Do We Live in a Simulation, Or Are We Already Dead in the Real World?

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Some say that we live in a computer simulation, and that we just don’t know it yet. Perhaps God-like creatures, on another planet somewhere, have colonised us and put us in Matrix-style liquid-filled pods, our brains attached to a computer and fed with fake experiences. Proponents of the simulation hypothesis rightly point out that it may be wrong to call such experiences “fake”. We do have them after all, and whether these experiences come from a real world interacting with us or from a computer program pretending to be a world doesn’t make a lot of difference as long as we don’t know the truth of the matter. “Truth” may be a similarly slippery concept. (Nozick’s experience machine is a whole different case, because in that thought experiment the point is whether we would choose to live in such a machine. Here we assume that we don’t have such a choice).

Elon Musk has recently popularised the simulation hypothesis, although it’s centuries old. Descartes’ “dieu trompeur” is a famous example: an evil demon presenting a complete illusion of an external world to our senses, or maybe directly to our minds, or mind in the singular.

Also, rather than Matrix-style pods, we may simply be brains in a vat, or even less: emulations of brains “living” in a computer.

Whatever the merits of this hypothesis, I think they pale in comparison to another one: we are, in fact, already dead. The latter is, in my opinion, much more likely and fits better with the available evidence. Let me have a go.

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The simulation hypothesis can indeed explain all the evidence – since all evidence is facts and all facts can conceivably be simulated by some or other entity. The problem however is precisely this entity. Who or what could it be? The most likely explanation is that the simulating entity is part of humanity itself, perhaps a future generation. But why? Why on earth (or elsewhere) would they enslave physical human bodies, put them to sleep, immerse them in vats and connect them to computers in order to feed them sensations of a non-existing world? Why would they remove their brains or emulate their brains? I don’t see the point. The Matrix plot – humans as a power source – is obviously ridiculous. Emulated brains as instruments of computing power is a similarly weak rationale for the simulation hypothesis (when it becomes technologically possible to emulate brains, there won’t be a reason to fool them; just use their computing power if you don’t have better, non-brain based computing machines, which seems unlikely to me). The same lack of rationale applies to the possibility of aliens or Gods as simulating entities. It seems likely that they as well, just like future humans, would have better things to do.

Whomever is the simulating entity, it must have a reason for its actions. Even the fun of it or outright sadism could not support the simulation hypothesis: it wouldn’t be much fun to the simulators, not even if they’re sadists: our possibly simulated world is often awful but not awful enough to be the product of a sadist entity seeking to enjoy itself at our expense.

So the evidence seems to be against the simulation hypothesis. What about my alternative? Let’s call it the Cotard hypothesis after the well-known Cotard delusion: a mental illness in which the affected person holds the delusional belief that he or she is already dead. Although of course in this case we’re not dealing with a delusion. The delusion would be that we’re still alive.

Think about unrequited love, the glances in the subway that went unnoticed, the promotion that you failed to get, the times that your husband ignored what you were saying… Often trivial and banal occurrences, but taken together they may have some weight. Perhaps more weight than the simulation hypothesis. Countervailing evidence can also be explained. The times when you weren’t ignored may have been wishful thinking. After all, it’s easier to believe that you are alive than that you are dead, and so your mind may fabricate “evidence” to convince you that you are in fact alive. Such fabrications are not unheard of: there’s the just world fallacy, we have adaptive preferences and suffer from confirmation bias. And a lot of these biases are unconscious.

Think also about the sadness of some of the memories of early childhood. Good memories maybe, but also sad at the same time because that world is gone, that life is gone. Your life is gone. This fits also nicely with the increasingly popular notion that there is no such thing as en enduring personal identity. We “die” every moment.

(An interesting fictional treatment of the Cotard delusion is the TV-series Talking to the Dead – forget the IMDB ranking, it’s BS. And there’s of course The Sixth Sense).

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Cultural Rights (13): Their Place in the System of Human Rights

I know I’ve neglected cultural rights on this blog. That’s not because I think they should be neglected. Cultural rights are indeed important and they deserve a thorough discussion. First, what are they? Cultural rights are the rights of

  • indigenous peoples,
  • ethnic, racial or linguistics minorities or “nationalities”,
  • immigrants
  • and perhaps also other marginalized groups.

