances can there be an equivalent of “spontaneous order” for human rights? Can it happen that people’s unintended and selfish actions promote respect for human rights? Or do human rights always require intentional and (centrally) planned policy?

First, this question has to be distinguished from a similar one: it’s true that people do have selfish reasons to promote human rights and often act on those reasons, as I’ve argued here. But in that case their human rights efforts are quite intentional. What I’m asking here is whether there are equally selfish but unintentional processes that promote human rights. And I think there are. Before listing some of them, however, let me make clear that those processes, although they are obviously beneficial and to be encouraged, will not make a huge difference, and that they certainly won’t be sufficient to bring about human rights utopia.

After some superficial thinking about this, I came up with three examples:

  • Trickle down economics is by now thoroughly discredited, especially when it’s used to justify tax cuts for the wealthy. Not all boats have risen on the rising tide, and the tide itself has recently come crashing down on all of us, the rich included. However, that doesn’t mean that there’s never any trickling down in an economy. When the government’s tax system allows the wealthy to retain a reasonable part of their wealth (let’s assume we know what “reasonable” means here), then some of their wealth does indeed flow down to those with lower incomes. That’s because the rich are more likely to spend the additional income, through either consumption or investment, thereby creating more economic activity, which in turn generates jobs and higher income for the less well-off. If that’s the case, then the right to a certain standard of living is promoted through the selfish and unintentional actions of the wealthy. Of course, this will never be enough to secure that right for everyone all of the time.
  • As Becker has argued, free competition between firms reduces discrimination. A racially biased firm will want to hire whites, even if they are more expensive and less qualified than some non-whites. But a firm will only do so if it’s not under pressure from competitors. In a competitive market, other firms can and will produce the same goods at cheaper prices by hiring the cheaper/better black person. The biased firm will then be forced to do the same. It may remain biased – opinions on such matters are notoriously hard to change – but it no longer has the luxury of acting on its bias.
  • There’s a strong tendency towards urbanization in developing countries. Large cities offer more economic opportunities, and jobs in factories, shops or trade offer some advantages compared to agriculture (e.g. weather independence, stable income etc.). When women move to cities and work in factories, they usually have less children – they don’t need children to work the land – and they become more independent of traditional patriarchal structures that are more common in the countryside. This does not only improve the wellbeing of women. Having less children means that the remaining children are more likely to attend school, because school is expensive. Female children in particular benefit from this education. Hence, rights such as education and non-discrimination are automatically advanced by urbanization.

More posts in this series are here.

Discrimination (13): Is Disability Just a Case of Bad Luck or Is It Discrimination?

When people think about disability they usually don’t see it as a moral issue. A disabled person supposedly suffers from bad luck, and the problems she encounters while living her life with a disability don’t result from the decisions or actions of her fellow citizens. They are instead caused by ill health or by biological and anatomical inadequacies, things for which no one is to blame. Brute misfortune, that is all.

Of course, a disability can be caused by someone else’s misconduct, for example industrial pollution or paralysis following an accident caused by someone else. However, let’s focus on blameless disability, the kind that is not anyone’s fault.

There’s a problem with the view that this kind of disability is no more than misfortune. The threshold level of normal human functioning that determines the difference between disability and non-disability isn’t just determined by biological facts, but also by social practices and the artificial social environment. For example, imagine a society that has developed technologically up to a point where people don’t have to use their hands anymore. No more computer keyboards, steering wheels in cars, remote controls etc. Let’s assume that everything that needs to be done can be done by programming and brain power (not a far-fetched assumption). A person who loses her hands in an accident will not be considered “disabled” in such a society. This accident will not push her below the threshold level of normal human functioning. In fact, most likely it won’t even be viewed as an accident, but rather a small nuisance, depending on the level of pain involved. Much like we in our existing societies react to a bee sting. It’s usually not disabling.

Now, when we take the same example of a person losing her hands, but situate her in a country such as the U.S. today, then we would say that she is disabled and that she has fallen below the threshold level of normal human functioning. But the reason we say this isn’t simply a biological or anatomical one, otherwise she would also have to be disabled in the imaginary society described a moment ago. The reason we say that she is disabled depends on the social circumstances and the social system in which she finds herself after losing her hands. Because U.S. society has been designed in such a way that people need to use their hands a lot of the time, we say that someone without hands is disabled. The decision to count someone as disabled has less to do with biology and anatomy than with the social practices and the artificial social environment we live in. The level of functioning a person can achieve depends less on her biological or anatomical abilities than on the artificial social environment in which she finds herself.

Hence, disability isn’t just something that happens to people; it’s something that we as a society have decided should happen to people. There’s nothing about our society that necessarily relegates people without hands to the category of the disabled. On the contrary, we have willingly designed our society in such a way that people without hands are disabled. We could just as well design our society in another way. Technology permitting, of course, but technology is also – up to a point – a choice: we just simply decided to develop technologies and the wider social environment in such a way that they don’t really take into account the needs of people without hands.

The fact that we designed our society in the way we did seems to indicate that we don’t care a lot about the disabled, at least not enough to do something for them. And such an absence of care can be viewed as a type of discrimination. After all, until some decades ago, men didn’t much care about the education of women, even though society was quite able to give women the same kind of education as men. The relative lack of education of women wasn’t a necessary fact of life but a choice. And that choice was a symptom of discrimination.

Of course, the analogy is shaky because gender discrimination was and is often a conscious choice, whereas the disabled are only rarely consciously disadvantaged. However, as I’ve stated before, the fact that discrimination is unconscious doesn’t automatically excuse it.

More on luck. More posts in this series.

Limiting Free Speech (51): Speech That Intends to Get Someone Fired

What if someone tells an embarrassing or potentially harmful truth about someone else to his or her employer, with the intention of convincing the employer to fire this person? Are we allowed to limit the speech rights of the speaker in question (for example, by way of the imposition of a fine, the payment of damages to the person fired or an order to remove internet pages)? And does it matter if the speaker addresses only the employer or the public at large (perhaps in the former case we’re not really dealing with free speech)?

Take this example:

Appellant Derek Schramm is a parent of children enrolled in a Roman Catholic grade school in Minneapolis. Respondent Zachary Faricy is a teacher at the school. In November 2001, Schramm sent a letter to the school principal and the parish pastor informing them of his suspicion that Faricy “might be a homosexual.” (source)

Let’s assume that we’re not dealing here with incitement to commit illegal acts. Discrimination of homosexuals is often illegal, but many religious institutions are exempt from such a rule. (Whether or not that’s a good thing is another matter, briefly discussed here). Hence if silencing this particular speaker is indeed a warranted exception to free speech then it must be one that’s different from the established exception regarding speech that incites illegal activity.

Let’s also assume that we’re not dealing with libel. Perhaps the target in this particular case is indeed a homosexual and has therefore good reason to fear that his Catholic employer will fire him if this fact about him becomes known. Libel is usually defined as a false claim intended to harm someone’s image and reputation, and so that’s not what our example is about. The intended harm is dismissal of the teacher. Like incitement to commit illegal acts, libel is an established exception to free speech rights, and one that I also want to exclude from the current discussion. What I want to do here is see whether speech that intends to get someone fired and that is neither libel nor incitement to commit illegal acts, should always be protected.

Now, speech that incites employers to fire people does impose certain demonstrable harms: the target’s right to privacy is violated, as is his or her right to a decent standard of living (in the case in which the target may not find another job in the short term). So, a priori we could have an argument here in favor of prohibiting speech that incites employers to fire people. Normally, limits to free speech can be acceptable if they are necessary in order to avoid greater harm to other human rights.

However, if we want to allow limits on speech that incites employers to fire people, would we not also be forced to accept the prohibition of public protest aimed at getting a racist or sexist radio host fired? That seems to go very far. Maybe we can limit the free speech exception as follows: in the Catholic school case the speech was directed at a single person – the employer – whereas in the case of public protest the audience is much larger. Still, that’s not a very promising route. The inciter in the Catholic school case may drum up support among other parents or write to the local Catholic newspaper if a private letter to the employer doesn’t do the job.

It’s true that the nature of the audience and the circumstances in which speech occurs can make a difference – hate speech in an obscure periodical should not necessarily be forbidden, but hate speech in front of an excited mob about to attack someone is different. But the same difference doesn’t apply here I think.

In the case of speech that incites employers to fire people – whether it’s private speech or public speech – I would prefer not to impose limits on speech but rather change the law so that it is illegal to fire people for their beliefs, words or lifestyle. And yes, that may include revoking religious exemptions to employment discrimination. After all, how exactly does it harm someone’s religious freedom if his or her children are educated by a homosexual teacher?

More posts in this series are here.

What is Equality? (4): Equality of Opportunity

I wasn’t very pleased with my previous attempts, so here’s one more. Equality of opportunity is a type of equality that’s usually seen as a very moderate one, one that’s not too demanding – especially compared to other types of equality that focus on equal outcomes – and hence it’s supposed to be acceptable to those of us who are a bit squeamish about equality. However, I’ll try to show that this is a mistake. Real equality of opportunity is a very ambitious and difficult project. In order to show that, I’ll talk first about some of the causes of inequality of opportunity, and then about the things we can do to reduce this inequality.

Four source of inequality of opportunity

1. Unequal endowments and circumstances

Equality of opportunity means that different people should have an equal chance of success in a certain life project, conditional on the willingness to invest an equal amount of effort. Of course, in reality, people will never have such an equal chance. The lottery of birth means that we are unable to choose to be born in a wealthy family with caring parents who can finance our education and motivate us to achieve our goals. It also means that we can’t choose which talents and genes we are born with. Talents and genetic differences are no more a matter of choice than the character and means of our parents. And genetic differences affect our talents, skills and maybe even our capacity to invest effort. (It’s not impossible that they even determine our choices of projects in which we want to be successful). So two people with the same life projects will only rarely have the same chance of success.

What can we do to equalize their chances? We can’t (yet) redistribute beneficial genes or disable harmful ones, and we don’t want to intervene in people’s families (and force parents to behave in a certain way or possibly even redistribute children). So we can’t remove the impact of genes and parents. But we can correct it, partially. For example, we can compensate people born with a genetic defect that reduces their chances of success in their life projects. We can offer people suffering from a genetic disorder that has left them paralyzed certain instruments to enhance their mobility. We can offer children born in dysfunctional or poor families free education, child benefits and encouragement. Etc.

2. Discrimination

Equality of opportunity also means correcting for lack of opportunity not resulting from the lottery of birth. If African Americans are systematically discriminated in employment, then they don’t enjoy equality of opportunity. They don’t have an equal chance of success in employment. If working for a certain company is part of an African American’s life project, and this company prefers white employees, then this African American doesn’t have an equal chance of success in his life project compared to whites with the same project.

The rule of equality of opportunity is only violated when the African American is rejected for no other reason than his race, and when this rejection diminishes that person’s opportunities (in other words, when this rejection is common and widespread rather than occasional; see here). If his skills, talents, merit and efforts are equal to those of other candidates, he should have an equal chance of employment or advancement. Equality of opportunity means that he should be allowed to compete for positions on equal terms, and that the difference between winners and losers in such competitions can only be a difference based on skills, talents, merit or efforts. However, even when he is rejected for the position because his skills, talents, merit and efforts are below the level of those of other candidates, he may not have been granted equality of opportunity. That is because the lottery of birth (point 1 above) has landed him in a discriminated group and because his lesser skills and willingness to invest effort and strive for merit may be caused by this discrimination.

Even if all are eligible to apply for a … position and applications are judged fairly on their merits, one might hold that genuine or substantive equality of opportunity requires that all have a genuine opportunity to become qualified. (source)

3. Misfortune in life

The natural lottery can reduce your equality of opportunity. Misfortune in the circumstances of your upbringing (bad parents, bad schools etc.) can also do it. And discrimination throughout your life as well. On top of that, other types of misfortune can limit your opportunities: you may get sick or have an accident. So we have to promote equality of opportunity at every step in people’s lives.

4. Neglect of abilities and talents

And there’s yet one additional cause of inequality of opportunity. Until now, I’ve assumed that equality of opportunity means that different people should have an equal chance of success in a certain life project. But maybe people have an equal chance of success in whatever life project they choose (as long as the project is morally acceptable of course). If society recognizes, rewards and encourages only certain talents and abilities, then some people will not be able to be successful in the life projects that they choose and that are compatible with their talents and abilities. For example, it’s fair to say that someone like Elton John would not have enjoyed equality of opportunity in Sparta or Saudi Arabia.

How to promote equality of opportunity?

If we accept all that, then the promotion of equality of opportunity involves different things:

1. Social structures or traditions

At the most basic level, it means getting rid of social structures or traditions that assign people to fixed places in a social hierarchy, to occupations or to life projects on a basis that has nothing to do with skills, abilities, talents, merit and efforts. Patriarchy, in which women are forced to focus on family life and raising children, is incompatible with equality of opportunity. As is a caste society, a society in which racial or other minorities (or majorities) are systematically discriminated against, or a class society in which the class of your parents, your blood line, your religion, your friends and relationships (nepotism) determine your chances of success in life. Getting rid of such social structures and traditions may simply require legislation outlawing them, or may also require affirmative action or positive discrimination and other forms of compensation for past wrongs (if some still benefit in the present from past wrongs, then equality of opportunity will not be respected simply because the wrongs have ended).

2. Equalizing skills, abilities and talents

But the promotion of equality of opportunity also means equalizing skills, abilities and talents, to the extent that this is possible (e.g. offering poor children free education of the same quality as the education and private tutoring offered to children born in wealthy families). And compensating people when this isn’t possible (e.g. give a blind man some help if we can’t cure his blindness).

3. Upgrading ambitions

And the promotion of equality of opportunity means reducing differences in merit and effort that are not the consequences of people’s voluntary choices. E.g. a child raised in a poor and dysfunctional family may have involuntarily adapted her ambitions downwards. Helping her at a young age may allow us to prevent this down-scaling of ambitions. Perhaps this down-scaling of ambitions is the result of the structures and traditions described in 1 above.

4. Other types of misfortune

The promotion of equality of opportunity also means helping people whose skills, abilities, talents, merit and efforts have been limited by misfortune different from the misfortune caused by the lottery of birth. If two people have the same ambition, talents and skill to become a lawyer – perhaps after social corrections to their initial starting positions in life (e.g. free schooling for the poorest one of them) and after legislation providing equal employment access (e.g. for the black lawyer-to-be) – but an accident leaves one of them blind, maybe society should provide that person with law books in Braille and such.

5. Recognizing abilities

And, finally, it means that a broad range of talents and abilities should be recognized and rewarded in society, with the exception of those that involve limitations of other people’s talents and abilities.

Limits of equality of opportunity

So equality of opportunity is a very ambitious and far-reaching project, contrary to what people usually believe about this type of equality. Hence we have to limit it somehow. For example, it shouldn’t extend to people’s private lives. You can’t demand that the girl next door marries you even if that’s your project in life and even if you think you’re the best candidate who didn’t have his equal opportunity. And the girl can decide not to marry you simply because you’re black. A club of racists can decide not to accept your membership request. A racist restaurant owner can decide not to serve you food on his private property. None of this diminishes your equality of opportunity, at least not as long as enough of the same opportunities exist for you elsewhere.

There will be a problem of equality of opportunity if all or many restaurants, clubs etc. turn you away. But if that’s not the case, and enough of the same opportunities remain elsewhere, even businesses can discriminate on the basis of race in their employment decisions, as long as this practice is not widespread and not part of a wider system of discrimination not limited to employment. If, in a perfectly tolerant and egalitarian society, there’s one bakery insisting on being racist and refusing to hire or serve blacks, who cares? (More here).

Equality of opportunity and statistical discrimination

However, discrimination in employment doesn’t have to be taste based, as they say. It can be mere statistical discrimination. Is that a violation of equality of opportunity? I would say yes, because discrimination is discrimination and whatever the motives are – a taste for discrimination or just prudence based of statistical averages – it diminishes the opportunities of those affected by it. People who engage in statistical discrimination make no effort to assess the skills, merit and talents of individuals.

Lies, Damned Lies, and Statistics (38): The Base-Rate Fallacy

When judging whether people engage in discrimination it’s important to make the right comparisons. Take the example of an American company X where 98 percent of employees are white and only 2 percent are black. If you compare to (“if your base is”) the entire US population – of which about 13 percent are African American – then you’ll conclude that company X is motivated by racism in its employment decisions.

However, in cases such as these, it’s probably better to use another base rate, namely the number of applicants rather than the total population. If only 0.1 percent of job applications where from blacks, then an employment rate of 2 percent blacks actually shows that company X has favored black applicants.

The accusation of racism betrays a failure to point to the real causes of discrimination. It’s a failure to go back far enough and to think hard enough. The fact that only 0.1 percent of applicants were black – instead of the expected 13 percent – may still be due to racism, but not racism in company X. Blacks may suffer from low quality education, which results in a skill deficit among blacks, which in turn leads to a low application rate for certain jobs.

The opposite error is also quite common: people point to the number of blacks in prison, compare this to the total number of blacks, and conclude that blacks must be more attracted to crime. However, they should probably compare incarceration rates to arrest rates (blacks are arrested at higher rates because of racial profiling). And they should take into account jury bias as well.

More about racism. More posts in this series.

Discrimination (9): The Beauty Bias

Although someone’s looks and attractiveness aren’t explicitly mentioned in human rights law as prohibited grounds of discrimination, we can safely say that the general prohibition on discrimination does apply to discrimination based on appearance, just like it applies to discrimination of people belonging to a certain race, sex, religion etc. This statement may sound extreme – and some will call it the first step on a slippery slope – but I think it’s a justified statement given the fact that appearance based discrimination can be just as harmful as more traditional types of discrimination.

