What Are Human Rights? (54): The Scope and Coverage of Rights, As Exemplified by Free Speech

It’s important to know what exactly is covered by a certain human right, otherwise we can’t be sure that we have a right to do what we do and we can’t properly protect others against violations of their rights. Maybe we think that a right protects a certain thing that we do but in reality this thing is outside the scope of the right. Or maybe we want to protect other people engaging in an activity but none of their rights covers this activity.

So you see the importance of the question of coverage or scope. Having a right means knowing how far this right goes. Answering this question requires an answer to at least three further questions:

  1. Who’s protected by a right? And whose activities are restricted by it?
  2. What types of actions are protected by a right, and to what extent? Where is the line between protected actions and legitimate restrictions on actions?
  3. Which obligations does a right impose on whom?

Let’s try to answer these questions by way of the example of the right to free speech.

1. Who’s protected by the right to free speech? And whose activities are restricted by it?

1.1. Who’s protected?

Both speakers and audiences are protected. A cursory look at the language – “a right to free speech” – would lead us to assume that only speakers are protected, but that’s wrong: the right to free speech includes the right of audiences to receive the free speech of others. The interests of both speakers and audiences are protected by the right to free speech. This is evident when one takes a closer look at the exact formulation of this right in legal texts.

One reason for this is a purely logical one: speech without an audience doesn’t make sense. Another, more substantive reason why the right to free speech also protects the interests of audiences has to do with the role this right plays in the search for truth. In a nutshell: audiences are necessary for the refinement of arguments. Read the post I just linked to for the full story.

Other groups that can legitimately claim protection of their speech are

  • foreigners: there’s no good reason to assume that foreigners residing within a country’s jurisdiction should not enjoy the same speech rights as citizens (the same isn’t necessarily the case for all human rights)
  • future generations: current generations shouldn’t act in ways that restrict the freedom of speech of future generations
  • companies, etc.

1.2. Whose activities are restricted?

A list of protected actors only tells us a tiny bit about how far a right goes. Defining the agents or institutions whose actions are bound by the right is equally important. Traditionally, it’s assumed that the right to free speech – like all other rights – limits the power of governments. Of course it does, but it also does a lot more. If it would only restrict a government’s power to prohibit and sanction forms of speech, then the scope of the right to free speech would be rather limited because private persons would be at liberty to restrict it as they see fit. Theoretically, although not always legally, the right also restricts private individuals, companies, churches etc. None of those agents or institutions has a right to prohibit people from exercising their right to free speech.

2. What types of actions are protected by the right to free speech, and to what extent? And which are legitimate restrictions on actions?

The scope of a right depends on decisions about who is allowed to claim it and about who is bound by this claim, but it also depends on the types of actions it protects or fails to protect. In our example, we have to define “speech”. On the one hand, it can’t just be the spoken or written word since we express ourselves in ways that don’t involve speaking or writing. Audiences also want to receive information in forms different from ordinary language. For example art, data and speech acts such as flag burning should also be covered by the right to free speech.

On the other hand, not all forms of expression or information gathering should be covered, because then everything would be covered and legislation would be impossible: every act including murder can be conceived as an expressive act, and people can find information anywhere. Not all expressive acts or information gathering can or should be legally protected. Hence, one has to draw a line somewhere.

The exact location of the line, and hence the exact scope of the right to free speech, varies from case to case and depends on the impact of language and speech acts on other rights and the rights of others. For example, if hate speech violates other people’s rights (such as their freedom of residence or movement), then this form of speech falls outside the scope of freedom of speech. Mere derogatory speech on the other hand may not result in rights violations and then falls within the scope. Speech acts such as cross burning may also, depending on their impact on the rights of others, fall either within or outside the scope (cross burning during a private party is different from burning a cross in the front lawn of a lone black family living in a racist neighborhood).

Another way of putting this is that the scope of one right is determined by the scope of other rights, or that the scope of the rights of some is determined by the scope of the rights of others. Both scopes need to balanced against each other. This balancing is usually the business of judges and there’s no way to fix the outcome by way of strict rules. It all depends on a personal judgment by a judge about the harm done by including an action in the scope of a right compared to the harm done by excluding it. Hence, the scope of a right can never be completely fixed. We can never tell exactly how far a right goes.

The same logic holds for so-called place and space restrictions and fairness restrictions. A right to free speech doesn’t imply a right to free speech in any chosen space or place: not everyone as a right to publish in the New York Times or to speak in Congress; and you can’t insist that you have a right to speak in someone else’s house or private property, unless proper balancing has resulted in a judgment that in a specific case the right to private property should give way. (The latter may be the case when private restaurant and shop owners band together to discriminate black customers and when those customers stage protests). Place and space restrictions can be justified either by the necessity to respect the scope of other rights (property for instance) or by the fact that sufficient alternative speaking channels are available (the NYT isn’t the only newspaper).

Examples of fairness restrictions are the prohibition of the heckler’s veto and the fairness doctrine. In both examples, the right to free speech of some is restricted in order to guarantee the right to free speech of others (proper balancing is again required; methods of balancing are discussed here).

Obviously, the actual as opposed to the theoretical scope of the right to free speech isn’t just determined by legitimate restrictions. In real life, as opposed to ideal theory, governments and (groups of) individuals impose illegitimate restrictions. And other, more creeping restrictions such as chilling effects, psychological biases, self-censorship and political correctness, exist as well.

3. Which obligations are imposed on whom?

A final way of measuring the scope of the right to free speech is by having a look at the nature of the obligations it creates. More wide ranging obligations make for a wider scope, and limited obligations for a limited scope. And here as well we find a common misunderstanding. (A first misunderstanding was that the right only protects speakers; another was that it only limits the power of governments). It’s not true that the right to free speech only imposes a negative duty not to restrict speech. This negative duty is important but it’s also meaningless when it’s not accompanied by more positive duties. For example, a person’s speech may not be restricted by anyone and yet her lack of education, leisure time or other resources make it impossible for her to engage in meaningful speech. Hence, the government and others have certain duties to provide resources: education, internet access etc. And let’s not forget that a negative duty to refrain from speech restrictions requires a positive duty to provide mechanisms such as courts, a police force and other means to undo or prevent speech restrictions.

Similar arguments can be made for most other rights.

PS: here are some useful links that I’ve recovered from a previous post and that are relevant to the question at hand:

A related post on the dimensions of human rights is here. More on free speech here.

Why Do We Need Human Rights? (38): Different Justifications for Different Types of Free Speech

There are different types of speech, and therefore also different types of free speech. The point I want to make here is that different types of free speech require different justifications. It’s a common error to reject some kinds of free speech because they seem unacceptable from the point of view of justificatory theories that are useful only for other types of free speech.

What does that mean, different types of speech? We can have different goals when we speak: we can try to persuade, to signal our allegiance or identity, to harm, to ostracize, to insult, to express emotions, to promise or to enter into a contract, to state facts, to name something, to order someone, etc.

Each purpose of speech requires a separate justification of free speech, and some purposes may be very hard to justify at all, in which case a limit on freedom of speech may be necessary. However, much talk about limits springs from a logical error. It’s important not to try to use a justification for one type of free speech in order to examine the justification of another type. This may result in the unwarranted conclusion that some type of free speech is not justifiable and that it can therefore be limited, whereas in reality we just use the wrong justification.

Take one type of speech: persuasion. Free persuasion is usually justified on the basis of the marketplace of ideas. In a nutshell: people should be allowed to try to persuade each other freely, because this process of free persuasion will improve the quality of opinions.

Now take another type of speech, namely emotive speech. Examples of emotive speech are “fuck you” (expressing rejection or disgust), “fuck” (expressing disappointment), “shit”, “motherfucker” etc. Such expletives, and emotive speech in general, are often viewed as completely lacking in merit and therefore unworthy of protection. US First Amendment jurisprudence is a case in point. The Supreme Court labels a lot of emotive speech as no-value or low-value speech and has no problem with restrictions of it. (See also here). Speech lacks value, according to the Supreme Court, if it’s no essential part of the exposition of ideas and doesn’t bring us closer to the truth. Any slight benefit it may have is outweighed by the social interest in order and morality.