In certain circumstance, some such groups can legitimately claim cultural rights because without these rights they will be unable to preserve, experience and act in accordance with their cultural identity. This cultural identity includes institutions, beliefs, practices, a way of life, a language etc., all of which can be under pressure from another, dominant culture or from some other hostile forces (e.g. globalization, capitalism etc.). Other, more commonly accepted human rights such as religious liberty, non-discrimination etc. are of course helpful as well but sometimes insufficient for this purpose. For example, a state can’t help but to impose an official language, and the users of this official language have therefore an unfair educational, economic and political advantage. Minority groups can then claim that they need the cultural right to receive education in their own language. Non-cultural human rights won’t be much help.

The background assumption of cultural rights is the equal value of all cultures. All cultures have an equal right to survival and all groups have an equal right to preserve their cultural way of life. The pressures that threaten cultures can take various forms, going from genocide (or ethnocide, or cultural genocide) at one extreme to milder forms of acculturation at the other extreme. Some typical forms of pressure are:

  • reducing birthrates through forced sterilization
  • forcibly transferring children to other groups
  • relocating entire groups
  • interfering with education or the transmission of culture to future generations of a group
  • forced conversion
  • erasing the group’s existence or practices from the historical record
  • attacking a culture’s resource base (e.g. deforestation)
  • etc.

The concept of cultural rights should be distinguished from related concerns about economic or political domination. Marginalized cultures can indeed suffer cultural as well as other types of oppression simultaneously, and depriving a culture of its economic base can be as lethal as a direct attack on its identity. However, I think it’s useful to isolate the cultural and identity issues. So I’ll focus on those, and I’ll also deliberately sideline the thorny question of the definition of “culture”, a notoriously overbroad concept: which groups can legitimately claim to be a “culture” deserving of cultural rights? Are cultures really distinct and self-contained? Let’s just assume that there are some such groups, and that some of those are threatened.

Which cultural rights?

Apart from the general right to cultural survival, it’s not very clear which are the more specific rights that are bundled together under the general right, and it’s commonly accepted that the concrete realization of cultural rights depends on the circumstances. In some cases cultural rights can imply a right to some form of affirmative action, in other cases a right to regional self-determination etc.

Article 27 of the International Covenant on Economic, Social and Cultural Rights only mentions a right of groups to enjoy and practice their own culture. The UN Declaration on the Rights of Indigenous Peoples is somewhat more precise, but only somewhat. Hence, cultural rights are often attacked for a double vagueness: vagueness about the specific rights involved, and vagueness about the beneficiaries (which groups qualify as a “culture”?). However, we’ll see below that a more fundamental criticism of those rights is also possible.

Justifications of cultural rights

And yet, I do believe that cultural rights are an important addition to the body of human rights. The justification for these rights is based on two things:

  • the importance of culture for individuals, and perhaps also some vaguer notion of the general importance of cultural diversity and the “heritage of humanity” (in which case cultural rights are important for everyone and not just for members of threatened cultures)
  • the failure of more traditional human rights to protect culture in all cases.

People need a cultural life, a life in a community that transcends time. They want to belong to a group and share a traditional identity. These human values can only be enjoyed collectively and are often neglected in more individualist and liberal theories of rights. Individual human rights such as freedom of religion and association, anti-discrimination laws, tolerance, democratic pluralism etc. are helpful for the preservation of culture and other collective values (such as religion), but not in all circumstances. Take the example I gave before: the simple fact of an official state language and school language puts some minorities in a disadvantaged position, not just culturally but also economically and politically. And indeed there’s nothing that ordinary human rights or tolerance can do about that.

Another justification of cultural rights can be based, not on the value of culture, but on the need for reparations for past injustices. For example, indigenous people can claim that respect for their cultural rights is due to them because of the injustices perpetrated by past generations of the dominant culture, even if there are no present-day threats to their culture.

Criticism of cultural rights

Contrary to the more traditional, individual human rights, cultural rights don’t require the recognition of individuals as equal human beings, equally deserving of respect in spite of their differences. They demand, on the contrary, the recognition of differences and respect for those differences, and differences between groups of individuals rather than differences between individuals. Common identity, group difference and recognition are the keywords behind the notion of cultural rights.

This explains why these rights are often criticized in liberal democracies. Liberalism focuses on the individual. It recognizes group interests but those are typically understood as cooperative, associational and interest based. People, according to liberalism, voluntarily join groups in order to advance their interests. Groups are defined by shared goals and interests, not by the shared identity of the members. Individuals are there first, and groups are secondary. From this point of view, cultural rights can be seen as essentialist: they reduce the identity of members to the identity of the group to which they belong.

