There Is No Morality, and That’s a Good Thing

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Moral philosophy is an infamous mess. However, this mess, which moral philosophers have inadvertently foisted upon us, may in the end do us a favor: by trying in vain to come up with a coherent and convincing system of morality moral philosophers may have shown that there isn’t in fact something called morality.

But let’s take a few steps back first. Why is moral philosophy a mess? After 2000+ years of trying, not even the brightest minds have produced a morality that’s the least bit convincing. There isn’t even a shred of promise that something convincing is somewhere around some distant corner. For example, your theory might require a bit of rethinking if it states that to act morally you have to

  • Tell an inquiring murderer the whereabouts of your targeted friend
  • Engage in infanticide
  • Prefer a society with billions of people living only a marginally worthwhile life to a small society of very happy people
  • Harvest the organs of a perfectly healthy individual in order to save 5 very ill and possible terminal patients
  • Be as greedy as you can be so as to make tons of money that you can then donate to some hypothetical other people who I suppose shouldn’t follow the rule to be greedy
  • Engage in mutually advantageous exploitation
  • Etc.

However, “rethinking” won’t do the job. Moral philosophy has been “rethinking” for ages, and the only thing to show for it are increasingly exotic and outrageous moral systems that refute one another and that can never and shouldn’t ever be the guide to anyone’s daily actions. You have very imaginative constructs like negative utilitarianism or esoteric consequentialism that have had about as much traction as a spider in a bathtub. Or you have hybrid systems such as rule utilitarianism, threshold deontology or luck egalitarianism that look like desperate attempts to bridge contradicting theories and offer a unified and irrefutable system without the unsavory parts of its components. Qua traction they aren’t any better.

Of course, it’s not because a theory lacks traction that it isn’t correct. Lots of unpopular things are correct. But the general persuasional failure of moral philosophy does indicate a deeper level of failure. Maybe moral philosophy fails because it tries to find a good explanation of something that doesn’t exist. And maybe it makes the same mistake as theories about the Martian canals, Aether or other Phlogistons. (Some ominous parallels perhaps to theories about free will or the Mind).

But if there is no morality, then how do we explain the sense of morality? It’s quite common for people to have a sense of right and wrong, to have a distaste of doing wrong, to oppose wrong when they see it done, to avoid harming others etc. The failure of moral philosophy to come with a good system doesn’t change this fact and doesn’t undo the reality of this moral sense. But if it’s true that there is no morality then this moral sense is an illusion, right? Not necessarily. Moral intuitions such as “do no harm” and “do unto others as you’d have done to you” are not necessarily proof of the existence of something called “morality”. These intuitions are perhaps based on mere self-interest rather than being the result of a moral system. We follow these intuitions in our daily actions not because a system of morality (or a God for that matter) demands this of us, but because doing so furthers our interests.

For example, we have an interest in a prosperous life, but in order to have a prosperous life, we need bakers, butchers, shopkeepers and the like to be able to prosper as well. We need peace, but peace is a public good: if we have it, others have it as well, and the only way to have it for ourselves is to try to give it to others. Reciprocity also explains the intuitions against harming others. If we refrain from harming others we may expect others to reciprocate, for different reasons: those others have no reason to retaliate; they make the same calculation as we do; and there is habit-formation in rule respecting behavior. There is a whole field of game theory that is based on similar assumptions. And the scientific inquiry into human evolution also gives support, as it seems that a lot of morality has an evolutionary basis.

So we end up with “values” that are really self-interested rules which happen, by chance alone, to benefit others. And which, because of these benefits, appear to be morally inspired, altruistic and benevolent. This appearance in turn has produced a whole field of philosophy that, in my mind, mistakes the appearance for the underlying reality.

PS: how do human rights fit into this? If I were famous I would be famous for my interest in and promotion of human rights. Isn’t that a moral stance? Aren’t human rights based on a moral theory? Or aren’t they a moral theory themselves, equivalent to utilitarianism and such? Not in my understanding of human rights. Of course, if you believe that human rights are divine commands or a tool to enforce a consequentialist or deontological morality, then the possible non-existence of morality undercuts the system of human rights. But in my view human rights are tools to promote interests. (I have an older post here explaining my interest-based approach to human rights. And another one here about selfish reasons to respect human rights. A more concrete example is this post about the attractiveness of religious liberty to those who hate it, namely those of us who are most ardently religious. There is also a subset of human rights violations that is relevant in this context, namely boomerang human rights violations).

The absence of a link between human rights and morality also explains

More about human rights and morality here.

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Why On Earth Would Someone Need Human Rights?

[You may have noticed a lack of blog posts recently. At least I hope you have. For personal reasons I’ve been having a hard time writing anything these last weeks, so here’s one from the archive (with a new title). It’s almost 5 years old but I still think it’s one of my best.]

Human rights have many functions, but their most important one is perhaps the institution and the protection of a public space and a public life for every individual. This is especially true of freedom rights or civil rights (which of course also institute and protect a private space, in particular by way of the right to privacy and the right to private property). These rights protect public life because public life guarantees a number of important human values such as the ability to form, experience and preserve an individual as well as a collective identity and the ability to think more or less correctly. I will use Kant’s philosophy to substantiate these claims.

Public life as such is not dependent on human rights. There is publicity in states which do not protect human rights. The advantage of human rights is that they are equal rights. They try to protect public life and the values attached to it for every individual in an equal way. We can of course have a perfectly happy life without having a public life, but then we relinquish the values that are protected by this public life. It is also true that we can have a public life without the protection of a state and its legal instruments (such as human rights, judges, police etc.). However, public life would then be fragile, uncertain and unequally distributed among individuals.

I am conscious of the fact that not everybody will be convinced by this justification of human rights. Those who desire nothing but a completely private life or a hedonistic life devoid of any public communication or political involvement will be disappointed. However, I am sure that, once I have explained the meaning of the words “public life”, most of the people in most cultures of the world will agree that they refer to something valuable. Which, of course, does not mean that they will agree that there is a link between these concepts on the one hand and human rights and democracy on the other hand.

Human rights protect our public life, but why do we need a public life? And what is this public life? How does it protect certain values, and how is it protected by freedom rights? Let me start with the first two questions. A public life is a life dedicated to publicity, to public deeds and words, not necessarily in an active way; for most of us maybe only in a passive way. Publicity is open interaction, taking place between as many people as possible and with as little limitations as possible. Hidden, private, secret, clandestine or prohibited interaction is not public interaction.

I will not use the word “public” in the legal sense. Public law regulates the relationships between the citizens and the state (for example criminal law, constitutional law etc.), while private law regulates the relationships between citizens (for example the law of commerce or the law of succession). This legal way of understanding the word “public” is too limited for my purpose. This legal definition also leads to confusion. Hannah Arendt (1992:95) states – and I agree – that the separation of church and state has not transformed religion into an entirely private or intimate affair. Only a tyrant can destroy the public role of religion and churches and can destroy the public space where religious people meet. However, because of her purely political interpretation of the word “public” – the public domain is the political domain, and nothing more – she is forced to use the awkward expression “secular public space” in order to describe the sphere of politics or the state, and the equally awkward expression “religious public space” for the space left vacant by politics in a system which is characterized by a separation between church and state. She seems to define the word “public” in a very limited way (public = politics), but also speaks of “all forms of public relationships, social as well as political” (Arendt 1990:170). Habermas struggles with the same contradictions: his “‘öffentlichkeit” is a space where private citizens can act in a critical way towards the public/political domain. Castoriadis similarly reduces the public to the political:

The emergence of a public space means that a political domain is created which ‘belongs to all’. The ‘public’ ceases to be a ‘private’ affair – of the king, the priests, the bureaucracy, the politicians, and the experts. Decisions on common affairs have to be made by the community. Cornelius Castoriadis

A public life, in the way I understand it, consists in the first instance of sets of relationships between citizens, although the relationships between the state and its citizens can also be part of a public life (especially in a democracy; democratic political life is a part of public life). The public space is larger than the space of politics and the state (although in a democracy the latter is part of the former).

Human life is of course impossible without relationships. We all live in society. No one is self-sufficient or “atomized”. Man is always a fellow man; existence is always coexistence. Other people are there before we are and we continuously profit from their achievements. We need interaction and communication with other people – first our parents but not just our parents – in order to be able to think. Moreover, thinking has to transcend the private sphere because it is dependent on other people besides our relatives, friends and private acquaintances. It needs public interaction, not just private. The ability to think is not created and developed in any arbitrary group, but only in a community – if possible the world community – in which publicity reigns and in which there are rules and laws that can enforce this publicity. Immanuel Kant correctly stated that the authority that takes away the freedom of expression also takes away the freedom to think, a freedom usually considered to be inalienable (Kant 1992:87). Thinking needs the public use of reason. Thoughts are not something you develop on your own or in some small and closed group. You first need to listen to as many thoughts as possible in order to develop your own thoughts. (Or, which can be the same thing, you need to read books. Books are thoughts made public, which is why they are called publications). Listening to as many thoughts as possible, expanding the sources of thoughts and information, can only be done by making them public. Thinking, the inner dialogue, is always the result of a public dialogue. How much would you think if you would never speak to anyone, or even if you would always speak to the same, small and private group of people? Thinking needs thoughts that come from outside of your own limited group. Hence thinking needs human rights.

However, not only the ability to think as such, but also the ability to think in a more or less correct way, with as few mistakes as possible, depends on publicity, which is another thing we learned from Kant. By making your thoughts public and thus submitting them to scrutiny and tests by other people – first and foremost submitting them to those who are not your private or personal friends, because they might be too kind for you or too like-minded – you are forced to say how you came to have these thoughts and to give an account of the reasons why you have these thoughts instead of others. This will force you to reflect on your reasons and arguments, and, if necessary, to look for better ones. Giving a public account of your reasoning, or knowing in advance that you will give this account, makes you very critical of yourself and helps you avoid mistakes. Nobody wants to make a fool of themselves. This means that you confront – or prepare to confront – other people and their (possible) objections, not only in order to disprove their objections, but also in order to disprove or possibly improve your own opinions.

Publicity improves the quality of thoughts both because of the a priori self-criticism that it promotes and because of a posteriori testing by other and not necessarily like-minded people (a phenomenon well known in the scientific community).

A particular issue is forced into the open that it may show itself from all sides, in every possible perspective, until it is flooded and made transparent by the full light of human comprehension. Immanuel Kant

If you want to improve the quality of your thoughts, then you need publicity on two levels: first you have to make your thoughts public, and then you have to listen to public objections and arguments. This means that you as well as your opponents must have the right to be heard and to defend arguments.

This is the link between publicity and human rights. Giving a public account of your reasoning and arguments, taking objections into account, putting yourself in the place of someone else, think like someone else, look at things from another side or perspective, act as if you hold a contrary point of view, all this is possible only when different perspectives and different points of view are freely expressed. Human rights and in particular freedom rights can help to achieve this (Kant’s imagination can also help but is probably not enough). Putting yourself in the place of someone else, looking at something from another point of view or another perspective helps you to better understand things, just as looking at an object from another point of view helps you to better perceive the object. Without human rights, many valuable points of view or perspectives will not be made public, and many valuable objections and counter-arguments will not be known to someone defending a certain thought or idea. This can diminish the quality of the thought or idea in question.

Thinking correctly means thinking in community with others. Of course, I use the word “correctly” not in an absolute or scientific sense. The debate is open-ended, new arguments or new objections can always emerge and can lead to an even better understanding. Correctness in this sense can only be an approximation.

If you consider thinking and thinking correctly to be valuable activities – and it is hard not to, because without thinking you cannot consider anything – then publicity or public life as well as the rights that are necessary for its protection must also be valuable.

The fact that thinking is not an isolated business contradicts a well-known intuition.

Thinking . . . is the silent dialogue of myself with myself . . . and . . . is a “solitary business” . . . Also, it is of course by no means true that you need or can even bear the company of others when you happen to be busy thinking; yet, unless you can somehow communicate and expose to the test of others, either orally or in writing, whatever you may have found out when you were alone, this faculty exerted in solitude will disappear. Hannah Arendt.

But not only afterwards does the thinking self leave its solitude. Before thinking can begin there must be some kind of public interaction (e.g. reading books, the public ideas of others).

I have said before that we should try to expand the public space beyond the national boundaries. Ideally, the other people who we need to think and to think correctly are not only our compatriots but also the rest of humanity. A global public space is the natural consequence of the widest possible extension of sources of thoughts required for thinking and the widest possible confrontation with counter-arguments and different points of view required for the correctness of thinking. Only by living in this kind of global public space can we hope to become Kant’s world citizen or “Weltbetrachter” and can we avoid national prejudices or national one-sidedness. The western feeling of superiority, for example, needed colonization to become aware of its errors. Both the private sphere and the national sphere have to be transcended in order to transcend our curtailed, narrow-minded, one-sided, prejudiced and unthinking existence. A life completely dedicated to intimacy, to that which is your own (“idion” in Greek), far away from the common world, is by definition an “idiot” life (Arendt 1983:76). The same thing can be said of life limited to a (national) group.

As for human rights, it is quite certain that they cannot do their job in the global public space as well as they can in the national one. It is difficult to enforce the protection of public communication between an American and a Chinese, even in the age of the Internet. The best we can hope for at the moment is the establishment of a chain of national public spaces protected nationally by national human rights instruments, although one should not underestimate the effect of cross-border action in favour of human rights. Ideally, human rights can only be justified when they are applied globally. A purely national application in the midst of an anti-human-rights world would lose much of its meaning if we accept the justification based on thinking.

John Stuart Mill has given another reason why human rights promote correct thinking. An opinion is not a purely personal possession and the act that inhibits the possession or the expression of an opinion is not a purely private crime. Suppressing an opinion is a crime against humanity. If the opinion in question is correct, we make it impossible for humanity to distinguish right from wrong. If the opinion is false, we make it impossible for humanity to make what is right more apparent by confronting it with that which is wrong.

Public life also plays a part in the development of an individual’s identity, at least to the extent that this identity is consciously created at all. Establishing your identity is intimately linked to thinking and, in the same way as thinking, it is not a purely private, individual or inward activity. It takes place in society and in the institutions of society. You become who you are by thinking and by developing your ideas. To a certain extent, your thoughts, ideas and convictions determine who you are, determine your identity. If thinking depends on publicity, then identity or personality as well depend on publicity.

You also become who you are by expressing yourself, by saying, doing or making things visible to all and by distinguishing yourself. All this implies the existence of a public or an audience and hence implies a public life. Thoughts take shape only when they are expressed or prepared to be expressed. By expressing and showing yourself, you make things public about yourself, things that were a secret before, sometimes even a secret to yourself. In this way, you get to know yourself and you shape your identity.

Furthermore, you shape your identity by looking at others, by studying them, by following them or by wittingly contradicting them. An individual identity needs a group in which there is a public life in the sense of showing, listening, following and contradicting (although groups are of course also the product of individuals). “Polis andra didaskei”, the individual is shaped by the “polis”. The identity of a member of a socialist party is profoundly shaped by his or her membership. We are who we are because we are part of a group. Belonging is not only a psychological or emotional need. It also shapes our identity. Hence the importance of the right to associate.

But we also are who we are because we revolt. People should therefore be allowed to leave groups. Because groups not only promote but sometimes also hinder the creation of an individual identity (they can for example be ideological “schools” or dogmatic churches enforcing conformism), it is important that membership is free and that the communication which takes place inside these groups, is as open and as free as possible. Groups should allow members to hear outside information. In other words, groups should have a public character on top of or instead of their private character.

It is useful to point out the difference between identity and individuality. Identity can imply conformism, wittingly or unwittingly. You can define your identity by conforming to a group with a certain identity that you either like or imperatively adopt because of education, propaganda, brainwashing etc. In the latter case, you have an identity, but not necessarily an individuality. You can only have an individuality if:

  1. You consciously choose the identity of a group as a consequence of reasoned reflection of a public nature (of the kind discussed above); and
  2. You have personal and unique characteristics on top of the identity of the group you have decided to join, and this is not as evident as it sounds given the power of some groups.

Conforming to a group in order to acquire an identity is very important to most people, and rightly so, at least as long as there is room left for individuality. Most people do not feel that their personal uniqueness is enough to give them an identity. They believe that only a link between them personally and something outside of them that they consider to be important – for example socialism – is able to give them an identity (Charles Taylor 1994:46). Most of the time, establishing this link can best be done by joining other people with the same idea – for example the community of socialists. This feeling of belonging to an important group also guarantees that the rest of the world is aware of your identity. The feeling of belonging to something important is crucial here. You do not have an identity because you belong to the community of people with red hair. But even the individual identity or individuality can only exist because of a link with something important, such as an event you have witnessed or caused etc. You do not have an identity because you are the only one with blue hair. Your individuality is not the consequence of a unique but arbitrary characteristic, event or sequence of events.

The process of shaping an identity through group conformity requires publicity and human rights. Groups must be allowed to exist, to make publicity for their identity, to convince people to join them etc. All these things are explicitly provided for in human rights. The process also requires democracy because it implies an egalitarian society. You cannot at the same time emphasize the importance of people shaping their identity and individuality, and accept a hierarchical society in which identities are automatically determined by social position, role or activity. A democracy, moreover, needs groups because it needs majorities, minorities and political parties. And because it needs groups, it tends to protect groups.

It is clear from all this that language and therefore also education and the struggle against illiteracy are extremely important for public life. Language is more than just an instrument to represent or translate reality or to transfer messages (Taylor 1994:10). It also has the power to constitute the human person, to express, understand and develop our personality or individuality, to promote thinking etc. Language, therefore, also creates reality.

The fact that public life and the values resulting from it require the presence of other persons and meeting other persons, does not exclude the possibility of solitude and even loneliness. The presence of others can be indirect, for example by way of a book. Sometimes it is even useful to be alone, for example when we want to study, to open up sources of ideas and information etc. This kind of solitude is not the same thing as the absence of relationships. It is not a private solitude, but a public one, if I may say so, because it requires the presence of a book; and a book is a public thing (it is a “publication”, the thoughts of someone made public). It is the indirect presence of another person.