People generally prefer beautiful individuals and express this preference by giving them certain advantages. One symptom of the beauty bias is the beauty premium: in the U.S., and probably in most other countries, an attractive person earns more: the premium is about $250.000 over the course of a lifetime, compared to the least attractive. Monthly averages point to a difference between 10 and 12%, even in professions where looks wouldn’t seem to matter. Daniel Hamermesh (in “Beauty Pays“) found evidence of differences in promotions, risks of unemployment, credit facilities etc.

A number of role-playing, laboratory studies have demonstrated that more attractive men are more often hired, but the laboratory data for women are less consistent. … more attractive men had higher starting salaries and they continued to earn more over time. For women, there was no effect of attractiveness for starting salaries, but more attractive women earned more later on in their jobs. (source)

There’s no reason to believe that beautiful people deserve this kind of advantage since they generally aren’t more intelligent, productive, etc. (although some disagree about productivity). It’s simply the case that people who decide about employment, pay and career prefer beautiful people. Beauty brings along a degree of self-confidence I guess, which may persuade (possible) employers and makes them believe – correctly or not – that with higher self-confidence comes higher productivity. But that isn’t all that’s happening:

even when the experimenters controlled for self-confidence, they found that employers overestimated the productivity of beautiful people. (source)

So it looks like the beauty bias is just that, a bias, much like the bias against women and blacks.

The beauty bias can be measured because a

common standard of beauty does exist. Based on an attractiveness scale of one to five, most people surveyed will come to near agreement on a test subject’s looks, a finding that holds true across all cultures. (source)

By the way, the beauty bias operates in other areas as well. Beautiful candidates are more successful in democratic elections. And ugly criminals face rough justice:

Stephen Ceci and Justin Gunnell, two researchers at Cornell University, gave students case studies involving real criminal defendants and asked them to come to a verdict and a punishment for each. The students gave unattractive defendants prison sentences that were, on average, 22 months longer than those they gave to attractive defendants. (source)

Also:

11 percent of surveyed couples say they would abort a fetus predisposed toward obesity. College students tell surveyors they’d rather have a spouse who is an embezzler, drug user, or a shoplifter than one who is obese. (source)

Of course, earning a little less and having a smaller chance of being elected aren’t the world’s gravest human rights violations. It’s not as if we still banish the ugly from the public square:

In the 19th century, many American cities banned public appearances by “unsightly” individuals. A Chicago ordinance was typical: “Any person who is diseased, maimed, mutilated, or in any way deformed, so as to be an unsightly or disgusting subject … shall not … expose himself to public view, under the penalty of a fine of $1 for each offense.” (source)

However, the evidence above suggests that beauty does play an important role in many different areas, making the impact of appearance based discrimination potentially large. Hence the obvious question: should ugly people be protected against discrimination? Should there be a law making it illegal to pay people more simply because of their looks? After all, there seems to be no difference between this form of discrimination and more traditional forms. All forms of discrimination impose a disadvantage on a group of people for no other reason than their group membership.

However, legal protections would require a public determination of beauty and ugliness. And they would require the ugly to step forward and claim damages or benefits. That’s stigmatizing, and open to discussion: there is, as stated, a common standard of beauty, but there can still be disagreement on specific cases, especially along the margins. Beauty is to some extent in the eye of the beholder, and if you’re labeled as ugly by some or even by the majority, there may still be others who think the world of you. Including yourself. De gustibus non est disputandum. The same isn’t true for gender, sexual orientation and race (with some caveats for the latter). When governments sanction a universal scale of attractiveness we’re going down a dangerous route because this can ossify opinions about beauty and lead to even more discrimination. And then there’s the issue of self-esteem: would people be willing to apply for official recognition of their ugliness, even if the money is good?

Racism (20): Evidence of Colorism

Colorism is prejudice of or discrimination against other people based on skin color. The concept is different from racism because it’s usually used to describe discrimination within a certain race or ethnic group, based on the tone of skin color, rather than discrimination of an entire race or ethnic group. In general, this means that lighter skin tones are preferred and darker skin is considered less desirable. Lighter-skinned members of a certain race or ethnic group can discriminate against members with darker tones within the same group, but colorism more often means a general social preference for lighter skins.

One cause of colorism may be a traditional and historical preference for light and an abhorrence of darkness, light being good and godly, dark being evil and scary. However, I won’t explore the causes and just limit myself to some examples. There’s the one I mentioned some time ago, and then there’s this one:

Villanova researchers studied more than 12,000 cases of African-American women imprisoned in North Carolina and found that women with lighter skin tones received more-lenient sentences and served less time than women with darker skin tones. The researchers found that light-skinned women were sentenced to approximately 12 percent less time behind bars than their darker-skinned counterparts. Women with light skin also served 11 percent less time than darker women.

The study took into account the type of crimes the women committed and each woman’s criminal history to generate apples-to-apples comparisons. The work builds on previous studies by Stanford University, the University of Colorado at Boulder and other institutions, which have examined how “black-looking” features and skin tone can impact black men in the criminal-justice arena. …

Part of the reason may simply come down to how pretty jurors consider a defendant to be, and that being light-skinned and thin (also a factor studied in the research) are seen as more attractive. (source)

What is Democracy? (54): Kalocracy?

Beautiful people have a number of advantages in social life. They earn more, even in occupations where appearance does not seem relevant to job performance. And, somewhat surprisingly, the beauty premium – and the corresponding ugliness penalty – are higher for men than for women. (I say surprisingly because we usually think that women are more often judged on the basis of their looks). A related effect is heightism: tall people, who are often considered to be more beautiful, also earn more.

And it’s not just in salaries that beauty makes a difference. Beautiful people are also more successful in democratic politics. They are more likely to be elected and, again, the marginal effect of beauty is larger for male candidates than for female candidates. So democracy is in fact kalocracy, rule of the beautiful (from the Greek “kalos“).

But why is there a political benefit of good looks? Probably because there’s a general benefit of being beautiful and because people generally – and hence also in politics – value good looking people more than the rest of us. Psychological experiments have shown that a snap judgment of whether we like someone’s face determines what we believe about that person’s character. And character is important in politics. There’s also the fact that the visual media give more attention to beautiful politicians, something which probably translates into a higher voter share.

Makes you doubt the value of democracy, doesn’t it? And makes you wonder whether we wouldn’t be better off handing over politics to some kind of elite. More positively, perhaps we should start seriously considering a type of democracy that isn’t focused on the selection of candidates through the means of a media circus.

More posts in this series are here.

The Causes of Poverty (45): Bad Luck

Some of the poor are victims of bad luck. That’s not something which is sufficiently understood. Agreed, others dig their own grave or get their graves dug by crooked capitalists, unfair international rules, overly optimistic financial institutions causing a global economic crisis, heartless politicians etc. However, there are cases in which the link between someone’s actions or intentions – self-regarding or other-regarding – and someone’s poverty is very weak indeed and in which it’s better to say that it’s a good dose of bad luck that drives people over the brink. And I’m not just thinking about the guy losing his job because of illness or accident.

The data are very clear. In essence, if you have the bad luck of being

then you’ll earn less, sometimes a lot less than average, and you’ll run a higher risk of becoming poor.

Maybe you would reply that people with some of these characteristics don’t earn less because they had the bad luck of being born like that – e.g. black, female, short etc. – but because employers are racist or prejudiced against women or short people. True, but not always. Poverty rates among blacks in the U.S. are a lot higher than average, but only part of this gap can be explained by racist employers. Other parts of the explanation, such as education levels, statistical discrimination etc., can’t be linked immediately or exclusively to racial bias.

Or maybe you would reply that some people have themselves to blame for some of their harmful characteristics, e.g. being obese or a single mother. That, in other words, these characteristics are chosen and self-inflicted and not a matter of bad luck. That is also only partly true. Obesity can be genetically determined, and single parenthood can be the result of misguided policies such as the war on drugs.

More posts in this series are here.

Racism (18): Human Rights and Affirmative Action

Affirmative action is a set of policies aimed at improving the representation of women and minorities in education, business, employment and other sectors of society where these groups have traditionally been underrepresented or even completely excluded. Representation is improved by way of preferential selection.

For example, if students are normally selected on the basis of test scores, affirmative action will add other selection criteria such as race, gender, ethnicity, language, religion etc. Maybe in certain cases the initial selection criteria (e.g. test scores) are dumped altogether because it’s assumed that they reflect racial bias or because past discrimination makes it difficult for discriminated groups to achieve good test scores.

As you can see from this description, affirmative action policies are usually internal policies implemented by organizations or institutions (schools, businesses, representative bodies etc.) wishing to become more diverse and more representative of society at large, although they can also be imposed by the government. It’s common – but not necessary – for affirmative action policies to work with quotas, i.e. fixed percentages of selectees from historically disadvantaged groups.

Now, how should we evaluate affirmative action from the perspective of human rights? Some see affirmative action as a means to compensate for past human rights violations and past exclusion. A minority which has been discriminated in the past may still find it difficult today to achieve equality of opportunity today. Affirmative action is then intended to break a self-continuing pattern of exclusion. Combined with other policies such as reparations, welfare, anti-discrimination laws etc., affirmative action will hopefully achieve more equality. According to this view, affirmative action is necessary from a human rights perspective.

However, it’s equally possible to argue that affirmative action doesn’t help or even undermines human rights. An example of the way in which it may not help is given by its application in education. Those African-Americans who are most likely to profit from affirmative action in access to higher education institutions aren’t the most disadvantaged of their group. On the contrary, they are probably among those who already have sufficiently good educational credentials (a requirement to be eligible to higher education in the first place), and they are by definition not the least advantaged. Affirmative action doesn’t seem to serve equality.

The same setting provides another example of the way in which affirmative action fails to help or even harms the cause of human rights. White people who enter education are by definition relatively young and hence least likely to have contributed to past discrimination. Their exclusion from a university resulting from the preferential selection of African-Americans harms their right to equal treatment for no good reason. It looks like discrimination as a means to fight discrimination, racism as a means to fight racism. Affirmative action is then supposed to harm the rights of whites. It’s even possible that a poor white boy, who would profit a lot from acceptance by a highly ranked university, is excluded in order to benefit a rich black boy who will have a decent life even without any education. That seems perverse to many opponents of affirmative action who argue that all racial classifications should be abandoned and all selection policies should be color-blind.

There are a few possible counter-arguments against this position. It’s true that those who are excluded or not selected because of affirmative action programs probably aren’t individually responsible for the historical disadvantages imposed on the beneficiaries of those programs, and therefore shouldn’t “pay” for correcting those disadvantages. However, it may still be true that they benefit from continuing inequality. For example, if women are systematically excluded from some professions, men in general benefit from this exclusion, even if they haven’t excluded women themselves. (That’s an argument made by Mary Anne Warren among others). Also, if African-Americans have traditionally been excluded from higher quality educational institutions, it’s likely that the better test scores presented by whites and required to enter university do not simply represent higher ability. Discrimination has benefited and continues to benefit whites in terms of test scores, even those whites who are not in the least responsible for the substandard basic education received by blacks. Demanding that only test scores be used as a criterion for selection in universities is not the way to avoid discrimination (of whites) but the way to cement discrimination (of blacks).

Moreover, even if it’s true that some whites are unjustly discriminated against by affirmative action programs, one might argue that this is a small price to pay for correcting a much higher number of cases of anti-black discrimination. Although personally I’m weary of sacrificing the rights of some for the benefit of others.

Also, to the extent that it’s true that affirmative action means fighting discrimination with discrimination, we should realize that the two kinds of “discrimination” are not at all the same. The type of discrimination that affirmative action is supposed to correct is a discrimination motivated by racial animus and intended to stigmatize some people as “inferior”. If affirmative action is a kind of discrimination, it’s one that has other motives. Whites who are excluded from a university because of affirmative action programs aren’t excluded because we believe that whites are inferior or because we don’t like them. However, it’s probably cold comfort for whites to know that their discrimination is not motivated by hatred.

And finally, affirmative action can be defended on a number of other consequentialist grounds that have nothing to do with the possible compensation or correction of injustices. For instance, allowing more blacks in law school can bring about a justice system that is seen as more legitimate by black citizens. More blacks in the police force may result in police departments that are more legitimate, more acceptable and more authoritative to black people. More female CEOs or professors may inspire more young women to follow their lead or to be more successful generally. More blacks in medical school may result in better healthcare for communities that are currently not well served. Diversity in school may have some educational advantages: proximity to people from other races may reduce racism and may better prepare students for their future lives in a diverse society. In general, a society that is representative in all fields is much more legitimate in the eyes of all citizens. And, last but not least, diversity improves the functioning of the marketplace of ideas. So, if all of this or some of this is true, affirmative action can yield more overall respect for human rights.

Discrimination (8): What’s Wrong With Discrimination?

Let me try out a few possible answers to the question in the title of this post:

  1. Is discrimination wrong because it’s differential treatment of persons? That can’t be the case, because we treat people differently all of the time: some people earn more than others, have better grades in school, have a lot of friends or none at all, etc. None of those types of differential treatment seem to pose a moral problem per se.
  2. Is discrimination wrong because it’s differential treatment of persons based on the mere fact of their membership of a group? That can’t be true either. We don’t allow the blind to drive a car, we don’t allow the mentally ill to run for political office, and we don’t allow inmates to move freely across the country. Again, usually this is done without violating our moral intuitions. Differential treatment based on group membership may be wrong in some cases but it’s not discrimination per se.
  3. Is discrimination wrong because it’s disadvantageous treatment of some relative to others? Again, the answer is no. We certainly impose a disadvantage on inmates when we confine them to a prison building.
  4. Is discrimination wrong because it’s disadvantageous treatment that is morally objectionable? If I, as the sole racist member of a tolerant society, refuse to eat at a restaurant owned by an African American or serve African Americans in my own restaurant, I act in a morally objectionable way, and impose a small disadvantage on some people. And yet these people are not discriminated against in any meaningful sense of the word.
  5. Is discrimination wrong because it’s differential treatment of persons based on some of their immutable characteristics, for example their gender or skin color? Again, the answer has to be no. Sometimes it’s justified to treat persons differently based on their immutable characteristics or on characteristics that are beyond their control. We don’t allow one legged basketball players to compete in the NBA. And, conversely, sometimes it’s not justified to treat persons differently based on their self-chosen lifestyle. Forcing vegetarians to eat meat, for example, is wrong.
  6. Is discrimination wrong because it’s differential treatment of persons based on characteristics that are superficial or irrelevant, for example when we refuse to eat somewhere simply because the restaurant owner is black? That can’t be the case either. If I prefer to marry a blond because I believe blond women are better wives, I’m not discriminating against non-blonds. And if I’m the only one refusing to eat in a black man’s restaurant, it’s hard for him to claim that he’s discriminated against.
  7. Is discrimination wrong because it fails to treat people as individuals and relies on inaccurate stereotypes? For example, because I believe African Americans can’t cook properly and I therefore don’t bother to check out the food of an individual African American restaurant owner? Again, discrimination must be something else, for two reasons. First, there are laws against discrimination based on correct stereotypes, so-called statistical discrimination. Employers can’t just refuse to hire young women simply because young women are more likely to have children and hence be absent from work. Second, I may rely on inaccurate stereotypes and not engage in discrimination. For example, if I organize a successful boycott of German classical music based on the erroneous belief that this music is inferior to French classical music, I don’t discriminate orchestras or record labels that produce German classical music.

So then, why is discrimination wrong? Discrimination is wrong because it is a denial of rights. Not all denials of rights are discrimination – for example I imagine that Kim Jong Il denies the rights of all North Koreans consistently without discrimination. But discrimination is a denial of rights, and a denial of a particular type, namely the unequal denial of rights.

But not every case of unequal denial of rights is a case of discrimination. For instance, if some people in police custody are beaten up and others aren’t that’s not necessarily discrimination. Discrimination is the unequal denial of the rights of members of a socially salient group, and for no other reason than their membership of that group. It must be a socially salient group, i.e. a group that is an important and stable distinction in society, not a fleeting and inconsequential identity such as the group of people with blue eyes or people of the age of 40. Those groups aren’t salient and hence won’t be discriminated.

So, discrimination occurs when rights are granted to some and taken away from others, for no other reason than their membership of a socially salient group.

What exactly is a denial of rights? It’s an action (or a law, a custom etc.) that makes it impossible or very difficult to exercise one’s rights. That means that there won’t be discrimination if for example one lonely racist shop owner refuses to service blacks. Those blacks can easily exercise their rights by avoiding the racist shop. Only if the number of such cases is high and those cases occur systematically will there be denial of rights and hence discrimination. The policy of an army to reject homosexuals is discrimination because homosexuals can’t simply go to another army to serve their country. Racial discrimination at the time of Jim Crow and segregation was real discrimination because it substantially reduced the options of blacks who could not exercise their rights elsewhere.

If we revisit some of the examples given above we can see that they are not necessarily cases of discrimination as it is defined here. Giving people low grades or low salaries can be justified if it’s done for good reasons, i.e. not simply because of people’s membership of groups. But even if it’s done because of membership, it’s not discrimination if it’s isolated and if people can easily go elsewhere for their proper grades or salaries. Discrimination isn’t just about unequal treatment but also about options. Not all unequal treatment is discrimination. It’s discrimination when it also takes away the rights of those treated unequally. And their rights are taken away, not when there’s a single instance of unequal treatment based on group membership, but when there are many such instances and people can’t easily exercise their rights elsewhere. Their rights in these examples are the right to education and the right to fair wages. The same is true in the case of the sole racist member of a tolerant society refusing to eat at a restaurant owned by an African American. The restaurant owner isn’t denied his right to sell his food because one guy refuses to eat there.