This essentialism can indeed be detrimental to individual group members. Because cultural rights are rights aimed at the preservation of cultures, there may be a temptation to use these rights in order to discipline members who deviate from the cultural orthodoxy. Such deviations can be viewed as a threat to the group’s identity and survival. In that case, cultural identity becomes a goal in itself rather than a good for the members. Ideally, cultural rights are valuable because the members of the cultural groups in question value cultural identity, cultural practices and language and can use these rights to protect what they value. It’s those members who have an interest in cultural preservation, not the cultures themselves. (Will Kymlicka has developed this argument). This means that when members lose this interest, they should be free to do so, and cultural rights should not be used to impose an identity, practices or a language. Individual members should be free to evaluate their culture and to reject it if that is what they decide.

It follows that cultural rights should not grant groups power or priority over individuals or over individual rights. If an individual member of a group decides to use her freedom of religion to change her religion, her freedom of movement and residence to physically leave the cultural group, her freedom of expression to decide to start speaking another language etc., then there’s nothing the group can do. The group’s cultural rights can’t trump the individual’s rights. And if individual rights are threatened by cultural rights, the latter should give way. For instance, if a religious group claims the right to oppress its female members or sacrifice its children, that group can’t claim cultural rights as means to protect those practices.

That doesn’t mean a group can never legitimately limit the individual rights of its members. It can, as long as it guarantees a realistic exit right. Individuals can waive their individual rights if they think the rules and practices of their group are more important than their individual rights. This exit right, however, should be realistic and not just formal. There should be no indoctrination and alternatives should not be cut off. For example, Muslim communities should be allowed to discriminate against their female members as long as these members have a realistic right to go elsewhere, realistic meaning that going elsewhere shouldn’t imply abandoning their religion, their family etc., meaning also that they have a real choice and haven’t been indoctrinated into submission (more here).

The priority of individual rights over cultural rights does not force us to adopt an extreme individualist philosophy in which the individual is always prior to the community or in which the community doesn’t count at all. This priority of individual rights is compatible with a communitarian stance. Cultures and cultural rights are important, and they are important for communitarian reasons, but they are not so important that they can trump individual rights. Cultures or other groups have value only in so far as they are of value for the individual members. They can’t have intrinsic value. In other words, they can’t have value for themselves.

The problem of enforced internal orthodoxy within cultural groups, which I mentioned above, may be exacerbated by the possible recognition of cultural rights. Group leaders may believe that they need to enforce orthodoxy and silence “minorities within minorities” in order to present a united culture. Presenting a united culture can make it more likely that the wider society recognizes cultural rights for the minority culture. For example, a leader (or leading class) of an indigenous group may believe that it’s necessary to emphasize the distinctive nature of the group by reviving traditional practices. This revival makes the group seem more valuable from a cultural point of view, and that’s something which will make it more likely that special recognition and special rights are forthcoming. Leaders may even have a personal and selfish interests in those rights, for example their personal leading role may be cemented after the recognition of those rights or during the struggle for recognition. However, some of these traditional practices can be harmful to the individual rights of certain members (e.g. gender discrimination, polygamy etc.) or can go against one particular current of belief within the minority group which is subsequently repressed.

So cultural rights may harm individual rights and may promote internal orthodoxy before they are recognized – and as a means to achieve recognition – as well as after they are recognized – for example, regional autonomy can imply restrictions on intervention by the central authority in the case of rights violations occurring within the regional group. It’s relatively easy to make the granting of cultural rights conditional on respect for individual rights within the group demanding cultural rights (and withdraw those rights when they result in violations of individual rights), but it’s a lot more difficult to avoid the dynamic of groups violating individual rights and suppressing internal dissent in the process of a struggle for cultural rights.

Actionability of cultural rights

Individual rights trump cultural rights, but this raises the question of the actionability of cultural rights: when exactly can they be used to protect cultures? They can’t if a culture’s preservation is in danger because individual members decide to leave, for example through voluntary assimilation into other groups, or decide to fashion the group’s identity differently. Neither can they be actionable when a culture dies because of low fertility rates for instance. Artificially propping up fertility rates for the sake of cultural preservation would harm the rights of individuals in a manner which few would accept. A culture that can’t gain the uncoerced adherence of its members or promote the vitality necessary for the reproduction of its members at replacement rates, doesn’t seem to be worth preserving. Again, cultures are important for individuals. And if individuals lose their interest or change their minds, there’s not much one can do.