However, this means focussing on persuasion and the truth seeking purpose of speech, and using the justification of this type of speech in order to reject another type of speech. If, on the other hand, you believe that speech also has an emotional purpose, you would regard expletives as more valuable and more worthy of free speech protection.

The distinction between low or no-value speech on the one hand and high value speech on the other hand, whatever its merits (and those are not obvious), points us towards a further remark regarding the distinction between types of speech and between types of justifications. Those distinctions aren’t clear-cut: even people who express themselves merely because of signaling needs can be justified to do so because of the value of the marketplace of ideas. Although they don’t want to persuade, the fact that they merely express an opinion without arguing for it is valuable in the marketplace of ideas because it can convince others of the lack of real value of their opinions. Likewise, an order may indicate that persuasion has failed, and this in turn may indicate the relative weakness of an opinion.

More posts in this series are here.

What Are Human Rights? (46): Equal Rights, Ctd.

The idea that human rights are equal rights is trivial at first sight. However, it becomes problematic after some reflection, and only regains its persuasiveness after even further reflection. When you think about it, equal rights for everyone is a strange idea. Why should all people have the same rights? Why should a preacher of violence and hate have the same right to speak freely as the world’s best poet? Why should a religion that oppresses women have the same right to exist as a religion that loves peace and equality? Why should people who haven’t finished primary school have the same right to vote as experts in government matters?

Agreed, they are all human beings and human rights are the rights of human beings, but that’s a tautology, not an argument. A somewhat more promising foundation for the notion of equal rights goes like this: one can argue that people need human rights in order to realize certain of their most fundamental and commonly shared values. If that is true, then rights should be equal rights.

Most people value the ability to express themselves, to belong to groups, to share a common identity (e.g. a religious one), to govern their own affairs, to enjoy peace and prosperity etc. And we know that they need human rights to realize these (and other) values. Agreed, some of us may not want any of this, but then they can waive their rights. And only THEY can. People should decide for themselves whether they need rights and need them equally; others shouldn’t decide for them. That is probably the only morally sound way to treat people.

We can also justify equality of rights on the following grounds: we don’t want rights just for ourselves and for the things we value for ourselves; we also want other people to have rights and to have them equally – or at least we should want this if we are to reason coherently. This is not a requirement of morality or altruism – although it can be, obviously – but simply one of logic and coherence. The right to express myself, to belong, to live in peace and prosperity, to vote etc. makes no sense if I’m the only one to have those rights. Even if others use their expression or their votes or whatever in a stupid way, they should have the right to do so – as long as this use doesn’t imply rights violations of course. Hence, equality of rights is a logical requirement in the system of rights.

More posts in this series are here.

What Are Human Rights? (45): Negative or Positive Rights? Ctd.

I realize now that this previous post wasn’t any good. I need to do a lot more to clarify the difference between negative and positive rights, and to argue that there are indeed two types. Most people assume that there’s only one type and that human rights are always and only negative rights:

  • the right to free speech is a right not to be silenced, not a right to be given the ability to speak (e.g. to have my vocal cords healed)
  • my right not to suffer arbitrary arrest is not a right to be rescued from a cave (in the words of Jonathan Bennett)
  • my freedom of movement is a right not to be hindered, not a right to roads
  • etc.

These examples are meant to make two points, both of which I want to contest:

  1. many so-called rights violations are really not rights violations because there is no violator
  2. rights require only the removal of constraints, more specifically of human imposed constraints.

It does seem to be the case that there can only be a right when someone can violate it (see here), and in the examples above there is no one violating a right: my vocal cords gave up without anyone’s help, and I got stuck in the cave because of my own stupidity or because of a natural calamity. And indeed, the conventional wisdom is that there are numerous types of inabilities which render rights meaningless but which are nonetheless not rights violations because there is no one who caused the violation. In other words, not all inabilities or harms are rights violations, not even if they render rights meaningless.

However, this conventional wisdom is wrong for several reasons. Often there is a violator lurking in the shadows and his or her presence is not clear at first sight. For example, many believe that poverty isn’t a rights violation because no one causes poverty; poverty is just the unfortunate outcome of economic circumstances, like my falling into a cave is the unfortunate outcome of my own stupidity. But that’s not necessarily true: poverty is often the direct result of purposeful and conscious actions by dictators, by the designers of international trade or migration policy etc. So one should be careful when arguing that something is not a right or not a rights violation because there’s no violator. Often there is one but you just fail to notice it.

The second claim implicit in the examples above is that rights require the removal of constraints, not the provision of abilities: free speech requires the removal of censorship, not the provision of the ability to speak; freedom of movement requires the absence of government imposed restrictions on movement, not the provision by the state of roads (even if the absence of roads makes freedom of movement meaningless); etc. However, even the removal of censorship requires the provision of judicial systems, of a police force etc. Hence, it requires the provision of abilities: the ability to sue censors, to send the police to them etc. I see no reason why these abilities should be limited to the ability to remove constraints, and why they should exclude abilities such as education. If rights are important, then people should have the abilities to make their rights real; sometimes this means removing constraints, but often it means providing abilities. Why should it be a big thing when someone is censored, but not when someone is denied the education necessary to make speech possible and meaningful in the first place?

The conventional wisdom – quoted above – that not all inabilities or harms are rights violations, not even if they render rights meaningless, is only partly true. Not all inabilities or harms are rights violations: my broken heart is not a rights violation. But there are many inabilities and harms – even some for which we can’t identify a human agent causing the inability or harm – which are still rights violations because they render rights meaningless. Rights violations don’t always require the presence of a violator and require more than the removal of constraints.

More posts in this series here.

Hate (8): Tolerance and Hate Speech

Jeremy Waldron claims that tolerance is more than merely the absence of violent assault on people who have adopted beliefs and practices we don’t like, and more than simply abstaining from persecution and legal sanction. He says that tolerance also implies the absence of hate speech and a legal prohibition of hate speech. Members of minority groups whose beliefs and practices are strongly disapproved of by the rest of society, have a right to go about their lives without the threat of constant hatred, vilification, insult and humiliation. They have a right to visit the shops and restaurants they want to visit, and to generally interact with others without being treated as pariahs.

And, indeed, that sounds quite reasonable. People undoubtedly have and should have such rights. But others have rights as well: hate mongers have a right to free speech, and racist shop keepers and restaurant owners have a right to ban whoever they want from their private property, under certain circumstances.

When the rights of the haters and the rights of despised minorities come into conflict, the different rights have to be balanced. I argued before that the right of private property of racists, or the freedom of association of prejudiced groups wanting to exclude homosexuals for example, should no longer be protected when these racists and bigots have become so numerous and authoritative that the objects of their racism or bigotry no longer have any alternative options and risk having their own rights violated. In the Jim Crow era, for example, it was very difficult for blacks to move around, find decent housing etc. because there were so many transport companies and landowners discriminating against them that their options were seriously diminished. Hence their rights were violated, and violated to such a degree that limitations on the rights of their tormentors were justified.

Similarly, in our current example, hate speech should only be banned and the right to free speech of hate mongers should only be limited when there’s an impact on the rights of their targets. Claiming, as Waldron seems to do, that a tolerant society generally requires such bans and limits will not do. That’s just not enough as a justification. For example, writing blood libel on an obscure blog that nobody reads should probably not be prohibited. On the other hand, burning crosses in the front yards of black people and forcing them to move elsewhere is a violation of their right to freely choose their residence. The same is true if people dare not walk the streets because of the risk of being constantly cursed at. These two cases of expressions of hate speech can and should be banned because they result in rights violations. Other expressions of hate speech should be protected. A general claim that tolerance requires not just constraints on coercion and violent persecution but also a general respect for people’s dignity and a social atmosphere free of hatred, insult and defamation, goes too far. It would be nice if the world was free of hate and if respect for dignity was the normal attitude, but there’s no right to such a world. Nor should there be.