Measuring Human Rights (15): Measuring Segregation Using the Dissimilarity Index

If people tend to live, work, eat or go to school together with other members of their group – race, gender etc. – then we shouldn’t automatically assume that this is caused by discrimination, forced separation, restrictions on movement or choice of residence, or other kinds of human rights violations. It can be their free choice. However, if it’s not, then we usually call it segregation and we believe it’s a moral wrong that should be corrected. People have a right to live where they want, go to school where they want, and move freely about (with some restrictions necessary to protect the property rights and the freedom of association of others). If they are prohibited from doing so, either by law (e.g. Jim Crow) or by social pressure (e.g. discrimination by landlords or employers), then government policy and legislation should step in in order to better protect people’s rights. Forced desegregation is then an option, and this can take various forms, such as anti-discrimination legislation in employment and rent, forced integration of schools, busing, zoning laws, subsidized housing etc.

There’s also some room for intervention when segregation is not the result of conscious, unconscious, legal or social discrimination. For example, poor people tend to be segregated in poor districts, not because other people make it impossible for them to live elsewhere but because their poverty condemns them to certain residential areas. The same is true for schooling. In order to avoid poverty traps or membership poverty, it’s better to do something about that as well.

In all such cases, the solution should not necessarily be found in physical desegregation, i.e. forcibly moving people about. Perhaps the underlying causes of segregation, rather than segregation itself, should be tackled. For example, rather than moving poor children to better schools or poor families to better, subsidized housing, perhaps we should focus on their poverty directly.

However, before deciding what to do about segregation, we have to know its extent. Is it a big problem, or a minor one? How does it evolve? Is it getting better? How segregated are residential areas, schools, workplaces etc.? And to what extent is this segregation involuntary? The latter question is a hard one, but the others can be answered. There are several methods for measuring different kinds of segregation. The most popular measure of residential segregation is undoubtedly the so-called index of dissimilarity. If you have a city, for example, that is divide into N districts (or sections, census tracts or whatever), the dissimilarity index measures the percentage of a group’s population that would have to change districts for each district to have the same percentage of that group as the whole city.

The dissimilarity index is not perfect, mainly because it depends on the sometimes arbitrary way in which cities are divided into districts or sections. Which means that modifying city partitions can influence levels of “segregation”, which is not something we want. Take this extreme example. You can show the same city twice, with two different partitions, A and B situation. No one has moved residency between situations A and B, but the district boundaries have been altered radically. In situation A with the districts drawn in a certain way, there is no segregation (dissimilarity index of 0). But in situation B, with the districts drawn differently, there is complete segregation (index = 1), although no one has physically moved. That’s why other, complementary measures are probably necessary for correct information about levels of segregation. Some of those measures are proposed here and here.

The Causes of Wealth Inequality (15): Slavery

Income inequality doesn’t have the same causes everywhere, as is evident from this study which points to the fact that slavery in the U.S., which was abolished almost 150 years ago, still has nefarious effects today.

Within the US, the institution of slavery has historically been associated more heavily with specific areas – primarily the South. This geographic differentiation allows us to identify the link between past slavery and current outcomes. We start by reviewing, over a cross section of counties, the effect of the intensity of slavery in 1870 on the current level of income per capita. For the year 2000, we find no evidence that those counties that employed slave labour more heavily are poorer than those that did so to a lesser extent or not at all (even though a negative relationship between slavery and income was still present until 1970).

Next we turn to the impact of slavery on current income disparities and we find that it is indeed associated with a higher degree of income inequality. In other words, former slave counties are more unequal in the present day. They also show a higher poverty rate and a higher degree of racial inequality. Moreover, the data say that the impact of slavery on economic inequality and poverty runs through its impact on racial inequality, and not vice versa. (source)

How exactly does slavery lead to long turn income inequality? If slavery is seen as a symptom of feelings of racial superiority, then it’s not far-fetched to assume that those feelings didn’t die with slavery and continued to affect blacks by way of discriminatory policies and practices, including in wage determination and other areas that influence economic inequality, such as the provision of education.

This, by the way, also makes the case for reparations a bit stronger. More posts in this series are here.

Racism (15): Does the Stigma of “Acting White” Explain the Racial Achievement Gap in Education in the U.S.?

In many areas of life, different racial groups in the U.S. achieve unequal results. African-Americans earn less, are more likely to be in prison, are more often ill etc. So it’s no surprise that there’s an achievement gap in education as well.

At nine months old, there are no detectable cognitive differences between black and white babies. Differences emerge as early as age two, and by the time black children enter kindergarten they are lagging whites by 0.64 standard deviations in math and 0.40 in reading. On every subject at every grade level, there are large and important achievement differences between blacks and whites that continue to grow as children progress through school. Even accounting for a host of background factors, the achievement gap remains large and statistically significant. (source)

While the education gap seems to be closing, it remains wide. It’s likely that other multicultural societies face the same kind of problem. Racists have an obvious explanation: racial inferiority! Anti-racists have an equally obvious but more convincing explanation: racists! But apart from the effects of lingering racist discrimination there’s also a more interesting cause of the education gap: the stigma of “acting white“, causing minority students to suffer from the negative prejudices of their ethnic peers. Roland G. Fryer has looked at this, and found that it can explain a lot.

“Acting white” is a kind of negative peer pressure. Black peer communities impose costs on those members who are perceived to be “acting white” (or are trying to “act white”). The criticism of “acting white” and the costs imposed on those who are believed to “act white” lead to the avoidance of behavior that is seen as the traditional prerogative of whites. The avoided behavior can be quite harmless, for instance wearing clothes of a particular brand that is believed to be typical of whites, or giving your children certain “white” names. But the avoided behavior can also undermine people’s education, for example when people are discouraged to use standard English, to read books or to achieve high grades. (And even the seemingly harmless habit of giving your kids “black” names can result in harm. It’s known, for instance, the employers regularly discriminate people with “black” names while processing job applications).

The individuals exposed to all these kinds of negative peer pressure have a disincentive to invest in their education. They deliberately underachieve in order to avoid social sanctions. Naturally, the degree of the disincentive depends on the nature and the level of the costs imposed: those costs can be the threat of rejection, ridicule etc. Different people will suffer different costs and will perceive the gravity of the costs differently, but as long as there is a perceived trade-off between acceptance and authenticity on the one hand and achievement on the other, there will also be an achievement gap.

Fryer measures the impact of the stigma using social popularity, number of friends and friendship patterns plotted against school grades. His results clearly show an inverse relationship between grades and popularity for non-whites.

Not surprisingly, the effect of “acting white” is more severe in integrated schools than in predominantly black schools. The reason is the higher level of competition between communities and the perceived threats between groups:

In an achievement-based society where two groups, for historical reasons, achieve at noticeably different levels, the group with lower achievement levels is at risk of losing its most successful members, especially in situations where successful individuals have opportunities to establish contacts with outsiders. Over the long run, the group faces the danger that its most successful members will no longer identify with its interests, and group identity will itself erode. To forestall such erosion, groups may try to reinforce their identity by penalizing members for differentiating themselves from the group. The penalties are likely to increase whenever the threats to group cohesion intensify. (source)

This explanation of the causes of the “acting white” stigma, based on the desire of groups to preserve their identity in the face of external threats to their internal coherence, is more convincing that the two major alternative explanations:

  • Blacks have developed a culture of investing themselves in alternative pursuits rather than in education because historically academic achievement was the prerogative of whites. This explanation reeks of historical determinism.
  • Blacks have developed a culture of “victimology” and deliberately engage in cultural sabotage. This explanation can be perceived as racist.

“Acting white” explains a lot but surely not everything. It’s likely that the racial poverty and income gaps also contribute to the education gap, as do patterns in family structure, incarceration rates of black fathers, school quality etc. Stereotype threat can also play a part. As well as some good ol’ racism, of course.

Gender Discrimination (23): Reverse Gender Discrimination in Criminal Justice

Using data obtained from the United States Sentencing Commission’s records, we examine whether there exists any gender-based bias in criminal sentencing decisions. … Our results indicate that women receive more lenient sentences even after controlling for circumstances such as the severity of the offense and past criminal history. …

Studies of federal prison sentences consistently find unexplained racial and gender disparities in the length of sentence and in the probability of receiving jail time and departures from the Sentencing Guidelines. These disparities disfavor blacks, Hispanics, and men. A problem with interpreting these studies is that the source of the disparities remains unidentified. The gravest concern is that sentencing disparities are the result of prejudice, but other explanations have not been ruled out. For example, wealth and quality of legal counsel are poorly controlled for and are undoubtedly correlated with race. …

The findings regarding gender in the case of serious offenses are quite striking: the greater the proportion of female judges in a district, the lower the gender disparity for that district. I interpret this as evidence of a paternalistic bias among male judges that favors women. (source)

Racism (14): Race and Consumer Behavior

There’s strong evidence of racist sorting by people looking for a job (white job seekers often avoid working for black managers, and white workers quit their jobs more rapidly when a white manager is replaced with a black manager). A similar phenomenon is race discrimination by buyers.

Do buyers discriminate based on race? This column describes an experiment in the US that advertised iPods online from black and white sellers. Black sellers received fewer offers at lower prices, doing better in markets with competition amongst buyers and worse in high-crime markets. The authors find evidence of both statistical and taste-based discrimination. … [I]t appears that discrimination may not “survive” in the presence of significant competition among buyers. Furthermore, black sellers do worst in the most racially isolated markets and markets with high property crime rates, suggesting a role for statistical discrimination in explaining the disparity. (source)

The important question is indeed to what extent this “sorting” on the part of buyers is motivated by statistical discrimination or by taste-based discrimination:

  • Statistical discrimination means that race is used as a proxy for unobservable negative characteristics, maybe in this case a judgment about the probability that black sellers will be happy with a marginally lower sales price, given their statistically higher rates of poverty. Or perhaps there’s distrust based on unclear statistical judgments about the risk of buying fake or stolen goods, meeting sellers in an inconvenient or dangerous neighborhoods, or dealing with unreliable sellers who might not complete the transaction.
  • Taste-based discrimination occurs when people just don’t like dealing with black people for no particular reason apart from the difference in race.

The study cited above uses a number of clever ways to disentangle these two effects. For instance, the inclusion of white tattooed sellers, who also received fewer and lower purchase offers, suggesting that part of the differences are due to statistical discrimination. Another part, however, is just plain racism. Black sellers are at a significant disadvantage on average, and that’s due to both statistical and taste-based discrimination.

More on statistical discrimination here.

Discrimination (7): Statistical Discrimination v. Background Checks?

Employers often use background checks before deciding to hire someone. For example, they may check the criminal record of job candidates, their credit scores, health history etc. It’s somewhat understandable although not always acceptable that they are reluctant to hire someone who has been in jail, has been sick for a long time, or has proven to be undisciplined by not paying her bills.

Let’s focus on ex-convicts for the moment. These people have a hard time as it is, sometimes even for no good reason because they shouldn’t have been incarcerated in the first place (I argued here that many countries, and especially the U.S., put too many people in jail). So, allowing employers to use criminal background checks can force ex-convicts into a vicious circle: unable to find a job, they may be forced to go back to crime.

Furthermore, there’s a racial aspect to all of this: in the U.S., African Americans are more likely to be ex-convicts. According to some, this racial discrepancy is precisely the reason to allow criminal background checks. If employers aren’t allowed to check individual candidates, they will resort to statistical discrimination: they know that blacks are more likely to have a criminal record and so they won’t hire any blacks at all, just to be safe.

However, if you espouse this argument in favor of background checks, you essentially want to make things better for one disadvantaged group – blacks, who are generally disadvantaged in employment – by making things worse for an even more disadvantaged group, namely ex-convicts. And that’s assuming that employers will hire more black people if they can use criminal background checks; but assuming that means assuming there’s no racism. Helping a disadvantaged group by harming an even more disadvantaged group is plainly absurd, and you can only fail to see that it’s absurd if you have an overriding fear of government regulation. Regulation should be kept in check but not at any price. I think in this case regulating businesses and outlawing background checks is the appropriate thing to do.

Let’s turn briefly to another type of background check: credit scores.

[M]illions of Americans, as a direct consequence of looking for work, have lower credit scores. … The use of credit checks in employment decisions should be banned. It is a form of discrimination against the poor — the codification and enforcement of class barriers. It is therefore a form of discrimination against those groups more likely to be poor. (source)

It seems there’s a

growing tendency of HR departments to check the credit scores of potential employees apparently deeming this data to be an important predictor of employee behavior. This creates a Catch-22 scenario for the unemployed where you can’t improve your credit score unless you get a job and you can’t get a job until you improve your credit score. (source)

Apart from the obvious fact that credit scores seem to be a type of knowledge that is much less useful for an employer compared to a criminal record – if your house burned down and your credit score is low as a result, does that make you a bad employee? – there’s a real issue for the poor here. They shouldn’t be discriminated against just for being poor. It’s not just a lack of conscientiousness or discipline that can lower your credit score. Back luck and poverty won’t help either. Some say the free market and competition will take care of this: employers stupid enough not to hire good poor people simply because they have a credit problem will lose out. Their competitors who don’t engage in credit checks will hire them, and those businesses will acquire a commercial advantage. I don’t know. Seems awfully optimistic to me.

Discrimination (6): Should People Be Liable For Unconscious Discrimination?

First of all, it’s evident that people often have unconscious motives for their actions. For example, parents “wishing the best” for their children can act out of frustration about their own past failures. So it’s likely that some acts of discrimination are based on similar “deep” motives. Some of us who genuinely believe that we are colorblind may still avoid black neighborhoods at night, cross a lonely street when a tall black male comes our way, or favor a CV sent in by someone with a “‘Caucasian” name. Tests have shown that people are more biased than they admit to themselves.

So we may be violating anti-discrimination laws without “really” and consciously wanting to. You could say that in such cases we shouldn’t be prosecuted for breaking the law, because there is no intent on our part. Discrimination takes place but no one really wants it to take place. True, normally there’s an intent requirement when deciding liability: if you drive your car and you hit someone who crosses the road where he or she shouldn’t do so, you’re not criminally liable. You killed a person but didn’t intend to. In some cases, the lack of intent diminishes rather than removes liability: if you’re in a fight with someone and the other person dies because of your actions, you won’t be charged with homicide but with the lesser crime of manslaughter if you didn’t intend to murder.

As the example of manslaughter already makes clear, intent isn’t always necessary for liability. Hence, lack of intent can’t be the reason not to make unconscious discrimination a crime.

Anyway, intent or the absence of it is often very difficult to prove. In the case of homicide/manslaughter, you can use witness accounts or physical evidence, you can reconstruct the crime and try to figure out if the killing was planned or intended, or you can interrogate the perpetrator, and even then it’s rarely easy. Things seem to be much more difficult still in cases of unconscious discrimination. Looking for intent is basically trying to look inside people’s minds, which isn’t obvious, and when people fool their own minds it’s becomes even harder.

If we accept that unconscious discrimination should be a crime in certain cases, and perhaps equivalent to conscious discrimination, then the problem is how to prove that it took place. In the case of conscious discrimination, you can often rely on the utterances of the person(s) who discriminate. That’s evidently impossible in the case of unconscious discrimination. Perhaps you can’t prove it in individual cases – if one black person’s CV is rejected, it’s probably impossible to say it’s because of implicit or unconscious racism. However, if a company rejects a large number of such CVs, and correcting for other factors such as education or skill level doesn’t remove bias in the distribution, then you may perhaps have evidence of discrimination (that’s a technique that’s useful in cases of conscious discrimination as well, by the way). So you would need to rely on statistical analysis, something that usually isn’t done in the determination of criminal liability. It’s not because x % of all killings are manslaughter that everyone charged with a killing has x % change of “getting away” with manslaughter. The decision to sentence someone for the crime of murder or manslaughter is always made on an individual basis and not a statistical one, although past conduct of the suspect can sometimes come into play.

An additional difficulty: if we accept that laws aren’t only meant to punish but also to prevent and deter, it seems that the latter goal is futile in the case of unconscious discrimination. People who are not aware that they engage in discriminatory activities will hardly be persuaded by laws telling them to stop doing so.

I’m personally not yet ready to take a firm position on these issues. For more information on this topic, take a look at this interesting paper.

Discrimination (4): Private Discrimination, Freedom of Association and Property Rights

To what extent should anti-discrimination laws apply to private associations, to voluntary employment contracts and in private property? Let’s have a look at a number of recent news stories:

  • There was the controversy over Rand Paul’s opposition (shared by many other libertarians) to the application of the Civil Rights Act to private enterprises, which implies that a restaurant owner for example should be able to segregate his restaurant or even refuse black customers for example. (This view is based on the libertarian opposition to government regulation of the private sector).
  • Then there was the case of the Christian student’s union refusing gay members.
  • A teacher in a Christian school got herself fired because of premarital sex.
  • There’s the famous case of the Boy Scouts’ refusal to allow gay members (Boy Scouts of America v. Dale).
  • The D.C. police department recently decided to no longer intervene in an ongoing protest by Muslim women over their place in area mosques. These women have provoked confrontations in mosques by claiming the right to worship next to men, a right refused by conservative Muslim men. The police initially escorted the women out of the mosques, as requested by the men, but won’t do that anymore. The men claim that the mosques are private institutions, and private property rights should prevail. The women, they say, are trespassers.
  • And some time ago the British BNP, a racist political party, was forced to accept black members.

A similar but different case – because not based on prejudice or discrimination (except if you count PC as discriminating between views) – was the firing/quitting of journalist Helen Thomas following a politically incorrect and possibly antisemitic comment on Israel.