Proust . . . ne croyait plus en la conversation ni d’ailleurs en l’amitié. C’est même de sa longue pratique de la parole vive qu’il avait tiré, contre Sainte-Beuve, la certitude d’un abyme entre le moi social et le moi profond. Mais justement les livres sont silencieux et leur auteur absent. On peut donc les aimer sans faire de manières et sans s’inquiéter de ce qu’ils ont pensé de nous: “Dans la lecture, l’amitié est ramené à sa pureté première. Avec les livres, pas d’amabilité”. Et c’est la même image que l’on retrouve chez Arendt quand elle définit la personne cultivée comme quelqu’un qui sait choisir sa compagnie “parmi les hommes, les choses, les pensées, dans le présent comme dans le passé”. Alain Finkielkraut

Reading means having a public life because it means participating in a public phenomenon, namely the published book. This is apparent in the description of the community of readers as the “public” of the writer (it is maybe even more apparent in the French language in which “le public” literally means the audience or the readership). A public space does not only contain people who disclose something. It also contains the people to whom something is disclosed. Persons who never meet each other can have a conversation and can even arrive at a common opinion.

QTWTAIN: Does the Problem of the Self Undermine Human Rights?

The view that there is no such thing as a personal identity or a self has become commonplace among philosophers. This view is of course counterintuitive, but may very well be correct. Why is it counterintuitive? Well, despite all the changes we go through over the course of our lives – changes that are sometimes “life changing” – we still have a sense of persistence and sameness of our selves over time. (At least, most of us do. There are some mental illnesses that disturb this sense of continuity). It’s “I” who changes, and although I change there is an unchanging entity – me – that goes through the changing process. I or my own self remains the same at a deeper level underneath the changes of some parts of me. I keep my distinct personal identity over time. I don’t have it at birth, but I develop it throughout my early life and keep it until my last second. (Again, conditional upon my mental health, in particular during old age).

At least that’s how I feel. I don’t feel like I’m a different person – at least not literally – compared to the one I was yesterday, even if important parts or aspects of me may have changed today, perhaps as a result of a life-changing experience. I may feel like I’m a different man – figuratively speaking – but it’s “I” who feels like a different man. The same “I” that felt different things yesterday. I’m still Filip, even if I’ve changed somehow, and the people who know me know that I am.

Of course, my sense of continuity does not only resist life changing experiences. Even without such experiences I continually oppose a barrage of more mundane changes throughout my life. Although apparently I look just like I did yesterday, my body is in fact changing every second. I gain and lose matter; my body cells are continually replaced. Over the span of several years, my body matter will be almost completely renewed. (A bit like the parts of the ship of Theseus which somehow remains the ship of Theseus even though every part is replaced one after the other). However, my brain cells typically last a lifetime, so this could be a refuge for the idea of personal continuity. Were it not for the fact that although brain cells don’t die we do make new ones and the combinations and interactions between them change all the time. We learn new things and forget other things. We have new experiences, memories and opinions and lose others. Compared to cellular replacement or life changing experiences, neurological changes such as these should be equally devastating to the notion of persistence of identity over time, a notion which is, apparently at least, a sine qua non for any theory of the self.

So, if it’s true that we can’t assume the same person to exist and persist over time, then what does that imply for that person’s human rights? Human rights typically attach to a human person. If the human person is a myth, then does it still make sense to talk about human rights? The obvious answer would be “no”. Something that doesn’t exist can’t have anything: no attributes, no character and certainly not any enforceable rights.

However, you may have noted the sleight of hand here. It’s not because a person can’t be said to exist over time that he or she does not exist at all. “Synchronic identity” is much more difficult to dispute than “diachronic identity” (although it’s not impossible). We are all persons during that infinitely small period of time that is now. (Even those of us who have multiple personalities or other personality disorders). And that synchronic identity is a sufficient basis of rights, because we need our rights now (we can be harmed, hurt, oppressed and killed now). It follows that if we have rights now, then we always have rights because there will always be a now. The fact that we may be different persons from one now to the next – if that is indeed a fact – is neither here nor there and doesn’t imply anything regarding the need for or justification of our rights. Just as it doesn’t imply anything regarding the need for our physical bodies, at least as long as mind uploading isn’t feasible. The day it becomes feasible we’ll return to the question: is there anything to upload?

What Happens to Human Rights in the Experience Machine?

Stephen Moss sits inside an ‘orgone accumulator’ or ‘orgasmatron’, an orgasm producing machine. Photograph: David Levene
Stephen Moss sits inside an ‘orgone accumulator’ or ‘orgasmatron’, an orgasm producing machine. Photograph: David Levene

(source)

Nozick’s “experience machine” is a widely used thought experiment, intended to corroborate many different and often counterintuitive conclusions. But as far as I know, it hasn’t been used to try and understand what such a machine would do to our human rights.

First though a word about the experiment. It’s often intended to show that pleasure or happiness can’t be the ultimate moral good, and therefore to claim that philosophies such as utilitarianism can’t be correct – or at least can’t be complete. Imagine a machine that can simulate pleasure. You go into the machine and it gives you whatever pleasurable experiences that you desire, except of course everything is simulated. The pleasure is the same as that which would come from the actual experiences, but you’re not having the experiences. Think also of Reich’s orgasm machine or “orgasmatron”.

Most people would prefer to have the actual experiences rather than merely the pleasure part of them. So there must be something other than pleasure that is important to us, such as actually doing something or being someone.

Now, if instead of a pleasure machine we could have a machine that eliminates the unpleasurable sensations produced by slavery, silencing, censorship, discrimination and even torture (although what then would be the point of torture?). Would we still need human rights? After all, the things that are bad about slavery, torture etc. are the bad experiences suffered by the victims of these rights violations. However, it doesn’t seem OK to make it this easy on the perpetrators. They continue to reap benefits from their actions, and it’s highly likely that they will be encouraged by the absence of bad consequences of their actions. So there will be more and more extreme rights violations. Again, the experience machine doesn’t seem to make things better and I for one am not sure that I would prefer life in such a machine to actually experiencing my rights being violated.

Also, while the experience machine may be able to neutralise the bad experiences I may have when my rights are violated, it will never be able to produce the more positive experiences that come with respect for rights. And I don’t mean pleasure, because that’s not what rights are about. I mean communicating, learning, improving my thinking, participating in culture and in democratic government etc. Rights aren’t only about avoiding the bad, but also about producing the good.

One may reply that an upgraded experience machine may provide these kinds of experiences on top of pleasurable ones. There are, after all, already machines that provide cultural experiences. Why not the other experiences made possible by human rights? However, the implicit assumption is that such a machine would make rights redundant, since machines are supposedly more reliable than rights.

Here we have to distinguish between simulation and reality. If the experience machine would merely simulate the experience of learning, most of us would prefer an actual learning experience, even if we wouldn’t know that we are being mislead when inside the machine. Same thing for the experience of political participation, of culture etc. Even if the simulation were so good that we couldn’t know that it was a simulation, then we should still prefer the non-simulated reality.

However, if the machine would actually help us to learn, to engage in culture and to participate in democracy, then I think it would be a net positive. Fortunately, non-simulative experience machines are much more common than the simulative one imagined by Nozick.

Human Rights and Negative Utilitarianism

nuclear explosion
nuclear explosion

 

Lots of people define human rights – mistakenly as I argue below – in a strictly negative sense: you can’t torture me, you can’t silence me etc. The duty bearers in such a system of human rights have exclusively negative duties: abstain from doing what harms my rights, and omit actions that go against my interests or diminish my dignity. The only positive thing that duty bearers are obliged to do is to protect us against others who fail to abstain or forbear in ways that are required by my rights.

In this view, rights serve to avoid the terrible rather than achieve the best. They put limits on what people can do, rather than allowing them to do things.

Hence the temptation to link human rights to so-called negative utilitarianism. Instead of maximizing overall happiness, pleasure or preference satisfaction as in traditional utilitarianism, negative utilitarianism seeks to minimize pain, harm, suffering and preference negation for all. However, we should avoid linking human rights with negative utilitarianism. While this type of utilitarianism avoids some of the problems of other, more “positive” incarnations of utilitarianism – for example, the problem of accepting the pain of some or inflicting pain on some if that produces a larger quantity of happiness for others – it runs into problems of its own making: e.g. the total destruction of humanity, even if very painful, would no doubt reduce human suffering when this suffering is aggregated over a sufficiently long period of time (very long periods of time when the aggregate suffering is very small). And in any case, negative utilitarianism doesn’t solve other problems inherent in all types of utilitarianism, such as preference adaptation (minimize your suffering or maximize your happiness by being modest and ascetic), objectification and instrumentalization of human beings (kill people that cause some annoyance to others in order to advance the happiness of others or reduce their “suffering”) etc.

Of course, human rights are indeed negative rules of the kind described above. But they’re more than that. They’re not just limits to the depths of evil and inhumanity; they also provide capabilities necessary to reach higher forms of humanity. Free speech rights, for example, counteract censorship and silencing of all kinds, but they also promote the good that comes from liberated discourse and argumentation. (One good being better thinking).

Also from a purely procedural point of view is it wrong to focus only on the negative character of human rights. All rights, even the most “classical” “freedom rights” such as speech, freedom from slavery and torture etc. require both abstention and active assistance. The state not only has to refrain from practicing censorship; it also has to protect its citizens against censorship by other parts of the state or by third parties. And it has to create conditions in which the risk of censorship and of other impediments to speech is minimized. For instance, an educated citizenry is more likely to enjoy its speech rights than one which hasn’t had the benefit of state sponsored education. You need to have things to say in the first place.

This should clear up another misconception in human rights theory, this time about economic human rights. If all rights require both action and forbearance, the supposed distinction between freedom rights and economic rights becomes are lot less clear. More about this here and here.

The Ethics of Human Rights (95): Rights Between “Is” And “Ought”

Human rights inhabit the space between humanity as it is and the kind of humanity we can and should be. First in people’s minds when thinking about rights is of course what an awful lot we are. We’re evil, frail, vulnerable and insignificant, and human rights try to do something about that: they counter our frailty when it’s overwhelmed by our tendency to cause harm. (Although they also protect us against the forces of nature, an often neglected or misunderstood aspect of human rights. It’s not just other people who can violate our rights).

Human rights serve to avoid the terrible, but they also aim to achieve the best. They take humanity as it is and try to reduce the pain and oppression we inflict on each other, but they also promise a better humanity, and not just better in the sense of less harmful. They promise to improve our thinking, to allow us to govern ourselves more justly and efficiently etc.

It’s important to stress this middle position of all thinking about human rights. Too much focus on one side of the is-ought divide inevitably results in distortions. Only considering human beings as they are will  lead you to underestimate the power of rights. You’ll see evil as a permanent feature of history and you’ll tend to underestimate the power of moral uplift. Why do we need rights when people are as they are, and as they’ve always been? An exaggerated focus on people as they can and should be will likewise lead to a deflation of the power of rights, because you’ll tend to overestimate people’s ability to better themselves without the need for rights, and you’ll tend to envision a future in which rights will no longer be necessary. I doubt that there will ever be such a future.

More here.

The Ethics of Human Rights (93): Rights or Duties?

This is a telling result from Google’s Ngram viewer:

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It seems that once upon a time people believed that duties were more important than rights (or, which we assume is the same thing, people wrote more about duties than about rights). This time ended somewhere in the late 1800s. Some would call this the era of morality. The era that followed it would then be the era of “ME”, of individualism, of people’s nascent and by now “overwhelming” urge to claim things for themselves, and to claim them from others, from society and from the state. There is indeed a venerable school of thought that sees rights as amoral or even immoral and as the favorite tool of modern individualists and egoists.

Somewhat surprisingly, one origin of this idea is Marx. Nowadays, however, it’s associated more with conservatism and with so-called collectivist and harmonious “Asian” societies (with or without a history of communism). Or maybe it’s just associated with the self-appointed representatives of those societies, namely the often authoritarian leaders there. Not surprisingly, those leaders are the first beneficiaries of harmony and of a widespread sense of duty.

None of this should be understood as a rejection of the notion of duty. Far from it. One person’s rights are another person’s duties. (See also here). In a sense it is indeed regrettable that duties are apparently going out of fashion.

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

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

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

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

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

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

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

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

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

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

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

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

More posts in this series are here.

Beyond the Hand-Wavy Version of the Rule of Law

The rule of law, as opposed to the rule of men, is believed to be the best way to avoid oppression and rights violations, and rightly so. However, the rule of law, in a superficial definition of the concept, can be just as bad as lawless oppression, because a law can allow or even force people to violate rights and to harm people in such a way that they are no longer free. Governments can and often do use laws for the purpose of domination.

So, the rule of law may be no more than a cover for and an expression of the rule of man over man. Many a dictatorship tries to give the impression of respecting the rule of law by functioning according to laws and by using laws to oppress people. In fact, this isn’t completely foreign to democracies either. Think of anti-terrorism legislation and other oppressive laws that often have wide popular support (anti-same-sex marriage laws). Respect for the law is clearly not enough. The rule of law must be something more than that if it’s not to be an empty phrase.

But what should it be then? To start with, the rule of law can’t exist without a separation of powers. That seems to be a prerequisite. Laws need to be enforced against those who abuse power, and for this reason we need a locus within power strong enough to correct power.  But a separation of powers – no matter how well it functions – it’s not enough either. If there is no higher law that protects human rights, then judicial courts can’t invalidate oppressive laws or laws that violate human rights.

There is only one solution to this problem. The rule of law has to be more than a merely formal or procedural concept. Some requirements on the level of the content of the laws that are supposed to rule are necessary. We have to define the words “law” and “rule of law” in a very specific way and enforce respect for this definition by way of judicial verdicts, otherwise the rule of law will be no more than the rule of men disguised as the rule of law.

What should this definition be? Laws must be compatible with human rights – in the sense of neither allowing nor creating rights violations – and they must be equal for all. Certain more formal or procedural rules will indeed be helpful to increase the probability that we end up with laws like that, but they won’t be enough. It’s probably best, although not absolutely necessary, to have laws voted by the people or by representatives of the people (it’s unlikely that the people will accept laws that violate their rights). And laws must be reviewed by independent judges on the basis of the human rights contained in the constitution. A second legislative chamber confirming or, as the case may be, vetoing acts of legislation, may also be helpful. These are procedural rules instituting the separation of powers.

In a democracy, a law is voted by the representatives of the people and the people can always elect other legislators if they believe that their current legislators vote laws that harm their rights. This is not, of course, a solution for the minority. The majority can still vote or approve laws that oppress the minority. That is why a law must also be compatible with human rights as they are included in the constitution. The law, even if it is accepted or voted by the majority of the people, can’t be everything this majority may desire. In order to enforce the conformity between laws and the rights of the constitution, we need a separation of powers. Minorities should be able to use judicial review, and in addition could be given some kind of privileged representation in a second parliamentary chamber.

A system that enforces rules and prohibitions by way of laws, but lacks one or several of the requirements I’ve listed above, will have a hard time respecting the rule of law. The rule of law is not the rule of any law, but the rule of a certain type of law. Any other definition is devoid of meaning.

What Are Human Rights? (56): Protection Against the State, and Something More

In our current, non-anarchist world, human rights depend on the state for their protection. Judicial courts, the police force and political institutions such as the welfare state and democratic governance are requirements for rights realization. Perhaps in some future state of affairs that will no longer be the case, but presently it is. Which means that human rights are more than just protective tools directed against the power of the state. They are part of the state. Or better they should be. “That to secure these rights, governments are instituted among men” says the Declaration of Independence of 1776. The state should protect its citizens against its own abuses of power (and of course also against the exercise of illegitimate power by fellow citizens, but that’s a topic for another time).

Many if not most violations of human rights are caused by state actions, even when the state in question is relatively benevolent. Power corrupts, and that is why we need rights to limit power. However, without power, rights are useless. Human rights limit the actions of the state, determine what a state is not allowed to do or should refrain from doing, and define those areas where the state is not allowed to interfere. But human rights also, and positively, determine what the state should do. They demand positive action and interference from the state.

For example: the state should not only avoid torturing its citizens, it should also actively protect and help those citizens who are tortured, most commonly by some part of the state but perhaps also by fellow citizens. This means that abstention and forbearance on the part of the state, no matter how important, are not enough. The state also has a duty to act in order to protect rights. And if human rights require that the state abstains, then the state should be actively engaged in enforcing its own abstention. (Needless to say that this implies a separation of powers).

This active engagement can even go one step further. Human rights sometimes require more than actively enforced abstention. What is true for torture is also true for economic rights: the state should not only avoid creating or maintaining poverty but also try to create a minimum amount of prosperity for all. A right not to suffer poverty is an example of a right that requires the obtention of something (although it can also require abstention as in the case of Mao’s Great Leap Forward). Here we’re dealing with so-called positive rights as opposed to negative rights. (In French they call it ”le droit à l’obtention et à l’exigence” as opposed to “le droit à la résistance et à la défense”).Whether you like it or not, the state is often one of the parties that should assist people in obtaining what they have a right to, at least on the condition that there’s no other, less invasive means of obtention.

But let’s not put too much emphasis on this distinction between abstention and obtention, or between negative and positive rights. Every human right, including those rights that seem to demand only the absence of state action, require state action, for example action in the form of a judgement of a court of justice concerning an illegal state action, and the police measures enforcing this kind of judgement. The state should commit, as well as omit; prevent, provide, protect and engender, as well as forbear; and it’s not at all obvious that particular types of human rights systematically need more of one or the other type of state conduct.

Something merely negative, such as abstention, forbearance or a limited state, can never constitute a state, as Hannah Arendt has rightly stressed in “On Revolution”. There is a reason for having a state.

Human rights, particularly in the early stages of their historical development, were considered as primarily directed against the state. This was also the main cause of their initial success. The theory of anti-state rights was inherent in the idea of human rights as natural rights. Natural rights, as opposed to legal rights, are not given by the state and can be used by citizens as an instrument of defense against the state.

However, none of this should make us forget that there is something inherently positive in the state and that rights can’t be entirely “natural”, whatever that means, at least not if we want them to be real and enforceable. As things are in our day and age, it’s often the state and its legal rights that protect us against violations of our human rights, at least ideally and more commonly when the state is a democracy. It does this, not only by passively abstaining, but also by actively doing something.

More posts in this series are here.

What Are Human Rights? (55): Universal, Not Uniform

Universality doesn’t equal uniformity. If we insist on uniformity, then we will probably not achieve universality. We will convince more people of the desirability of human rights if we take local circumstances into consideration than if we simply copy things coming from the outside. And that’s not just a tactical surrender: we don’t need uniformity.

Regional differences are possible both at the level of the laws that protect human rights, and at the level of the ways in which these laws are applied, and all this without impairing the universality of human rights. We can frame laws in a flexible way and we can apply them in a flexible way.

1.

Laws are necessary (although not sufficient) for the effective protection of human rights. However, it’s obviously impossible and undesirable to have the same laws in all countries, even the same basic laws. We have to translate the general, morality based language of treaties and declarations into specific and operable legal wordings, and those can differ from country to country, as well as from period to period. Effective laws and rights can’t be formulated in a globally uniform way or in a way that does not take the concrete circumstances in which they have to function into consideration. As these circumstances differ from country to country, the laws have to be different as well. Laws have to correspond to specific needs. A certain social or political context can make it necessary to focus attention on one particular right, on one particular group of rights or on one particular aspect of a right.