If one were to limit individual rights in order to prop up a culture, one would violate the principle that culture are important because they are important for individuals. One would have to adopt the unlikely view that cultures are important in themselves whatever people believe, and that they have an intrinsic value even if no one wants to be a member. Of course, it’s sad when a language dies or when some cultural practices disappear, but this sadness isn’t enough to give cultures the right to force people to do something against their will. Even if it would be somehow morally OK to force people, it would be pointless. One may succeed in getting people to speak a language, take part in rituals etc., but that would happen for the wrong reasons. A culture has to come from within. It shouldn’t be an externally imposed duty.

Perhaps cultural rights become actionable when the preservation of a culture is threatened, not by the free choices of individual members, but by economic forces, migration patterns or political oppression. Indeed, it’s not entirely unreasonable for the French government for instance to subsidize French language cinema in order to protect it against the “onslaught” of Hollywood. Or for the Tibetans to complain of Chinese “demographic aggression”. (Similar talk about Eurabia seems a lot less reasonable). Or for native Indians in the U.S. to resist forced resettlement.

Realization of cultural rights

And when we decide that cultural rights are actionable in certain cases, we still don’t know which actions short of violations of individual rights we can take to protect them. Some possibilities:

  • An obvious policy could be some kind of federalism and limited self-government, primarily but not exclusively when the minority cultures are geographically isolated and when they haven’t voluntarily chosen to live within a larger political unity (e.g. tribal sovereignty for indigenous peoples).
  • Maybe some quota systems in representative bodies could also help to give culture a voice.
  • Affirmative action.
  • Reparations.
  • Special educational provisions (for example the provision of some hours of education in a native language) or other types of assistance to do things that the majority takes for granted (e.g. multilingual ballots).
  • Certain veto powers (for example, the right of indigenous people to veto the use of land).
  • Some group-based exceptions to general laws (such as an exemption to the rule forcing drivers to wear a crash helmet).
  • Granting jurisdiction over family law to religious or tribal courts.
  • A politics of recognition (e.g. teaching black history in U.S. schools).
  • And perhaps even a right to separate from the political community if nothing else works or if the claim to authority of the central state is weak (as in the case of colonies).

It’s clear from this that cultural rights can in some cases restrict the rights of non-members. For example, the use of English is restricted in Quebec; affirmative action restricts the rights of non-group members; veto-powers over land use restrict the property rights of outsiders etc. However, it’s not the case that cultural rights necessarily restrict the rights of outsiders. Subsidies or regional autonomy for example do not, by definition, involve such restrictions. But if they do restrict some of the rights of outsiders, then we should be very careful. As stated above, cultural rights don’t trump individual rights; the opposite is true. But this general priority of individual rights doesn’t mean that there will never be cases in which it’s better to give priority to cultural rights (the good this will allow us to do may sometimes far outweigh the harm to some people’s individual rights). The general priority of individual rights over group rights doesn’t mean that there can’t be specific cases where the balance goes the other way.

Migration and Human Rights (38): The Cultural Argument Against Open Borders

People have a legitimate interest in the preservation of their distinctive cultural identity, their language, customs, habits, institutions, traditions etc. Opening the borders and welcoming massive numbers of immigrants – something that I favor – is supposedly incompatible with this interest. Relatively wealthy countries in particular risk being overrun by masses of poorer migrants, often from very different cultures. Opening borders or even relaxing immigration restrictions in such countries means cultural suicide.

There are some hidden assumptions behind his argument:

  • There is a uniform culture of the host country.
  • The culture of immigrants is fundamentally different from the culture of the host country.
  • Immigrants will be numerous and permanent enough to make a difference.
  • Immigrants will, on balance, influence the hosts more than vice versa. In other words, they will generally fail to assimilate and they will be hostile to the host culture.
  • Cultural change, occurring independently or following intercultural contact, is a bad thing.
  • Cultural change in the host country would not occur independently, i.e. without the physical presence of immigrants in the territory of the host culture, or will do so less rapidly or extensively (e.g. cultural change through other causes such as globalization and intercultural exchange).
  • Because people have an interest in preserving their cultural identity – to the extent that this identity exists – they also have an absolute right to preserve it.
  • The right to preserve a cultural identity supposes a right to exclusive control over a part of the surface of the earth.
  • The right to preserve a cultural identity always trumps the right to free movement of immigrants.

I would argue that none of these assumptions is correct. More here.

Migration and Human Rights (29): Is Freedom of Association a Means to Promote or to Restrict Immigration?