We can, of course, imagine an infinite number of similar cases:

  • Can a gym be held liable for dismissing a fat fitness trainer?
  • Should a business be able to offer a gays-only retirement home?
  • Can a landlord invoke religious objections to renting to an unmarried or gay couple?
  • Etc.

What all such real and imaginary cases have in common (even the Thomas case, which I’ll exclude from the current discussion because it’s slightly different and doesn’t – necessarily – involve discrimination) is that different values clash. Equality, equal treatment and the absence of discrimination on the one hand clashes with the freedom of association, the right to property and the freedom of contract on the other hand. (In the Thomas case, free speech clashes with freedom of employment contract).

If you’re a value pluralist – as I am – then these are hard cases. Property rights, freedom of association, freedom of contract (including in employment), equality and non-discrimination are all important values. It’s a right to hire or fire employees, accept or reject members of associations and serve or fail to serve customers on whatever basis you wish, even if this means discriminating certain employees, members or customers. But it’s also a right not to suffer discrimination. None of these values is by definition or a priori more important than the others. (If you think only freedom and property count, then you can wrap this up in a minute. Likewise if you think equality does count but is the automatic result of freedom. Don’t laugh, some actually think like that. Remember trickle down and the invisible hand).

All those rights are important, and when they clash, as in our examples, we’ll have to make a hard choice: which right in which case will receive priority? That will be, by definition, a case by case trade-off. You can’t use a general rule, since all these rights are – in the abstract – equally important. You can’t use a rule that says, for example, “property rights are equally important as equal treatment, except for bigots”. It’s not because you’re a bigot that you lose your property rights, your freedom of association or your freedom of contract. Those rights are human rights and intrinsically valuable.

So let’s assume that we will find many cases in which equal treatment is more important than property, contract or association rights. Pre-Civil-Rights-Act-America would be such a case. We will then engage in some justified anti-discrimination efforts that limit these other rights. And we will acknowledge that there is a limitation of rights going on. That there is a trade-off between rights and that the limitations of certain rights don’t mean that those rights are no longer important. It’s a necessary evil and an unfortunate consequence of clashing rights.

We’ll also find numerous cases in which property, contract or association rights will outweigh discrimination concerns. The example of the fitness teacher given above (who doesn’t have a right to employment in the business of his choice), or the gay retirement home (non-gay pensioners have ample opportunities elsewhere) would be cases like this. The same goes for the case of the guy protesting ladies’ night. Not all consequences of discrimination are equally harmful.

Consequently, anti-discrimination efforts can’t be an absolute concern and can’t become the only preoccupation. Otherwise, other rights would suffer needlessly. A balance has to be found. We have to decide how far our anti-discrimination measures can go without weighing too heavily on other rights, and how far bigots can be allowed to use their rights without harming the targets of their bigotry. (Or how far non-bigots can discriminate for non-bigoted reasons).

And when attempting to make this balance, we have to look at the specific circumstances and the relative harm that we can do on both sides. Small scale bigotry against a single individual who has numerous outside options – another employer, another restaurant, another organization etc. – won’t initiate anti-discrimination action, certainly not by the government. Jim Crow, on the other hand, inflicted enormous harm on large groups of people during many decades. And it would not have been abolished by a few activists, boycotts or sit-ins. Nor, for that matter, by the government ending its own discrimination. Active government action against private – and public – discrimination was required. And did happen in the Civil Rights Act of 1964 and later decisions which banned private actors from withholding services or denying employment on the basis of race (or of religion, sex, or national origin). Those anti-discrimination efforts did harm property and other rights but it’s clear that a failure to intervene would have meant perpetuating the greater harm of Jim Crow. I’ll come back to the topic of government vs private intervention against discrimination in a moment.

A parenthesis: some cases fall outside the current discussion. Government mandated discrimination in public places – trains, buses, public schools etc. – is completely and utterly unacceptable in all cases since the government can never be allowed to discriminate. Government discrimination also doesn’t cause a conflict of rights. The topic here is strictly private discrimination.

Take a look at this quote:

Wasn’t racial discrimination basically a private affair? Did we really have to enact federal laws and regulations to end it? Many of these laws dictate how people run their businesses and associations, and these restrictions are problematic to say the least. Even if we do find discrimination wrong, isn’t it a private wrong? (source)

In fairness to the author, he doesn’t seem to answer completely in the affirmative. And yet, why would you even ask those questions? Well, you should if you’re a libertarian and if liberty – including the liberty to do with your private property as you like and to freely engage in contracts and associations as you please without limitations – is the supreme value in life. However, if we accept the logic of this quote, then domestic violence and a whole bunch of other crimes are “private affairs” that shouldn’t be governed by “problematic” laws. And yet they are governed by laws, and hence we have laws “dictating how people run their associations”, and that’s a “problematic restriction”. We may think domestic violence or marital rape is wrong, but it’s a “private wrong” and hence none of our business. Domestic violence or marital rape take place within “private property” and can be seen, with a stretch of the imagination, as part of the freedom of contract (if a wife doesn’t want to be beaten or raped she should cancel the marriage contract, just like a pre-1964 African American who didn’t want to be discriminated by a restaurant owner should have gone elsewhere).

Of course, no one in his right mind would view domestic violence or marital rape like this, and no libertarian does. But the fact that libertarians – as well as many conservatives for that matter – never spill a drop of ink defending these crimes and yet fill libraries with defenses of private discrimination (and have even run a presidential campaign on the basis of this defense) just goes to show that equality and non-discrimination aren’t very important concerns for them, or at least not as important as violence and rape.

Do we really need government intervention to harmonize the two legitimate concerns? The concern for private freedom to discriminate within your property or associations, and the fight against discrimination? Some say that the fight against discrimination shouldn’t necessarily entail government coercion against private discrimination and should focus on private activism. That’s possible of course. Boycotts may help, just as minority organization, lobbying, education etc. (Another proof that free association is an important right. Minorities often depend on freedom of association and on strong property rights for their activism, and free commerce and freedom of contract tend to lower prejudice). There are also market mechanisms that counteract discrimination and fostering those mechanism might reduce discrimination without government coercion.

But that effort is certainly naive in many settings, especially when discrimination is widespread and group conformity counteracts market incentives (for example when customers are willing to pay a premium to visit segregated businesses, in which case the business owners will not be pressured by the profit motive to accept all customers; or when businesses are threatened into respect for segregation). Likewise when discrimination is government mandated. Hence the need, in many cases, for government coercion to break widespread patterns of discrimination that seriously reduce the options and opportunities of those who are discriminated against.

Why specifically state intervention? Racist business restaurant owners or bigoted employers or organizations can perhaps, sometimes, be persuaded to accept non-whites customers, employees or members through boycotts, social ostracism or the pressures of the market, but state intervention is often necessary in order to force them to do so. And they should be forced when the targets of their discrimination are seriously harmed by this discrimination, don’t have options elsewhere and can’t wait for the slow process of the market and of mentality changes. For example, a black person failing to get hired because of his or her race, after many attempts, suffers more harm than a black person failing to get served in a restaurant but having many more restaurant options close by.

It can be, in some settings, immoral to say that government shouldn’t intervene and that only social activists should struggle against racism and discrimination. In many cases, such as the southern parts of the US under Jim Crow, a struggle that isn’t backed by government often means risking life and limb. Discrimination in the US was underpinned by private terrorism (KKK) and actively supported or condoned by government law enforcement officers. Insisting that discrimination should be combated solely by private actors means exposing them to serious risks.

A final consideration: what if property is the direct result of discrimination? Can the descendants of slave owners really claim that their property rights should be a justification of their discriminatory actions? Or is their property illegitimate given the fact that it wouldn’t have existed without slavery? That would be an additional reason to favor equal treatment over property rights, when these two values clash.

Why Do We Need Human Rights? (15): Is Human Rights Talk Mere Signaling?

There’s certainly a lot of signaling going on in human rights talk. People who engage in human rights talk don’t necessarily have as a first priority the goal of improving respect for human rights, but rather want to convey some meaningful information about themselves and use human rights talk to do that.

For example, it’s possible that some of the people who are very expressive about perceived discrimination of a particular minority group may be primarily motivated by a possible leadership position within that minority group. Their human rights talk signals leadership aspirations. Some allegations by torture victims may not be intended to stop a torture regime, but to signal extremist credentials to like-minded people. Also regarding torture, I’ve written not so long ago about a study suggesting that some governments sign torture conventions, not to rid the world of torture, but to signal ruthlessness: they sign the convention and just continue their torture methods, thereby telling their victims and their population in general that they are so powerful that they can voluntarily submit to laws and then deliberately and openly break them in the face of impotent international opprobrium.

Another example is the ritualistic condemnation of China’s human rights record. Western leaders, when visiting China or playing host to Chinese leaders, are expected to repeat some standard phrases about human rights in China. That’s what their national constituencies expect from them, and they grudgingly comply. It has become part of protocol, like kissing the Pope’s ring. It’s utterly meaningless because real action to pressure China is completely lacking. China knows this, but goes along and issues its equally ritualistic counter-claims of national sovereignty blah blah. The West signals that it cares about human rights; the Chinese leaders that they don’t.

Something similar is happening with universal jurisdiction. Countries engaging in universal jurisdiction often start court cases against foreign dictators, without the slightest hope of actually punishing and imprisoning those dictators, but at least they signal that the “world community” doesn’t silently accept atrocity. And perhaps they also signal their own country’s moral superiority. A lot of human rights talk seems to be about moral superiority.

Karl Marx already identified signaling as a important function of human rights, although he pushed his point a bit too far. Human rights, according to him, are an ideology. An ideology pretends to be a description of the world but in reality it masks certain key aspects of it in order to maintain the economic status quo. It is an instrument in the continuation of the existing social order. Those who may threaten the status quo in a revolutionary way can be convinced by the ideology of human rights to work within the system and struggle for equal rights. However, these equal rights, according to Marx, can only deliver formal equality, not real equality. Only a revolutionary overthrow of capitalism can achieve the latter. Human rights signal equality but in reality serve to maintain class rule.

Those who benefit from the existing order and who are therefore part of the ruling class, will tend to produce and propagate ideologies. Religion is another example of an ideology, and one that works in much the same way as the ideology of human rights. Desires that can harm the existing order and the status quo – such as desires for equality – must be neutralized. The idea of the Christian paradise expresses certain desires for a better world but makes it impossible to realize them and to threaten the existing order. By convincing people that these desires can only be realized in the afterlife, the idea or better ideology of paradise pacifies relationships in this life. Why revolt if you know that equality and happiness are there for the taking in a future life? Especially when you will only get paradise if you respect morality in this life and when morality is often and conveniently incompatible with the consequences of revolt.

Religious ideology neutralizes desires by situating them in the afterlife. Religion is opium for the people, a drug that makes them forget the pain of this world, or at least convinces them to accept this pain, because pain can lead to revolt and those in power never like revolt. Something similar is inherent in the ideology of human rights. The use of force or coercion by the state in the defense of the right to capitalist property, for example, is not necessary when the poor can be convinced that property is a human right which is in their interest, rather than a right of the wealthy. The economic relationships and structures are maintained with political and legal force but also with legal ideology.

All ideologies are similar. Christianity can convince people to accept their situation by promising salvation in a future life, and the ideology of human rights does the same by convincing people, all people, that they have the same rights and that they are therefore equal. When this universality and equality of rights is accentuated, people do not see that others who have the same equal rights profit more from these rights. Human rights signal freedom and equality, and give the impression of guaranteeing freedom and equality, but in reality give those who are better off tools to improve their situation even more, and at the expense of the poor. Instead of real equality there is only legal and formal equality, and the latter takes us further away from the former because the rich can use their equal rights to promote their interests. Rights, according to Marx, give us the freedom to oppress rather than freedom from oppression.

Human rights, he says, are a set of false ideas that have to cover up class rule and make it acceptable. The continuation of inequality by political and legal means is based on the combination of coercion and false consciousness. Christians are equal in heaven and thereby maintain inequality on earth, and believers in human rights are equal in the heaven of their political ideals and thereby forget the inequality that these ideals help to maintain.

I think that view is far too pessimistic and takes the signaling thing way too serious. It ignores the transformative power of human rights. There is signaling going on in human rights talk, but a lot of other stuff as well. Some talk is really aimed primarily or exclusively at a real transformation of reality toward a higher level of human rights protection. And a lot of that talk really works in the sense that life is changed by speech. Sometimes human rights aren’t about human rights, but often they are.

Religion and Human Rights (29): When Freedom of Association and Anti-Discrimination Clash

In a recent court case in the US, a Christian student group objected to a university decision to withdraw recognition of the group. This withdrawal was justified by the university on the basis of the group’s discrimination of gays. Gays can only join the group when they “repent”. This policy by the group was deemed discriminatory by the university and in violation of its anti-discrimination policy. Withdrawal of recognition means that the group loses some subsidies and access to university resources, not that it has to cease to exist.

The group claimed that the university decision violated it’s freedom of association and freedom of religion. It also claimed that the university’s non-discrimination policy backfired and in fact created a new instance of discrimination, namely discrimination based on religion (because the group felt singled out; a Hispanic group excluding non-Hispanics did not suffer the same fate). The university contested this reasoning, claiming that the group was free to organize its activities elsewhere.

In my opinion, the Christian group is clearly bigoted and deserves condemnation for that, but groups should be free to decide who can and cannot become a member. And so there’s nothing wrong, in principle, with Christian groups banning gays. Forcing a group to accept members who violate the group’s fundamental rules and principles would empty freedom of association of any content because it would lead to the dissipation of the group’s identity. There is no group without identity, and hence no freedom of association without identity. And identity by definition means exclusion. Communist groups that are forced to accept capitalist members, or neo-Nazi groups that are forced to accept Jews, cease to exist as coherent groups. In case of religious groups, this would also violate the groups’ freedom of religion.

Also, the claim by gays that they are discriminated is weakened by the fact that they have numerous alternatives. It’s not like their non-membership of the Christian group produces a lot of harm to them, in terms of diminished choices, missed opportunities, lost resources etc.

An aside: I always fail to understand why people would want to join groups where they are manifestly unwelcome, except perhaps to cause a stir. Of course, this is no argument in favor or against any of the previous claims, except perhaps a pragmatic argument against the university’s position: if indeed gays will not join the anti-gay Christian group because they don’t have an incentive to associate with people who are hostile, then there’s no reason for the university to move against the group, since no discrimination will occur.

How is this different from what libertarians often claim about private discrimination? (Rand Paul for example recently claimed that the Civil Rights Act should not make “private segregation” illegal and should not force white restaurant owners to accept black customers). The difference is that segregation and Jim Crow were so widespread that blacks had considerably fewer options and suffered considerable disadvantage. The same isn’t true of gays on campus: there are enough associations that accept them. Hence, the discrimination that is imposed by the Christian group is real but not consequential enough to warrant a limitation of its freedom of association or religion.

Another argument in favor of the Christian group: non-discrimination policies have the laudable goal of promoting diversity and allowing every member of society to have the same options and choices. But how do you promote diversity if you don’t allow groups to have a coherent identity? And how do you promote options when you make it impossible for Christians to join a “truly” Christian group?

All this doesn’t mean that there will never be cases in which actions against groups are justified. In some instances, the demands of non-discrimination will outweigh the rights to freedom of association and religion. See here and here for more information on the need to balance different rights against each other.

Discrimination (3): Libertarianism and Private Discrimination

Prominent libertarian politician Rand Paul recently caused a stir by claiming that he didn’t support parts of the Civil Rights Act of 1964, specifically the parts applying non-discrimination legislation to private businesses. Like most libertarians, he believes that if private restaurant owners, for example, want to prevent blacks from eating there, then that’s their right. Similarly, banks should be allowed not to lend to blacks, real-estate agents not to sell to blacks, private homeowner groups should be able to band together and keep out blacks etc. Same when the targets are Jews, gays, immigrants and so on.

The standard libertarian position is that only government enforced or government protected discrimination is wrong. Private actors should be allowed to discriminate. A private restaurant owner for instance should be allowed to refuse to serve blacks. However, government rules forcing restaurant owners not to serve blacks are not allowed, even though for the blacks in question the results are much the same.

It’s not that most libertarians think this kind of discrimination is acceptable and would engage in it themselves. They reject legislation against private discrimination because they consider the right to private property and the sovereignty of property owners much more important than the fight against private discrimination. They also argue that market mechanisms, which they also like a whole lot, will – over time – weed out such discrimination. A restaurant owner who refuses to serve blacks will do a lot worse than his competitors who are more open minded. He will lose benefits of scale, will have to raise his prices and ultimately also lose the bigoted white customers who detest eating in the presence of blacks but detest even more paying unreasonable prices.

Here’s a good statement of the libertarian position by a self-confessed libertarian:

(1) Private discrimination should, in general, be legal (this includes affirmative action preferences, btw). Many libertarians would make exceptions for cases of monopoly power, and most would ban private discrimination when the government itself ensured the monopoly by law, as with common carriers like trains; (2) The government may not discriminate. If necessary, the federal government should step in to prevent state and local governments from discriminating; (3) The government may not force private parties to discriminate, and the federal government should, if necessary, step in to prevent state and local governments from forcing private parties to discriminate; (4) The government must protect members of minority groups and those who seek to associate with them from private violence. If the state and local government won’t do so, the federal government should step in. (source)

Note the mention of violence in this quote: private violence against blacks isn’t allowed, private discrimination is. Why the difference? Again, property rights. Laws against violence don’t usually violate anyone’s property rights.