A “Bill of Rights” is always a “Bill of Wrongs”. Rights begin with the experience of an injustice. According to the nature of the injustices or “wrongs” in a particular society, some rights have to be especially accentuated or elaborated. Sometimes, elements of rights have to be specified in one country but not another because the problem in question is present only in one country. For example, we can imagine that in post-Soviet Russia, for example, there is a need for a right establishing the freedom to criticize the works of Marx and Engels, or a need for a particular emphasis on the right to private property of the means of economic production. In the constitutions of other countries there may be no need for such an emphasis because the things one wants to protect are never threatened.

Of course, this doesn’t mean that circumstances or “cultures” should be given priority over rights. It only means that the need for certain rights or for certain emphases can be different in different cultures or countries. Human rights have to be integrated in concrete legal systems and concrete societies, each with their own history and their own problems, but this contextuality does not imply ethical relativism or “anything goes”.

Insisting on global uniformity also means disregarding the fact that rights evolve. The body of rights as it exists now is not fixed for all times. New rights or new and wider definitions of existing rights can be established when new wrongs are identified, for example as a consequence of technological or scientific developments (think of the internet, which may require a new right to internet access). It can also happen that we need new rights because we have only now become aware of certain wrongs that have existed for ages, but have been neglected. This was the case for women’s rights, although some of those rights – such as universal suffrage – are a different emphasis rather than an innovation.

Similarly, we may one day have to eliminate rights that become superfluous. Maybe food shortages can become a thing of the past, given the right technology and political will. If so, then the right to food will sound as strange as the right to air does today (although the same future may remove the strangeness of the latter).

2.

Not only the legal formulation of rights should allow flexibility; the same is true for the ways in which given formulations are applied by judges. In order to take into account certain specific needs, laws can be applied in a flexible or different way according to the context. Most human rights are not absolute. They can be limited when limits are required in order to protect other rights or the rights of others. Someone’s right to property, for example, can be limited if this is necessary to realize the economic rights of other people. We have a right to property but not at the expense of the rights of people who do not have enough property to survive. Rights can contradict each other or can be used or misused to harm people, and when this happens, priority has to be given to one right or another, or to the rights of one person or another. The protection of one right may require limits on other rights.

This does not contradict the claim that rights are interdependent. In many cases, rights are dependent on other rights. In other cases, rights require limits on other rights.

How do judges decide which right has priority? Normally this is the right that in the given circumstances best protects the different goals and values of rights. Take for example the conflict between the right to freedom of expression of a journalist and the right to privacy of a public figure. What value is served by the publication of the sexual habits of a politician? None, I believe, except, of course, when these habits influence his or her public role. Normally, the right to privacy should prevail in such a case. A publication describing the sexual habits of someone does not contribute to any of the values that rights are supposed to serve, such as prosperity, peace etc. On the other hand, the right to privacy of the politician obviously does contribute.

The flexibility of human rights is expressed in the way in which these rights are limited. A country with a serious problem of violence, crime or terrorism needs a strong police force. Certain rights will then have to give way to the so-called integrity rights (life, physical integrity, security etc.) and will have to give way to a larger extent than in other states. States that face a persistent and widespread problem of racism can be forced to impose more severe limits on the freedom rights of some, in order to protect the equality of others. Maybe Germany does have to be less forgiving towards neo-Nazis and their right to speech and to associate – maybe it even needs a law against them.

It’s true that circumstances can be used as an excuse to violate rights. But that’s not an argument in favor of uniformity.

More posts in this series are here.

Human Rights Promotion (23): Moral vs Emotional Persuasion

Actions are motivated by beliefs, at least to some extent. (I’ll come back to this in a minute). It’s safe to say that many actions are driven mainly by beliefs, beliefs both about the nature of facts and about how we should act – factual and moral beliefs in other words. Unsurprisingly therefore, many actions that result in rights violations are also caused by beliefs. Certain beliefs are harmful to human rights because they result in actions that violate those rights. I’ll focus here not on harmful beliefs that are self-interested – I find those rather boring – but rather on harmful moral beliefs: rights are often violated because of the view that other people should be forced to do what the coercers believe is the “right thing”. (FGM is an example that comes to mind.)

Beliefs about how we should act are often based on beliefs about “facts” (for example the supposedly detrimental facts that result from failure to perform FGM, such as female promiscuity and bad hygiene). “Facts”, in turn, are seen through a thick interpretative layer of beliefs about morality, which is why I use the scare quotes. For example, if you oppose homosexuality for moral reasons (because “it’s wrong”), then you may tend to see homosexuality as “unnatural”, and this view is often proposed as factual. 

One way to undermine harmful moral beliefs is to attack their factual basis. We can point out the real facts (for example, that the Koran does not require FGM, or that women’s sexual morality and health do not require it). Of course, people who are for some reason intimately attached to certain beliefs will “find” other “facts” to support them. In some cases, however, challenging people’s factual beliefs can make them reject their harmful moral beliefs. At least that’s my belief.

We can also attack harmful moral beliefs directly and try to persuade people to change those beliefs irrespective of their factual basis. For example, we can stress inconsistencies or logical fallacies in ethical beliefs. We can say to racist Christians that the teachings of their God include statements about human equality and rules about neighborly love. And the naturalistic fallacy is abundant (“homosexuality is immoral because it is unnatural”; “we should not care about distant strangers because evolution has programmed us to take care of our own”, etc.). 

In short, there’s a whole lot we can say in order to undermine harmful moral beliefs and promote support and respect for human rights. Unfortunately, this will only work in some cases. Ask yourself how often you’ve modified your own moral beliefs. I myself can only come up with two examples: my views about criminal punishment and immigration. (To the extent that I’m quite ashamed of some of the older posts on this blog, to which I won’t link). When we do change our moral beliefs, it’s because we’ve become convinced that the facts on which we’ve based our moral beliefs aren’t what we thought they were (immigration isn’t harmful, capital punishment doesn’t deter, gay marriage doesn’t undermine traditional marriage etc.). When we change our moral beliefs, this is why we do it, not because we now see the moral truth of something (the truth of the rule that strangers have as many rights as we have, that criminal shouldn’t be treated as means to scare future criminals, that sexual orientation shouldn’t determine rights etc.).

So, the best means to change harmful moral beliefs is to attack the supposedly factual basis of those beliefs. However, as I’ve said, this won’t work every time or even a lot of the time, because we constantly try to marshal new facts as a basis of our moral beliefs when the old facts become discredited. If necessary we fabricate the facts. That we do this points towards a deeper problem. Maybe what really motivates us are primordial emotional reactions such as disgust, cleverly dressed up and rationalized by way of beliefs and “facts”.

There’s a great scene at the beginning of Inglourious Basterds about how we can’t justify our disgust of rats on the basis of facts that wouldn’t also justify disgust of pretty squirrels:

If indeed we’re not motivated by moral beliefs or facts, then no amount of moral reasoning or factual discussion can help us avoid rights violations resulting from post hoc rationalizations of our disgust. A more emotional kind of persuasion may be more promising. Telling people stories about the suffering of those who are seen as disgusting can conceivably remove their disgust and hence their need for harmful beliefs and biased selection or creation of “facts”. The chances of something like this succeeding have to be balanced against the “primordial” nature of a lot of our emotional reactions. “Primordial” in the sense of “very old” and “resulting from early human evolution”. That’s a steep climb. 

All this has implications for the legalistic approach to human rights promotion. To the extent that rights violations are actions that have a deep foundation in our emotions – and not all rights violations are like that – legislating them away won’t work. Other strategies have to be employed. 

There’s a good podcast about the same topic by the VeryBadWizards guys here. More about persuasion here and here. More posts in this series are here.

Human Rights Promotion (22): What Hope is There For Persuasion?

The ability to persuade other people is important for human rights in at least two different ways:

  • How do we achieve respect for human rights? Since a lot of human rights violations are caused by ideas and opinions – for example by harmful moral judgments or political ideologies – respect for human rights depends at least in part on our ability to change minds, other people’s as well as our own.
  • Why do we need human rights? Certain human rights in particular, such as the right to free speech, are justified by our need to persuade others. We want to express ourselves and we express ourselves for different reasons: to communicate our identity, to signal what we think about something, but most importantly to persuade others of the goodness of our opinions, compared to their opinions. That’s a universal human need. Ideally, we also believe that expressing our opinions improves those opinions. We prepare our opinions in advance of expressing them, and – knowing that we will be criticized for those opinions by other agents freely expressing themselves – we try our best to prepare our opinions for this criticism. We consider possible counterarguments in advance and how to reply to them. This brings with it the possibility that we refine our opinions or even replace them with better ones, based on our inner reasoning in preparation of our expression. Free speech – our own free speech and that of our critics – helps us improve our opinions. Persuasion – both of others and of ourselves – is therefore an important reason why we need human rights. (This is the theory behind the notion of the marketplace of ideas).

The problem is that people don’t seem to be very good at persuading each other or themselves. The description of communication that I’ve given here is highly idealized. If we can’t dramatically improve our ability to persuade, then we’ll have a hard time fighting for rights because we’ll lose weapons as well as reasons necessary for this fight. There are other non-communicative means to increase the levels of respect for human rights (reciprocity, self-interest, the law etc.), and the need to improve our opinions and to persuade isn’t the only possible justification for human rights (other justification are offered here). But in such an important fight a restricted arsenal or rationale is a net negative. So it’s worth the effort to try and remove some of the things that make it hard to persuade.

So what are we up against? Apart from the obvious and uninteresting fact that some people are immune to persuasion – good luck talking to the Taliban – there are other and perhaps even more damaging causes of a lack of persuasion: confirmation bias, the importance of emotions rather than reasoning or argumentation as a basis of our beliefs, polarization, and a whole set of other psychological biases (e.g. the belief that beautiful people make better sounding arguments).

What to do about all this? We should avoid the obvious conclusion that humans are merely bias machines governed by unconscious reflexes, responses to stimuli, emotions and prejudices formed through ages of human evolution. Or that rational argument based on facts and sound reasoning never plays any role. Many but probably not all our opinions and decisions are biased by prejudice and emotive reactions created by a mind shaped by evolution. There’s certainly no hope of radically removing those parts of our minds that work that way, but we can hope to reduce their effect. If we are conscious of our confirmation bas, for instance, then we can try to counteract it by actively seeking out disconfirming information or by making an effort to read people from the opposing side. Rational persuasion can and does occur, and we can make it occur more often than it does today. For example, here and here are two examples of cognitive scientists pushing back against the current trend in their profession. They show how strong arguments can indeed persuade people and how group reasoning in particular is helpful.

More posts in this series are here.

Human Rights Promotion (20): Exposing Criminals

There are a number of private initiatives aimed at publishing personal information about convicted criminals. Websites such as CriminalCheck.com, ukpaedos-exposed.com, Lexbase.se and so on publish information about criminals’ place of residence after they’ve left prison, or even their contact information. Newspapers as well seem to make it a point of honor to mention personal details in their crime reporting. Sometimes the “criminals” are people who are merely suspected of a crime.

This kind of thing is said to be justified as a form of privatized human rights enforcement. If people know where criminals live or work, they can steer clear of danger and increase their physical safety or the security of their property. Public knowledge about ex-cons also serves to “shame” them – including some potential criminals – and that again is something which may reduce the risk of future crimes. In any case, the overall justification seems to be enhanced protection of the rights of possible victims through private crime prevention.

Purveyors of personal information about criminals claim that what they do is protected by free speech rights – including the right to access information. Maybe it is, but in that case we seem to have a conflict between rights. Criminals have a right to privacy, and information about their past convictions may well be part of their private lives. Publication of this information could sometimes also endanger some of their other rights, such as their right to work, to choose a residence etc. -given what we know about public harassment and discrimination of people known to have a criminal past.

What to do about this conflict of rights? Perhaps violations of the rights of criminals are an acceptable price to pay for the speech rights of the exposers and the rights of possible victims. Even violations of criminals’ right to physical security – given the possibility of violent retaliation by past victims or vigilante hotheads – may be viewed as an acceptable risk. Some even want to argue that exposing criminals is a matter of justice: too lenient court sentences can be corrected by private retaliation made possible by published information.

I guess most of us would agree that this goes too far. Even if we believe that sentences are too lenient, we shouldn’t view private retaliation as an acceptable justification or byproduct of public exposure of convicted criminals. I don’t think there’s a large constituency against the right to physical security for criminals who have served their time (or for those still serving their time). A reasonably well-functioning criminal justice system should take care of punishment. And when we don’t have a well-functioning criminal justice system, the obvious goal is to improve it, not privatize it.

The best case in favor of private efforts to expose criminals is based not on retaliation but on the rights of the exposers and of possible victims. You can make the case that criminals’ general right to privacy can sometimes be overruled in favor of the right to free speech of the exposers and the right to physical safety and property of potential victims.

On the face of it, that’s not a ridiculous claim. Different rights often contradict each other, and it’s quite common that some rights should give way to some other rights in certain specific cases. Neither is it ridiculous to claim that private initiative has in general a role to play in human rights promotion. However, I don’t think we’re dealing here with a good example of a helpful private initiative. For two reasons.

  1. Balancing acts between rights are treacherous and best left to professional judges. Convicted criminals – or anyone else for that matter – have no right to be free from shame or public humiliation but they do have a right to privacy and to be free from harassment and vigilante justice. We should take these rights seriously, even if – and perhaps because – we are dealing with the rights of criminals. These criminals have already paid the price for their crimes and should be protected against violations of their rights. An attack on their privacy should therefore be avoided if at all possible, especially if such an attack can invite further violations of their rights such as vigilante justice, work problems, family problems etc. It’s unlikely that a balancing act between the speech rights of the exposers and the rights of the criminals would be decided against the latter. A balancing exercise between the exposers’ right to free speech and the criminals’ right to privacy would almost always favor the latter. The harm done to the rights of criminals when favoring free speech rights is more important than the harm done to the rights of the exposers when favoring privacy rights.
  2. If you’re not convinced by this and you still want to make the case that criminals’ right to privacy should be limited for the sake of someone else’s free speech right, then you still face another problem. It doesn’t seem right that criminals’ privacy should give way because there’s a risk of future violations of property or security rights of others. There has to be more than a mere risk, and typically there isn’t in these cases. People engage in the exposure of criminals because of the supposed risk of having criminals close by, not because these criminals are actually engaged in crime.

More about this here and here. More posts in this series are here.

What Are Human Rights? (53): Have Human Rights Lost Their Meaning?

Human rights have started to look somewhat like a substance spread so far and wide that it has lost its depth. Some use rights to promote peace, while others take them to war against oppressive dictators. Some say that abortion is a right of the mother, while pro-lifers say that it’s about the right of the baby. Religious believers are urged to respect the rights of those they view as morally depraved, but the former answer that the way they treat the latter is a matter of religious liberty. Putin intervenes in Ukraine for the sake of the rights of Russians, while Ukraine counteracts because of the rights of Ukrainians. Almost every political or moral debate is now essentially two groups of people throwing rights at each other. And as with all things that are used for anything and everything, rights have lost their meaning. At best, their meaning has become very thin.

Part of the reason for this “thinness” is overinterpretation; another part is rights inflation. We should of course interpret rights. Their meaning isn’t obvious. The only thing that is more or less undisputed are a few lists with rights described in one or two sentences. As is clear from the examples given above, what these sentences imply for specific cases is hotly contested. We can try to give some substance to the meaning of different individual rights, as well as to the idea of rights in general. This is in fact what I try to do in this blog series, and what many others try as well. But success is far from guaranteed, if it’s even clear what success would mean in this case. At a minimum, some form of widely shared agreement, I guess, such that for instance religious believers accept that their rights do not warrant violations of the rights of non-believers.

Likewise, while we should allow rights to evolve – new wrongs may require new rights – we should also try to agree on some outer boundaries and perhaps make a division within the set of rights between fundamental or basic rights on the one hand and aspirational rights on the other. It would harm the practical effectiveness of rights if we can’t set limits on interpretation and evolution. We wouldn’t want to deal in empty promises.

But is there really a “thinness” to human rights? There is certainly overinterpretation and inflation, but the “spread substance” metaphor is somewhat misleading. Perhaps rights haven’t really lost their meaning. As with all fundamental philosophical concepts, there wasn’t an a priori meaning to begin with and hence no original content that has been squandered. Political and moral disputes, because they are increasingly framed in a language of rights – as opposed to the language of duty, honor and virtue – have made the concept of rights more complex and contested than it needs to be, and perhaps even murky and vague. But that is because there’s too much meaning rather than too little. Taking again the same example: the claim that religious liberty should include the freedom to discriminate is a claim to unwarranted “thickness”. We need to be clearer on the content and extent of human rights, but perhaps it’s wrong to say that rights are “lost”.

More on the causes of the increase in human rights talk is here. More posts in this series are here.

Discrimination (17): Human Rights and Intersectionality

Intersectionality is an interesting concept because it’s related to the interdependence of human rights. (Sorry for the alliteration). Kimberlé Crenshaw was the first to propose the term for the purpose of describing interacting forms of discrimination. Some examples. A black woman may have relatively worse life outcomes compared to a white woman who is similar to her in most respects, even though both suffer gender discrimination. The combination of racism and sexism makes it much harder for the black woman to find a job. She will have to overcome anti-female prejudice as well as racism on the job market. An immigrant woman may have a hard time escaping sexual violence because her irregular status makes it difficult for her to go to the police. And so on.

Victims of discrimination and oppression are sometimes very different from each other, depending on the various types of discrimination that combine in order to make their lives difficult. A white upper-class able-bodied female citizen may be discriminated in some ways, but her fate is unlike the one suffered by a poor black illegal immigrant mother. Intersectionality makes for more intense discrimination.

And there’s an additional claim: people’s outcomes are made worse because of the ways in which different forms of discrimination combine (the sum being larger than the addition of the parts). Two or three types of discrimination can be mutually reinforcing. They do not act independently of one another but instead shape one another. Racial stereotypes for example need to be broken down by gender in order to see how different gender representations combine with racial stereotypes in order form an overall discriminatory ideology.

Take for example the Jezebel character. A Jezebel is a loose, sex-craved woman who is often depicted as stereotypically black, i.e. with big lips and funny hair. It’s racist prejudice about sexual morals of black people combined with a gender stereotype. (The idea that it’s men who want more sex is a relatively recent one; and “the sex-mad negro” representation is still around). It’s also no surprise that Reagan’s “welfare queen” was black. Being both poor and a “lazy and untrustworthy black person”, the welfare queen encapsulated a toxic mix used to criticize poor blacks until this day.