If we were to adopt such a right, we’d run the risk of terminating debate altogether. If tolerance includes a general ban on hate speech it’s likely that it will also imply banning vehement discussion of other people’s supposed errors. You don’t need to engage in hate speech in order to have a vehement and lively discussion and criticism of others, but a lot of such criticism can be readily understood and perceived by its targets as an expression of hate and an insult to dignity. These targets can then use the power of law to shut down the debate, and that’s not something we want. Ideally, specific instances of speech should not be judged as inadmissible instances of hate speech and proper objects of legal sanction simply on the basis of the feelings or perceptions of the targets, but only on the basis of the objective consequences for the rights of the targets. Tolerance that includes a ban on all hate speech is a tolerance that in the end may silence us all.

More on tolerance, hate speech, defamation and insults. More posts in this series are here.

Why Do We Need Human Rights? (32): Market Failure in the Marketplace of Ideas

First, a brief reminder of how I understand the marketplace of ideas and how it justifies freedom of speech. I normally don’t do this, but I can save us all a lot of time by quoting myself:

The point is this: ideas that can get themselves accepted in a competitive market of ideas will tend to be of better quality than other ideas. The marketplace of ideas therefore improves the quality of our ideas and our thinking. If different ideas are presented in an “ideas-market”, and if that market is populated by a maximum number of free agents expressing themselves freely, then those competing ideas will be exposed to a maximum number of supporting and dissenting arguments, and the balance of arguments in favor of or against an idea will be compared to the same balance for counter-ideas. The idea with the best balance will “survive”, because alternative ideas will be seen as comparatively defective, given the fact that the arguments in favor of them are weaker or the arguments against them are stronger.

It’s crucial that there is mass participation in the argumentation and deliberation going on in this market, since only mass participation will allow for the multiplication of possible arguments and alternative ideas. Hence, it’s also crucial that there’s a right to free speech and that everyone (or at least a large number of people) has and effectively exercises this right. This mass participation of free and expressive agents will improve the quality of ideas and of their supportive arguments even before the ideas reach the market: people who know that their ideas will meet probing and massive criticism will prepare themselves for this criticism, and this preparation means that they will preemptively develop supportive arguments and undermine opposing arguments. Hence, these ideas may even change and improve before they reach the market.

If this metaphor of the market is convincing then it can provide a powerful reason for adopting and protecting the right to free speech. There’s hardly a more valuable good than quality in thinking and if free speech can help to deliver that good it’s difficult to argue against this right.

Personally, I do think that the metaphor of the free market can help us to understand the logic and benefits of free and widespread public discussion and of the free exchange of and competition between ideas, and that this understanding can provide a good justification for freedom of speech. Much of what goes on in the marketplace of ideas is similar to what goes on in a market of goods or services. The important similarity is the free exchange of and competition between ideas, the lack of restrictions on exchange and competition, and the freedom of all to join in the exchange and competition on a equal footing. And although I would advise not to push the metaphor too far (a perpetual and fatal temptation of all economic metaphors), there’s probably one more similarity that can be useful, namely the concept of market failure.

Market failure in economics refers to those cases in which a free market, left to itself, fails to allocate goods and services efficiently. In other words, there is at least one market participant who may have been better off without anyone else being worse off had other systems operated instead of the free market. Examples of market failure are

  • information asymmetries, which occur when one party in a transaction has more or better information than the other (classic examples are the used-car salesman selling a defective car to someone who has no knowledge of cars, and the terminally ill person buying a life insurance)
  • externalities, which occur when a transaction has a cost that is not transmitted through prices and that is incurred by a party who did not agree to the action causing the cost (the classic example is industrial pollution imposing costs on the whole society, costs that are not included in the transaction price of the polluting goods).

Market failures can also occur in the marketplace of ideas. It’s important to check whether these market failures are enough of a problem to render the concept of a marketplace of ideas unworkable. If the marketplace of ideas can’t work properly most of the time, then it can’t function as a justification of freedom of speech. However, if market failures are due to insufficient free speech, then free speech can still be justified by the concept of the marketplace of ideas. The problem is that market failures in the marketplace of ideas often go beyond insufficient free speech. Let’s list some of those market failures:

  • Political correctness: political correctness is a form of silencing and therefore introduces market failure; if some arguments or some positions can’t be expressed and heard, then they can’t enter into the calculus of arguments and can’t improve our thinking. This is true even if those arguments or positions are manifestly unsound, because silencing them means that we lose a way of stressing the soundness of other arguments and positions (saying what’s wrong about something is often an indirect way of saying what’s right about something else).
  • Silencing more generally: political correctness isn’t the only form of silencing; pornography may silence women and hate speech may silence minorities; silencing means the absence of arguments and positions, and such an absence always harms the operation of the marketplace of ideas.
  • Polarization: polarization occurs when groups in society do not argue, convince or engage in public thinking but instead simply express claims motivated, not by the willingness to persuade, but by the need to show their identity or belonging; no one is convinced, people stay in their respective camps and these camps drift further apart because absent an exchange of reasons for beliefs, people start to see other groups as increasingly strange, alien and incomprehensible.
  • Biased media attention: a lot of the argumentation in the marketplace isn’t direct but gets channeled through media; if these media don’t take the ideal of the marketplace seriously and don’t function as stages for debate but instead play the game of polarization and present ongoing debates in a biased way, then there’s less debate.
  • Lack of education: the argumentation in the marketplace of ideas obviously requires a relatively high level of education; absent this education for the large majority, the marketplace can’t function since it depends on massive participation.
  • Psychological biases: even if general education levels are high, certain psychological biases can hinder the operation of the market; one example is confirmation bias, the tendency of people to seek out evidence that is favorable to their original beliefs, and neglect evidence that is unfavorable; it’s obvious that this harms the operation of the marketplace.
  • Privacy issues: some people may be discouraged from entering the marketplace of ideas because they can’t handle exposure or the possible intrusions into their private lives that may follow from participation in the marketplace.
  • Etc.

Now, many of these market failures do look pretty serious and may discredit the whole notion of a marketplace of ideas, at least in the foreseeable future. However, most can be addressed in some ways. Media can be forced to present different viewpoints, hate speech can be curtailed etc. So there may be ways of rescuing the ideal of the marketplace of ideas both as an ideal in itself and as a justification of free speech. Much like the economic market in goods and services isn’t necessarily discredited by economic market failure and can be rescued by targeted government intervention.

More posts in this series are here.

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

A few additional remarks following this previous post.

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

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

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

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

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

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

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

More posts in this series are here.

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

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

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

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

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

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

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

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

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

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

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

More posts in this series here.

Why Do We Need Human Rights? (31): Or Maybe We Don’t? – Exploring the “Dark Side” of Human Rights

Do human rights have a “dark side“? There are some specific complaints about the nefarious or even evil consequences of certain particular human rights, and there are complaints about the harmful consequences of human rights in general. The former complaints are a lot easier to deal with, and I’ll start with those.

Complaints about particular human rights

Freedom of expression is believed to be harmful because it protects pornography, which in turn leads to gender based violence and gender discrimination. Furthermore, it implies the free dissemination and reproduction of hate and it therefore fosters violence, racism and different kinds of “phobias”. And, finally, it allows blasphemy and hence it encourages religious tensions and violence.

Those human rights that guarantee a fair trial, and more particularly the rights of defendants, make it more difficult to have an effective criminal justice system. As a result, it becomes more likely that dangerous criminals return to society. Also, the right to life makes it harder to justify capital punishment, with the same result.

The right to privacy can support gender subordination and make it more difficult to tackle domestic violence.

Some human rights can even bring us to the edge of destruction (a ban on torture makes it impossible to deal with ticking time bomb terrorists).

Such specific complaints against particular human rights can be countered rather easily. Most if not all of the harmful consequences of rights are violations of other rights. If we grant that rights are limited by other rights, then we can balance rights against each other. Or one can argue that the supposed harmful consequences of some rights will (almost) never occur, or that they aren’t really harmful at all. For example, if we don’t torture we won’t make terrorism more likely. And some forms of pornography or hate speech aren’t really very dangerous.