Now, what’s the problem with this libertarian position? Property rights are obviously very important. You don’t need to be a libertarian to believe that. I argued strongly in favor of property rights here. Likewise, the free market does an enormous amount of good. The problem with the libertarian view is absolutism and a rejection of value pluralism. There are many values in life, and many different strategies to realize them. And sometimes, some values or strategies come into conflict with each other. When that happens – as is the case here – you have to be willing to balance them and see which one should take precedence. Privacy and free speech, for example, are both important, but what do you do when a journalist exposes the private life of a public figure? You balance the right and wrong: which value is better served by publishing? Free speech or privacy? In some cases, we may believe that free speech is more important than the right to privacy (for example when the politician’s private life has relevance for his functioning). In other cases privacy will trump speech (for example when the facts published have no political meaning). Such decisions can only be taken case by case because the specifics always differ. Doctrinaire and absolutists positions in favor of one value or the other won’t do. And unfortunately many libertarians, and certainly Rand in this case, seem to think that their preferred values – property, freedom and the market – should always have priority over all other values.

Is legislation such as the Civil Rights Act an infringement of property rights and the freedom to do with your property as you want? Of course it is. Are such infringements always wrong? Of course they aren’t. Sometimes they are a necessary evil to gain a greater good.

There a resemblance between the libertarian views on private discrimination and the more widely accepted view in the U.S. that free speech rights and the First Amendment can only be invoked against the government, as if private actors can’t violate people’s right to free speech. The dominant U.S. free speech doctrine reflects an antiquated view of human rights as exclusively vertical. Of course, the government probably does most of the violations, particularly of a right such as free speech, but probably not in the case of the right not to be discriminated against. That’s more of a private monopoly, and markets, protest marches, boycotts, activism etc. won’t solve that problem by themselves. Just look at the market: it didn’t solve segregation, and neither would it have had it been more free. In fact, it’s likely that bigoted white customers who detest eating in the presence of blacks, will not find themselves in white only and hence more expensive restaurants, but will band together and boycott non-segregated restaurants which then lose far more business among whites than they gain from allowing blacks. Such boycotts are absolutely in line with property rights and the free market, which shows that the market can make discrimination worse instead of destroying it. (For a more sympathetic view of the power of the market, go here).

Strangely, Rand Paul himself invoked the parallel between private discrimination and free speech, but twists it to serve his goals:

INTERVIEWER: But under your philosophy, it would be okay for Dr. King not to be served at the counter at Woolworths?

PAUL: I would not go to that Woolworths, and I would stand up in my community and say that it is abhorrent, um, but, the hard part—and this is the hard part about believing in freedom—is, if you believe in the First Amendment, for example—you have too, for example, most good defenders of the First Amendment will believe in abhorrent groups standing up and saying awful things… It’s the same way with other behaviors. In a free society, we will tolerate boorish people, who have abhorrent behavior. (source)

So we have to tolerate discrimination that actually harms real people, just like we tolerate awful speech that most likely doesn’t hurt a fly? Words don’t equal behavior, although sometimes there may be a thin line between them (which is why hate speech laws can sometimes be justified).

The Causes of Human Rights Violations (20): Stereotype Threat, Ctd.

In a previous post about the stereotype threat, I defined it as follows: the threat of stereotypes about one’s capacity to succeed at something reduces the chances of success; when the belief that people like you (African-Americans, women, etc) are worse at a particular task than the comparison group (whites, men, etc) is made prominent, you perform worse at that task.

Here’s some new evidence:

The paper explains how workers’ expectations of being discriminated against can be self confirming, accounting for the persistence of unequal outcomes in the labour market even beyond the causes that originally generated them. The theoretical framework used is a two stage game of incomplete information in which one employer promotes only one among two workers after having observed their productivity, which is used as a signal of their ability. Workers who expect to be discriminated against exert a lower effort on average, because of a lower expected return, thereby being promoted less frequently even by unbiased employers. This implies that achievements of minority groups may not improve when the fraction of discriminatory employers actually decreases, and such a mechanism is robust both to trial work periods and to affirmative actions like quotas. (source)

The Causes of Human Rights Violations (19): Ideology

From Reinhold Niebuhr’s Moral Man and Immoral Society:

Since inequalities of privilege are greater than could possibly be defended rationally, the intelligence of privileged groups is usually applied to the task of inventing specious proofs for the theory that universal values spring from, and that general interests are served by, the special privileges which they hold.

That’s the basis of trickle down economics which is a theory about how inequalities ultimately benefit everyone. It’s also the basis of tax schemes such as a flat tax that limit forced redistribution, because the invisible hand will redistribute wealth or make it trickle down automatically.

And, when trickle down is discredited and when it turns out to be difficult to prove that inequality is a universal value, we hear that inequality isn’t as big a problem as it seems, and that this is the land of opportunity where even people who are on the wrong side of inequality can make it through hard work and discipline. Even Obama seems to believe this, as is clear from his inauguration speech. That’s a classic case of the anecdote turned into a “scientific” law. Data show that social mobility isn’t what the American Dream dreamers think it is. Implicit in this story is that existing inequalities are the sole responsibilities of individuals who haven’t made diligent use of the many opportunities this land has generously provided them. Discrimination, injustice, greed and lack of compassion are obscured as causes of inequality.

In reality, inequalities are indeed greater than could possibly be defended rationally, in the words of Niebuhr. The defense based on trickle down economics has failed, as has the defense based on the claim that inequalities are the sole result of individual choices and a lack of response to opportunities (this defense completely rejects effects of discrimination, which seems to be misguided).

However, it’s not because inequalities are greater than they should be that all inequalities are wrong. Some inequalities are unavoidable or even valuable. We do want Einsteins and Picassos. Society should reward merit. We all benefit from the recognition of exceptional individuals. Nietzsche for example rightly protested against the modern habit of cutting everyone down who dares to stick his head up. Equality of outcome is in many respects distasteful. And apart from the valuable inequalities, there are unavoidable inequalities. Some inequalities that are the result of the “lottery of birth” are impossible to correct: some people are born with more talent than others or with talents that are more appreciated in the economic or cultural market; and there will always be people who are born in privileged families.We wouldn’t want to engage in genetic engineering in order to redistribute talent, and neither would we be willing to redistribute children across families (at least not for the purpose of equality of opportunity).

Other aspects of the lottery of birth, however, are more difficult to defend. Why should the good luck of being born in a wealthy family with educated parents guarantee you a better education, better healthcare and better economic prospects? But of course it isn’t just the contingency of your place of birth that determines your opportunities and you future place in society. Some people are pulled down by discrimination or bad luck. We justifiably don’t accept that people’s prospects in life are fully determined by their family, luck or discrimination.

Again, equality of opportunity is different from equality of outcome: most of us don’t think it’s a good idea to strive towards equality of outcome in most spheres of life. We’re quite happy to accept that some people earn less money, have less vacation time, have lower social status and recognition levels and have more uncomfortable, dangerous, or physically draining work etc. What we don’t accept is that those outcomes are predetermined by the family they happen to be born in, by discrimination they suffer or by other instances of bad luck.

Measuring Equality of Opportunity

People on opposite sides of political debates often agree on very little, but they do agree on the importance of equality of opportunity. There is almost universal agreement that people should have at least a starting position that guarantees an equal chance of success in whatever life projects one chooses, for those willing to invest an equal amount of effort. More specifically, equality of opportunity is often defined as an equal likelihood of success for all at age 18 (in order to factor in possible inequalities of opportunity determined by education).

Equality of opportunity is by definition an impossible goal. The lottery of birth means more than being unable to choose to be born in a wealthy family with caring parents who can finance your education and motivate you to achieve your goals. It also means that you can’t choose which talents and genes you are born with. Genetic differences are no more a matter of choice than the character and means of your parents. And genetic differences affect people’s talents, skills and maybe even their capacity to invest effort. So, as long as we can’t redistribute beneficial genes or disable harmful ones, and as long as we don’t want to intervene in people’s families and redistribute children, we can’t remove the impact of genes and parents.

However, we can do something. Equality of opportunity may be impossible but there is less or more inequality of opportunity. Or concern should be to provide as much equality of opportunity as possible, and to expand opportunity for those who are relatively less privileged. This means removing things that hold some people back (e.g. discrimination, unemployment, bad schools etc.), and – more positively – helping people to cultivate their capabilities and expand their choices.

How doe we measure if these interventions are successful? It seems very difficult to measure equality of opportunity. All we can do is measure some of the elements of opportunity:

  • We can measure unequal income and infer unequal opportunity from this. People with low income obviously have less opportunities than other people. However, not all opportunities can be bought and maybe low income isn’t the result of a disadvantaged upbringing or bad schools, but of bad choices, or even conscious choices. Can we say that a child of a millionaire who chose to be a hermit suffered from unequal opportunity? Don’t think so.
  • We can measure unequal education and skills (educational attainment or degrees, IQ tests etc.). However, someone who comes from a very privileged family but with low or alternative aspirations may score low on educational attainment or even IQ.
  • We can deduce unequal opportunity by the absence of opportunity enhancing government policies and legislation. The Civil Rights Act was self-evidently a boost for the opportunities of African-Americans.
  • We can measure social mobility and assume, correctly I think, that very low levels of mobility indicate inequality of opportunity.
  • Etc.

Whatever actions we take to enhance opportunity, it will probably always be relatively unclear what the net outcome will be on overall equality of opportunity. Of course, that doesn’t mean we shouldn’t do anything. And when we do something, we should also distinguish clearly between things we can do and things we can’t to, or things we feel are immoral (e.g. genetic redistribution or child redistribution). We know that parental attitudes, genetics, talent, appearance, networks and luck have a huge impact on individuals’ chances of success, but those are things we can’t do anything about, either because it’s impossible or because it’s immoral. But we can teach people skills and perseverance, to a certain extent. We can help the unlucky, for example with unemployment benefits. We can regulate firms’ employment policies so as to counteract the “old boys networks” or racism in employment decisions. We can impose an inheritance tax in order to limit the effects of the lottery of family. Etc etc.

Racism (10): Race and Health

African Americans in the U.S. are more likely to die of cancer. It seems that a similar disparity exists for strokes and lead poisoning.

Many ethnic groups have a higher death rate from stroke than non-Hispanic whites. Although the death rate from stroke nationwide dropped 70% between 1950 and 1996, minorities the decline was greatest in non-Hispanic whites. The greatest number of stroke deaths compared to whites occurred in African-Americans and Asians/Pacific Islanders. Excess deaths among racial/ethnic groups could be a result of a greater frequency of stroke risk factors, including obesity, hypertension, physical inactivity, poor nutrition, diabetes, smoking and socioeconomic factors such as lack of health insurance. (source)

Lead poisoning causes, i.a., cognitive delay, hyperactivity, and antisocial behavior.

Racism (9): Race and Employment

Racism expresses itself in different ways, one of which is discrimination in employment:

In 2004, Jean-François Amadieu, a sociologist at the Sorbonne, sent out 500 CVs replying to ads for sales jobs in the Paris region. The CVs were identical except in one regard: some applicants had north African names, and others traditional French ones. The white male French names received five times as many job offers as the north African ones. When Amadieu repeated the exercise in 2006, the ratio was 20:1. (source)

Such examples of racism in employment policy have an impact on unemployment rates across races. Those are very unequal for different races.

And then the numbers exclude those who are in prison. Given that there are 5 times as many blacks behind bars as whites in the U.S., including them in unemployment statistics would make the gap even wider. (And why shouldn’t we include them? They obviously don’t earn a living and can’t provide for their families).

Of course, this difference between the unemployment rates for blacks and whites isn’t entirely caused by direct discrimination in employment decisions. Other elements play a part:

  • Jobs are often concentrated in white suburbs, difficult to reach for blacks who do not own a car.
  • Blacks often can’t rely on networks of family businesses as much as whites or Latinos.
  • Blacks “have been relegated to precarious, low-wage work … at disproportionate rates” (source), making them more vulnerable to recessions, outsourcing and competition from immigrants.
  • Indirect discrimination: if blacks receive substandard education, are less healthy and more poor, then this will affect their employment prospects.

Religion and Human Rights (19): Between Equality and Diversity – The Rule of Law, Except When…

One of the principles of liberal democracies is equality before the law. The law shouldn’t protect or harm some citizens more than others (and to some extent this even applies to non-citizens within the jurisdiction of the democracy). The law applies equally to all.

Diversity

This principle, however, can be put to the test by another principle that is important to liberal democracies, namely tolerance of diversity. Most democracies are multicultural in the sense that they are made up of many different groups that have often radically different and incompatible beliefs, customs and norms. Liberal democracies value this diversity and have mechanisms to protect it, such as rules on tolerance, religious liberty, freedom of association etc. They value this diversity and try to protect it for at least three reasons:

  • They believe that group identity is an important source of individual identity and well-being.
  • They believe that group diversity offers a plurality of perspectives, and that this is necessary if deliberations on fundamental issues are to progress towards the truth.
  • The believe that national unity isn’t only or primarily a matter of assimilation or convergence towards a single, national and official doctrine, but rather of peaceful coexistence in diversity.

Rules and exemptions

This tolerance of diversity can be burdened by equality before the law. Many liberal democracies have been forced to accept certain exceptions to the principle of the equal application of the law, and have exempted some groups from certain generally applicable laws. Some  examples:

  • Anti-discrimination laws: groups have been allowed to discriminate, for example regarding their membership rules, or their internal operating rules, on the condition that they allow a right to exit of members who come to find this unacceptable.
  • Because of their religious obligations, Sikhs have been exempted from the obligation to wear crash helmets for motorcyclists or safety helmets for construction workers, or from the prohibition to wear knives in public.
  • Certain indigenous peoples have been exempted from prohibitions to fish or hunt or to slaughter animals in a certain way.

The rationale for such exemptions is that a “neutral” law, which is by definition equally applicable to everyone, may not have the same effect on everyone. It may unintentionally place a relatively heavy burden on a very specific minority because it unintentionally prohibits or compels a certain practice which has special significance for that minority. Such exemptions may be deemed necessary to preserve the distinctive identity and way of life of the minority, and to preserve the diversity and harmony of society as a whole.

This opt-out right, which allows minorities – usually cultural or religious minorities – to not apply or respect the general law, is similar to the right of conscientious objection. In many countries, refusal to serve in the military – otherwise a general legal rule – is a legally recognized option. (However, the opt-out right is not the same as civil disobedience, which isn’t a legally recognized option and the disobedient usually accept the consequences of breaking the law. Breaking the law and publicly accepting the consequences is precisely their purpose. They want to create a public spectacle showing the injustice of the law).

Possible objections against the opt-out right

1. Illiberal consequences

Exemptions are often granted for rules that are not really intended to protect third parties (such as crash helmet rules) or that do not create substantial harm when occasionally they are not applied (e.g. hunting exemptions). However, if we accept the general possibility of an opt-out right, can we not end up in a situation in which minorities are allowed to disrespect fundamental rules such as human rights, either internally in the group or externally? The classic example is the possible right of Muslim minorities in liberal democracies to apply Shari’a law within their communities.

Obviously, such far-reaching exemptions sound outrageous to those of us for whom human rights are very important. Yet I believe that even those exemptions can be justified in certain cases: they would only be acceptable if the following three conditions are jointly met:

  • The groups in question do not violate the human rights of people outside of the group.
  • The groups provide the right to exit in a substantial way. “Substantial” means that they do not only provide the formal right to exit but also provide members the educational, intellectual, moral, financial and other resources necessary to make a free and conscious choice about staying or leaving. However, it’s often very difficult to say whether a particular group is a truly voluntary association and whether members have a real choice to leave. Only when this is indeed and obviously the case can such far-reaching exemptions be allowed. There’s also the case of group members that are incapable of making a real choice, e.g. children. Exemptions cannot be allowed to produce violations of their rights, since they cannot exit.
  • The rights violations are an essential part of the group’s identity rather than an opportunistic policy of the group’s leadership.

2. Exemptions for what?

This third condition leads to a second possible objection to the opt-out right: which elements of a group’s identity are strong and central enough to warrant an exemption from a generally applicable law? Who decides which are these elements? Do we trust the spokespersons of the group? But how are they appointed and do they speak for the group? Or is it not likely that they have some selfish reasons for exemptions and the possible rights violations resulting from them, given that they are likely to be in a position of power inside the group? If not the spokespersons, should it be outside elements, engaging in anthropology, or cultural exegesis?

3. Domino effect of exemptions

Another objection: every law puts more burdens on some citizens than on others. Smoking bans put a heavier burden on smokers, shoplifting laws on kleptomaniacs etc. If we provide exemptions for laws which burden cultural, ethnic or religious groups, why not also for kleptomaniacs? And if we would do so, wouldn’t the whole construction of the rule of law tumble under the weight of exceptions? Of course it would, but that’s not the reasons why we limit exceptions or exemptions (one can argue that these are not the same, but I’ll bracket that for the moment) to those which protect group identity. As stated before, group identity – contrary to kleptomania or other possible reasons for exemptions – is deemed to be a very important value in liberal democracies, and important enough to override in some cases the other important value of equality before the law.

Citizens who do not belong to a group that has received an exemption to a general rule may complain that they are discriminated against, compared to the members of the group. These citizens may also want to opt out of the rule – for example a rule imposing military service – not for religious or cultural reasons, but for other reasons, and not necessarily for opportunistic reasons. Indeed, it may seem arbitrary to limit exemptions to cultural and religious groups. But we have to admit that such groups are more likely to suffer from  special burden imposed by general rules, and that they are particularly important to the diversity of liberal societies.