Freedom of association is an important human right (see here for example). Linked to freedom of association is the right to exclude: groups that aren’t allowed to exclude whomever they want from membership aren’t free to associate. Another reason why the right to exclude is an important consequence of freedom of association is that association is meaningless without the concept of group identity. People associate in groups because these groups have a certain identity, and this identity is or becomes an intrinsic part of the individual identities of the members. Hence, groups should be able to have a coherent identity and that means allowing them to exclude people who don’t conform to or accept this identity.

For example, freedom of association means that Christians have a right to join a “truly” Christian group. And if the meaning of the word “truly” means excluding gay Christians or atheist (people who, according to some, don’t “conform to” or don’t accept “true Christianity” respectively), then that is what is required by freedom of association. (Which doesn’t mean that this freedom of association or this right to exclude is unlimited. Non-discrimination is also a right and sometimes we’ll have to make a trade-off. Non-discrimination can sometimes prevail over freedom of association. And yet, every exclusion from a group or every exercise of the freedom of association which in some way harms outsiders isn’t a case of discrimination. I, a non-Scot, may fail to be accepted in the clan of the MacDonalds, but I’m not discriminated against by this decision, even if it hurts my feelings and my sense of identity).

Some see a link between freedom of association and immigration restrictions. If groups are allowed to exclude, why not countries? Countries are also groups. If you force Americans, for example, to take in immigrants, despite majority opposition, then you violate their freedom of association and their right to exclude. In addition, you are accused of harming their identity – in this case national identity – because the stated reason they associated and continue to exclude, is precisely the preservation of their groups identity (made up of US values, the English language etc.).

People who don’t take a restrictionist position on immigration – such as myself – can respond in two ways.

  • First, one could claim that the rights of immigrants should be taken into account. The American freedom of association isn’t the only right in the world. When rights clash, they should be weighed against each other and the path of the “least violation” should be chosen. In the current case, one could easily argue that violations of the rights of immigrants (i.a. the right to a certain standard of living) caused by restrictions on immigration are much more severe than violations of the right to associate caused by relaxed immigration. After all, do people really believe that a culture as strong as that of the US would be harmed by immigrants? Or that immigration would change the nature of US society beyond recognition?
  • Another way to respond to the restrictionist arguments based of the right to associate, is to use the right to associate against the restrictionists. Many immigrants come or would like to come to a country because employers in that country (would) like to have them as employees. Immigration restrictions therefore violate the freedom of association of employers. Even if the country as a whole – or better the majority – feels that its right to free association is violated by immigration, it’s not obvious that the rights of the majority automatically trump the rights of a minority, however tiny this minority may be (and it’s not tiny in this case). If anything, human rights are there to protect minorities against majorities. You can make the same argument for nationals wishing to marry a foreigner, immigrants already in the country wishing their families to join them etc.

Why Do We Need Human Rights? (13): Why Do We Need Freedom of Expression?

Here’s a list of some of the traditional rationales for the right to free speech (Eric Barendt for example has identified some of these in his book “Freedom of Speech“):

1. Freedom of speech serves the search for truth

There’s a long tradition in philosophy claiming that freedom of speech and the equal right of everyone to express himself or herself in public on any possible topic improves the quality of opinions and knowledge. Rawls, Mill and Kant for example have fleshed out this claim. In the words of Alexander Meiklejohn:

Just so far as, at any point, the citizens who are to decide an issue are denied acquaintance with information or opinion or doubt or disbelief or criticism which is relevant to that issue, just so far the result must be ill-considered, ill-balanced planning for the general good. It is that mutilation of the thinking process of the community against which the First Amendment to the Constitution is directed. (source)

Or in the words of Justice Oliver Wendell Holmes, in Abrams v. United States (dissenting):

The best test of truth is the power of the thought to get itself accepted in the competition of the market.

2. Freedom of speech serves individual self-fulfillment

People who can express themselves freely are better placed to develop their personality and identity. When you can say what you think and believe, you can better give shape to your thoughts and beliefs. Also, thoughts and beliefs depend heavily on the possibility to receive information, which is something that in turn depends on free expression. On top of that, persuasion is an important element of wellbeing: people who can persuade others feel better about themselves. And when they can persuade others, they can form communities and associations, and belonging is another important aspect of wellbeing and self-fulfillment. Finally, when the right to free expression is respected, people can better enjoy culture, education and other things that improve wellbeing.

3. Freedom of speech improves the functioning of democracy

Even for a minimal democracy (regular, free and fair elections for representatives) freedom of speech is very important. Candidates have to be able to advertise themselves and their policies and argue amongst themselves. Lobbyists should be allowed to make their case (publicly and transparently, of course). Etc. But democracy should be more than that. Ideally, democracy requires deliberation among the people on the best possible policies. It’s obvious that this deliberation requires free speech. More on democracy and free speech here.