The concept of intersectionality “grew up” in the context of feminism. Feminists at some point in the 60s or 70s realized that although the focus on gender as a cause of discrimination is necessary, gender isn’t the sole factor determining the fate of women. A white middle class woman suffers a different form of oppression compared to a poor black women or a disabled woman. Intersectionality (or intersectionalism) became the effort to understand how gender, race and class combine to limit women’s life prospects. Since then, the word has transcended the realm of feminist theory and is now applied to all people who suffer a combination of different forms of oppression. 

All this has practical implications. For example, if you want to take a stand on more female CEO’s or quota for women in parliament you may inadvertently leave existing class structures intact, even if you include race in your quota demands (black women can have class privilege too). On the other hand, if you focus only on racism you may be blind to the specific suffering of black women. Intersectionality is therefore kind of a call for solidarity across victimized groups. 

Time to get back to human rights, I hear you say. The notion of interdependency in rights theory can be likened to intersectionality. If both your right to a decent standard of living and your political rights are violated, then these violations affect each other. For a poor person it’s much harder to reclaim her political rights because her struggle to survive takes precedence over other concerns. However, without her political rights, it’s much more difficult to escape poverty. The squeaky hinge gets the oil. I think it’s fair to say that this interdependence of rights is similar to the notion of intersectionality.

More posts in this series are here.

The Place of Human Rights in Morality

Morality can be divided into three parts:

  1. the good thing to do
  2. the proper thing to do
  3. and the right thing to do.

1. What you do can be a good thing without it necessarily being the proper or the right thing to do. If your neighbor is ill and you’re washing your own windows, it would be very good of you to also wash his. You would be beneficent. However, it’s obviously not your moral duty to wash his windows and no one will condemn you if you don’t. 

2. A somewhat more demanding type of action is something that you should do (or ought to do, which is basically the same in English). It’s strongly advisable that you help strangers in need. It’s the proper thing to do. You should do it. If you don’t help a stranger in need when you can, you’ll be condemned for your inaction. However, helping a stranger in need is probably not a duty as it is formulated here. It’s too vague. Helping all strangers in need is impossible, and a duty requires the capacity to fulfil it. 

3. Hence a duty is more specific. It’s something you must do – not merely something you should do – and something you have the means to do. Contrary to the good and the proper, it’s compulsory and obligatory. It’s the right thing to do, and you have a duty to do it. In some cases, this duty is based on someone else’s right. You must do something because someone else’s right requires you to do it. For example, you must help the homeless stranger on the corner of your block because that person has a right to a decent standard of living; and you have a duty to pay taxes that will fund a national healthcare system because people – your neighbor but also strangers – have a right to healthcare when they can’t afford it themselves. Or, negatively, you have a duty not to invade your neighbor’s privacy while washing his windows because he has a right to privacy.

However, not all moral duties in this sense have a corresponding right. For example, you have a duty to keep your promises and respect the terms of the contracts you engage in. Like respecting human rights, keeping your promises is not merely a good thing to do or something that you should do. You must do it (unless of course there are good reasons not to; nothing I’ve said here implies that duties should be absolute). But no one has a human right to kept promises. Hence, the class of right actions is larger than the actions (or omissions) required by human rights.

So we have three types of moral actions, each more demanding than the last: the good, the proper and the right. The place of human rights is within the class of right actions. Respecting people’s rights is not merely a good thing to do because you will be condemned if you don’t. It’s also more than the proper thing to do. It’s not just something that is strongly advisable or something that you should do. It’s a duty. You must do it.

Morality is much larger than the duties imposed by human rights, even though respecting people’s rights is obviously a part of morality. Morality is about more than duties, and the duties that are moral are about more than the duties imposed by human rights. 

[This post has been slightly edited post-publication after a remark by ]

Why Do We Need Human Rights? (43): Positionality and Transpositionality

Human beings are inescapably positional. We understand the world from the position in which we are. In the words of Amartya Sen, what we observe and how we observe it depends on our position vis-à-vis the object we observe. ”Object” can also be person, an idea etc., and “position” can mean your physical location – if you see a horse from behind you may think it’s a donkey – but also your mood (you see things differently according to your mood), your priors etc.

Another characteristic of human beings is that we want to observe the world as accurately or objectively as we can. “Objectively“ here means focused on the object we observe rather than on the position from which we observe it. The problem is that we always observe something from a certain position and that this positionality can make accuracy or objectivity hard to achieve. We need human rights, and not just our own rights but the rights of others as well, to correct our positionality and achieve something close to objectivity. Someone else may be looking at the horse from the front, and can tell us – using her rights – that from her perspective the horse looks like a horse, not a donkey. Someone with a better mood about someone else can tell us that our view of that person is negatively influenced by our mood. And so on. People exercising their rights can help us achieve objectivity.

But our own rights also help us a lot. If we don’t have rights, then we can’t move about – physically or intellectually – as easily as we have to in order to see things from other perspectives. If our fellow human beings don’t have rights, then they can’t easily tell us about their different perspectives. In both cases, the accuracy of our observation of the world suffers. Accuracy or objectivity require that we look at the whole object (or person or idea or problem etc.) rather than just one side of it. Without rights it’s difficult to do that. More fundamentally, without rights it may not even occur to us that there’s more than one side because we don’t hear about other sides. Not only is it hard in a world devoid of rights to move and occupy other perspectives or to hear about other perspectives; it’s hard to know that there’s a problem at all.

Objectivity is then a kind of transpositionality: an approach to the world which doesn’t really transcend our positionality – we can’t do that because we can’t look at things “from nowhere” – but which nevertheless liberates us from a limited form of positionality that may be detrimental to accuracy.

Of course, accuracy and objective are not to be taken in an absolute sense. Even in a world with full respect for rights and with people willing and able to occupy many different positions and perspectives and to talk to each other about those perspectives, it may not always be possible to achieve an accurate observation of the world, or even to improve our accuracy. For example – and this is Sen’s example – if we all look at the moon from our own perspective and share our different perspectives among ourselves, we may still conclude that it’s a rather small disk up there in the sky. As long as we haven’t built telescopes or moon rockets, our human rights won’t help us achieve an accurate understand of that part of our world. We may achieve transpositionality but not objectivity.

The good thing is that this is probably an exception and that our rights will normally help us in many cases to improve the accuracy of our understanding of the world. After all, ideas, persons and everyday objects don’t require sophisticated tools to be examined from different perspectives. But they do require human rights.

More posts in this series are here.

The Ethics of Human Rights (90): Rights and Virtue Ethics

At first sight, virtue ethics seems irrelevant to human rights. Rights are about what people do to each other and what the state does to people. They’re about rules and consequences, not about people’s good character or virtuous dispositions. Deontological or consequential ethics look like they’re more adequate from a rights perspective. Whether or not people possess the right virtues can of course make a difference with regard to the level of respect for rights. Courageous people will sometimes use their courage to help others in need and help them protect their rights. Honest people will not steal from each other. Compassionate people will assist the poor. Judges and police officers with a sense of duty will help to right wrongs.

However, it’s risky to depend on virtues. Virtues are a rare commodity, and if we need virtues in order to have rights then rights as well will be rare. That’s why some who call themselves realists about human nature argue that we should economize on virtue. Better, they say, to mobilize people’s self-interest as a means to enhance overall respect for rights. For example, if people cherish their own rights – as most of them do – then it may be in their self-interest to cherish the rights of others as well, because they can reasonably hope for reciprocity. It’s also the case that most rights don’t make a lot of sense if they’re not widely spread. It’s quite useless, for instance, to be the only person on earth having the right to speak. We speak with each other. So if it’s in our self-interest to have a right to speak, our self-interest will automatically favor the same right for others.

Opponents of a strong focus on virtues do not only turn towards enlightened self-interest but also insist that we can do a lot by trying to improve institutions rather than individual dispositions. Good institutions do not only protect people’s rights but also promote virtues. Examples of institutional solutions are courts that reliably protect people’s property rights and personal security rights. Or trade agreements and immigration rules that don’t aggravate global poverty. Once these institutions are in place people will recognize their benefits and develop the virtues necessary to keep them in place. Virtue ethics, according to this view, has things backwards.

However, I do think virtue ethics has something interesting to say about human rights. Virtue ethics focuses on character, not on the rules we should follow or on the good consequences of some rules or some ways of acting. And the advantage of focusing on character is that we introduce a sense of reliability. If human rights depend on frivolous self-interest and fragile institutions – the same self-interest and institutions that so often destroy rights – then they are precarious. If, on the other hand, we argue with virtue ethicists that the consequences of acting in a certain way or of following a certain rule have in themselves no ethical content unless our actions or obedience to rules are preceded and caused by virtuous dispositions and good character (similar to Kant’s “good will” for example), then we can build rights on a firmer ground. Virtues, by definition, are reliable and permanent. Our character doesn’t depend on who we are today, but on who we are predictably. (Although one can of course cultivate one’s virtues and become more virtuous over time).

Maybe human rights activists have a tendency to promote rules over motivations and good outcomes over good intentions. While we can have good outcomes and rules that are respected without also having people acting on good intentions, perhaps it’s true that we’ll have more secure outcomes and rules when we find a way to promote virtues and good intentions. A virtue ethicist will of course claim that we need our virtues for their own sake and not for their instrumental role in rights protection, but he or she will not object to that role. Of course, everything I’ve said here depends on the controversial claim that we are indeed able to promote virtue.

By the way, there’s an interesting parallel between virtue ethics and confucianism.

More posts in this series are here.

The Ethics of Human Rights (89): Anti-Consequentialist Consequentialism

There are two words in “human rights”. “Rights” are claims that override the claims, wishes or welfare of a government, a majority, or even the totality of a population minus one. In other words, they are claims that need to be respected whatever other claims are present, such as the claims of law, morality, welfare, religion etc. Rights should be respected irrespective of the law of the land, of someone’s legal status, of someone’s religion, race, gender, citizenship, country of residence or moral conduct. That’s where the other word comes in: all “human” beings have rights and these rights should be respected simply because human beings are human. No other reason is required. No law, no conduct, no welfare consequences. These two words – “rights” and “human” – are connected: both are about priority, overriding importance and lack of conditionality.

This would seem to imply that human rights are the ultimate anti-consequentialist morality. We are not to enslave, torture or murder one person even if that would increase total welfare. Forcibly removing one eye from a series of two-eyed people in order to give blind people one eye would clearly increase overall welfare since the gains for the blind are greater than the losses for the others. And yet human rights prohibit coercive organ transplantations. However, it’s not entirely correct to view human rights as anti-consequentialist. Human rights are also, and somewhat paradoxically, consequentialist. In two ways:

  • First, the welfare of the majority or of the “society” can to some extent be defined as respect for human rights. Torturing one terrorist in order to discover and defuse a ticking time bomb would allow us to safeguard the right to life and bodily integrity of a large number of other people or even of society as a whole. Rights need to be balanced against each other, and when more rights or more important rights for a large number of people can be safeguarded by way of a violation of the rights of one, then that’s the result or the “consequence” we should favor over the alternative, which is protecting the rights of one to the detriment of the rights of many. The balance is clearly in favor of the many, and that’s a consequentialist calculus. (I have to say here that these are not, in practice, the only alternatives and ticking time bomb arguments are often very misleading. But as a theoretical example it will do. I have a separate discussion of the limits of this kind of calculus here).
  • Second, human rights are means to achieve some goods or values. We don’t have rights because it’s good to have rights. We have them because they have good consequences. I need a right to free speech because having free speech results in certain things that are good for me: knowledge, self-development etc.

There’s considerable tension between the consequentialist and anti-consequentialist strains in human rights. It’s a tough problem. I’ve tried to come up with ways to relieve this tension in some older posts.

More posts in this series are here.

Human Rights Promotion (19): A Game Theory Approach

Game theory is a useful tool for trying to understand the interaction between the struggle for rights and the countervailing forces (often states). Let’s look at a few examples. In the case of popular protests and revolutionary reaction against oppressive regimes, an important decision both sides have to take is whether or not to use violence. As Conor Cruise O’Brien once said, violence is sometimes needed for the voice of moderation to be heard. In other words, protesters may have reason to escalate their expression of discontent, just to make sure their point comes across and those in power realize that things are serious. On the other hand, the violence of protests or revolutions can easily escalate beyond what is necessary or effective. Difficult to keep violence under control, and the ultimate outcome of a violent revolution may not at all be what the protesters initially desired. We see that all too often. (Present-day Egypt is a case in point).

From the perspective of those in power, things look quite similar. Again, some violence can be a good thing (from their point of view), but it shouldn’t be too much. Oppressive regimes have reason to use a certain amount of violence in order to stay in power, but if they go beyond that amount they risk violent reaction. However, it’s not just violent reaction that may be a problem. While moderate violence helps an autocrat to retain control, he doesn’t want to engage in violent repression for a very long time. Long term violence, even moderate violence, renders public discussion and persuasion impossible. As a result of this destruction of the public space (in the Arendtian sense), support from the people is increasingly harder to come by and opposition is more likely. That’s not in the interest of the regime.

And it’s not just autocracies; democracies as well have to engage in strategic decision games. Take for instance border controls. There’s an interesting story about migration from Suriname to the Netherlands. Until 1975, Suriname was part of the Netherlands and the Surinamese people could travel back and forth between the Netherlands and their home country. The Netherlands wanted to stop this migration, but the result was that the Surinamese rushed to “beat the ban” and moved in massive numbers. Half of the population of Suriname ended up in the Netherlands. Something similar happened with the 1962 UK Commonwealth Immigration Act. This act took away the right of Commonwealth citizens to enter Britain freely and also produced a rush to “beat the ban”.

It’s often the case that the numbers of permanent immigrants jump up just before the imposition of border controls between countries that had free movement arrangements. Migrants who previously moved back and forth, depending on the job market or the state of the economy both at home and in their destination countries, decide to stay in the destination countries because once they go back home they can’t return. Border controls have the same effect on “illegal” immigrants who often decide to stay because they can’t risk the dangerous border crossing more than once. So states that want to limit the numbers of migrants should, paradoxically, open their borders at least to some extent. Not too much, probably, but not too little either.

From the perspective of the migrants: if we want to promote freedom of movement – which is a right – then we may do best to go steady and not open the “flood gates” all at once. High numbers of migrants may reduce native support for immigration. When natives are allowed to make up their minds about the pros and cons of immigration gradually, then there will be “natural” growth in support for increased immigration as people start to see the benefits and get over their preconceived ideas about disadvantages. (See also this).

You can of think of literally thousands of games like these: a new democracy transitioning from a violent authoritarian regime has to decide how much forgiveness and unpunished injustice it can afford, and how much justice and discontent among the ranks of the old regime it can afford; Ukraine and the international community have to decide if they can afford to give up the Crimea and risk further annexations by an emboldened Russia, or if they can afford to push back and risk conflict with Russia. The list of cases can go on and on.

The interesting question is this: which general lessons for human rights promotion can we take away from this? Apart from the obvious and rather boring lessons that game theory taught us long ago – try to understand unintended consequences, take into account your opponent’s incentives, anticipate his moves etc. – there’s the lesson about multiple equilibria. Zero border restrictions will tend to move towards an equilibrium of high restrictions because tribal fears will create a backlash. These tribal fears will perhaps only be swayed by a learning curve based on and made possible by gradualism. But very strict migration restrictions will also make this learning curve impossible since very few migrants will come and people will not get the opportunity to revise their prejudices about immigration. Immigration restrictions are therefore a self-fulfilling prophecy. The best equilibrium seems to be the gradual expansion of freedom of movement.

Something very similar is the case for transitional justice. A strong focus on prosecution of the old guard will – like instant open borders – can create a backlash among the often numerous supporters and collaborators of the old regime. This backlash may undermine the new democracy and lead to a restoration of the pre-democratic equilibrium. The opposite strategy, no attention to transitional justice at all, may also undermine the new regime as the victims of the old regime will have no reason to give support to the new one. Gradual prosecution of the top cadre of the old regime, combined with truth commissions, atonement and forgiveness looks likely to provide a stable “learning curve” for the new democracy.

And you can write your own paragraphs about cases like violent protest, the Crimea etc. The stories will all be quite similar. Human rights promoters should in general think harder about the expected equilibrium of their actions. The lesson is probably that among different possible strategies the gradual one wins from the all or nothing approach because the equilibrium that results from all or nothing tends to be nothing (also in the case of oppressors by the way). Gradualism of course doesn’t preclude ambitious long term goals.

More on game theory and rights here and here. More posts in this series are here.

The Causes of Human Rights Violations (57): Some Clues From the Broken Windows Theory?

The Broken Windows Theory (henceforth BWT) was first described by James Q. Wilson and George L. Kelling in a 1982 article. The idea is that social disorder – exemplified by a neighborhood where many windows are broken – fosters crime. Disorder sets certain destructive norms and signals that those norms are OK. Broken windows, even a few, that are left unfixed will soon come to represent a lack of accountability and judicial redress. Unrepaired broken windows are a signal that no one cares, and so breaking more windows costs nothing. Hence people will not refrain from breaking more and you’ll have a vicious cycle of disorder. This is a kind of lawlessness that will eventually also lead to bigger crimes.

If, on the other hand, a part of town is well-maintained, people will be less likely to engage in acts of vandalism there because they know that they will be held accountable if they do. The same is true for other types of antisocial behavior such as littering. Throw one thing away in a clean environment, and you’ll have the police at your door. Throw something on an existing pile and you’ll feel better.

The BWT can perhaps explain certain human rights violations. I see two ways in which it can: it explains crime, and most crimes are human rights violations; and perhaps the same broken window logic applies to human rights violations themselves: one rights violation that goes unpunished may start a sequence of impunity and repeated violations.

However, this means assuming that the BWT is more than just a theory and can be supported by facts. There’s some controversy as to whether it can be.

NB: Wilson’s Broken Window theory should not be confused with Bastiat’s theory.

More posts in this series are here.

The Ethics of Human Rights (88): Justice and Proportionality

The notion of proportionality is central to many theories of justice:

  • the criminal should receive punishment that is proportional to the crime;
  • in war and law enforcement, the army or the police should not use disproportionate amounts of force;
  • people’s economic rewards should be proportional to what they deserve and to the amounts of personal effort, skill or whatever you believe is a basis of desert;
  • the people’s representatives in democratic institutions should represent equal proportions of the population;
  • people should pay taxes in proportion to their income;
  • etc.