4. Calcification of groups

Exemptions or the opt-out right require strict identification of group members. It must be possible to decide which individual citizens in a society are free to not respect a certain law, otherwise law enforcement becomes impossible. This may have consequences for the exit right. The state fixes group membership. Not only should the state not do such a thing, but it shouldn’t be done at all. The exit right is important, especially when we decide to allow controversial practices. And this right can be harmed if group composition is officially sanctioned.

Moreover, this strict identification of membership implies a simplification of human identity and group identity. Groups are often complex and internally contradictory. Opt-out rights fix not only membership but also group identity: the state decides once and for all, by granting a legal exemption for a certain practice, that this practice is typical of a group. Internal dissent within the group, and directed against the practice, is then stifled. The state has then sided with the most powerful factions within a group, and that’s not something a liberal state should do.

One could object to this objection by claiming that the “losers” of the internal struggle to determine the group’s identity still have the right to leave the group. However, that also isn’t a choice that the state should determine. It should allow dissenting group members – such as feminist Muslims or gay Catholics – to continue to dissent within the group, rather than impose the limited choice of either accepting the dominant doctrine of the group – a doctrine elevated to dominance with the help of the state and the opt-out right granted by it – or leave the group.

The effort to protect groups from external pressure can inadvertently promote internal pressure. In other words: the effort to protect a group from externally imposed change can stifle internally promoted change. By recognizing a practice as typical of a group and worthy of an exemption to a general rule, the state helps to cement this practice, perhaps against the wishes of minorities within the group that work against the practice.

5. Opportunism

It’s often difficult to tell if an exemption is demanded by a true group member for identity reasons, or by a wavering member for opportunistic reasons. Or, for that matter, by an individual who decided to join the group, not for substantial reasons but to escape the law.

Conclusion

I believe exemptions are sometimes justifiable, especially if the risk of harm created by the exemption is relatively small compared to the benefits for the groups enjoying the exemption. But there are many practical problems related to the decision whether or not to grant an exemption.

Capital Punishment (24): The Probability of Capital Punishment in the U.S., by Race

The U.S. population is about 300,000,000. Whites represent about 80%, or roughly 240,000,000. If you check the numbers of executions in the U.S., you’ll see that there were about 1,000 in the period from 1977 to 2005. 584 of those executions were of whites. That’s about 20 executions per year on average, meaning that whites have a chance of 1 in 12,000,000 of being executed.

There are about 40,000,000 African Americans, representing roughly 13 % of the U.S. population. 339 executions in the 1977-2005 period were of African Americans. That’s about 12 a year, meaning that blacks have a chance of 1 in 3,300,000 of being executed.

A black person in the U.S. is therefore almost 4 times more likely to be executed. Even if we assume that this higher probability of being executed correctly reflects a higher probability of being involved in crime that comes with capital punishment – and that’s something we shouldn’t assume, because it’s likely that there are injustices involved, e.g. inadequate legal representation and such – that shouldn’t put our minds at ease. We then still have to ask the question: why are blacks more likely to be involved in capital offences? Surely not because of their race. Something happens in society that leads to this outcome, and it’s likely that there are injustices involved: for example, inadequate education, poverty levels, discrimination etc.

Lies, Damned Lies, and Statistics (10): How (Not) to Frame Survey Questions

I’ve mentioned before that information on human rights depends heavily on opinion surveys. Unfortunately, surveys can be wrong and misleading for so many different reasons that we have to be very careful when designing surveys and when using and interpreting survey data. One reason I haven’t mentioned before is the framing of the questions.

Even very small differences in framing can produce widely divergent answers. And there is a wide variety of problems linked to the framing of questions:

  • Questions can be leading questions, questions that suggests the answer. For example: “It’s wrong to discriminate against people of another race, isn’t it?” Or: “Don’t you agree that discrimination is wrong?”
  • Questions can be put in such a way that they put pressure on people to give a certain answer. For example: “Most reasonable people think racism is wrong. Are you one of them?” This is also a leading question of course, but it’s more than simply “leading”.
  • Questions can be confusing or easily misinterpreted. Such questions often include a negative, or, worse, a double negative. For example: “Do you agree that it isn’t wrong to discriminate under no circumstances?” Needless to say that your survey results will be infected by answers that are the opposite of what they should have been.
  • Questions can be wordy. For example: “What do you think about discrimination (a term that refers to treatment taken toward or against a person of a certain group that is based on class or category rather than individual merit) as a type of behavior that promotes a certain group at the expense of another?” This is obviously a subtype of the confusing-variety.
  • Questions can also be confusing because they use jargon, abbreviations or difficult terms. For example: “Do you believe that UNESCO and ECOSOC should administer peer-to-peer expertise regarding discrimination in an ad hoc or a systemic way?”
  • Questions can in fact be double or even triple questions, but there is only one answer required and allowed. Hence people who may have opposing answers to the two or three sub-questions will find it difficult to provide a clear answer. For example: “Do you agree that racism is a problem and that the government should do something about it?”
  • Open questions should be avoided in a survey. For example: “What do you think about discrimination?” Such questions do not yield answers that can be quantified and aggregated.
  • You also shouldn’t ask questions that exclude some possible answers, and neither should you provide a multiple-choice set of answers that doesn’t include some possible answers. For example: “How much did the government improve its anti-discrimination efforts relative to last year? Somewhat? Average? A lot?” Notice that such a framing of the question doesn’t allow people to respond that the effort had not improved or had worsened. Another example: failure to include “don’t know” as a possible answer.

Here’s a real-life example:

In one of the most infamous examples of flawed polling, a 1992 poll conducted by the Roper organization for the American Jewish Committee found that 1 in 5 Americans doubted that the Holocaust occurred. How could 22 percent of Americans report being Holocaust deniers? The answer became clear when the original question was re-examined: “Does it seem possible or does it seem impossible to you that the Nazi extermination of the Jews never happened?” This awkwardly-phrased question contains a confusing double-negative which led many to report the opposite of what they believed. Embarrassed Roper officials apologized, and later polls, asking clear, unambiguous questions, found that only about 2 percent of Americans doubt the Holocaust. (source)

Lies, Damned Lies, and Statistics (9): Too Small Sample Sizes in Surveys

So many things can go wrong in the design and execution of opinion surveys. And opinion surveys are a common tool in data gathering in the field of human rights.

As it’s often impossible (and undesirable) to question a whole population, statisticians usually select a sample from the population and ask their questions only to the people in this sample. They assume that the answers given by the people in the sample are representative of the opinions of the entire population. But that’s only the case if the sample is a fully random subset of the population – that means that every person in the population should have an equal chance of being chosen – and if the sample hasn’t been distorted by other factors such as self-selection by respondents (a common thing in internet polls) or personal bias by the statistician who selects the sample.

A sample that is too small is also not representative for the entire population. For example, if we ask 100 people if they approve or disapprove of discrimination of homosexuals, and 55 of them say they approve, we might assume that about 55% of the entire population approves. Now it could possible be that only 45% of the total population approve, but that we just happened, by chance, to interview an unusually large percentage of people who approve. For example, this may have happened because, by chance and without being aware of it, we selected the people in our sample in such a way that there are more religious conservatives in our sample than there are in society, relatively speaking.

This is the problem of sample size: the smaller the sample, the greater the influence of luck on the results we get. Asking the opinion of 100 people, and taking this as representative of millions of citizens, is like throwing a coin 10 times and assuming – after having 3 heads and 7 tails – that the probability of throwing heads is 30%. We all know that it’s not 30 but 50%. And we know this because we know that when we increase the “sample size” – i.e. when we throw more than 10 times, say a thousand times – we will have heads and tails approximately half of the time. Likewise, if we take our example of the survey on homosexuality: increasing the sample size reduces the chance that religious conservatives (or other groups) are disproportionately represented in the sample.

When analyzing survey results, the first thing to look at is the sample size, as well as the level of confidence (usually 95%) that the results are within a certain margin of error (usually + or – 5%). High levels of confidence that the results are correct within a small margin of error indicate that the sample was sufficiently large and random.

Limiting Free Speech (28): Free Speech at Work

Should people be allowed to enjoy an unlimited right to free speech at work, and be able to ask courts to undo measures (such as sacking or disciplinary measures) which their employer has taken against them as a result of their speech? Or do corporations and government agencies have a right to take measures against employees engaging in certain types of speech, a right which therefore trumps the right to speech? And is there a difference between the rights of corporations and the rights of (certain) government agencies?

I could make this brief, and say that employees are citizens like all other citizens, and should have a right to free speech. I could say that, if there are any possible and acceptable (or necessary) limitations on the right to free speech, they have nothing to do with the fact that those engaging in speech act as employees or as citizens. I could say that the place where people speak – at work or elsewhere – doesn’t change anything.

Unfortunately, I can’t. The place where speech takes place does matter, as I have mentioned already in the case of hate speech (hate speech in front of an angry mob gathered at the house of a pedophile is different from the exact same speech written down in a book almost no one reads).

As I will argue, the same is true in the current case. Speech at work may be treated in another way than speech elsewhere. There are some good reasons to impose stricter limits on speech at work than on speech in general. Employers therefore also have the right to take certain measures against employees engaging in speech which may be restricted (in fact, these measures are the restrictions). Also, certain government agencies can impose more and wider restrictions than private corporations. All these restrictions on the freedom of speech are possible because they are necessary for the protection of other rights or the rights of others (I try to make this a general rule when discussing restrictions on human rights, see here).

But before I argue this, I want to sketch the baseline first. Free speech is very important, and I don’t think there are many people who believe this more than me (as any regular reader of this blog knows). As government agencies, but also private corporations, regularly violate human rights, free speech at work is perhaps even more important than free speech in general. People working for agencies or corporations engaged in rights violations, must have the right (and the possibility) to denounce these practices. So, if I argue for the right of corporations and agencies to restrict, in certain cases, the right to free speech of their employees, I have to be careful to do so without jeopardizing the important rights of whistleblowers.

The U.S. Supreme Court, which allows government agencies to limit the freedom of speech of their employees, also acknowledges the importance of whistleblowers. When the speech in question is of “public concern”,* the Court uses a higher threshold to uphold speech-related disciplinary measures against employees. (The Court uses the so-called Pickering test). (However, the Supreme Court is still oddly restrictive in this respect. Whereas, normally, free speech is considered to be very important by the Court, in case of speech at work, “public concern” is not enough to uphold the right to speech. It’s just a first threshold to be passed for the Court to asses the possibility of reviewing disciplinary action. When there is no “public concern”, there’s no right to free speech at work according to SCOTUS!).

Now, when and why should the rights of corporations and government agencies to sanction their employees for acts of speech, take precedence over the right to free speech of these employees? Corporations and agencies have a right to function without disruption. A government agency even has a duty to function without disruption, because it serves the public interest. And this interest more often than not includes certain human rights. For example, a government hospital has a duty to protect the healthcare rights of citizens. If speech acts at the hospital disrupt its normal functioning, the rights of citizens may be put at risk. If, in addition, these speech acts don’t have anything to do with the functioning or organization of the hospital, it is difficult to see why they should be more important than the rights of patients. However, if the speech acts uncover serious incompetence at the hospital, the disruption that follows these acts may be a price that is worth paying.

Regarding corporations, the burden of proof on those wishing to impose restrictions on speech at work, is heavier. Corporations usually don’t work for the protection of human rights of citizens, and therefore cannot put these rights in the balance. However, corporations are the property of certain citizens, and these citizens have a right to use this property. Speech acts in corporations can result in disturbances of a kind that makes this use of property difficult or impossible. If, in addition, these speech acts don’t serve any public purpose or address a public concern, it may be justified to consider the right to property more important than the right to speech, in certain cases. For example, should we really accept and protect flag burning during office hours and in office buildings? And who would take sides with an employee wasting huge amounts of company time on frivolous speech?

And there’s another problem with judicial protection of speech at work. Employees may claim that disciplinary measures taken against them (including dismissal) were based on their speech acts, whereas in reality these measures were based on a lack of performance. Employers may become unwilling to take such measures because of the risk of costly litigation. Outspoken but incompetent employees will then be privileged, and others discriminated. Another result: the employer’s authority and ability to organize and lead are put at risk if many of her decisions can be reversed by judges.

* This “public concern” usually means that the speech in question should have something to do with the preferable manner of operating the agency, or should contain information which is vital to proper decision-making. Both definitions of “public concern” cover the activities of whistle-blowers.

Religion and Human Rights (13): Same-Sex Marriage and Religious Liberty, How Much Can We Discriminate?

Same-sex marriage to me is a no-brainer. Although international human rights law doesn’t explicitly grant gays and lesbians the right to marry, the notion of equal rights can be used to counter discrimination of homosexuals, including discrimination of marriage rights. Article 2 of the Universal Declaration states that everyone is entitled to all the rights set forth in it, without distinction of any kind. And the right to marry is recognized in article 16.

Furthermore, article 7 outlaws discrimination. On the basis of articles 2 and 7, many countries have enacted anti-discrimination legislation which outlaws racial discrimination, gender discrimination, sexual orientation discrimination and sometimes other types of discrimination as well. Such legislation punishes citizens who discriminate other citizens, for example restaurant owners refusing access to homosexuals, Jews, African-Americans etc.

However, the Universal Declaration and many constitutions also grant the right to religious liberty. Article 18 states that everyone has the right to freedom of thought, conscience and religion. Now, I think it’s fair to admit that freedom of religion and anti-discrimination laws can sometimes clash with each other (although the importance of such conflicts is often artificially inflated by opponents of same-sex marriage, see here for example). Anti-discrimination laws can force people to do things that violate their religious beliefs, if these beliefs require them to discriminate. Such laws can, if we stick to the previous example, force restaurant owners, who believe that homosexuals and Jews are sinners, to open their doors to homosexuals and Jews. When people are forced to act against their religious beliefs – no matter how bigoted these beliefs – it is fair to say that their religious freedom and freedom of conscience and belief are violated. These freedoms are not contingent on the quality of beliefs. All beliefs and religions, even the most bigoted ones, deserve protection (as long as they don’t cause harm to others of course).

It is not uncommon to see contradictions in the system of human rights. This system is not a harmonious whole. I’ve covered this problem extensively here and here. Rights are not always compatible, in which case one has to decide which of the conflicting rights has priority (or “trumps the other”). The normal (but not the only) rule is the extent of harm caused by a limitation of one right or the other.

In the case of discrimination of people on the basis of their sexual orientation, anti-discrimination laws based on article 2 of the Universal Declaration (or relevant articles of a national constitution) come into conflict with religious liberty (based also on the Universal Declaration or constitutional provisions). Both rights are very important (and I say this as a non-religious person), so the decision in favor of one or the other will never be an easy one.

Take again the example of the restaurant owner. At first sight, the answer seems obvious: let the restaurant owner refuse entry. The harm done by forcing him to grant access is clearly greater than the harm of forcing homosexuals to find another place to eat. On top of that, the restaurant owner can rightfully claim that not only his religious liberty and freedom of belief would suffer from forced access, but also his right to property (and to use it as he pleases). However, on closer inspection, things aren’t so clear. The harm done to homosexuals is likely to be much greater than just a dinner inconvenience. If a restaurant owner is allowed to discriminate, then this sends a signal to others that discrimination is OK. Choosing the side of the restaurant owner is in fact choosing the side of discrimination and legitimizes discrimination, causing harm that is potentially very widespread. After all, in a great majority of cases of people refusing to do something because of their discriminatory beliefs, there is someone else available to do what they refuse to do. So allowing people to refuse in one case because there is someone else who will not refuse (another restaurant), opens the door to a great number of refusals, and hence to widespread discrimination.

Furthermore, many cases are much more complicated than the restaurant case. How about a doctor refusing fertility treatment to a lesbian couple (married or not)? Or a Muslim doctor refusing to treat a female patient? Or a Christian university refusing to grant a gay person a place in its dormitory? Or a Catholic adoption agency refusing to place children with same-sex couples (married or not)? It’s clear that in many of these cases, the rights of those discriminated should take precedence over the freedom of belief of those discriminating because the harm done by discrimination is greater than the harm done by outlawing discrimination.

We should also distinguish between refusal by private persons and refusal by public officials. It seems much less acceptable for the latter to refuse to grant their services to certain types of people. The government should never discriminate people on the basis of religious belief. Governments should be religiously neutral as much as possible, and should respect the separation of state and church.

Anyway, sometimes anti-discrimination laws will trump other rights such as the freedom of religion, and sometimes not. So equal rights for gays, including the equal right to marry, will not “kill” religious freedom as some on the right believe. If we can convince opponents of anti-discrimination in general and same-sex marriage in particular that the concerns of religious beliefs are taken seriously and are not systematically deemed of lesser importance compared to equality, then they may give up some of their opposition. After all, even in those cases in which the concerns of equality are deemed to outweigh the concern of religion, the harm done to religion is not of catastrophic proportions. No one will ever force a priest to marry anyone, or a church to modify its doctrine, or someone wishing to express a preference for “traditional marriage” to shut up. In all these discussions on same-sex marriages, it’s important to keep things in perspective. Hysteric reactions on either side aren’t helpful at all. Compared to other rights violations, this problem is a minor one.

Much of this concerns discrimination in general, not just discrimination in the application of the right to marry. It just happens to be the case that the ongoing efforts to reduce marriage discrimination seem to cultivate the fears of many religious people that anti-discrimination laws will impose even further restrictions on religious liberty when same-sex marriage is recognized by law. These fears, however, are not substantiated by the evidence of countries or states which have, sometimes long ago, recognized same-sex marriage. Another reason to put things in perspective, something which is clearly captured by this quote:

While marriage and religious belief are one creature in the minds of many people, they are separate things in the law. Catholicism and Orthodox Judaism, for example, refuse to recognize secular divorce. But few argue that we should refuse to let people divorce for this reason. One can be divorced under the law but married in the eyes of the church. The statuses can be separated without a diminution of religious liberty. And nobody thinks that this de-linking of the two constitutes official oppression or the obliteration of religious freedom. Similarly, in principle, it should be possible to have a regime in which same-sex couples are married under the law but not married in the eyes of a given religion – all without extinguishing religious faith. Dale Carpenter (source)

Limiting Free Speech (24): Political Correctness

Political correctness (or PC) is a form of speech that is characterized by the willingness to avoid offense to certain groups in society, often groups which have a history of suffering and rights violations.