4. Freedom of speech is a check on the corruption of power

People have to be able to receive information about the functioning of government. Free speech is a necessary prerequisite of government accountability. Freedom of information acts are just as much an element of free speech as a free press, and both are required to counteract corruption and abuse of power. At the margin, elements of free speech such as freedom of information, a free press and the right to protest can make the difference between freedom and tyranny, but they also limit the risk of lesser evils such as administrative corruption, betrayal of election promises, covert government activities etc.

5. Freedom of speech is a right that is required for the protection of other rights

Historically, it has been the case that other rights have depended on freedom of speech for their full protection. The civil rights movement and the struggle against racial discrimination in the U.S., for example, would have been impossible without freedom of speech (which doesn’t mean that the right to free speech of the proponents of equal rights was never restricted). Equally, the feminist struggle for equal voting rights for women was made much easier by freedom of speech. And finally, the right to religious freedom cannot be separated from freedom of speech. And there are many other examples.

6. Freedom of speech serves prosperity

Without freedom of speech there is less innovation and less trade. Scientists who develop new products or services need freedom of speech, and business people have a lot of difficulties trading or advertising without it. Hence, it can be said that economic growth is fostered by free speech. But free speech doesn’t only promote prosperity in general (on average); it also benefits the poor. The squeaky hinge gets the oil. If the poor aren’t able to make their case, they won’t get help.

More on freedom of expression.

Religion and Human Rights (20): Should a Liberal Society Tolerate Illiberal Religious and Cultural Practices Within That Society?

By a “liberal society” I mean, of course, a society respecting the equal human rights of all its citizens. By “illiberal cultural practices” I mean practices that have a cultural origin and that violate the rights of some of the members of that particular culture. An example would be certain instances of gender discrimination in Muslim migrant communities living in a Western democracy.

Such cultural practices are a dilemma for a liberal society. On the one hand, the society’s commitment to equal rights drives it towards interference within subcultures that violate these rights. This isn’t only a moral imperative. There’s also a legal aspect to it. Equal rights are enshrined in the law of the society, and the equal application of the law is a separate imperative.

On the other hand, a liberal society wants to respect cultural diversity and doesn’t require that migrant or minority communities assimilate to a dominant culture. Freedom of religion, another liberal imperative, also forces a liberal society to accept and tolerate non-mainstream cultures. And, finally, human rights are seen as individual choices: people are allowed to freely abandon their rights if they so choose.

As a result of all of this, a liberal society usually reacts to illiberal cultural practices in the following way: as long as individual members of groups within that society have a right to exit (e.g. a right to apostasy) the state, the law and social forces have no right to interfere with the internal norms and practices of those groups, even when these norms and practices constitute (gross) violations of human rights. If people stay in the groups, then this is assumed to be an expression of their agreement with these norms and practices. Any rights violations that occur are then deemed to be voluntary and no one else’s business. For example, if a Christian church discriminates against its homosexual members, this is deemed to be no reason for intervention as long as homosexuals can freely enter or leave the church.

The problem with this is that there’s not always a free choice to stay within a group, or leave. Choice is often socially constructed. Certain elements within a culture use narratives and other means of pressure in order to encourage other members to “willingly” comply with norms and practices that oppress them. People’s beliefs and preferences are, continually and from a very young age onwards, influenced by the norms and practices of the group they belong to. Hence it’s often very difficult for members of a group to view oppressive cultural norms and practices as illegitimate, even if they are the ones suffering from them. So it’s even more difficult for these members to openly defy these norms, reject them and act to change them. And even when members do understand that the norms and practices of their group are oppressive, it’s often very difficult to leave the group. Leaving may cause an identity crisis. For example, is it realistic to expect an oppressed Muslim woman to negate Islam? Leaving may be too costly, even compared to the gains that result from the end of oppression.

So, the standard liberal solution – let minorities be internally oppressive as long as they allow their members an easy exit – isn’t a solution at all. Personally, I would recommend a stronger insistence on equal rights, even at the cost of intolerance of illiberal diversity.

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

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

Diversity

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

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

Rules and exemptions

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

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

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

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

Possible objections against the opt-out right

1. Illiberal consequences

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

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

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

2. Exemptions for what?

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

3. Domino effect of exemptions

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

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

4. Calcification of groups

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

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

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

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

5. Opportunism

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

Conclusion

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