But why should “things” be proportional? Perhaps it’s some kind of esthetic ideal: a beautiful body is a proportional one; a tasty dish is one with the right proportions of ingredients. So maybe justice is merely about beauty and taste. The world is just if things are not out of proportion, because if they were that would insult our esthetic taste. The word “fair” in “fairness” – often a synonym for justice – also means beautiful.

But I find that hard to believe. People want justice for other reasons than a desire for beauty, and demands of proportionality are about something more than esthetics. But whatever the reasons, proportionality has it’s place in theories of justice, and it would be illusory to try and get rid of it. The notion seems deeply engrained in moral intuitions.

However, while we should in general accept that proportionality plays a role in justice, we should also criticize some uses of proportionality. It’s hard to deny that more serious crimes should be met with more serious punishments, but it’s equally hard to deny that there should be an upper limit to this (you can’t execute Hitler 6 million times) and that criminal punishment should also serve other goals than people’s desire to have things in proportion. Punishment is used in order to protect the public against the criminal, and if a non-proportional punishment serves this goal then maybe we shouldn’t insist on proportionality for proportionality’s sake.

It’s also possible to criticize the use of proportionality in discussions about economic rewards, redistribution, poverty relief etc. If you want to argue that people who are more deserving have a claim to more compensation – and that undeserving people should receive less or nothing – then you need a good account of desert. However, such an account is elusive if not outright impossible. Effort and skill may not be signs of desert but rather the product of undeserved genetic inheritance. Difficult to know, and very intrusive if you want to find out. Proportional distribution as a method of realizing an idea of justice based on desert depends on desert being a good basis of justice. If it isn’t, proportionality may lead to injustice rather than justice because it may leave the poor to starve.

There’s a third case in which proportionality can undermine justice instead of promoting it. Governments may want to limit certain rights because they believe that this is necessary for a public good such as protection against terrorism, in which case they often make claims about proportionality. The possible consequences of terrorism are supposedly so severe that limitations of people’s right to privacy or right not to be tortured are proportional responses, even if these limitations are far-reaching. You can’t lift a heavy rock with an elastic band. The tool should be proportional to the end you want to achieve, and a world without terrorism requires some heavy tools. But again, proportionality as a method to achieve justice – a just world is a world without terrorists killing innocent people – may achieve the opposite. The harm caused by limitations of rights is often greater than the harm of terrorism.

A final example of the way in which proportionality can lead us astray when thinking about justice. Many of us tend to believe that we owe more to those close to us and that justice is in the first instance something between members of the nation state. And it is indeed common to see concerns about human rights violations diminish in proportion to the distance between those who are concerned and those whose rights are violated. However, if ideas about closeness are overemphasized in thinking about justice – and they often are since patriotism, nationalism, racism and other forms of in-group bias are quite common – then proportionality will again cause injustice rather than justice.

The point of all this is not to criticize proportionality as such but the manner in which it is used. Proportionality is one method to achieve justice, and can, given some prerequisites, help us to achieve justice. You can’t fight terrorism with good will alone. You shouldn’t impose life sentences for traffic violations. And you shouldn’t give everyone equal economic rewards. But let’s not overemphasize one very peculiar method to achieve justice, a method moreover that is often based on shaky assumptions such as desert, the moral relevance of closeness or the effectiveness and necessity of certain policies.

More posts in this series are here.

What Are Human Rights? (51): Types of Rights

Even a cursory look at some of the more famous human rights treaties or declarations makes it clear that the different rights that are listed in them are often quite different from each other in the sense that they intend to do different things. Some rights give people freedoms. Other rights offer protection or certain benefits. Still other rights recognize a status. And some rights are more like goals.

An example of a freedom is speech or property. The rules against torture or slavery are protections. Education is a benefit. Rights of defendants in court are status rights. And work and a minimum standard of living are goal-rights.

In fact, it’s wrong to say that rights themselves do things such as giving people freedoms, protecting them or offering them benefits. It’s duty bearers, responding to their obligations, who make freedoms real when they abstain or forbear, who protect, who give certain benefits or assist people in achieving those benefits, who respect or recognize people’s status, and who work towards progressive realization of certain goals. These different types of obligations are implicit in the different types of rights – sometimes even explicit.

It’s important to make these distinctions between types of rights and types of duties because people need to understand their duties and what is expected of them. If the human right to have a certain minimum standard of living is understood as a protection rather than a goal, then a third world government failing to eradicate poverty and yet making as much progress as it can would be wrongly condemned as violating this right. Likewise it would be wrong to view the elimination of torture as a goal requiring progressive realization.

Of course, these distinctions aren’t as neat as I present them here. You can make the case that poverty reduction is not just a goal but also a freedom. Government abstention rather than goal centered intervention is sometimes a better means to fight poverty. The same is true for the right to work. And slavery is just as much a matter of status as something that people need to be protected against. And so on.

More on types of rights is here. More posts in this series are here.

Why Do We Need Human Rights? (42): Agency

A human being is an “agent” in the sense of a person able to act in the world. The words “agent”, “act” and “agency” all come from the Latin “agere”, “to set in motion, drive, lead, conduct etc.” Human agents have goals in life and pursue them through their purposeful actions.

Now, if a human being is an agent or has agency, then we should give her rights because we have to define the range of activities that she is allowed to engage in. We have to decide what she can do without obstruction and defend her against obstruction if necessary. Otherwise her agency will be largely ineffective. It’s constitutive of human beings to pursue goals and hence we owe it to them to create a framework in which they can reliably do so. Whether or not they actually realize their goals is another matter, dependent upon lots of things – circumstances, luck, resources, ambition etc. We can’t and shouldn’t promise people that they’ll get what they’re after, but making it impossible for them to try is a denial of their humanity. The point is that we can only make it possible for them to try if we give them rights. Of course, people without rights or people suffering rights violations can sometimes act purposefully. But they’ll always be precarious agents. A predictable and reliable form of agency depends on respect for rights.

This kind of justification of human rights is by definition a limited one. It isn’t complete. There are people who have no agency in the relevant sense of the word – for example babies or the severely handicapped – but who still have rights. So we’ll have to look for additional justifications, which is what I’ve tried to do in the other posts in this series.

The Ethics of Human Rights (87): General and Special Moral Obligations

People have two kinds of moral obligations:

  • Some of our duties are duties to all people. We have those duties simply because people are human beings. These are general moral duties that apply regardless of specific relationships.
  • Other duties are duties that we owe to a subset of people. These are special obligations we have to those with whom we have some sort of special relationship.

An example of the former are the duties generated by human rights or the duty not to lie; an example of the latter are our duties as parents, friends and citizens.

Both types of duties have a basis in moral intuition. Most of us believe that we should try to save a child drowning before our eyes, any drowning child, whatever our relationship or lack of relationship with it. But most of us would also allow a parent to save his own child first if it was drowning together with an unknown child and if he had to make a choice. Some special obligations are the same as general obligations, just with an added urgency (as in the case of the drowning child). Other special obligations are totally different from general obligations (we have a duty to raise our children, but we don’t have a similar duty towards the children of others, not even a less urgent duty).

This is all boilerplate. What’s interesting to me is the double nature of human rights duties. These are obviously general duties, but I do believe that in some cases we should prioritize the rights of those with whom we have a special relationship. Human rights create special duties in the sense of general duties that are more urgent in the case of some people. The right to life of our drowning children does indeed create a more urgent obligation than the right to life of the millions of extremely poor and starving children elsewhere in the world. Part of the explanation is that we often can do more to save our own child. We are normally close by, we know the risks and we know exactly what to do when things go wrong. The same isn’t always true in the case of distant strangers. Can implies ought. But that doesn’t really capture the essence of our special obligation, I think. It’s the relationship that generates the special duty, not just the fact that we can offer more immediate and effective help. After all, as Peter Singer has pointed out, immediate and effective help is sometimes also an option for distant strangers.

The problem is that special obligations tend to take over. There’s a lot of in-group bias and the rights of those close to us receive an overdose of attention, sometimes to the detriment of the rights of strangers (“strangers” not always in the literal sense of the word, because most fellow-citizens are literally strangers and yet they often enjoy more rights than foreign strangers). A lot of people only see special obligations and ignore general obligations.

Hence, it’s understandable and commendable that the focus in human rights talk is on the impersonal and general obligations that they yield. This focus, however, should not obscure the very real special obligations that also result from human rights. A lot of immediate good can be done when we admit that human rights create special obligations. There’s often a very tricky balancing act to perform here, but few of us admit it. Many tend to favor special obligations, while others react by speaking only of general obligations. Very rarely do we see people working through the difficulties of when to decide in favor of one or the other type of duty; for example, the difficulties of knowing when it is right to save your own child when you can save hundreds of distant children with the same amount of effort. When do we simply follow in-group bias, and when do we have a good reason to favor the in-group members? When are we real humanitarians and when are we heartlessly blind to the justified demands of those who are close to us? I think we should admit that the choice between partiality and impartiality is often a difficult one, and that those of us who systematically favor one or the other point of view are wrong most of the time.

More on partiality/impartiality here. More posts in this series are here.

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

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

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

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

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

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

The Causes of Human Rights Violations (56): The Weather, Ctd.

How does the weather affect people’s rights? In an older post I cited a study claiming that colder temperatures in pre-modern Europe made persecution of Jewish communities more likely. The economic hardship resulting from cold weather in agrarian societies is one possible cause of rights violations, but perhaps not a very relevant one in our post-industrial societies faced with the risk of global warming. A warmer climate can also have an effect on rights. First, higher temperatures may increase irritability, aggression and interpersonal violence resulting in small scale rights violations. Perhaps there’s an added risk that this type of violence escalates and becomes group violence or even war. Second, global warming may have devastating economic effects: drought may decimate crops or reduce the inhabitable surface of the earth, and these consequences of warming may in turn cause tensions between population groups, tensions which can become violent conflicts.

The first effect is well documented. For example,

hotter US cities still yield significantly higher violence rates than cooler cities, even after statistically controlling for 12 social risk factors, including age, education, race, and economic factors. (source)

Whether or not this can escalate and morph into larger scale conflicts is less clear. There is this study which found an

increase in conflict associated with increasing surface temperature in locations that are temperate or warm on average. … [C]limate’s influence on security persists in both historical and modern periods, is generalizable to populations around the globe, arises from climatic events that are both rapid and gradual, and influences numerous types of conflict that range across all spatial scales. The majority of studies suggest that conflict increases and social stability decreases when temperatures are hot and precipitation is extreme, but in situations where average temperature is already temperate, anomalously low temperatures may also undermine stability.

And then there’s also this:

for each one standard deviation change in climate toward warmer temperatures or more extreme rainfall, the median effect was a 14 percent increase in conflict between groups, and a 4 percent increase in conflict between individuals. (source)

If this is correct, future climate change may be truly apocalyptic if we don’t learn to adapt. How exactly higher temperatures cause conflict is unclear. The effect of heat on individual temper seems an unlikely explanation for large scale conflict. Perhaps the effect is indirect: heat may for example reduce economic output, which in turn may make conflict more likely. Perhaps drought causes conflicts over land, which in turn may map upon pre-existing ethnic tensions.

For a criticism of the cited studies, go here. Additional doubts regarding these findings come from this paper which found that cold could stir up as much trouble as heat. Generally speaking, colder periods force more people to stay inside more of the time. That’s due to both the cold and the fact that the cold usually comes with more hours of darkness. Hence there’s a lower risk of interpersonal conflict such as assault or robbery. Tempers are also generally subdued when it’s cold. However, prolonged spells of coldness can in theory have similar economic effects as heat and drought, as is shown by the study of anti-Semitism in pre-modern Europe cited above.

It seems that it’s too early to be certain about the effect of the weather on rights violations. If there’s an effect, it’s not large enough to be immediately obvious, as is the case for other effects such as tyranny, poverty and war.

More posts in this series are here. More on the link between rights and environmental concerns is here.

The Ethics of Human Rights (85): What is Tolerance?

Tolerance is another word for respect for human rights. You are tolerant when you’re confronted with people who exercise their rights in a way you don’t like and when you nevertheless allow or permit them to exercise their rights. The word “permit” implies that you could intervene with people exercising their rights if you wanted to – that, in other words, intervention is an option that is relatively costless to yourself and that is likely to succeed – but you refrain from intervention anyway. You are tolerant when you let people exercise their rights, not because you fear that intervention is costly or futile, but because you choose to let them exercise their rights.

That is also why tolerance of human rights violations is impossible and why tolerance is limited. We should tolerate people who exercise their rights but not those who violate the rights of others, and neither should we tolerate those who violate the rights of others while exercising their own rights. If tolerance is respect for human rights then tolerance of rights violations is by definition impossible. Hence, it’s more correct to say that tolerance is respect for human rights as long as those rights do not lead to violations of the rights of others.

People often view tolerance as no more than a convenient way to keep the peace, to co-exist with others and to avoid the possibly very high costs of trying to change the behavior or the beliefs of others. Making other people more like us would perhaps be better but it’s dangerous, especially if it requires the use of force. And when it does, it’s not just dangerous but also futile: forcing people to believe the right thing is impossible (correct beliefs come voluntarily from the inside). Hence the common view that tolerance is a fallback option when better things are impossible or too dangerous. When you can’t force people to change or when it’s too dangerous to try to change them, you have no choice but to tolerate them. Tolerance becomes a necessary evil.

However we could also view tolerance as an active and positive disposition rather than a passive declaration of defeat when faced with danger or an impossible goal. It can be seen as an active kind of respect for the rights of others. We are not really tolerant when we passively respect the rights of others simply because we have to, because violating those rights would be dangerous or because we can’t bring about the desired result anyway. We are tolerant when we actively choose to respect the rights of others even if we could easily and costlessly violate them. When you’re forced to be tolerant, when you have no better option and when you haven’t chosen to be tolerant you can hardly be called tolerant. In other words, tolerant people are those who believe they have a good reason to violate the rights of others (for example because they view other people’s exercise of their rights as immoral) but who decide not to violate them anyway for the simple reason that they don’t want to violate them. People who don’t violate the rights of the intolerable because they have no choice, because the risks are too great or because they can’t achieve what they want are not really tolerant.

What Are Human Rights? (50): Rights and Roles

Before rights became human rights they were privileges: in feudal times, certain professions had certain rights, towns had rights, social classes had rights etc. Often only members of a so-called “guild” had a right to trade or to engage in a profession. The simple fact of being born into the aristocracy gave the members of that class rights that no one else had or could have.

When the development of the capitalist economy made it more likely that people born in one class, profession or town ended up in another one, it became more practical and wise to claim rights as human beings rather than rights as an aristocrat, a Venetian or a member of the wood worker guild. If a revolution were to destroy your status as a Lord or if an economic crisis were to force you to move to another town and enter another profession, at least you would still have your human rights.

A remnant of this is still visible in human rights as they are today. Although all human rights are explicitly the rights of all human beings, some rights at least are rights of human beings engaging in certain social roles and are unintelligible outside the context of those social roles. The right to political participation is a right of human beings as citizens and doesn’t make sense if you haven’t first made sense of the role of citizenship. The right to work, the right to a decent wage, the right to a certain standard of living and the right to unemployment benefits are rights of people as workers. The right to marry is a right of human beings as family members. The difference with the “rights as privileges” of before is that all human beings are free to engage in all roles if they want to.

More posts in this series are here.

Why Do We Need Human Rights? (41): Our Interests or Our Autonomy?

Two competing answers to a fundamental question about rights are doing the rounds: why do we need rights anyway? There’s an interest theory of rights which gives one answer, and then there’s a will theory of rights which gives another, incompatible answer. (There are other theories but most of the discussion is between these two). Very, very simplistically, the answers are these:

  • Will theory (WT), otherwise known as choice theory, argues that the purpose of rights is to protect and foster individual autonomy. An individual who has rights is a small-scale sovereign. WT attempts to establish the validity of human rights based on the unique human capacity for freedom. Rights help to protect and realize this capacity. This implies that the rights holder has the moral power to waive or annul his or her rights. All rights are derived from the essential right of all human beings to be free.
  • Interest theory (IT) argues that the principal function of human rights is to protect and promote certain essential human interests. This is another way of saying that rights protect what is beneficial to individuals:

Necessary though insufficient for the holding of a legal right by X is that the duty correlative to the right, when actual, normatively protects some aspect of X’s situation that on balance is typically beneficial for a being like X. (source)

Both theories have appealing and somewhat less appealing features. One appealing aspect of WT is that it wants to offer equal freedom to all. People want things, face choices – good and bad – and need opportunities to do things. Rights offer the ability to make preferred choices and provide the opportunities to do things. The understanding that most rights are alienable is also positive, in my view.

However, more problematic – and some say fatal – is the fact that WT rules out the holding of rights by animals, dead people, future persons, infants, comatose people, severely mentally disabled people, senile people and fetuses. In WT, people only have rights when they are competent to claim rights, and members of the cited groups can’t typically claim rights. If they don’t have rights, we can do whatever we want to them. Not a good conclusion.

Personally, I think the most appealing feature of IT is that it more or less corresponds to my own value theory of rights (which I argued for here). Also not to be frowned upon is the fact that IT avoids the problem of the rights of non-autonomous beings.

One problem with IT is the vagueness of the term “interests”. What is an interest? Should it be the case that an individual understands an interest as an interest (in other words, should an interest be a felt interest)? Or is it enough that the interest is objectively a human interest? In the former case, IT replicates the problem of the comatose and others who can’t be said to understand their interests. In the latter case, we’ll quickly end up with paternalism and we’ll also have to enter the treacherous domain of human nature.

Another problem is that most versions of IT don’t define which specific interests we’re talking about, and which interests create rights. Consequently, IT also remains vague about the exact rights people have. In one sense, that may be positive. Rights have to evolve. But I think that the vagueness here is to be deplored.

Also, rights don’t only exist to benefit the rights holder. Your freedom of speech is in my interest as well (more on that here). Again, IT can’t deal with this very well.

To conclude, if we have to choose between IT and WT, I guess the problems faced by IT are less deep. The exclusion of large groups of beings in WT is very hard to solve. Compared to that, one can at least see some possible solutions to the problems raised by IT.

More posts in this series are here.

The Causes of Human Rights Violations (55): Bad Luck

To what extent does luck determine the level of realization of our human rights? We have our rights, whether we’re lucky or not, oppressed or not, free or not. The level at which we can actually enjoy those rights, on the other hand, is determined by lots of things: for example, the nature and actions of our government, the practices and beliefs of the culture that we inhabit, the state of the economy and also, it seems, the degree of good or back luck we have as individuals.