Complaints about human rights in general

A lot harder to answer is the challenge that there’s something wrong, not with particular human rights, but with human rights as such. This challenge can take different forms.

Human rights are supposed to be the fig leaf of international intervention and modern imperialism. The anti-Taliban intervention in Afghanistan, for instance, was partly a reaction to 9-11 but it was also justified by reference to the brutal rule of the Taliban. It may be a meager defense, but if we were to reject everything that can be abused we wouldn’t have much left. The question then becomes one of degree: are human rights more likely to be abused for imperialist reasons, or more likely to serve the beneficial goals for which they are intended? And what is the probable balance of good and bad that will result from those different uses of human rights? I think the good that comes from human rights clearly outweighs the bad, and that the bad will happen anyway, whether or not people use the excuse of human rights while making it happen.

There’s a similar claim about the inherent cultural imperialism in human rights. Human rights, even when they’re not used to justify war, military intervention or territorial occupation, are still imperialist because they imply the imposition of western values on other cultures. Human rights are then believed to be a form of cultural aggression and part of a neocolonial effort to extend the individualist, secular and modern culture of the West elsewhere in the world, destroying the indigenous cultures in the process. This claim, however, is based on some rather shaky foundations: that human rights can only be found in the West, that intercultural transmission is necessarily aggressive, one-sided and involuntary, that human rights express a culture, that human rights are individualist etc.

Then there’s the claim that the abstract nature of human rights removes the personal and the specific from cases, and removes therefore the things that make us care about cases. I dealt with this complaint before, so I won’t repeat myself. The core of the reply would be that one approach – an abstract one – doesn’t exclude a more contextualized and specific one. For instance, one can talk about the abstract desirability of the right not to be tortured and about the errors in reasoning of those arguing for exceptions to this right, and at the same time one can talk about specific cases of torture.

Another complaint is the classic marxist one: the individualism of human rights spills over into egoism and capitalist greed. Again, I refer to an older post for a detailed reply. Suffice it to say that human rights as claims on others can indeed lead to divisiveness and a lack of social harmony, and that human rights as claims for your rights can promote selfishness. These tendencies, however, are canceled by the more communitarian nature of other uses of rights (religious liberty, tolerance, freedom of association etc.).

Still another complaint is about the victimization inherent in human rights. Focusing on people’s human rights violations means focusing on their status as victims, and talking about people as victims is somewhat infantilizing. Human rights activists do indeed often view non-whites, non-males and non-westerners as passive victims, incapable of agency, waiting to be rescued by do-gooders. This obviously reinforces their subordination. (More on self-defeating human rights policies here). This complaint is more about the way people act when trying to promote human rights than about human rights as such.

A final complaint about human rights is that they give people false hope, at least those people in the poorest countries of the world. What is the point of having a right when you don’t have the means to realize that right, when there’s no way of securing the things you have a right to? For billions of people all over the world, the right not to suffer ill health, poverty or homelessness is just a sick joke. Why should we have rights when there’s no way to make them real? Good luck going to a judge in a famine infested country and asking him to respect your right to food. And even if we can make our rights real, it’s better to use politics, science and economics than abstract rights that don’t tell us how to move forward. The reply to this complaint would focus on the benefits of having rather ambitious goals, even if the complete realization of those goals is not yet possible. At least one can measure progress. And it would also focus on the realistic nature of most human rights goals. For example, it’s simply not true that poverty eradication is utopian.

More posts in this series here.

Limiting Free Speech (50): Harassment of Funeral Mourners

The Phelps family and their Westboro Baptist Church – notorious nutcases and media whores – won an important Supreme Court free speech case. In Snyder v Phelps, the Court decided that the First Amendment protects public protestors insulting dead soldiers during their funeral (“thank God for dead soldiers” was one of the insults directed at the Snyder family).

And indeed, free speech rights do and should include the right to be offensive, obnoxious, insensitive, indecent, disturbing and plain stupid, even if being so causes sincere and predictable discomfort for some. Moreover, the Phelps’ were in a public space and were “discussing” a topic of public interest (the war in Iraq and the permissibility of homosexuality). Those facts make the Court’s decision look inherently sound.

However, things look entirely different when we take some other facts into account. There’s for example the mourners’ right to privacy. Westboro’s picketing was a clear violations of this right. There’s nothing as private as mourning at a funeral, and the mourners are definitely captive: they can’t just go an mourn elsewhere in order to avoid the protest. Westboro on the other hand can easily stage their protests elsewhere: they can for example respect a decent distance. Their speech is not directed at the mourners anyway, but rather at the general public, so speaking outside a buffer zone around the cemetery would not, at first sight, limit their speech. An effort to balance both rights – speech and privacy – should therefore, at least in this case, come down on the side of privacy because the cost to privacy of permitting speech is much larger than the cost to speech of respecting privacy. (And rights have to be balanced; speech is not the most important right but rather one among many equally important rights).

Still, Westboro may disagree. It’s likely that they see their speech as inherently connected to their lack of decency: it’s precisely this lack that creates the controversy and that gives their speech the impact that it wouldn’t have outside of the buffer zone. The problem with this argument is that it confuses the right to freedom of speech with a right to maximum impact speech. And the latter right does not and should not exist. We have a strong right to free speech but no right to maximize the impact of our speech at the expense of other people’s rights.

Limitations of free speech in cases such as these can be argued, not just on the basis of the right to privacy, but also on the basis of the right to health. It’s not outrageous to assume that distress of the type caused by Westboro can lead to health problems such as anguish, depression etc. Again we have a conflict of rights, and again it’s a case in which limitations of free speech would impose a smaller cost – given the alternative forms of speech available – than the health cost imposed by the lack of such limitations.

All of this proves that we are dealing here with a case that’s about more than mere offense. But perhaps it’s also about more than privacy and health. Free speech does not include the right to use other people as mere instruments of your speech. And instrumentalization of this kind is clearly what Westboro is all about. They don’t give a damn about the mourners and use them as a stage for venting against homosexuality (they see dead soldiers as God’s punishment for allowing homosexuality in the U.S.):

the outrageous disturbance of a military funeral is newsworthy precisely because it is such an abhorrent and extreme act.  In essence, the speakers are using the mourners and their vulnerable and sympathetic position as a stage prop to get their message out to a different audience. (source)

And although there is no right to be treated as an end rather than a means, this does seem to be a solid moral principle.

Go here to read about the similar case of residential picketing. More posts in this series are here.

What Are Human Rights? (36): A “Right To Something” Always Includes a “Right Not To”

The claim that a right always includes the inverted right is obvious once you start to look at examples. The right to free speech is a right to speak but also a right not to speak and to remain silent. Evidence for this can be found in practice and in intuition. Many systems of law specifically grant a right to remain silent in certain circumstances such as criminal prosecution. However, such a right isn’t or shouldn’t be limited to specific circumstances. A general right to remain silent is intuitively appealing: the absence of a right not to speak would imply the legitimacy of compelled speech, and compelled speech is problematic in different ways. We don’t like it, and we don’t think it’s meaningful. Examples of compelled speech such as loyalty oaths, flag salutes etc. clearly show how pointless compelled speech can be. Loyalty or promises can’t be compelled, and hence it’s better to let people opt out of them if they so desire. (In the U.S., the West Virginia v. Barnette case created a First Amendment right not to speak precisely in the context of such loyalty oaths).

In addition to the factual and intuitive evidence in favor of a right not to speak, there’s also some logical support: it seems incoherent to have the freedom to speak your mind and then be compelled to say what is not on your mind.

A lot of this reasoning applies to other rights as well. Take the freedom of association. This right also includes the freedom not to associate (the freedom to stay out of groups or to leave groups). In this case, the actual phrasing of the right in human rights documents is explicit – which is not true for the right to free speech. Take article 18 of the Universal Declaration:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief [my emphasis].

Or article 20:

Everyone has the right to freedom of peaceful assembly and association.  No one may be compelled to belong to an association.

There’s also the intuitive appeal of a right not to associate. Absence of such a right would legitimize some forms of compelled association, and compelled association undermines the whole purpose of association, like compelled speech undermines he purpose of speech: people associate because they want to, and they want to because association brings certain benefits – identity, belonging etc. None of those benefits can be produced by compelled association.