It is a form of speech that excludes certain concepts and phrases that are thought to be expressions of hatred, discrimination and rights violations. Such expressions, it is believed, serve to keep these violations alive and well, and protecting human rights therefore requires the exclusion of these expressions. Examples of these expressions and concepts or phrases are “nigger”, “women should play the main role in the household”, “black people are genetically less intelligent than white people”, “affirmative action is discrimination of whites”, the systematic use of “he” to describe a person, or of “man” to describe a member of the human race etc.

Hence, political correctness is a limitation of free speech that is believed to be necessary in order to protect other rights. Politically incorrect speech is a strategy in the continuation or reinstatement of rights violations, for example discrimination of women, racism, or unequal opportunities. Language determines the thoughts, mentalities and actions of both the speakers and listeners. For example, convictions regarding negative stereotypes are facilitated by the availability and widespread use of pejorative and stereotypical labels. A user of these labels will be confirmed in his or her believes, and a target of these labels will suffer a loss of self-esteem and will, as a result, find it difficult to escape from his or her unequal position in society. Hence, using politically incorrect stereotypes contributes to the continuation of inequality. On the other hand, “outlawing” such stereotypes forces people to think about how they describe other people and forces them to focus on individual characteristics rather than stereotypes.

Proponents of PC believe that language should be used for good purposes rather than bad ones. They don’t want language to be a tool to oppress. They seek cultural change through linguistic change, but this has an impact on the freedom of speech: certain types of expressions, phrases or concepts are off limits according to the proponents of politically correct speech, and other types are mandatory. Speech should be as inclusive and neutral (gender neutral, race neutral etc.) as possible. Hence constructions such as “s/he”, “African-American”, “holiday season” instead of Christmas etc.

PC can be criticized in several ways. I just pick two types of criticism that seem most convincing to me. Politically correct speech is a kind of orthodoxy or an example of dogmatic thinking or group thinking, which is why the concept of PC is mostly pejorative. Politically incorrect speech on the other hand can be seen as rebellious, original and individualistic. It can be very useful in identifying hidden assumptions, prejudices etc. Of course, political incorrectness can become a prejudice in itself, obscuring the need for real debate on some human rights issues.

Whether or not PC is justified depends on the effects of language on rights violations. There is certainly some effect. Especially in the early, formative years, people can be influenced by speech, and can grow up to become persons with mentalities that are inimical to human rights. And they will certainly act on these mentalities. But I believe that the proponents of PC overstate the importance of the causal link. It’s not true that sexist or racist language always and necessarily produces sexism and racism. These rights violations have a myriad of causes. Hence it is dangerous to identify certain forms of speech as the main causes, and consequently “outlaw” them, perhaps not legally but morally. This can result in cultural communism, a totalitarian and intolerant “regime” censoring and punishing dissent and “heresy”. It is not unheard of that people lose their jobs and/or reputation because of a sin against PC.

By the way, one particularly funny instance of political correctness are the annual arguments about Christmas. Christian traditionalists and PC people who think that a Christian holiday may be an insult to other religions, outdo each other in silly talk.

What is Democracy? (38): Equal Representation and the Share of Women in Parliament

In a representative democracy, one can reasonably expect to have a parliament that is roughly representative of the population in general: poor people should have their representatives or delegates just like rich people, women just like men, minorities just like majorities. This representativity or representativeness isn’t an absolute requirement. One can have a democracy without it. The people, after all, may decide that their views are best represented by an all-male, all-white body of parliamentarians for example.

However, it seems statistically unlikely that this would be their decision in each consecutive election in each democratic country. Imbalances in the demographics of parliament that persist over time and space are probably not the result of the choices of voters but of other factors, such as discrimination, unequal opportunities etc. If that’s the case, we are dealing with an imperfect democracy because democracy means equal influence and an equal chance to get elected (art. 21 of the Universal Declaration and art. 25 of the International Covenant on Civil and Political Rights).

And that is the case. Take the share of women in parliament for instance. In almost every major democracy of the world, election after election, women are a (tiny) minority in parliament. It’s very unlikely if not impossible that women are systematically less competent than men to serve in parliament, or that the voters sincerely, rationally and objectively believe this to be the case. There must be other, more deeply embedded psychological motives for such a choice, related to the generally inferior position of women in patriarchal societies.

Hate (3): Is Hate Crime Caused by Poverty and Lack of Education?

This paper claims that hate crime is independent of economic deprivation and lack of education. Hate crimes are typically acts of violence against persons or their property committed for no other reason than these persons’ membership of a certain religion, race or ethnic or other group. Those who commit hate crimes can act on an individual basis, but are often members of so-called hate groups and may act together with other members.

The paper cites a number of data that indicate that poverty and ignorance aren’t the main drivers of hate crime. Lynchings, for example, were not correlated to economic growth. They didn’t rise during the Great Depression. The existence of hate groups such as the Ku Klux Klan is unrelated to economic indicators such as unemployment. We even see that there is a higher probability that a hate group is located in an area with a relatively large share of the population with higher education. The wave of violence against foreigners in Germany in the 1990s also didn’t show a relationship between unemployment rates per county, and the number of incidents in a county. The same for levels of education and wages.

Racism (4): Competition v Racial Bias

Gary Becker looked at the well-documented fact that African-Americans in the U.S. earn less than whites, partly because on average they are less well educated. But even if corrected for this, there remains an unexplainable difference in wages. Unexplainable apart from racial bias. There have been many studies that have proven the existence of bias. For example, firms are 1.5 times as likely to interview someone for a job if they think the person is white, even if all other characteristics such as education and experience are equal.

The interesting thing about Becker is that he goes beyond education, positive discrimination or labor legislation in his search for solutions. He mentions increased competition between firms. A racially biased firm will only hire a white who is more expensive and perhaps even less qualified than a black, if this firm is not under pressure from competitors. If its market is opened to competition, then other firms can and will produce the same goods at cheaper prices by hiring the black guy/gal. The biased firm would then be forced to do the same. It may remain biased – opinions on such matters are notoriously hard to change – but it no longer has the luxury of acting on its bias.

So this sounds promising, and market freedom is beneficial for other reasons as well, so it’s worth to pursue it. But don’t expect too much of the free market. There’s no invisible hand, leading those motivated by selfish motives to destroy racism without really wanting to. Much more needs to be done.

Cultural Rights (12): Collective Rights

Groups, and in particular, minority groups are often attacked, oppressed and persecuted. They are considered to be groups that are separated from the rest of society and that are legitimate objects of targeted attacks such as racism, xenophobia, discrimination, exploitation or even genocide. These attacks are often collective attacks. Persons are discriminated against or killed, for no other reason than their membership of a particular group. Colored people are oppressed because they are colored people.

Some people believe that a collective problem requires a collective solution. A minority that is collectively oppressed claims a collective right to protection, a collective right not to be oppressed. Acts that are expressed in collectivist terms have to be countered by rights using the same terms.

The question is whether it is really necessary or even opportune to solve the collective problems of some groups by way of collective rights or group rights. I believe that the often genuine problems of different groups and minorities (but also majorities) can be solved by applying a number of individual rights, such as the right to equality before the law (a law has to be general and equal for everybody and cannot be directed against or cannot discriminate against certain persons or groups), the right to equal treatment and to equal rights, the right not to be discriminated against, the right to life (in the case of genocide) and religious liberty.

The problem of gender discrimination in a number of Islamic countries is an example of a collective problem that can be solved by applying individual rights. There is no reason to solve this collective problem by adding so-called women’eds rights or collective rights of women to the existing individual rights. Gender discrimination is not a violation of women’s rights. It is a violation of the human rights of women. The principles of equality and non-discrimination are sufficient to solve this problem.

Individual rights are sufficient in all cases, although I have to admit that protecting groups by way of individual rights ignores or neglects the nature of the problem. Only the right of a group (for example, a group of indigenous people) to equal treatment recognizes the existence of a certain kind of discrimination. The individual right to equality, even though it can stop group discrimination, ignores the nature of or the motivation behind the attack on the group, and does not distinguish between individual and group discrimination.

However, the advantage of countering a collective attack by way of an individual right is that the existence of individuals in the collectivity is thereby accentuated. The cause of a collective attack is precisely the belief that a group is a collectivity and a unity, in which the individuals do not count. By using his individual rights to protect a colored person against discrimination, racism or genocide, we accentuate his individuality. He is no longer “just another nigger”, someone belonging to a collectivity, which is a legitimate object of discrimination. Individual rights accentuate the individuality of the person claiming the right, and already hint that there is no reason for discrimination. Discrimination requires collectives and the absence of individuals.

Collective rights do the opposite. Recognizing collective rights can sanction the existence of collectives. It makes thinking in terms of collectives legitimate, it puts the different individualities in the background and it strengthens the opinions of those who oppose and persecute certain collectives.

The Causes of Human Rights Violations (10): Prejudice According to Allport’s Scale

People who are aware of, and ashamed of, their prejudices are well on the road to eliminating them. Gordon Allport

Gordon Allport, a psychologist, created Allport’s Scale in 1954. It’s a measure of the manifestation of prejudice in a society. The scale contains 5 stages of prejudice, ranked by the increasing harm they produce.

Stage 1: antilocution

Antilocution (“speaking against”) means making jokes about another group,’a0but also’a0the expression of hateful opinions. In the former case it’s also called derogatory speech, and in the latter case it’s called hate speech. Both cases can be examples of prejudice, prejudice in the sense of an opinion reflecting negative stereotypes and negative images based on preconceived judgments rather than facts.

Antilocution is often believed to be harmless (“sticks and stones will break your bones but names will never hurt you”), but it can harm the self-esteem of the people of the targeted group, and it can clear the way for more harmful forms of prejudice. The line between violent words and violent acts is often very thin. The self-image of a group can be hurt, which can sometimes become a self-fulfilling prophecy.

Stage 2: avoidance

People in a group are actively avoided by members of another group. Harm is done through isolation and by preparing the way for more harmful acts. Xenophobia, or the fear of foreigners or strangers or of that which is foreign or strange, results in exclusion.

Stage 3: discrimination

A group is discriminated against by denying them equal access to opportunities, goods and services. Discrimination is intended to harm a group by preventing it from achieving goals, getting education or jobs, etc.

Stage 3b (added later): subtle aggression

This is an assumption of hierarchy, particularly hierarchy of power, an assumption that somebody has less knowledge because of their age, gender or race or other characteristics and that these people can be excluded in some way.

Stage 4: physical attack

This has become known as hate crime. Groups are the victim of vandalism, the burning of property or violent attacks on someone’s physical integrity such as lynchings, pogroms etc.

Stage 5: extermination

The extermination of a group through genocide, ethnic cleansing etc.

Limiting Free Speech (3): Hate Speech

Hate speech (or antilocution, or fighting words) is speech that incites other people to hate a certain group in society defined by common characteristics (race, gender, religion etc.). It usually also incites to commit violence and discrimination based on hatred.

The most famous case is that of the Danish Muhammad cartoons. These cartoons led to worldwide protest and expressions of anger and hate, not only against the cartoonists in question, their newspaper or their country, but against liberals and democrats in general.

However, hate speech is by no means an exclusively Muslim matter. It can be found everywhere where there is hate: it can be racist, anti-gay, islamophobe, etc. It can also be framed in anti-terrorist language: many western countries have initiated legislation outlawing hate speech that is part of Muslim mobilization of terrorists (in militant mosques for example).

Given the importance of freedom of expression, it is not universally accepted that hate speech can be legally prohibited. There is of course article 20 of the International Covenant on Civil and Political Rights which outlaws hate speech:

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

However, contrary to hate crimes, such as attack on gays or muslims or writers/movie makers/cartoonists critical of Islam etc., the basic rule should be that speech as such is not a crime, even speech expressing or inciting hatred, violence or discrimination. Speech is protected by the right to free speech.

However, this right, like many human rights, is not absolute and can be limited when it endangers other human rights (like the right to life and bodily integrity, the right not to suffer discrimination etc.). The general defense of hateful speech has therefore some exceptions. It’s a thin line between hateful words and hateful actions. Impressionable people can be led to violent crimes by hate speech. Hate is taught. The example of the Muhammad cartoons protests is again telling in this respect. Many protesters were encouraged by some Muslim leaders to commit acts of violence.

But much depends on the circumstances, the context and the manner of speech. Islamophobia in front of a crowded mosque is obviously not the same thing as islamophobia in an obscure publication. Examples of speech, in the wider sense of the word, such as hanging a noose in a tree in the front yard of the house of an African-American family, or spraying graffiti on someone’s car or house, are more of a problem than posting a picture of a Koran in the toilet on a blog or a website. The first examples are clearly intimidation and can force people to sell their houses and move somewhere else. This has human rights implications (freedom of residence and property rights), which the latter examples don’t have (it’s difficult to argue that a photo of the Koran in a toilet, although undoubtedly an expression of hatred, harms anyone’s freedom of religion).

When speech has implications for the rights of some people, it is legitimate to consider limiting this speech, according to the rules set out in the introductory post of this series.

An important distinction here: all this is about hate, not about speech that is merely offensive, insulting, ridiculing etc. That’s the topic of another post. The distinction, however, can be blurred. What is hateful and what is merely offensive is a matter of personal conviction, it differs between groups and it changes over time. Some groups may be more sensitive than others. If one decides to legislate the matter, this can complicate things.

Moreover, what to someone can be seen as hate – for example homophobia – may be a central tenet of someone else’s religion and therefore protected by the freedom of religion. However, the freedom of religion is not absolute either.

And finally, some examples of speech that were once considered to be hateful – such as “nigger” – have been reclaimed by the groups that were previously targeted, and are sometimes even used as a badge of pride.

Another distinction: it is perhaps possible to imagine hate speech that is not directly or indirectly inciting violence and/or discrimination. Obviously, this kind of hate speech is less dangerous. However, like derogatory speech or offensive speech it does create a problem. It perpetuates negative stereotypes, devalues collective identities, deepens social cleavages and conflicts, makes it more difficult for the community to accept new identities, and it makes debate more difficult. So it makes it more difficult to create and uphold a tolerant, diverse society in which there can be civilized debate and discussion leading to better knowledge.

However, is this reason enough for a legal prohibition on hate speech? I don’t think so. Is it reason enough to combat hate speech with other means? Sure. The remedy for harmful speech is not necessarily prohibition but counter-speech, and sometimes it is best to just ignore some kinds of speech. Engaging the hate mongers, let alone prosecuting them, gives them legitimacy, publicity, and under-dog or victim status.

Limiting Free Speech (2): Holocaust Denial

In the introductory post of this series, I summarized the dangers of limiting free speech while at the same time granting that such limits are necessary in some cases. One case is Holocaust denial, or Holocaust revisionism as it is referred to by its supporters.

What is Holocaust denial?

Holocaust deniers only rarely claim that the Holocaust didn’t take place or that no Jews were killed by the Nazis. Rather, they claim that either or all of these facts are lies:

  • The Nazi government of Germany had a policy of deliberately exterminating the Jews
  • Over five million Jews were systematically killed by the Nazis
  • The extermination was carried out with tools such as gas chambers.

Instead of outright negation, there is trivialization. Moreover, Holocaust denial claims that the holocaust is a deliberate Jewish conspiracy created to advance the present-day interest of Jews and Israel.

Most historians and scholars reject Holocaust denial as a pseudo-science that fails to respect the rules of historical evidence and that is grounded in hatred rather than the pursuit of knowledge. Holocaust denial is characterized by the distortion or falsification of historical documents and the selective use of sources.

Holocaust deniers are mainly far-right, neo-nazi types and antisemites, but there are also far-left deniers, islamic deniers etc.

How can we justify the limits on free speech inherent in laws prohibiting Holocaust denial?

Nothing that went before is in itself sufficient to justify laws limiting the right to free speech of Holocaust deniers. According to the rules set forth in the introductory post in this series, one has to show that some rights are violated by Holocaust denial, and that this violation is worse than the violation of the rights of Holocaust deniers which would result from Holocaust denial laws.

There are a few possible kinds of justification:

1. Antisemitism

There is antisemitism inherent in Holocaust denial, although it is not necessarily obvious or immediately apparent. It is often implicit rather explicit antisemitism: the Holocaust is an invention of Jews, a tool to make them look like victims instead of criminals, and thereby gaining some sort of immunity for their vicious acts. Or a tool to make financial claims on Germany.

However, the mere antisemitism of Holocaust denial is not a sufficient reason to prohibit it. Antisemitism as such should enjoy the protection of the freedom of speech. Only when antisemitism explicitly incites to violence against or discrimination of Jews can it be forbidden. And Holocaust denial is rarely this explicit.

The offensive nature of Holocaust denial does undoubtedly inflict harm on Jews, especially the survivors of the camps, but no harm in the sense of rights violations. One could claim that Holocaust denial perpetuates and encourages antisemitism and therefore increases the likelihood of antisemitic attacks on individual Jews. But it would be a tough job establishing the causal links.

One could also claim that Holocaust denial perpetuates negative stereotypes in society, and thereby contributes to the marginalization of Jews. Again, difficult to prove.