First and probably foremost: where we are born is a matter of luck, good or bad. Emigration is sometimes an option. Citizens of poor countries and subjects of oppressive states – those are often the same people – are not, or usually not, prisoners of their countries. However, emigration does imply a cost and entry rights in better countries aren’t unlimited. The bad luck of being born in and being stuck in a dictatorship obviously has a general and continuous impact on the rights of most subjects of the dictator. But luck also plays a role in the degree of this impact. Dictators are known for their random behavior, and some subjects may have the additional bad luck of receiving some special governmental attention. However, if you’re unfortunate enough to be born or stuck in the wrong place, you’re suffering from a decidedly man-made type of bad luck. If people gave each other freedom of movement and stopped oppressing each other, place of birth would no longer be a matter of luck.

When we are born is arguable just as important as where we are born. Life in the Middle Ages was in many respects of inferior quality compared to life today, and inferior quality often meant rights violations. One can also wonder to what extent our behavior today will impact the rights of future generations. A different time of birth can make the difference between good and bad luck. But again, this is a man-made difference.

Disability is to some extent a matter of bad luck, whether it is inborn or acquired disability. And disability has an impact on a lot of human rights. However, it’s wrong to view disability as only a matter of bad luck; the way in which we organize society determines what counts as a disability. A society that has decided to communicate principally through written language makes blindness a much bigger problem than a society based on oral communication. As in the previous examples, if disability is bad luck, it’s to a large extent man-made bad luck.

It seems that poverty as well is due to bad luck, at least in some cases. Bad luck can make you poor, and not just because it means being born in a poor country. If you happen to be black, ugly or obese, you have a much higher risk of being poor. Skin color, appearance and in some cases obesity are, unfortunately, instances of bad luck given some widespread opinions on the proper way to treat black, ugly or obese people. Poverty itself is a human rights violation, but it also has a negative impact on other human rights, such as the right to education, the right to health etc. However, as in the case of disability, appearance and skin color are not in themselves causes of bad luck; the way society is organized turns them into causes of bad luck.

More speculative: our genes are obviously also a matter of luck. If it would turn out that our genes determine whether or not we’re suicidal, criminal or self-destructive in other manners, then that would explain a lot of rights violations and unrealized rights.

More posts is this series are here.

Self-Defeating Human Rights Policies (9): Child Labor Legislation

According to a famous model by Kaushik Basu, if governments ban child labor but fail to enforce those bans – governments in countries where child labor is prevalent often have weak law enforcement in general – then they create the wrong incentives for employers and for the families of child laborers. Employers react by continuing the practice of child labor because they can often get away with it, but at the same time they lower the wages of child workers because they except to get caught at some point and be fined. They anticipate and compensate these fines by lowering wages. (Children usually don’t have the power to resist wage reductions). The families of the children in turn react by forcing more of their children to work as a way to compensate for the lost income. There’s some evidence here that this effect does indeed occur.

Perhaps we should kick the habit of relying only and automatically on legislation in order to enforce human rights. This may be a good strategy in countries that have well-functioning enforcement systems, but in developing countries it may do more harm than good. (Perhaps this is a symptom of the much criticized shortsightedness of western international development efforts). After all, it’s not as if there aren’t any nonlegislative means to promote human rights.

Here‘s another example of human rights legislation that actually leads to diminished respect for human rights. More on the difficult relationship between human rights and the law is here. More posts in this series are here.

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

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

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

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

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

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

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

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

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

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

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

Human Rights Promotion (18): To What Extent Can We Count on the Free Market?

Why not use the free market to promote human rights? The free market – or the market for short – is the name of the institution, protected by government rules, which allows individual or collective agents such as firms to freely exchange goods and services. Agents exchange things in the market for self-interested reasons and they tend to use money as the medium of exchange, but that doesn’t mean we’ll only see greed and accumulation of wealth resulting from the operation of the market. I’ll show that we can, to some extent, count on the market to further the cause of human rights.

But let’s start by complicating things a bit:

  • The market can either benefit or harm human rights.
  • And human rights can either benefit or harm the operations of the market.

Hence, the relationship between market and rights is difficult, to say the least. Here are a few examples:

Some human rights are a direct benefit to the market. Take for example the right to private property. This is a human right and it’s one that is generally conceived to be essential for the efficient operation of a market (some even argue that this right justifies free markets, but I want to sidestep issues of justification here and focus on consequences). You can construct a similar argument in the case of other rights such as the right to free movement, to assembly etc. At other times, however, human rights can hinder the market: privacy is a human right but privacy can cause asymmetrical information which in turn causes market dysfunctions.

Markets can have a similar two-sided effect on human rights. Conventional wisdom says that the market is the institution that delivers the highest possible level of prosperity, compared to other ways of organizing the economy. Higher prosperity may benefit certain specific human rights such as the right not to suffer poverty, the right to work etc. This benefit may occur because additional wealth “trickles down” or because additional wealth means additional redistribution. In general, it’s the case that rights cost money, so increased prosperity should, all else being equal, lead to increased rights protection across the board.

A more indirect way in which the market benefits rights is through it’s focus on individualism: the market – as opposed to a centrally planned economy – allows individuals to choose when and what to trade. Individual freedom is also at the heart of human rights. Some have also argued that the rational self-interest that is typical of people engaging in market transactions counters some dangerous and often violent passions such as xenophobia, nationalism and racism. If people trade with one another, they may become more tolerant of one another, if only because trade requires contact, respect, trust and peace. Tolerance and peace are of course also beneficial to human rights. And, finally, both the market and human rights requires the rule of law. If markets foster the rule of law, then that will benefit rights as well.

However, other aspects of markets can harm human rights. A strict interpretation of property rights – something we often hear from defenders of the market – may make redistribution difficult if not impossible, and some rights depend sometimes on redistribution. Think again of the right not to suffer poverty. More generally, markets can have two types of effects that may harm human rights indirectly:

  • Markets tend to “colonize” areas of life where an exchange of things for money is perhaps not the best way to proceed. Some goods can only be valued when they are shared rather than exchanged (e.g. art). In other cases, exchanging goods can destroy their value (e.g. political votes), just as pricing goods can destroy their value (e.g. gifts). I can also mention some types of commodification of the body such as prostitution or organ trade. While commodification of the body is not necessarily a rights violation in itself, it does devalue the dignity of human life. People are treated as means rather than ends, and a devaluation of human beings makes human rights violations more likely.
  • In some sense, this instrumentalization of the other is inherent in all market transactions, not just those in which bodies or body parts are traded. Market transactions are by definition self-interested and impersonal. We only buy or sell when that makes us better off and we don’t need to get to know our buyers or sellers. We use them simply to satisfy our needs. While self-interest and lack of personal relationships in one area of life do not necessarily harm relationships, communities, caring and common deliberation on the public interest in other areas, they can do so when markets “colonize” those other areas.

And, finally, there’s the risk of exploitation in market transactions, which I have discussed here.

I’m more interested in the effects of the market on human rights than in the effects of human rights on the market. Human rights are the ultimate good, and markets are generally a means (at best, markets are one form of exercise of certain human rights). Since the effects of the market on rights can go either way, the question becomes one of limits. If the market harms human rights, or if it expands into areas where market-transactions can indirectly harm human rights, then we have good reasons to limit the operations of the market. However, when doing so we must take care not to go too far and undo the positive effects of markets.

These limitations don’t always have to be of a legal nature. A good public education system can create a culture that helps to keep markets in their place. Governments can acquire art collections and thus remove them from the market. Or they can promote organ donation in various ways (e.g. reciprocity and presumed consent) so that organ shortages don’t force people into markets (legal or illegal markets). Welfare can help poor people avoid exploitative market transactions. And so on. However, legislation is often unavoidable if we want to protect rights against the market.

More posts in this series are here.

What Are Human Rights? (49): Universal Rights

Human rights are universal rights, rights that all human beings have for no other reason than being human. That’s almost a tautological statement, and one which has been repeated millions of times. Universality is implicit in the name. This sets human rights apart from other types of rights, such as legal rights which only matter to those subject to the particular jurisdiction in which these legal rights apply, or contract rights which apply only to the people bound by a particular contract.

Despite this definition of human rights, their universality is often contested. Does a person with Down Syndrome have the right to work? Does a newborn baby have the right to free speech? Does a criminal have a right to freedom of movement? Do all potential immigrants have a right to unemployment benefits? Does a terrorist who can order his colleagues to stop torturing three other people have the right not to be tortured? Questions like these are often rhetorical: the unstated but understood answer is “of course not”. People who ask these questions perhaps do so because they want to deny the universality of human rights, and this denial in turn may come in handy when they try to justify violating the rights of some.

There’s in fact an easy answer to this apparent paradox. The universality of human rights is, like human rights themselves not a fact but an aspiration. We have to work to make it a fact, all the time knowing that we’ll probably never get there. We have to work to improve people’s capacities so that they can more fully enjoy their rights. In the case of the disabled, we should recognize that disability, rather than an inborn or acquired lack of capacity, is in fact – in part at least – a capacity that is reduced as a result of the way in which we have chosen to organize society. In the case of criminals, we tend to assume rather too quickly that criminal punishment necessarily involves restrictions of people freedom of movement. And so on. None of the rhetorical questions cited above strikes a fatal blow to the ideal of universality.

More on universality is here. More posts in this series are here.

Religion and Human Rights (34): What Happens When You Want to Make Politics and the World More Religious?

You’ve probably guessed from the title where this post is heading, so in order to avoid the obvious misunderstandings I’ll reiterate my basic position on the role of religion in contemporary society: I’m an agnostic, but I fully understand the importance of religion for religious people; I believe that part of the function of human rights is to protect those people, and that another part of that function is to protect the rest of us against them; yet I don’t believe some of the overblown but unfortunately very fashionable statements about the extent of the religious threat to society; and neither do I believe that principles such as the separation of church and state imply religion should have no voice at all in democratic politics.

So, now that this is out of the way, let me try to answer the question in the title. The answer will be predictable, but perhaps also somewhat illuminating in the details.

In modern-day democracies, rulers no longer claim a divine right to rule and most of them admit that they don’t have the authority to further the cause of God on earth by violent and coercive means. They can speak and persuade, but wars against against foreign sinners and oppression of domestic heretics is not done. However, the word “most” does a lot of work here. Many democratic politicians, backed by their religious supporters, still try to shape politics and the law according to religion and try to use those earthly powers as means to make the world more religious. That’s fully consistent with the universalist claims inherent in their religious beliefs: their God isn’t just their God but the God of all humanity, and all of humanity has a duty to obey the word of God. If this obedience can be promoted through the use of politics and the law, then religious citizens have a religious duty to try. Their attempts typically follow a number of steps:

1. Demand religious freedom

They start of from the very reasonable claim that they themselves have a right to live their own lives according to their religious faith, unmolested by the state or by other citizens. The first of their religious duties is to obey the word of God themselves, and they should be allowed by the state and the law to do so. That is indeed their human right and they are entirely justified in using politics and the law to protect that right.

2. Demand religious exemptions

However, some religious people interpret this right to religious freedom in a rather loose way. For example, they see this right not merely as a means to fend off anti-religious and hostile legislation or other forms of state action intentionally interfering with their religion (or hostile private action for that matter). They see their right to religious liberty also as a right to disrespect general and non-religiously motivated legislation which they believe violates the word of God.

For example, a law imposing a military draft may be seen as illegitimate by the adherents of a pacifist religion, and a law requiring the use of crash helmets should not be forced upon the followers of a religion that demands the wearing of turbans. Hence, religious people often demand that they should be exempted from the application of certain laws – or at least their right to conscientious objection should be respected – when they view those laws as being against the word of God.

I’ve argued elsewhere that such exemptions – which take us one step further than simple religious liberty – can be justified in some cases, but that we should be careful not to undermine the rule of law.

3. Demand religious laws

Some want to go even further than that. From the point of view of a religious person, the two previous demands on politics and the law were strictly self-regarding: religious people should be allowed to live their own lives according to their own beliefs. However, as I stated above, religion is hardly ever purely self-regarding. Most religious people feel a strong urge to work for the salvation of their fellow human beings. Hence, instead of demanding personal exemptions from laws that inadvertently violate the requirements of their religion, some religious people want to abolish the laws in question and replace them with laws that better promote those requirements.

If we take the same example as above, they may want to abolish the law imposing a military draft, rather than just asking for a personal exemption. Their religion requires not just that they personally refrain from violence, but that humanity does so as well. Hence they would like to end the military altogether rather than just their personal participation in it.

Or take the more salient example of laws permitting same-sex marriages. Many religious citizens claim a right to abolish such laws. Their religion doesn’t permit what these laws permit. And even if they have received a personal exemption so that the laws don’t force them to act against their religion (same-sex marriage laws don’t force people into a same-sex marriage, nor do they force people to validate and recognize the same-sex marriages of others), laws such as these do make it possible for other people to act against the word of God. Hence, some religious people want the abolition of such laws, thereby saving people in the eyes of God. However, the implication is that people’s rights are violated by the religiously inspired removal of laws that guaranteed people’s rights. Maybe religious people want to claim that this is the price to pay for the preservation of their right to religious liberty, but I fail to see how people’s religious liberty is violated by the self-regarding actions of others. (More on the relationship between religious liberty and same-sex marriage is here).

4. Demand religious laws that violate human rights

Now, it’s perfectly OK for religious people to try to move the law in a certain direction, just as it is OK for other people to try to move the law in their preferred direction. I don’t buy the theory that says that in a diverse and tolerant modern democracy religious people should refrain from using religious reasons for legislation or the reform of legislation (sometimes called the Doctrine of Religious Restraint). Religious people are allowed to work against what they see as anti-religious laws and also to promote religiously inspired laws, on the condition that the laws we end up with have managed to convince a majority and do not violate the rights of others (see here for a detailed version of this argument).

For example, a law abolishing the draft or the military could be a religiously inspired law (although it can simultaneously be inspired by secular reasons), but it could also be acceptable when it’s clear that it doesn’t violate anyone’s human rights, e.g. assuming there is no military or terrorist threat. When there is such a threat the law could lead to rights violations and hence should be resisted. Things are clearer in the case of a religiously inspired law outlawing same-sex-marriage. Such a law should always be resisted since people have a human right to get married. The same is true for blasphemy laws and a whole range of other religiously inspired laws.

The efforts by religious people to make politics, the law and the world more religious go too far when those efforts include legislation

  1. that makes non-religious people or people adhering to another religion live according to the precepts of the legislator’s religion, and
  2. that violates the human rights of some.

Those efforts are understandable from the point of view of the religious legislators, since their religion requires them to work for the salvation of everyone, but they are not acceptable.

5. The ultimate step

So there’s an increasing intensity in the demands to make politics, the law and the world more religious: the law should not intervene with religion; then the law should be more considerate of religion and provide exemptions; then it should promote religion; and then it should promote religion even if that means violating the human rights of some. If, however, there is something blocking this increasingly intensive intervention and the law and politics do not cooperate sufficiently, some religious people will take matters into their own hands. After all, one can’t accept that the word of God is trumped by an anti-religious democratic majority or by a religious law that isn’t sufficiently respected. Direct action to make the world more religious is then required. You may then see someone attacking a Danish cartoonist for being blasphemous. Or someone else killing abortion doctors. Fortunately, very few religious people go all the way, which is the reason for the optimism I expressed at the beginning of this post.

Should we conclude from this that it’s best to keep religion as far away as possible from politics and the law? I don’t think so. As long as religious people respect human rights they can do as they please. Given the importance of religion to many of us, it’s illusory in the best case and counterproductive in the worst case to try to artificially ban religion from politics and the law.

Other posts in this series are here.

The Extent of Private Property Rights

In some ways, a right to private property is similar to a right to privacy: a private property right is a right to control access to certain goods that you – as an individual or as a group of individuals – mark as “yours”, and access is of course also fundamental to privacy rights. Stated differently, a private property right is a right to make independent decisions about your goods (sell, keep, use, destroy, consume or transfer as you please) and to exclude interference with those decisions by other would-be users of those goods. If others attempt, without your permission, to use, transfer or modify goods that are “yours”, your right to property gives you the power to repel this kind of interference, with the help of the state as the enforcer of social rules (we don’t want people to rely on their own strength to enforce their property rights, because we don’t want to jeopardize security rights such as physical integrity).

Access control and the power to exclude are central to both property and privacy rights. One could even make the case that private property rights are a subset of privacy rights (no privacy without your own house for example). This link is probably why in the modern capitalist economy the words “property” and “private property” are usually synonymous. There are of course other types of property but, rightly or wrongly, those have lower status in modern economies. Interestingly, although other types of property such as common or collective property have their own logic and problems, issues of access, control and exclusion may also be relevant to them, as is evident from the “tragedy of the commons“.

Let’s leave the relative status of different kinds of property to the side for now, and focus on private property. There are two major problems with the claim that people generally have a right to private property: why is it a good thing to have private property over certain goods, and which goods can you claim as “yours”.

Possible and reasonable answers to the first question include:

  • “private property is necessary for privacy or some other value”
  • “it’s necessary for production, commerce, exchange and hence prosperity”
  • “it encourages responsible use of resources”
  • etc.

Possible answers to the second question:

  • “first come, first take” (so-called first occupancy theory)
  • “all existing distributions of property are just”
  • “take but leave enough for others” (Lockean proviso)
  • “equal shares”
  • “goods to which you have added value by way of your labor”
  • “none”, meaning there can only be common ownership, collective ownership or some other none-private form of property
  • plus a load of other possible answers.

However, let’s also leave these questions to the side for a moment. What I do want to look at now is the extent of property rights. A right to exclude others from the use of your property or a right to decide to use that property in a certain manner, may, in some cases, leave others worse off, or may even lead to their death. In general, and depending on the strength of the arguments in favor of private property (see above), you have a right to private property even if others have a greater need for the resources you own. If the needs of others would always trump property rights, then those rights wouldn’t be rights at all. It’s only when some threshold level of need is reached that the needs of others should be allowed to trump your right. Your right to property should not result in the physical suffering or death of others. Especially in the case of scarce and necessary goods, we need limits on the extent of property rights, even though property rights may perhaps only make sense when we’re dealing with such goods (why limit access to goods that aren’t scarce or necessary?). These limits are justified because we’re dealing here with a conflict of rights: property rights versus the right to life or the right not to suffer extreme poverty. As in all cases of conflicting rights, there needs to be a trade-off, and the one I’m defending here seems reasonable.

Hence, a justification of private property should never be limited to arguments about the benefits of private property but should instead find its place in a justification of rights in general, including the rights of those who are excluded, by the property rights of others, from the use of scarce and necessary resources. And any justification of rights in general needs to address possible conflicts between rights.