However, this is as far as the analogy to free speech goes. Contrary to free speech, the inverted freedom of association seems to allow exclusion. The freedom of an association not to associate with certain persons – e.g. the Boy Scouts of America refusing to associate with a gay scoutsmaster – restricts the right to associate and perhaps even the freedom to associate of the excluded persons, and is often a violation of the right to non-discrimination. Exclusion has a bad ring to it, but I think that’s a pill we have to swallow. Without exclusion rights, association rights don’t mean a thing. If associations can’t decide who to include or exclude, what is the point of having associations? So what we have here, potentially, is a conflict between rights: a conflict between on the one hand the inverted right to free association (inverted because it’s a right not to associate with certain people) and on the other hand the right to associate (and possible also the right to non-discrimination) of the excluded.

And in many cases, there’s no easy way out of such conflicts. Decisions about the supremacy of conflicting rights have to be decided on a case by case basis taking into account the relative damage done by different decisions. In our example, if there are many different “scouts” groups and just one of them wants to exclude gays, then gays have ample opportunities to go elsewhere and the inverted association right of the bigoted scouts group should be upheld. If, on the other hand, exclusion of gays is so widespread that gays have seriously diminished opportunities in life, or if exclusion of gays is limited to scouts groups but this is still a serious limitation of opportunities (if, for example, joining a scouts group is fundamental to human life), then the inverted association right of the excluders should give way.

So these are two rights for which it is clear that they contain their inverted versions. I could make similar arguments for other rights (the right to life includes the right to suicide, the right to privacy includes the right to publicity, the right to property includes the right to live naked in the woods etc.), but I don’t want to force those of you who haven’t already stopped reading to do so now.

That’s because I still have some important general remarks about inverted rights. First, we can only talk about inverted rights for those human rights which do not already take the “not to” form. For example, it doesn’t make sense to say that the right “not to be tortured” or “not to be a slave” includes the inverted version. Second, inverting rights looks a lot like waiving rights, but it’s not quite the same. Waiving a right means that you don’t want others to enforce your right. Inverting a right means that you claim a right not to do what a right allows you to do. In the former case you give up a right, in the latter you claim an additional right.

A final remark: when people claim a “right not to” or when they want to waive their rights, we want to know that they do so freely and that their choice is an informed one. Otherwise we could simply be dealing with a covert form of oppression in which the oppressor has somehow convinced a victim to abandon his or her rights or to claim a right not to do something that annoys the oppressor.

The Problem With the Libertarian View on Human Rights, in a Nutshell

A few days ago, we were treated, once again, to a typical sexist rant by the awful Rush Limbaugh. This time, it seems that he’s provoked some kind of boycott. Some advertisers and listeners are turning their backs to the radio host, voting with their feet and their wallets. In a sense, this is a typical libertarian response:

[V]iolating Rush’s First Amendment rights would require state action. Rush has not been jailed for his views, nor has anyone even whispered a suggestion to that effect. There have been no calls for his radio transmitter to be jammed. No one is even demanding he be fined, which might be possible under the FCC‘s arcane and arbitrary decency laws. Instead, what his critics are doing is exercising one of their own fundamental American rights, their right as consumers to frequent the businesses they choose. (source)

I agree that this right of consumers and advertisers to shop where they want and pay for what they want is an important one, although probably not as important as libertarians have it. I have no beef with that. What worries me more and what brings out libertarians’ flawed understanding of human rights is the peculiar opinion on free speech that is evident from the quote above. It’s an opinion that libertarians apply to all human rights, namely that violations of human rights only and always  result from government actions. Actions by fellow citizens – such as boycotts of radio talk show hosts – can never, according to libertarianism, result in rights violations.

The problem with libertarians is that they take cases such as the one we’re discussing now – and which indeed do not involve violations of free speech – and then extrapolate this in order to argue that there are never any similar cases in which citizens’ actions do result in violations of free speech. In the case under review, Limbaugh’s freedom of speech is evidently secure: the government hasn’t intervened, fortunately, and the action of listeners and advertisers don’t make it harder or impossible for Limbaugh to express himself. No one’s freedom of speech presupposes other people’s duty to listen or a duty to support speech through advertising money. Limbaugh’s freedom of speech would be secure even if the boycott were large enough for him to lose his radio pulpit. People don’t need to be a talk show host in order to have freedom of speech.

However, in other cases, it is possible that non-governmental actions – actions by fellow citizens in other words – result in violations of one’s freedom of speech. Some examples: the heckler’s veto, the silencing of critics of Islam by way of threats of violence, the chilling effect of political correctness etc. The same is true for all other human rights: it’s not the government that engages in FGM, that flies planes into the WTC buildings, that attacks gay couples on the street etc.

The central libertarian teaching about human rights as expressed in the quote above (“violating Rush’s First Amendment rights would require state action”) is therefore an error of fact. The error is probably unavoidable given libertarianism’s focus on the evils of government. This is all the more regrettable given the fact that libertarianism is, in theory, a philosophical school that should be very friendly to human rights. (Robert Nozick, perhaps the most famous libertarian philosopher, starts his magnum opus with the words: “Individuals have rights, and there are things no person or group may do to them without violating their rights”).

My argument here may be lacking in nuance and may not do justice to one or other subtype of the admittedly very large and diverse family of libertarianisms. If so, please feel free to correct me in comments.

More on the related topic of dimensions of human rights is here. More on libertarianism.

Limiting Free Speech (49): Residential Picketing

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

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

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

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

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

Cultural Rights (14): Tolerance, a Model

To be tolerant means to accept the existence of and to avoid interfering coercively with beliefs, actions or practices that you consider wrong and objectionable. It means that you do your best to co-exist with people who are very much different from you, and different in a negative sense. You allow or permit these people to remain who they are and what they are. You consider what they are, what they do and what they believe to be wrong and objectionable, but not wrong enough to be intolerable and subject to prohibition, legal or otherwise. You tolerate them because you believe that what they do or believe should not be prohibited, or perhaps because you believe you’re not in a position to effectively prohibit. However, I would personally prefer to call the latter option “endurance” rather than tolerance and limit tolerance to the voluntary acceptance of things you could prohibit if you wanted to.

“Acceptance” here should of course be understood, not in the sense of a positive moral judgment, approval or agreement, but in the sense of a practical, pragmatical accommodation. The negative judgment remains but isn’t strong enough to warrant repression or prohibition.

We may decide to tolerate something for a variety of reasons:

  • We may have a strong general sense of respect for other people and for their identity. We may respect people’s moral standing as agents able to choose their own vision of the good life. We disagree with their choices but we respect them as agents able to choose.
  • We may be motivated simply by a general respect for the law, and the law happens to prescribe tolerance.
  • We may believe that tolerance is necessary for the preservation of civil peace and public order, and these considerations outweigh our disgust for other lifestyles. In other words, we hate conflict more than we hate other people.
  • We may be motivated by an expectation of reciprocity: if we show tolerance we expect to be tolerated. Maybe our own group isn’t in the majority either, or risks not being a majority in the future, and hence we may some day profit from tolerance.
  • We may believe, as did John Stuart Mill, that even false opinions lead to social learning.
  • Etc.

Those reasons can imply either equal or unequal relationships between those who tolerate and those who are tolerated.

Below I offer my own petty model of tolerance. I situate tolerance on a continuum going from what I call guidance on one side to prohibition on the other. Guidance means the attitude of emulating certain practices which you view as being important enough to guide your life and your fundamental opinions. Prohibition, the other extreme, means the attitude of suppressing certain practices which you view as being so depraved that they should be forbidden and eliminated, if necessary with violence.

One level below guidance I situate the attitude which I call positive acceptance. People accept things in a positive way if they consider them to be moral, but not necessarily moral enough to be the guiding light of life. One level below positive acceptance is indifference, which marks the boundary between things that are moral and things that are immoral.