In general, Holocaust denial is such a marginal phenomenon that it’s difficult to claim that it makes a substantive contribution to violence and discrimination. But in some countries or subcultures, the balance can be different.

2. Offensive speech

Justifying the prohibition of Holocaust denial merely on its offensive nature, would open the floodgates to a massive number of possible limitations of free speech, especially in the field of blasphemy. This would lead to an excess of political correctness and ultimately to “thought police”.

3. Libel

A justification based on the harm to the reputation of Jews would make Holocaust denial similar to libel. However, libel is traditionally designed to protect an individual’s reputation, income, and honor against abusive and harmful accusations. I fail to see how Holocaust denial can be directly harmful to individual Jews. Group defamation is highly controversial and could lead to the same problems cited in the previous point.

4. Democratic self-defense

Sometimes limits on rights are necessary to protect a rights-supporting community against anti-democrats who use democracy against democracy. A democracy is a particularly vulnerable form of government. The freedom it delivers can easily be misused by those who want to take it away. Anti-democratic and illiberal forces are free to use rights, freedoms and democratic procedures for the promotion of tyranny and oppression. The purpose of many holocaust deniers is the resurrection of Nazism, and a condition for this resurrection is the denial of the Nazis’ greatest crime. There can be no hope for acceptability of far-right policies as long as the Holocaust stands in the way. German Nazism, of course, is notorious for the way in which it misused the imperfect Weimar democracy.

Seen in this light, the criminalization of Holocaust denial is a self-defensive act of democracies in their struggle against extremism. Holocaust deniers use the freedoms of democracy in order to overthrow it. One cannot reasonably force democracies to abstain from self-defense. No system can be required to cherish the seeds of its own destruction.

To the extent that Holocaust deniers aim to overthrow democracy, they are hardly in a position to complain about limitations of the freedoms they would like to destroy:

One has no title to object to the conduct of others that is in accordance with principles one would use in similar circumstances to justify one’s actions towards them. A person’s right to complain is limited to violations of principles he acknowledges himself. John Rawls

You should not ask something for yourself that you are planning to deny to others. This, according to me, is the strongest justification of Holocaust denial laws, even in those countries were the revival of Nazism of highly unlikely. It may be unlikely precisely because of measures such as Holocaust denial laws.

5. The defense of Israel

Some extreme Islamists use Holocaust denial in their campaign against Israel. They hope that when they negate the Holocaust, they can remove one of the moral foundations of the state of Israel (as a refuge for the survivors). This negation, they hope, can help their efforts to destroy Israel.

However, whereas this justification may be useful in some circumstances, it is difficult to use it for an outright, worldwide prohibition on Holocaust denial since Holocaust denial outside of the Middle East can hardly be linked to the possible destruction of Israel.

6. The special case of Germany

In Germany, there may be an additional justification available. Holocaust denial laws can there be seen as part of a package of reparative justice, a kind of “sorry” issued by the state, a public acknowledgment of responsibility.

7. The interest of historical truth

Whereas truth is very important, it seems wrong to use laws to enforce the truth. Truth should be based on proof and sound argument, and using the law to punish “lies” only encourages those who believe the lies. They, and others as well, will think that there must be something wrong with the “truth” if it needs the law for its protection.

Conclusion

There is a case to be made for Holocaust denial laws, but one should be very careful and limit the prohibitions to cases and circumstances that really require them. Not all forms of Holocaust denial is equally pernicious, and not all circumstances are equally dangerous. Moreover, one should take into account the counterproductive effects of stigmatizing a certain group: persecution by the law can encourage them, can increase the number of sympathizers, and can give them more publicity than they would otherwise receive. Ignoring Holocaust deniers rather than criminalizing them could often be the most successful strategy. And some justifications should be avoided because they can create a dangerous precedent.

Countries with laws against Holocaust denial

Holocaust denial is explicitly or implicitly illegal in 13 countries: Austria, Belgium, Czech Republic, France, Germany, Israel, Liechtenstein, Lithuania, Luxembourg, Poland, Portugal, Romania, and Switzerland (source: here or here).

Religion and Human Rights (9): Honor Killings

An honor killing is a murder, carried out by a family to punish a female family member who has supposedly brought dishonor on the family. The acts which are the cause of dishonor can be

  • refusing an arranged marriage
  • being the victim of a sexual assault or rape
  • seeking a divorce, even from an abusive husband
  • committing adultery or fornication
  • pre-marital sex
  • flirting
  • etc.

Men can also be targeted by honor killings, but more rarely (for example in the case of homosexuality).

Causes

  • The practice is mostly associated with Muslim cultures (sometimes in minority Muslim groups in the West), although there is no support for the act in Islam. And it does occur in other cultures as well. In India, more than 5.000 brides are killed annually because their marriage dowries are considered insufficient. (However, one can argue that honor is not the main motivation in such cases). It also occurred in some Latin cultures (“crime of passion” is often still a “mitigating circumstance”). In Muslim countries, the practice is seen by some as a justified enforcement of religious rules, and therefore not strictly a matter of honor. This is corroborated by the fact that sometimes the killings are perpetrated against women by individuals who are not close relatives, but who claim enforcement of religious rules as their motive. In Iraq, for example, honor killings are conducted by armed insurgent groups on politically active women and those who did not follow a strict dress code, and women who are perceived as human rights defenders.
  • There is a strong correlation between honor killings and illiteracy rates.
  • Men often use honor killings to assert their dominant patriarchal status. Women in the family may support the practice in order to preserve the honor of other female family members and to preserve their chances of getting married in the community. It’s a kind of purge or purification.
  • Some claim that the practice goes back to ancient motivations based on anxieties about reproductive power. Women, who were considered by the tribe to be a factory for making men, were forced through “honor” killings to obey the man’s family planning and not to reproduce outside of the tribe or the extended family.
  • In a society where marriages are arranged by fathers and money is exchanged, a woman’s desire to choose her own husband is a financial problem, one which can be “translated” in terms of honor.

Consequences

Apart from the obvious consequences (death or lifelong disability), the practice of honor killings also forces women to stay in abusive marriages or to avoid reporting rape. If the women are killed, they are buried in unmarked graves and the community denies that they ever existed. And if they don’t die, the chances of receiving justice are minimal as many governments fail to prosecute the crime. And even when there is a trial, it’s the woman’s behavior that becomes the focus, not the defendant’s. As a result, the women sink deeper into shame and often don’t take the trouble of reporting the crime.

Numbers

Because the murders frequently go unreported and the perpetrators unpunished, it is difficult to get precise numbers on the phenomenon. Estimates range between hundreds and thousands of women each year. In Pakistan, it is estimated that every day at least three women are victims of the practice.

What can be done?

Some say that the backwardness of the tribes where most killings take place makes it very difficult to do anything. However, education can work. The fact that the Koran does not prescribe the practice should be explained and taught. Honor killings are just one instance of gender discrimination and education should focus on women’s rights and the equality of women. Where the practice is linked to arranged marriages and dowries, one should first tackle these problems.

The judiciary and the police should be forced to intervene. Penal codes should be modernized, and the economic dependence of women should be dealt with.

Related phenomena

Related phenomena are acid attacks (instead of killing women, acid is poured on them) and honor suicides. People can be forced by their community or by their feeling of guilt to kill themselves. Relatives thereby avoid penalties for murder.

Religion and Human Rights (7): What is Religious Liberty?

Religious liberty or the freedom of religion and belief is a human right. It is the right to be protected against coercion in matters of religion, to be free to practice and profess a religion of your choice, in private as well as in public, to change your religion, or to practice no religion at all.

Legal rules on religious freedom

Article 18 of the Universal Declaration of Human Rights states:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

This right is closely linked to the right to free expression and the right to free association.

The First Amendment of the U.S. Constitution states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It protects the freedom of religion in the US. It’s made up of two parts. The Establishment Clause prohibits the government from passing laws that will establish an official religion or preferring one religion over another. The courts have interpreted the establishment clause to accomplish the separation of church and state and have held that the clause extends to the executive and judicial branches as well.

The Free Exercise Clause prohibits the government from interfering with a person’s practice of his or her religion.

Importance of religious freedom

Religious liberty is an important value because it protects religious diversity and plurality and hence counteracts religious persecution and coercion. It makes a monopoly of one religion impossible – except when culture and demography are such that there is a de facto monopoly which is not contested – and it guarantees the coexistence of different and publicly competing beliefs. In this way, it also guarantees publicity, debate and diversity in general. If there is publicity, debate and diversity on the level of religion, then why not on other levels? On top of that, religious liberty guarantees tolerance: if people can be tolerant – or are forced to be tolerant – in the field of religion, then they will probably be tolerant in other fields as well.

This shows that religious liberty can be of interest to non-religious persons, not only because it protects them from the imposition of a religious belief, but also because it allows them to live in a world of tolerance, publicity ad diversity. Religious liberty is therefore an integral part of a democratic society and a system of human rights.

Problems with religious freedom

However, there is a downside to the concept of religious liberty. Anyone can call their personal insanity a religion in order to try to get government protection. There is no easy answer to the question of what is or is not a religion in the proper sense of the word, but it is obvious that any belief or practice which is part of a religion or claimed to be part of a religion, and which provokes violations of human rights, should not be protected under the right to freedom of religion. Every human right is limited and has to be balanced with other rights.

Freedom of religion is no exception. In particular, the right to absence of discrimination, although closely connected to religious liberty (one should not be treated badly as a consequence of one’s religion), can be a problem if everything can be labeled a religion and if every imaginable theological ideology can enjoy an absolute level of protection granted by the freedom of religion. The equal rights of women should be balanced with the right to practice a religion which provokes discrimination of women. Limiting one right for the sake of another is a normal practice in the field of human rights. This is even more evident in the case of terrorism based on religion.

Separation of state and religion

Religious liberty implies that the state (but not only the state) should not interfere with the religion of its citizens, should not favor or discriminate a particular religion or religions, and should not attach benefits or penalties to any religious affiliation or lack thereof. Religious liberty therefore limits the power of the state and creates a difference between state and society by granting some measure of religious independence to society.

However, religious liberty not only means that the state should avoid interfering in religious matters. It also means that the state should be absolutely neutral as regards religion. There has to be a separation between state and religion (but not necessarily between politics and religion) in the sense that there can be no official state religion. The state should not link itself to a particular religion but should stand above the plurality of different religions. One and the same person cannot be both head of state and head of a church (or an important functionary of a church).

Without this kind of neutrality, certain religions as well as atheists and agnostics will be worse off compared to the adherents of the official religion, if they are allowed to exist at all. Religious liberty means religious equality and the equal treatment of all religions. This equal treatment is impossible if there is some kind of link between the state and a particular religion. If adherence to one religion brings more advantages than adherence to another – and this can be the case when the former is an official state religion or is in any way favored by the state – then there is no real religious liberty. The choice for one religion rather than another will not be a free choice. Even if non-official religions are not actively persecuted or discriminated against, they are worse off when there is no separation between the state and religion because they have less means to influence the public as the official state religion. They are not as free as the official religion.

Another reason why religious liberty implies the separation between state and religion is the need for an impartial judge to mediate between different religions. If different religions are allowed to exist together, we need a non-religious law which regulates their coexistence. It is very unlikely that people adhering to one religion will accept laws which are inspired by another religion. The fact that a religiously neutral state with its religiously neutral laws allows many different religions to exist and to coexist, makes it acceptable to many people. A state which only allows one religion or favors one religion, will only be accepted by the adherents of that particular religion.

The historical fact that religious communities tend to become more and more intertwined within the borders of states, will enhance the attractiveness of this kind of state. A democracy is by definition such a neutral state, because a democracy respects human rights. Once you respect human rights, you also respect religious liberty, and religious liberty leads to religious neutrality on the part of the state.

Just as the state is kept out of religion, religion is kept out of the state. The claims of religion are restricted. A particular religion cannot claim to be the religion of the country in order to take possession of the state or the law and thereby achieve more power than other religions and impose itself on individuals. The state, for its part, is not allowed to prohibit, persecute, discriminate or impose a religion, and it should also avoid using a religion as a means to enhance its authority, as a kind of transcendent confirmation. If you stand close to something glorious, you may hope that something of the glory shines on you as well. You may even hope to become godly, which, historically, has been an enormous advantage to states in pre-modern times. The representative of God on earth is godly as well, and he who is godly is eternal and escapes contestation, which is of course anti-democratic. It is equally unacceptable for a state to use certain religious texts to justify or enforce authoritarian measures.

Separating state and religion may cause some problems. It will for example make it more difficult to universalize human rights. Many cultures, for example Muslim cultures, see this separation not as an advantage but as a problem because religion – unified religion, not the freedom of religion – is still very important in their societies and is considered to be the foundation of politics.

However, state neutrality in religious matters does not imply that democratic politics is necessarily a-religious or atheistic. A democracy executes the will of the people and not the will of God, but if the people believe that their will equals the will of God, then this does not pose a problem as long as the religious rights of the minority are respected and as long as the religion of the majority does not acquire unjustified privileges and does not become the official state religion.

Separation of politics and religion?

This already indicates that the separation of state and religion is not identical to the separation of politics and religion. Religion does not have to remain silent when it comes to politics. It can be a source of inspiration for politicians and it can enhance ethical consciousness and behavior. Therefore, it should not be excluded from politics. It is important to make the distinction between politics and the state. The fact that freedom of religion and the separation of state and religion do not imply the separation of religion and politics can make it easier to impose religious liberty and state neutrality. Religious people obviously and justifiably fear the separation of religion and politics.

The religious neutrality of the state does not necessarily lead to a religious neutrality of politics. A religion is not allowed to infiltrate the institutions of the state, otherwise it would acquire more power than other religions and therefore destroy religious liberty (a choice for a religion is not free if one religion has more power of persuasion than another). But a religion is allowed to try to convince a majority, at least as long as it respects human rights and the liberty of other religions.

Discrimination (1)

Discrimination, in its non-political and non-legal sense, simply means the recognition of differences. In the political and legal sense, it means unjustifiable differences in treatment between groups of people, most often the unjustifiable denial of the equal enjoyment of human rights.

Groups of people are discriminated because they have certain group-specific attributes that set them apart from the rest of society and that warrant, in the eyes of the people who are discriminating, less favorable treatment. One can make the following distinctions:

  • Discrimination can come in different degrees, affecting large or small numbers of people to a large or small extent: from government policy to an unspoken mentality of a small part of the population, and everything in between (such as states not acting to counter discrimination, very active and outspoken discrimination in some parts of the community, entrenched cultural practices such as the caste system etc.).
  • It can be exercised in different ways. People may be discriminated on the grounds of their race, gender etc. They can be discriminated in relatively harmless ways (denial of a promotion because of a likely pregnancy for example) or very brutal ways (slavery, denying of equal education etc.). They can also be discriminated in many different fields of life: education, employment, justice, health care etc.

Some people have the misfortune of finding themselves in a state which has an overt and active policy of discrimination, and in different discriminated groups at the same time (black lesbians in Apartheid South-Africa for example). As a result, they may also be discriminated in different fields of life at the same time (employment, family law, education etc.).

There are many types of discrimination, and the concept of discrimination is often linked to others such as racism, agism, sexism, xenophobia, intolerance, religious fundamentalism, genocide, ethnic cleansing etc. Whereas all these phenomena undoubtedly have a dose of discrimination, they are not the necessary result of discrimination. Discrimination can be much more limited.

One can distinguish between types of discrimination according to the groups that are discriminated, and the ways in which these groups are discriminated.

Groups:

  • racial discrimination
  • gender discrimination
  • discrimination based on one’s sexual orientation
  • discrimination based on one’s language, culture or national origin
  • discrimination based on one’s religion or one’s status within a religion
  • discrimination based on one’s political convictions
  • age discrimination
  • health discrimination (e.g. discrimination of HIV patients, disabled persons or obese persons)
  • etc. (when it comes to cruelty, man’s imagination has no limits I’m afraid)

Ways:

  • economic discrimination (e.g. persistent differences in poverty levels between groups)
  • employment discrimination (e.g. discrimination in career opportunities, pay, “Berufsverbot” etc.)
  • housing discrimination
  • family law discrimination (e.g. the inability of homosexuals to marry or to adopt)
  • education discrimination, different levels or quality of education for different groups
  • discrimination of the access to public service or elected positions
  • judicial discrimination, discrimination in the justice system
  • health discrimination, different levels or quality of healthcare for different groups
  • cultural practices such as honor killings, female genital mutilation,…
  • legal discrimination such as Jim Crow or segregation
  • etc.

Causes of discrimination:

  • racism, sexism etc.
  • a history of discrimination, creating a burden on future generations
  • immigration
  • xenophobia
  • recession or economic scarcity
  • education
  • cultural practices (e.g. the caste system)
  • religious doctrine
  • legislation (e.g. the Jim Crow laws or other types of legally enforced discrimination)
  • etc.

Article 2 of the Universal Declaration prohibits discrimination:

“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

Although poverty has many causes, discrimination is undoubtedly one of them. Large differences in wealth between groups (for example racial groups) may indicate the existence of discrimination.

Statistics on the differences between races in incarceration or execution rates may indicate the existence of discrimination in the justice system, although these differences may have other causes besides discrimination, e.g. differences in poverty rates (see above), differences in levels of education etc. Of course, the latter differences may be caused by discrimination so that discrimination is indirectly the cause of the differences in the application of justice. Here again are some data on the situation in the US, showing that blacks, although they make up only 12% of the population, account for more than 1 in 3 of the prison population and of the executions. 5% of black men are in jail, compared to less than 1% of white men.

 

 

Blacks are also about twice as likely as whites to be a victim of a crime.