Access control and the power to decide and exclude are inherent in the right to private property but are not absolute powers. In this respect, the right to property is not much different from other human rights. As a society, we have to balance each and everyone’s property rights with each and everyone’s other rights, and individuals can’t demand that the state enforces their property rights – or that they themselves can enforce their property rights – when we all, as a society, have decided that in a particular case the balancing of rights has resulted in a priority of non-property rights.

Why Do We Need Human Rights? (40): On the Relative Unimportance of the Notion of Human Dignity

The word “dignity” features prominently in most human rights treaties and declarations. For example, the Vienna Declaration of the 1993 World Human Rights Conference affirms that “all human rights derive from the dignity and worth inherent in the human person”.

I don’t buy it. Human rights derive from human values. We need rights, not to protect our dignity, but to realize our values. I subscribe to a value-based approach to human rights. I can’t and won’t explain this approach here – you can read this older post if you want – because what I want to do now is simply argue against dignity as a basis or justification of human rights. In fact, that sounds a bit too extreme: dignity can be a basis, at least of some human rights, but it’s not the one I prefer. It’s my view that there really is no analytical or practical need for the concept of dignity in the field of human rights.

Of course, if someone decides that he or she wants to believe in human rights because of an affection for the notion of dignity, why not. In the end, what we want is full protection of all human rights, and the things that produce this protection are of secondary importance. However, I’m convinced that progress towards that end is more likely when we focus on values rather than dignity. Dignity, compared to values, is an extremely vague and contradictory notion, one that has many meanings, few of which are practically useful in grounding or justifying human rights.

1.

Let’s start with the word’s inherent contradictions. Dignity implies both radical inequality and radical equality. Originally, inequality was central to the notion. Dignity was, and to some extent still is, the state or quality of being worthy of honor or respect, or better of a certain amount of honor or respect. Some people deserve respect due to their status, standing, position or function. For example, respecting the dignity of the queen means honoring her as a person having her function. A “dignitary” is defined as a person who has a high rank or an important position. A head of state or a government respects the dignity of foreign emissaries by giving them the proper privileges. All these and many other uses of the word “dignity” reveal the inequality that the word is intended to convey.

Another use of the word shows that it is about inequality not only of people but of things as well: “I will not dignify your question with an answer” means that your question is so silly and so far below an adequate level of quality that my answering it would give it more respect than it deserves.

On the other hand, dignity also has a radical egalitarian meaning. This is a relatively recent development. There is, it seems, something like human dignity, a dignity all humans share regardless of rank and position. This comes across in certain recent uses of the word. People are said to behave in an undignified manner when they fail to show sufficient self-respect: for example, a person who is about to be executed for a grave crime and who has be to dragged kicking and screaming to the gallows. Such a person certainly does not have a high rank or status and yet is still seen as behaving in an undignified manner. Why? Because that’s not how humans should behave. Humans should show self-respect.

People can also treat each other in an undignified manner: keeping a patient in a persistent vegetative state alive against her will and against hope is often described as undignified; the same is true for a failure to give someone a proper burial. “Aging with dignity” means being old and at the same time able to continue to perform normal human functions.

All these modern uses of the word “dignity” convey equality, and more specifically an equality based on a certain understanding of humanity, of what it means to be human. Being treated with dignity means being treated in a human and non-degrading way, in a way that respects our common humanity, and in a way that all humans deserve.

Perhaps we have to thank democracy for this egalitarian turn in our understanding of dignity. Democracy offers all people the dignified prerogatives of kings. Jeremy Waldron has famously argued that the notion of human dignity comes from the democratization of the high social status once reserved for the well-born. There has been a “leveling up”: all of us deserve the same respect that was once reserved for high status people. We are all “dignitaries” now. Human dignity, as opposed to old-fashioned dignity, is considered to be “inherent” rather than given by class or status, by ritual, coronation, anointment, dress, office etc. However, while this egalitarian turn is to be commended, it looks like we have arrived at a point where dignity is no longer different from equality. It’s another word for the same thing. In what way is being treated with dignity different from being treated equally? Hard to say.

Another problem is that the two meanings of the word “dignity” – the egalitarian and the inegalitarian one – continue to exist side by side. This is confusing and it can lead to the idea that some people, on account of their actions, are no longer dignified or have lost their dignity and self-respect and hence no longer deserve their human rights.

2.

On to the matter of the practical utility of the notion of dignity. To what extent can the word be used to justify specific human rights and denounce specific human rights violations? If we understand dignity as the preciousness of each human individual then we are not allowed to treat humans in a degrading way or in a way that diminishes their humanity. Torture would be a clear case of degrading treatment in this sense. Hence, a right not to be tortured would receive strong support from the notion of dignity. A similar reasoning is perhaps possible for certain other human rights such as the right not to be enslaved and the right not to suffer poverty. A slave or a poor person can be said to be have lost his or her dignity.

But how do violations of someone’s freedom of speech violate his or her dignity? Or someone’s right to associate and assemble on the town square? That’s not clear at all. Dignity, it seems, is of limited use in the justification of human rights. Perhaps one can make the case that dignity requires respect for autonomy, and free speech protects autonomy (see the argument here). But why not focus directly on autonomy? What is the value-added of dignity here? Looks like a detour. If anything, dignity is important because autonomy is, not vice versa. More generally, it’s entirely possible to defend the claim that people have dignity because they are rights bearers (or, somewhat less ambitious, that they have dignity because they are autonomous persons able to make rights claims). That they have rights because they have dignity may be the wrong way around.

In any case, the sweeping claim that “all human rights derive from the dignity and worth inherent in the human person” seems to be untrue. Sometimes we can say that dignity requires a certain human right but more often than not dignity does not tell us anything useful. Given that there are many better reasons to promote human rights, including those rights that can if necessary be based on dignity, I fail to see the strategic advantages of focusing on dignity. Sure, if dignity can justify some but not other human rights, we should not dismiss it. Everything that helps is welcome. However, I have the feeling that dignity is often used as the ultimate and deepest ground for all human rights. And that is plainly wrong. Our common human values are the ultimate and deepest ground for human rights.

3.

A third problem with human dignity is its religious origins. If old-fashioned dignity comes from rank, position and function, then where does human dignity come from? What’s so special about human beings? Why do we deserve a certain treatment? Many would say that dignity comes from God. Because human beings are created in the image of God they have a certain value that needs to be respected if God is to be respected. However, the religious origins of the notion of dignity may make it unappealing to non-believers or adherents of non-Judeo-Christian religions.

Of course, it’s possible to generate a plausible non-religious account of dignity. I mentioned autonomy a moment ago. Kant had an interesting view based on the idea that using people as means is an affront to their dignity. I’ve appealed to this view in the context of capital punishment and yet I’m not convinced that it is really necessary as a ground for human rights in general.

More posts in this series are here.

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

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

1.

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

2.

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

3.

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

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

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

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

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

More posts in this series are here.

Human Rights Promotion (17): Human Rights For All? Nobody Has the Slightest Idea How

I’ve noticed this a number of times: human rights defenders’ passionate commitment to the cause isn’t matched by a concomitant knowledge of the best means available to promote the cause. In fact, no one has a f***ing clue and there’s a lot of groping in the dark.

For example, human rights activism frequently takes the legal route: vote laws, enact constitutions, sign treaties and let the courts do their work. That’s quite understandable in theory. If you want to force people, the law is often the right way to go. However, we see that the effect of human rights law on the acts of rights violators is usually very limited, if not counterproductive. This should be obvious when you understand that some of the worst rights violators are tyrannical states which have no interest in the rule of law. Enacting laws when there’s no rule of law is transparently futile (with one caveat: law can create its own culture). Even legislation in countries that do respect the rule of law is often ineffective. Case in point: there is now something called the New Jim Crow in the US right.

There’s also a lot of talk about education. If only we could educate people about human rights then the next generations would be better off. It’s a similar problem: education can only be successful in a wider environment that is stable and well willing. The invocation of appeals to honor (Appiah style) and storytelling (Rorty style) have a whiff of desperation about them. And I guess I don’t have to discuss the effectiveness of the UN Human Rights Council, economic boycotts, sanctions or diplomacy (although it does seem as if sanctions had a small positive effect in Apartheid South Africa).

Given this lack of understanding about the effectiveness of human rights promotion, it’s quite surprising that there is progress at all, and somewhat less surprising that most progress is a surprise. Poverty has sharply declined, but a lot of the decline is despite intentional efforts rather than because of them (development aid doesn’t seem to do the trick according to Easterly). Communism has disappeared, and although there are many who want to take the credit, it’s better to admit that 1989 took all of us by surprise.

So, some of the progress we see is unintentional in the sense that we intend it to happen and yet it happens despite of our intentional actions. That’s good as far as it goes: better to have unintentional progress than no progress at all. But of course it would be even better if our intentional actions were successful and if things happen because of our actions rather than in spite of them, if only because then we would be able to be more intentionally effective in the future.

It would also be better if some of our intentional efforts would stop making things worse: the US wages a war on terror but only seems to make it worse, in at least these two manners: first, the war on terror creates resentment which in turn becomes a breeding ground for future terrorists; and second, it has become increasingly clear that the war on terror leads to rights violations, and not just in the target countries.

And then there’s a type of actions situated between ineffective intentional efforts and counter-effective intentional efforts, namely those actions which are effective but which also carry a heavy cost. Slavery has been abolished in the US, but no one wanted it to be a war that did it. Bombing Serbian civilians in order to protect those in Kosovo is another example. Here we enter the difficult domain of weighing the lives of some against the lives of others.

All of this confirms how clueless we are when it comes to effectively protecting people’s rights. That’s a shame, given the importance of the cause.

More on human rights progress here and here.

Human Rights Promotion (16): Is the Human Rights Movement a Total Failure?

Let’s start with another, related question: are human rights an ideology? There is indeed an ideology of human rights, at least as long as we use a value-free meaning of the word “ideology”. (Some argue that human rights are an ideology in the value-laden sense of the word, but that’s not what I want to talk about now). Human rights are an ideology because they form a widely shared system of ideas, and these ideas form a comprehensive vision of the world (see here for a definition of the word “ideology”).

Now, some have argued that the ideology of human rights, when compared to some other ideologies, has been a complete failure. Christianity, nationalism and Marxism for instance (one can perhaps add other ideologies such as Islam) have done much better over the course of history (although the role of Marxism is now finished, it seems). Over the course of decades and even centuries, those ideologies have been exported and implemented throughout the world. They have created mass movements, mass mobilization, political institutions, churches, political parties and rituals. They have inspired art, feverish devotion and legal codes. Moreover, they have proven to be able to adapt to local circumstances.

Human rights have achieved nothing of the kind. True, there are some international human rights courts and certain human rights have made their way into treaties and national constitutions, but those courts, treaties and constitutions are terribly ineffective in most parts of the world. No political party anywhere has human rights as its central goal. There are the occasional mass protests when some rights of some people are violated, but there’s always a distinctively ad hoc feeling about those protests and mobilization of this kind pales when compared to the movements inspired by Christianity, nationalism and (until a few decades ago) Marxism.

It’s true that Christianity, Marxism and nationalism were “successful” in one sense of the word. They were popular ideas, popular enough to have real life effects, but one can argue that they were not successful tools for human betterment, at least not overall. The contrary may be the case (see here for examples). And, in the end, human betterment is the only success that counts.

Furthermore, the success of ideologies such as Christianity, nationalism or Marxism was based on the fact that they were adopted by rulers. They became in some sense or other “official” ideologies and could therefore be imposed. Again, that’s not really the kind of “success” that counts. Human rights, although they also can, theoretically, be adopted by rulers, have seldom been an official ideology, and this fact may be indicative of their failure. However, the success of human rights should not be judged by the degree of their official adoption. After all, rulers don’t have an incentive to adopt human rights. They have an incentive to destroy them. The success of human rights should be judged on the basis of real improvements in the lives of real individuals. And in this sense of success, human rights have been anything but a failure, especially when compared to other supposedly more successful ideologies. This doesn’t mean that the success of human rights has been profound or conclusive. We’re not there yet.

More about progress in the field of human rights is here, here and here.

Human Rights Promotion (15): Adventures in Human Rights Signaling

Malawi plans to use the $15 million (£9.6 million) it gained from selling its presidential jet to feed the more than one million people suffering chronic food shortages, the Treasury has said. Malawi angered Western donors, whose aid typically accounted for about 40 per cent of the budget, when the government of late President Bingu wan Mutharika bought the 14-passenger Dassault Falcon 900EX aircraft in 2009.

President Joyce Banda, who took over after Mutharika died of a heart attack in April 2012, made selling the plane a priority as she sought to repair the damage left by the previous president (source).

So, that’s about $15 per person. Given the fact that half the population of Malawi lives on less than $1 a day, $15 is the equivalent of about two weeks of income and therefore not to be scoffed at. However, because of their poverty, Malawians will most likely spend the money in a day or two, if not less. That’s not what I call “feeding” anyone.

Now, of course I’m against presidential jets and other private perks for dictators in poor countries (or elsewhere for that matter), but how about investing the 15 million in a productive activity? Doesn’t sound as good as giving money to the people, and probably won’t make the news, but in the long run it’s probably much more helpful. This story smells like signaling: “look how correct we are, and how concerned for the poor!” And, yes, I’m aware of the benefits of direct cash transfers, but this is not the way to do it.

More on human rights signaling here.

Religion and Human Rights (33): Christianity and Human Rights

Nowadays, when religion is viewed through the lens of human rights, the subject of discussion is most often Islam and the rights violations it is supposed to produce. Other religions seem almost unproblematic in comparison. Some even claim that human rights are the heritage of the Christian West. That’s not entirely fair to Islam, and neither is it a correct description of Christianity or of the history of human rights. Both Islam and Christianity can be criticized from the perspective of human rights. It’s about time that Christianity receives some of the same scrutiny that is heaped on Islam on a daily basis.

First, though, let’s list some arguments for the defense. Many aspects of Christianity are beneficial to human rights. For example, there’s a long tradition of pacifism in Christianity (in some Christian churches more than others, and in theory more than in practice). That’s based on the quote from the sermon on the mount about showing the other cheek. Poverty and charity as well are prominent in Christian teaching (for example in the parable of the good Samaritan). Also important from the perspective of human rights is the teaching of the equality of all human beings: we are all created in the image of God, we’re all sons and daughters of Adam and Eve. Hence differences between races, genders, nationalities etc. are contingent and morally irrelevant. And there’s of course the sacredness of human life. Finally, belief in hell – to the extent that this is still a part of present-day Christian faith – is associated with lower crime rates (I assume the fear of punishment in the afterlife limits deviance in this life).

However, it’s just as easy to cite arguments for the prosecution. First, the noble principles just cited were rarely respected. And secondly, there are a lot of other principles that are incompatible with human rights. Like all monotheistic religions, Christianity has universalist pretensions: the Christian God is the God of all, and non-believers are mistaken, even sinfully mistaken. They need to be brought within the right faith. Hence missionary work, colonialism, religious wars and other forms of aggressive proselytizing. All such activities can and often do violate human rights.

As a result of this universalism, freedom of religion is only grudgingly accepted if at all, as is the separation between church and state. Its universalist pretensions often justify coercive means, including the state, as a means to impose Christian teachings (the issue of gay marriage is only one example). It also seems that, theoretically at least, Christians can’t accept democratic decisions that go against the will of God, and are morally obliged to revolt against such decisions. Politics is the handmaiden of religion, and political rights are only contingently secure, i.e. they are secure as long as their results conform to the will of God and as long as Christians don’t believe that its practical and feasible to impose this will when rights deviate from it. Anti-abortion terrorism comes to mind.

Publicity and appearance are important parts of human rights. Different human rights protect the public appearance of a diversity of opinions, beliefs and identities, and their discursive interaction. That’s the idea of the marketplace of ideas. Christianity, however, doesn’t like publicity, for a variety of reasons. First, the relationship to God is more important than relationships between people, and the afterlife is more important than earthly life in community. There’s a strong sense of detachment from the affairs of this world, although this sense was more common in early Christianity. The hidden and the mysterious are valued more than the discursive, ostentatious life of public debate.

Appearance is not only of secondary importance, but also morally dubious. Christianity rejects seeing and being seen. To be good is the supreme value, but goodness must hide itself. When good works become public, they loose some of their goodness because they are no longer done simply for their goodness but for honor, appreciation etc. (as Arendt reminded us). In this respect, there are some similarities between the saint and the criminal.

To the extent that public debate is valued, it isn’t because of the importance of the marketplace of ideas, a major justification of human rights. Free speech doesn’t serve the exchange of arguments, public reasoning or the improvement of the quality of thinking. It only serves to proselytize, to distribute the truth, and this truth is given before public discourse even takes place. Belief is revealed and contemplated individually and in solitude, and is not the product of discussion or debate. Contemplation of God does not even require company, let alone debate. In the words of Tertullian : “nec ulla magis res aliena quam publica” (“nothing is more strange to us than public matters”).

This rejection of the public space in favor of the mysterious, of individual contemplation and of the afterlife, can result in political acquiescence. The powers-that-be are accepted, even if they are cruel and oppressive, since true salvation comes only after death. (That’s Marx’ famous criticism).

And there are other points of criticism: notwithstanding the equality of all human beings as children of God, women are responsible for the original sin, and the Jews for the murder of Christ. And even if everyone is an equal son or daughter of God, that means that everyone is fit for salvation. Which in turn means that you have to go to the far ends of the world to convert the heathens, for their own good.

A mixed record, to say the least.

Other posts in this series are here.

The Environment and Human Rights (8): Instrumental Environmentalism

At first sight, human rights are at best irrelevant to environmental concerns such as global warming, resource depletion, pollution, toxic dumping, deforestation, desertification, biodiversity etc. Human rights are about what people do to each other or what governments do to people, not about what people do to the earth. In some sense, human rights are worse than irrelevant. They may take attention away from environmental problems, and perhaps even cause some of those problems. Perhaps a focus on rights such as freedom of movement, freedom of residence etc. contributes to environmental problems. Hence, human rights, in some interpretations, are not just unhelpful but even harmful. They can indeed be seen as anthropocentric, elevating the needs of humans above the needs of nature and the earth.

However, that doesn’t have to be the case, or at least not when we focus on one type of environmentalism. There are of course different types: some forms of environmentalism see nature or the earth as intrinsically valuable and in need of preservation for its own sake, while other forms have a more instrumental approach to conservation. Instrumental environmentalism argues that we should save the planet because it is – as yet – the only possible abode for humanity. (There are also other approaches – such as ethical, aesthetic or holistic ones – but this crude distinction suffices for my current purpose).