Below indifference is negative acceptance, which means viewing things as being immoral yet not immoral enough to suppress them using the law or any other violent means. As stated above, I distinguish between two types of negative acceptance, endurance and tolerance, the difference being that tolerance means accepting something and yet having the ability to suppress. Endurance means you tolerate despite not wanting to tolerate: you tolerate because you don’t have a choice. If you had the power to suppress or prohibit, you would. You don’t suppress or prohibit and you tolerate because you don’t have the power to suppress or prohibit. Real tolerance means that you have that power but voluntarily choose not to use it, for any (combination) of the reasons mentioned above.

Some would also call endurance a type of tolerance. Personally, I want to keep it separate. (Which is why it is in light gray rather than dark gray in the image below). I distinguish three types of tolerance: people can tolerate things unconditionally, they can tolerate things if they happen only in private, or they can tolerate things that happen in public but only conditionally.

I also place all these attitude, including tolerance, on a moral scale, assuming that people decide to accept, reject, tolerate or prohibit acts or beliefs according to the moral value they attach to these acts or beliefs.

Measuring Democracy (8): A Multidimensional Measurement

Any attempt to measure the degree of democracy in a country should take into account the fact that democracy is something multidimensional. It won’t suffice to measure elections, not even the different aspects of elections such as frequency, participation, fairness, transparency etc. It takes more than fair and inclusive elections to have a democracy. Of course, the theoretical ideal of democracy is a controversial notion, so we won’t be able to agree on all the necessary dimensions or elements of a true democracy. Still, you can’t escape this problem if you want to build a measurement system: measuring something means deciding which parts of it are worth measuring.

You would also do best to take a maximalist approach: leaving out too many characteristics would allow many or even all countries to qualify as fully democratic and would make it impossible to differentiate between the different levels or the different quality of democracy across countries. A measurement system is useful precisely because it offers distinctions and detailed rankings and because it makes it possible to determine the distance to an ideal, whatever the nature of the ideal. Obviously, a maximalist approach is by definition more controversial than a minimal one. Everyone agrees that you can’t have a democracy without elections (or, better, without voting more generally). Whether strong free speech rights and an independent judiciary are necessary is less clear. And the same is true for other potential attributes of democracy.

Once you’ve determined what you believe are necessary attributes you can start to measure the extent at which they are present in different countries. Hence, your measurement will look like a set of sliding scales. With all the markers on the right side in the case of a non-existing ideal democracy, and all the markers on the left side in the unfortunately very real case of total absence of democracy.

(The aggregation of these scales into a total country score is another matter that I’ve discussed elsewhere).

Some candidates of attributes are:

  • Does a country include more or less people in the right to have a democratic say? How high is the voting age? Are criminals excluded from the vote, even after they have served their sentence? Are immigrants without citizenship excluded? Are there conditions attached to the right to vote (such as property, education, gender etc.)?
  • Does a country include more or less topics in the right to a democratic say? Are voters not allowed to have a say about the affairs of the military, or about policies that have an impact on the rights of minorities? Does the judiciary have a right to judicial review of democratically approved laws?
  • Does a country include more or less positions in the right to a democratic say? Can voters elect the president, judges, prosecutors, mayors, etc., or only parliamentarians? Can they elect local office holders? Does a country have a federalist structure with important powers at the local or state level?
  • Does a country impose qualified majorities for certain topics or positions? Do voters have to approve certain measures with a two-thirds supermajority?
  • Does a country provide more or less ways to express a democratic say? Can voters only elect officials or can they also vote on issues in referenda?
  • Does a country impose more or less restrictions on the formation of a democratic say? Are free speech rights and assembly and association rights respected?
  • Does a country accept more or less imbalances of power in the formation of a democratic say? Are there campaign financing rules?
  • Does a country show more or less respect for the expression of a democratic say? How much corruption is there? Is the judiciary independent?

A “more” score on any of these attributes will push up the total “democracy score” for a country. At least it seems so, if not for the conclusion that all these complications in the measurement system are still not enough. We need to go further and add additional dimensions. For example, one can argue that we shouldn’t define democracy solely on the basis of the right to a democratic say, not even if we render this right as complex as we did above. A democracy should, ideally, also be a stable form of government, and allowing people to decide about the fundamental rights of minorities is an expression of the right to a democratic say but it is not in the long term interest of democracy. Those minorities will ultimately rebel against this tyranny of the majority and cause havoc for everyone.

More posts in this series are here.

Limiting Free Speech (47): Incitement to Commit Suicide

An interesting story in the press some time ago:

A former nurse from Faribault, Minn., was convicted of two felonies Tuesday when a judge ruled he had used “repeated and relentless” tactics during Internet chats that coaxed two people to kill themselves.

Rice County District Judge Thomas Neuville found that William Melchert-Dinkel, 48, “imminently incited” the suicides of Mark Drybrough of Coventry, England, and Nadia Kajouji of Ottawa, Ontario. Drybrough, 32, hanged himself in 2005, and Kajouji, 18, jumped into a frozen river in 2008.

In a 42-page ruling that found Melchert-Dinkel guilty of two counts of felony advising and encouraging suicide, Neuville wrote that it was particularly disturbing that Melchert-Dinkel, posing as a young, suicidal, female nurse, tried to persuade the victims to hang themselves while he watched via webcam….

Neuville, in rejecting the free-speech defense, noted that inciting people to commit suicide is considered “Lethal Advocacy,” which isn’t protected by the First Amendment because it goes against the government’s compelling interest in protecting the lives of vulnerable citizens. (source, source)

I guess that’s correct, even though the case doesn’t really fit with any of the commonly accepted exceptions to free speech rights. We’re not dealing here with incitement to murder or a death threat – standard exceptions to free speech, even in the U.S. And neither is it speech that incites illegal activity – another accepted exception. Suicide isn’t murder and isn’t illegal (anymore). Abstract and general advocacy of crime and violence is – or should be – protected speech, but not the advocacy or incitement of specific and imminent crime or violence if this advocacy or incitement helps to produce the crime or violence. If speech intends to produce specific illegal or violent actions, and if, as a result of this speech, these actions are imminent and likely, then we have a good reason to limit freedom of speech. Examples of such speech:

None of these forms of speech should be protected, and laws making them illegal are perfectly OK. On the other hand, claiming that all politicians deserve to die or that people shouldn’t pay their taxes are, in most cases, forms of protected speech because they probably do not incite or help to bring about imminent lawless activity.

The problem is that none of this is applicable here. Suicide isn’t illegal, and neither is it violence as we normally understand the word. So, the commonly accepted exception to free speech rights that I just cited can’t possibly justify the conviction of Melchert-Dinkel. He did of course advocate, incite and cheer on his victims, and his advocacy, incitement and cheering probably helped to produce their suicides. But a suicide is not a crime or an act of violence. At least not as such. One could argue that the encouragement of a suicidal person should be viewed as a form of murder. And if that statement goes too far for you, you may want to consider the fact that causing someone else’s death is in general a crime, whichever way you do it. Moreover, if the victims in this case were suffering from depression or a mental illness, the state has a duty to provide healthcare, and allowing someone else to worsen their depression or illness to the point that they kill themselves is not consistent with this duty.

So, while the encouragement of suicide in general, the teaching the methods of suicide or the claim that non-suicidal people should go and kill themselves (“you don’t deserve to live”, “why don’t you just go and kill yourself”) are all forms of protected speech, the same is not the case for speech that encourages specific suicidal people to kill themselves.

Limiting Free Speech (46): Lies and False Statements of Fact

Should lies and false statements of fact be protected by free speech laws, or can the speech rights of those who intentionally lie be limited in some cases? The US Supreme Court believes the latter is true, somewhat surprisingly given the often quasi-absolutist nature of First Amendment jurisprudence in the US. In Gertz v. Robert Welch, the Court claimed that

there is no constitutional value in false statements of fact.

There are some obvious problems with this exception to free speech. First, it can’t work unless it’s possible to distinguish real lies from false statements of fact that are simple errors. This means it must be possible to determine someone’s intentions, and that’s always difficult. However, one could claim that a person’s speech rights can only be limited on account of lying when his or her intentions are clear.

That would save the exception, but it wouldn’t undo some of its harmful consequences. People who speak in good faith may still be afraid that their speech will unwittingly come across as false, without their good intentions being absolutely clear. Hence, they may fear that they will run afoul of the law, and limit their speech preemptively. The lies exception to freedom of speech has therefore a chilling effect, an effect which is enhanced by the fuzzy nature of the difference between facts and opinions.

Given these problems with the lies exception to free speech, how could we instead argue in favor of free speech protection for lies and knowingly false statements of fact?

One rather ironic way to do it is to appeal to the metaphor of the marketplace of ideas: free speech is necessary for the pursuit of truth (or, in a weaker form, for the improvement of the quality of our ideas). John Stuart Mill has the canonical quote:

The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

As such, this doesn’t really justify the acceptance of expressions of lies. If we need lies to see the truth more clearly, you could also say that we need evil to see the good more clearly, and few I guess would accept the latter statement. However, if we interpret this quote liberally (pun intended), we may get somewhere. We could argue that someone’s lies can motivate others to search for, investigate and disseminate the truth. For example, I think it’s fair to say that holocaust deniers have done a lot for holocaust education. They have given teachers and researchers a hook.

Another reason why we wouldn’t want to prohibit lying, at least not across the board, is the fact that lies are often necessary for the protection of human rights. This is the case that’s made in jest in the cartoon on the right, and is also the origin of the rejection of Kant’s claim that we shouldn’t lie to the murderer inquiring about the location of his intended victim. (I have an older post about the usefulness of lying here).

Obviously, nothing said here implies that lying is generally beneficial or that it should be welcomed and protected whatever the circumstances. If lying becomes the norm, we will most likely lose our humanity. In the words of Montaigne, “we are men, and hold together, only by our word” and our civilization and systems of cooperation would come crashing down if we can’t generally trust each other. However, the general albeit not exceptionless moral good of telling the truth doesn’t translate into a right to be told the truth or a legal duty to tell the truth (and to shut up if we can’t). Mortality and human rights don’t completely overlap.

If lying were to become the normal habit, free speech would lose its meaning. We have free speech rights precisely because we want to share information, opinions and beliefs, and because we want to learn and pay attention to verbal assertions. There has to be some level of general trust that people speak their minds rather than the opposite. Otherwise it’s better if there’s no speech at all, and hence also no right to free speech. Hence, the free speech defense of lying has to be limited somewhere.

That is why, despite the fact that in general there shouldn’t be a right to be told the truth or a legal duty to tell the truth, we do want some cases in which there is such a right and such a duty. Lying is legitimately prohibited in the case of libel, of witnesses testifying under oath, of someone impersonating a doctor etc. But those are cases of different rights having to be balanced against each other: the free speech rights of the liars against the rights of those suffering harmful consequences when people lie (consequences such as bad medical treatment, miscarriages of justice etc.). The duty of government officials and elected politicians to tell the truth is based on the requirement of democratic transparency, and is therefore also a case of balancing rights: democracy is a human right, and democracy can’t function if there’s no transparency and if people in power don’t tell the truth about what they are doing.

The Freedom to Speak Implies the Freedom to Shut Up

I argued before that there can’t be a duty to speak, except in certain very specific cases involving a moral urgency. Hence, if you’re free to speak you’re also free to shut up. The freedom to shut up, although not recognized as a human right, can be important for the protection of other rights, either the rights of the person deciding to remain silent, or the rights of others.

For example, you have a right not to incriminate yourself (in the U.S., this right is translated into the Miranda rights and the Fifth Amendment). You may also want to remain silent because you want to choose your audience carefully. Some of your speech has to remain private, and your right to privacy would therefore be violated if you can’t remain silent in certain settings.

Or you may decide to remain silent in order to protect the rights of others: for instance, you may decide that certain words at a certain time and place would risk inciting others to commit crimes. Or perhaps your words may make it easier for others to commit crimes (take the case of a murderer asking you where he can find his intended victim).

However, the right to shut up is not just relevant in cases in which it can protect the speaker or others against rights violations. For instance, someone may refuse to pledge allegiance to the flag, take an oath on the bible, divulge his or her religious beliefs etc.

What Are Human Rights? (29): Negative or Positive Human Rights?

Take the right to free speech for instance. Negatively, it means that constraints on speech should be removed as much as possible. Legal people are used to view this and other rights in such a negative sense, because courts and judges are well-placed to remove constraints: they can invalidate or refuse to apply laws and policies that constrain rights such as speech rights; they can punish or fine people that constrain rights etc.

However, this legal interpretation of rights is insufficient. I’ve often argued that human rights are positive as well as negative, in the sense that they don’t merely require the removal of constraints but also the provision of prerequisites. Take again the right to free speech: we can’t say that anyone who does not suffer constraints on her speech has an effective right to free speech. While no one or no law may prohibit or stop a person from speaking, her poverty, lack of education etc. can make it very hard for her to speak effectively. I personally, for instance, find it much easier to blog when I’m able to read inspiring material. My freedom of speech, as I exercise it on this blog, would be non-existing if I wasn’t part of a global conversation about human rights. I would still have the negative right to speak, but I wouldn’t have anything to speak about. And the freedom to do what you like without impediments doesn’t make sense if you don’t have anything to do.

There may be a difference in degree: some rights, in most circumstances, are perhaps more positive than negative or vice versa. I guess the right to food is most often a positive right in the sense that it requires provision rather than forbearance. Although even in this example, we find that famines aren’t usually caused by the absence or non-provision of food but by constraints on the effective distribution of food.

What Are Human Rights? (27): What Does It Mean To Have Rights?

When thinking about what it means to have a right it’s sometimes useful to replace the word “right” with another and similar word. Let’s review a few of those words and see how far they get us. You’ll notice immediately that those words only describe part of what we usually understand by the word “right”. Hence, they’ll allow us to clarify only part of the meaning of the phrase “to have a right”. Perhaps taken together they’ll provide an overall definition. (Some of the definitions are based on the famous work by Hohfeld).

Rights as privileges

Formally this can be stated as follows:

A has a privilege to do X if A doesn’t have a duty not to do X.
A has a privilege not to do Y if A doesn’t have a duty to do Y.

For example, in the U.S. I have the privilege to speak my mind, because I don’t have a duty to keep silent. Or, I have the privilege not to vote for our Dear Leader because I don’t have a duty to do so.

Rights as permissions

Similarly, one could say that rights are permissions. That sounds somewhat weaker than “privilege” but formally, this way of talking about rights has the same structure as “rights as privileges”:

A has a permission to do X if A doesn’t have a duty not to do X etc.

It’s about what a rights bearer is at liberty to do, not what he has to do or shouldn’t do. Hence, rights as liberties is again another way of saying the same thing. The fact that I have the privilege, the permission or the freedom to speak my mind doesn’t imply that I must speak my mind.

Rights as claims

A more relational understanding of rights focuses on the claims we may have on others. Having a right then means having a claim on someone.

A has a claim that B does X if B has a duty to A to do X.
A has a claim that B doesn’t do Y if B has a duty to A not to do Y.

For example, I have a claim that my employer pays me a fair wage because my employer has a duty to do that (see article 23 of the UDHR). I also have a claim that he doesn’t impose slave-like or dangerous working conditions on me because he has a duty not to do that.

Usually, and at least in the case of human rights, I have such claims vis-à-vis every other human being.

Rights as immunities

This is similar to rights as claims but it’s a bit stronger.

A has an immunity if B doesn’t have the legal, moral or political ability or power to do X to A.

For example, I have immunity against self-incrimination because a judge does not have the power to force me to testify against myself.

Rights as limits

Again, similar if not identical to immunities:

A has a right to X if B doesn’t have the legal, moral or political ability or power to interfere with A doing X.

For example, I have to right to practice my religion because no one else is allowed to interfere with me practicing my religion.

Rights as provisions

Having a right can mean more than the ability to limit interference it can also mean being entitled to the provision of some goods or services.

A has a right to X if B has the legal, moral or political duty to provide A with X.