It’s the instrumental approach that is, in my opinion, most amenable to human rights discourse, even though it may not be the most convincing approach (it’s open to the criticism that it instrumentalizes nature and that it is therefore self-defeating). I would say that it’s more than merely amenable: human rights discourse can be a powerful tool for environmentalism. There are two ways to understand how this can work. First, a healthy, non-polluted and sustainable environment is a precondition for many if not all human rights. The right to health, the right to life and the right to a certain standard of living as well as numerous other rights directly depend on a healthy environment, on the preservation of forests and energy resources, on safe drinking water etc. More generally, if environmental problems are not merely local but global and if life on earth is potentially threatened then that obviously includes rights.

And secondly, it’s useful to focus on the transtemporal aspect of human rights. Human rights have many dimensions, for example a horizontal and a vertical one. The horizontal dimension – human rights are rights claims of individuals against each other and not just against the state (individuals have rights-based duties to all other individuals) – isn’t limited to individuals who are currently alive. Our current actions ought not to violate the rights of future generations. Those future generations have rights that we have to respect. And that means, inter alia, not destroying the environmental preconditions for future life. It also means that future life should not be of such low quality that it becomes impossible to realize certain human rights.

However, there’s one major drawback to this approach. One can safely assume that proper concern for the rights of future generations will ipso facto result in enormous sacrifices for existing generations, and hence violations of the rights of existing generations. Future generations are by definition very numerous, especially given adequate environmental policies. If, for example, natural resources have to be managed in such a way that future generations can have a minimal standard of living, then the mere fact that future generations will be very numerous compared to living generations means that the latter can’t use any natural resources at all. (Which is perhaps why some forms of environmentalism advocate a return to pre-modern lifestyles). That’s a variation of the so-called repugnant conclusion. I assume most of us want to avoid this conclusion, but in order to do so, we’ll have to cap the importance we give to the rights of future generations.

On the other hand, there are cases in which efforts to respect the rights of future generations automatically produce respect the rights of present generations. Saving the earth’s fish stock for the future can also benefit present generations.

We can conclude that human rights and the environment can be both complementary to and at odds with each other. Whether conflict or mutual reinforcement will be the more likely outcome depends not on the specific nature of either project, but on our ability to overcome conflict. And this ability depends on a certain way of looking at those projects. If human rights are understood in a limited way – without considering the rights of future generations or without taking into account the environmental prerequisites of rights – or if environmentalism is seen as a non-instrumental value, then complementarity may be impossible and the two projects will come into conflict. One will then have to give way to the other. Of course, even if we try, we won’t always be able to find complementarity. Some human rights will in some cases be bad for the environment, and some environmental concerns will be bad for some human rights. But that will be the exception, and when it occurs, human rights will have to take precedence because most often it will be the case that rights violations, compared to disrespect for the environment, cause more immediate and certain harm to living human beings.

More on the rights of future generations is here. More posts in this series are here.

The Ethics of Human Rights (79): A Right to Do X ≠ X is the Right Thing to Do

I’ve argued before that human rights and morality are at best two partially overlapping domains. Many human rights imply a right to do wrong: free speech includes the right to insult and to break promises, two things which most reasonable accounts of morality would consider wrong. A lot of what is prohibited by morality is protected by human rights. Most would consider systematic lying – as opposed to lies of convenience – a breach of elementary moral rules, and yet the liar is protected by his or her free speech rights.

The other side of the coin: zealous pursuits of moral goals – even universally accepted moral goals such as justice and fairness – often lead to violations, sometimes gross violations of human rights. Think communism. Strong convictions about good and evil can lead to violent coercion of others who don’t conform to these convictions. FGM is another example: one of the reasons why people engage in female genital mutilation is the fear that if women are left unmolested they won’t be able to restrain their sexuality and will likely act immorally.

People often think as follows: given that they are convinced that X is the right thing to do (morally speaking) they conclude that they have a right to force others to do X. Needless to say that this conclusion is not acceptable. Life would be a hell of permanent coercion if it were.

However, it’s not impossible to imagine cases in which the morally right thing to do should be done even if it leads to rights violations: the ticking time bomb case comes to mind.

Of course, rights and morality do overlap in a lot of cases: murder is morally wrong, and there is a right to life that should be respected. I could cite literally hundreds of examples. Many things are morally wrong and at the same time violations of rights. If you have a right to do something, often you’ll also do the right thing; or better: if someone has a right to do X or a right to X, then others will be forced to do the right thing, which means acting in ways that respect that X.

More posts in this series are here.

Human Rights Promotion (13): Human Rights, Pareto Improvements, and a Difference Principle

Human rights activism is rarely zero-sum, in the sense that we can only improve the rights protection of some through the imposition of an equal loss on others. More commonly we selectively improve protection for some without reducing protection for others. For example, if a judge protects a journalist’s free speech rights against government censorship, no one else’s rights protection is proportionally reduced. (This is zero-sum in the sense that more free speech means less censorship, but it’s not zero-sum on the level of different rights).

Zero-sum rights activism does occur, but only in the case of conflicting rights. For example, the journalist’s free speech rights may require restrictions on the right to privacy of public figures (or vice versa). However, most violations or restrictions of rights are not the result of conflicts between rights but rather the result of the non-rights motivated actions of governments or private agents.

We can rephrase this in economic terms. Given an initial allocation of goods among a set of individuals, a change to a different allocation that makes at least one individual better off without making any other individual worse off is called a Pareto improvement. An allocation is defined as Pareto efficient or Pareto optimal when no further Pareto improvements can be made (source).

This is common in human rights activism. We regularly intervene very selectively to improve the rights of some while leaving others unaffected. This is because there’s always a lack of resources and a lack of power to intervene non-selectively.

However, even if Pareto improvements can be a way forward for rights protection, they are not the ultimate goal of human rights activism. This ultimate goal is equal rights, and that’s not something you can reach with Pareto improvements. Inherent in Pareto is that you don’t leave anyone worse off, but equal rights may require that some people give up something: an equal right to private property may imply redistribution for example.

Another reason why Pareto improvements aren’t really compatible with human rights is the lack of urgency, priority or fairness in Pareto terms. Pareto improvements can make those who are already better off even better off. If you make the richest person in society better off or improve the rights protection of the best protected person in society, this can be a Pareto improvement, but that’s hardly the best way forward for human rights. Human rights would require making first the worst placed person better off, even if this means making the best placed person a bit worse off (which, however, is often not even necessary).

Pareto efficient is therefore not the best way to achieve a society with full respect for human rights, although a society that is not Pareto efficient – in the sense that some Pareto improvements with respect to rights protection are still possible and some people may be made better off without anyone else being made worse off – obviously does not fully respect human rights.

If we first need to make the worst off better off, then a better principle for human rights may be a variation of Rawls’ difference principle:

enhanced protection of the rights of those whose protection is already better is only justifiable if it also leads to enhanced protection of the rights of those whose protection is relatively worse.

For example, one could argue that a very bright person has a right to more education if it turns out that her enhanced education ultimately benefits others who are less educated (perhaps because this person will become a rights activist or because she will transmit her knowledge). Or one can argue that a higher standard of living for someone already well off will increase economic productivity which in turn benefits the poorer members of society. However, this difference principle will not, by definition, make everyone equally well off or guarantee everyone’s equal rights. But perhaps it will do a better job than Pareto efficiency.

More about human rights and zero-sum games here. More about the original difference principle here.

Types of Privacy

In light of the recent hullabaloo over spying by the NSA, it’s useful to think a bit about the nature and justification of privacy. Privacy is a human right. It’s the right to seclude yourself or something about yourself and to restrict access by others to you own area of petty sovereignty. This area can have a bodily or physical dimension, but also an informational, relational or spatial one. Positively stated, the right to privacy is the right to appear in a selective and self-chosen way. (See also article 12 of the Universal Declaration).

Our understanding of this right is clouded because of the controversies about the exact borders of our private world and about what should or shouldn’t be a part of that world. Different people and different cultures at different times in history allow(ed) more or less intrusion, and opinions differ also about the need to reduce those borders as a means to protect other rights (security in an age of terrorism, free speech for investigative journalists etc.; more on the general problem of balancing different rights is here). The development of technology also makes it harder and harder to decide what should or shouldn’t be private (e.g. 50 years ago no one worried about DNA registers, gene patenting or CCTV).

Our understanding is also clouded because there are in fact many different types of privacy or different types of private worlds grouped under a single word: there’s the intimate, the domestic etc. Some types of privacy have a stronger moral claim than others, and the balancing with other non-privacy rights should also be done differently for different types of privacy. So there are in fact many different privacy rights.

Let’s have a look at some of the possible types of privacy and privacy rights. I’ll give you my own idiosyncratic classification consisting of 10 types. These types often overlap, of course, and the distinctions may seem a bit forced at times. Still, I think it’s useful to distinguish types of privacy because each type can be violated in a different way. In the list that follows, I’ll also mention some of the ways in which each type of privacy right can be violated. That doesn’t mean that all those violations are always unjustified. Some of them may be justified limitations of rights rather than violations.

1. Informational privacy

People have a right to decide what kind of undocumented information about themselves can be communicated, and how. Within limits of course. A criminal suspect can be forced to reveal some personal information (even if there’s a general right to remain silent). By default, however, people’s personal history or characteristics should remain secret. Examples of ways in which this type of privacy right can be violated are:

2. Mental privacy

A more specific version of information privacy is mental privacy. People have a right to keep their thoughts and feelings to themselves, given certain limitations. Violations of this right include:

  • workers who have to fill in a signed worker satisfaction survey
  • forced confessions.

3. Bodily privacy

Another more specific version of information privacy is bodily privacy, a type of privacy that serves to protect people’s intimacy. Violations of this right include:

  • giving unauthorized people access to medical records
  • security agents doing a body scan or a cavity search.

4. Anonymity privacy

Yet another more specific version of information privacy is anonymity privacy. People have, in certain circumstances, the right to be unnoticed and unnamed. Violations of this right include:

  • people are required to have, carry and present identity cards
  • journalists are forced to reveal their sources
  • a ballot that isn’t secret.

5. Relational privacy

Another specific version of information privacy is relational privacy. People have a right to keep some of their relationships or some characteristics of some relationships secret. Violations of this right include:

  • a government outlaws some types of consensual sex or marriage between adults
  • a government engages in wiretaps or opens written correspondence.

6. Associational privacy

A subtype of relational privacy is associational privacy. Some associations have a right to keep some things secret. Violations of this right include:

  • a corporation is forced to divulge trade secrets, recipes, etc.
  • church communities are forced to grant access to their rites.

7. Activity privacy

A final version of information privacy is activity privacy. People have a right to move in public spaces without being noticed, tracked or named. Violations of this right include:

8. Residential or domestic privacy

Non-informational privacy includes residential or domestic privacy. People have a right to refuse access to their homes. Violations of this right include:

  • police officers searching someone’s house without a warrant
  • trespassing
  • stalking.

9. Property privacy

People have a right to exclude interference with their property. This right to property privacy overlaps with but is slightly different from the classic private property right in the sense that it can be violated without people’s property being taken away from them. Violations of this right include:

  • some forms of property searches by law enforcement officers
  • some forms of property prohibitions (e.g. obscene material).

10. Spatial privacy

People have a right to their own living space and the right to exclude others from this space, even if this space is not a house. Inmates, for example, although they don’t live in their own house and can’t regulate access to their cells, nevertheless have a right to spatial privacy. Violations of this right include:

  • prison conditions that are so bad that inmates have to live too close to each other
  • homelessness.

In the general scheme of spheres of life, our private world is not just distinct and separated from the sphere of government intervention, law and politics. It’s also distinct from the sphere of publicity and civil society, since we also have to be protected against violations of our privacy by fellow citizens.

The private sphere can be divided in 4 sub-spheres: the self/mind, the body, the home/space and relationships/associations. Each sub-sphere would cover 1 or more of the 10 types of privacy:

  • the self/mind sphere covers informational privacy, mental privacy, anonymity privacy, activity privacy and property privacy
  • the body sphere covers informational privacy and bodily privacy
  • the home/space sphere covers residential or domestic privacy as well as spatial and property privacy
  • the relationships/association sphere covers relational and associational privacy.

In the examples given above of invasions into the private sphere, I haven’t expressed my opinion on the legitimacy of those invasion. All I claimed was that the right to privacy isn’t absolute and that some limitations/violations of that right will be necessary. I can now give some examples of what I believe are illegitimate invasions of certain sub-spheres of the private sphere:

  1. unlawful house searches by the police force
  2. unlawful house searches by the police force, combined with unlawful body searches
  3. excessively intrusive security checks and body scans outside of the home (e.g. at the airport); excessive use of DNA registers; unauthorized access to medical records
  4. publication of embarrassing personal facts; forced confessions
  5. criminalization of consensual sex between adults
  6. criminalization of gay or interracial marriage; publication of addresses of convicted pedophiles
  7. excessive regulation of private associations (businesses, churches etc.); journalists being forced to reveal their sources.

See also this previous post on the subject.

Religion and Human Rights (32): Human Rights and Legal Pluralism

When people talk about legal pluralism, they refer to the fact that different legal and judicial systems co-exist within one geographical area. Some examples:

  • The laws that are valid within a state are often a mix of national and international legislation.
  • In many ex-colonies, some of the laws have been imported from (and by) the colonizing country, while others have a more traditional origin and date from before the colonization.
  • Some countries have recognized indigenous claims and transformed those into rights, laws and judicial procedures. These indigenous laws and procedures may be valid only for disputes among members of the indigenous populations, but they may also affect the rights and interests of other citizens – as in the case of hunting rights, land rights etc. Indigenous rights may then come into conflict with other elements of the law, such as equality, non-discrimination, property rights etc.
  • Other countries revive traditional law or traditional informal justice mechanisms because rulers are inspired by their religion to do so – as in the case of Shari’a – or because they believe that their formal systems aren’t capable of dealing with the existing demand for justice – as in the case of the Gacaca courts in Rwanda.
  • Some subpopulations have developed their own informal justice mechanisms that operate without the approval or interference of formal state bodies: criminal gangs may create and enforce their own rules, and the same is true for terrorist groups like the IRA.

As is clear from these examples, the relationship between legal pluralism and human rights is a difficult one. Even if we set aside gang law (a marginal phenomenon that doesn’t affect large numbers of people) and indigenous law (which is a problem that can be solved), we’re still left with a problem, and it’s one that affects mainly poor and developing countries. In other words, countries where human rights are often already precarious for other reasons.

Many developing countries, and especially the poorest ones where the formal state systems of law and justice are underperforming or perhaps even failing altogether, are tempted to condone or even promote and quasi-institutionalize some of the existing informal and traditional systems, because those are the only ones operating somewhat effectively and with some level of legitimacy. It’s difficult to estimate how the positive side of this balances out with the clear risks to human rights that it entails. Let’s have a look at both sides of the coin.

Advantages of informal justice systems

Informal justice systems are obviously to be welcomed when they are the only or main source of justice. People need ways to settle their disputes and claim their rights, and when the formal system fails then an informal one may be better than nothing. And formal systems in many countries fail re obviously failing, because of many different reasons:

  • A lack of resources: institutions may be underdeveloped, people may not have the right qualifications; prosecutors in the formal system may not have the material resources to investigate crimes and claims in hard to reach parts of the country; people seeking justice may not have the means to travel to the city, which is where the formal system usually operates.
  • The lingering effects of violent conflict or genocide.
  • Language problems or cultural and religious sensitivities: for example, some people may not speak the official national language, which is the only language accepted in the formal system.
  • Etc.

It’s estimated that informal justice systems deal with over 70% of all disputes in some developing countries. That can probably be interpreted as an indictment of the formal system.

Disadvantages of informal justice systems

There’s a clear risk of gender discrimination since most informal justice systems are traditional and/or based on religion. For many women, the outcome of informal systems may be worse than nothing. There’s also the issue of cruel and inhumane punishments being handed out by some traditional courts, and it’s certain that none of the existing informal justice systems provide all the guarantees for the fairness of trials: appeals are often impossible, the justices are not selected or appointed on the basis of their qualifications, they are not removable or accountable, and hence in many cases corrupt or partial.

One of the causes of this lack of attention to human rights is that many informal justice systems are about keeping and restoring social harmony and about the maintenance of relationships and peace. Individual interests and therefore individual rights as well come second. Informal justice systems are meant to settle disputes; they are not a means to give everyone what he or she deserves or has a right to have, but rather a means to guarantee social stability. They are not about designating winners or losers in a dispute.

That is why you often see “solutions” such as a fine payable in livestock as compensation for murder. That’s not a real punishment for the perpetrator since it’s often his clan or tribe that has to pay, and neither is it real justice for the victim or his family. But it does help to maintain the peace and relationships between groups. And perhaps that is also what is most important to some of the victims, more important perhaps than criminal-type justice. Victims may believe that it is more beneficial for them, in the long run, to maintain good relations with others on whom they depend economically than to pursue criminal charges and individual rights.

This emphasis on social harmony is also a threat to the principle of the equality before the law: members of out-groups or groups that are considered unimportant for social harmony will not get a fair hearing.

So the evaluation is mixed: informal justice systems are OK is there is nothing better, but we should be careful when promoting them.

The Ethics of Human Rights (75): Should We Economize on Virtue?

There’s a lot we can do to raise levels of respect for human rights without appealing to people’s sense of altruism, benevolence and humanity. Since virtues like these are often in short supply, this is a good thing. We can get somewhere even if we can’t make people more virtuous. For example, we can reduce global poverty by removing trade restrictions. That’s a lot easier than asking people in wealthy countries to pay higher taxes for higher levels of development aid. More examples like this are here.

We can sometimes even use people’s vices in order to further the cause of human rights. For instance, if people cherish their own rights – as most of them do – then it may be wise of them to cherish the rights of others because they can reasonably hope for reciprocity. Selfishness can then lead them to involuntary benevolence (much like in other “invisible hand theories). Other examples of selfish reasons to respect human rights are here.

This strategy has been called “economizing on virtue“. It has a special appeal to economists because it means getting done more with less. Realists about human nature – often conservatives – are also fond of it, for obvious reasons. And perhaps it is indeed all we can hope for at the moment. The obvious risk, however, is that people will start to believe that we don’t need virtue at all. Maybe we can go a long way without virtue, but I don’t believe we can go all the way. After all, if automatic mechanisms and undemanding policies would allow us to protect all human rights of all people all of the time, how come we’re not there yet? Also, let’s not forget that virtue is also intrinsically valuable, apart from its possible role in raising levels of respect for human rights. Hence, we have two good reasons to try to foster not only beneficial self-interest but also virtuous behavior.

More posts in this series are here.