For example, I have the right to an amount of food that guarantees my decent survival. The state, among others, has a duty to provide this food if I can’t acquire it independently. But also so-called non-interference rights or negative rights fall under this heading: I have a right to be protected by Courts and the police force – to be provided with protection – if people impose a religion on me, harm my bodily integrity etc.

Rights as properties

You could say that all rights are in essence property rights. We have a right to have rights; our rights are our property. In the words of John Stuart Mill:

When we call anything a person’s right, we mean that he has a valid claim on society to protect him in the possession of it. … To have a right, then, is, I conceive, to have something which society ought to defend me in the possession of. (source)

Formally:

A has a right to X if society has a duty to protect A’s possession of X.

Again, very similar to the formulation of rights as provisions. For example, I have a right to free speech if I can call on judges and Courts to assist me in my struggle against those who want to take this right away from me.

Rights as sovereignty

Very similar to the notions of rights as claims, immunities, limits and properties is the notion of rights as sovereignty. My right to freedom of opinion or my right to property make me a small scale sovereign over my mind or my possessions, in the sense that others aren’t allowed to interfere, invade, dispossess or modify. All these notions of rights focus on the rights bearer’s ability to control whether others must or must not act in certain ways.

Rights as interests

Conversely, rights as interests focus on what rights do to the rights bearer. Rights serve to further the rights bearer’s interests. People have rights because rights make them better off. What these rights imply for others is of secondary importance. Formally:

A has a right to X if X makes A better off.

Rights as abilities

Another way to focus on the rights bearer rather than the duty bearer is to view rights as abilities. That allows us to see that rights as liberties, privileges or permissions only describe part of what we understand by rights. Indeed, I have a right if I have the freedom, privilege or permission to act in a certain way. And rights as claims, immunities and limits protect me against others who would interfere with my freedom, privilege or permission to act in a certain way. And yet I can be free to do X because 1) I’m free from a duty not to do X and 2) I’m free from the interference of others, but at the same time I may be unable to do X. For example, I may have the permission and freedom to practice whatever religion I choose, and others don’t interfere, but I lack the education or mental capacities to choose and practice a religion. Rights as abilities would then provide me with the necessary education, rather than only the freedom, privilege, permission or limits on interference.

Rights as trumps

Following Ronald Dworkin, we can view rights as trumps. Rights are norms with a special force. They provide particularly weighty reasons to do or not to do something, reasons that are weighty enough to override other reasons or concerns. Rights give reasons to treat people in certain ways or permit them to act in certain ways, even if certain other goals or objectives would be better served by violating their rights. Within the system of rights, it’s possible to give some rights a higher trump value and hence a higher priority than others, perhaps depending on the circumstances (meaning that one right only trumps another when certain conditions are met, and not systematically).

Formally:

A has a right to X if X overrides all other concerns.

Only if we combine all these different definitions of rights can we perhaps have an overall understanding of them.

Limiting Free Speech (44): Hate Speech as a Speech Act

As in J.L. Austin’s phrase, “how to do things with words”, we actually do things when we speak. When we use language, we don’t just say things, describe things or communicate, but we also act, very much in the same way as when we pick up a stone or push someone around. When we use language in education we educate people and make better persons. When we apologize we heal people. When we command we make people do certain things. Etc. Now, my argument is that hate speech is a kind of speech act understood in this way, and more specifically it is a form of command. Those who engage in hate speech typically use speech that takes the form of a command, explicitly or implicitly. They want to coerce other people to act in certain ways, and they do this in two ways (usually combined in one single speech act):

  • They want to coerce their (potential) followers to act in certain ways towards hated groups. For example, people proclaiming that homosexuals are sinners are not just describing a reality (or what they believe to be reality) or communicating information about homosexuals (or what they believe to be information). On top of that, they also want other people to avoid homosexuals, to ostracize them, to discriminate them, or even to kill them. To the extent that they succeed, they engage in speech acts, and not merely speech.
  • They also want the hated groups to act in a certain way. In most cases, they want them to go away, know their place, keep silent, change their habits etc. The burning of a cross in the front yard of the only African-American family in the neighborhood is a clear sign that these people aren’t welcome. Again, when these speech acts succeed in driving people away they are more than just speech.

A speech act is an act or an action in the dictionary sense of the accomplishment of an objective, the causation of change by the exertion of power etc. Given that it’s not “pure speech” it’s not obvious that it should be a priori and absolutely protected by freedom of speech. (Just like abuse in private is not merely a private act and shouldn’t a priori be protected by the right to privacy). It’s a form of speech that, like other actions, has real consequences for real people. These people may have rights that protect them against these consequences, such as the freedom to choose a residence, the right not to be discriminated against, the right to life etc. When speech acts violate these rights, there’s some balancing to do and it’s not the case that some people’s right to free speech always takes precedence.

Why Do We Need Human Rights? (21): Selfish Reasons for Respecting the Rights of Others

People usually have no problem acknowledging their own rights and demanding that others respect those rights. (I say “usually” because it’s not unheard of that people waive their rights. For example, some don’t want to live in a democracy). It’s the rights of others that are often a problem. One can try to foster benevolence, tolerance, mutual respect and humanitarianism as means to increase the level of respect for the rights of others, but perhaps that’s utopian, depending on your assessment of human nature. It’s true that the concept of human rights arose precisely because of deficiencies in human nature and an overall insufficiency of benevolence, tolerance etc.

So perhaps it’s better to try to find selfish reasons that may convince people to respect the rights of others. There’s a couple of those here:

  • To the extent that social stability and peaceful coexistence depend on some level of respect for certain human rights, and break down below that level, everyone has an interest in maintaining that level of respect. Massive and ongoing violations of certain human rights for a large enough subgroup of a population can cause social unrest that may ultimately affect the prosperity and security of all members of that population, including the violators.
  • I argued before (see here and here) that the optimal process for thinking and knowledge acquisition requires the free and public appearance of a maximum number of arguments for and against a theory or idea. Only those theories and ideas that survive this process will be of high quality. The multiplication of perspectives can, to some extent, be the result of solitary reflection (“imagination”) but is enhanced by the actual participation of others in the thinking process. It’s like you can’t know that a square shape is actually part of a cube rather than simply a square if you don’t look at it from all possible perspectives and if you don’t shine a “light” on all possible sides. Hence, if we assume that everyone has an interest in the quality of his or her own thinking and knowledge, then we can also safely assume that everyone has an interest in at least certain freedom rights being granted to a maximum number of other people (even people in other countries or cultures, since the marketplace of ideas should be extended as wide as possible in order to avoid national or cultural prejudice and to allow the appearance of unusual perspectives and arguments).
  • And then there’s reciprocity. If people cherish their own rights, it may be wise of them to cherish the rights of others, because they can reasonably hope for reciprocity: others will to some extent return the favor. Respecting the rights of others can encourage them to respect your own rights. Conversely, if you claim the right to deny the rights of others, that sets the precedent that someone might deny your rights. This reciprocity operates on several levels: it’s probably a basic social instinct to answer respect with respect; and you may hope for reciprocity because your own practice of respect for the rights of others has contributed to a general culture of human rights.
  • Aging populations in developed countries will need more immigrants to keep their economies going. Hence their economic self-interest will convince them to be more positive about the freedom of movement and association of potential immigrants, something which will also be beneficial for those immigrants’ right to a certain standard of living.
  • Some other selfish reasons to respect the rights of others may seem a bit far-fetched but not completely unlikely. For example, people have an interest in art and want to consume art. Hence, they must grant artists freedom of expression.

The big question here is obviously the weight of these selfish reasons to respect the rights of others. There are, after all, numerous selfish reasons for violating the rights of others (for example, discrimination, like dishonesty, is an important producer of profit for the discriminators). And those reasons can easily be considered more important than the reasons to act benevolently. We wouldn’t need to discuss human rights if things were any different because the “invisible hand” would have eradicated all rights violations. Still, I believe it’s useful to emphasize some of the selfish reasons to respect the rights of others because those are clearly not understood well enough most of the time. A proper understanding could at least make things better at the margin, and in some cases.