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 Causes of Human Rights Violations (5): Lack of a Fair Trial

A characteristic element of modern democratic states is their ability to offer fair trials to those accused of crimes. We try to treat everyone, even suspected criminals, with fairness, and we have two principal reasons for this:

  1. We only want to punish real criminals. A fair trial is one in which everything is done to avoid punishing the wrong persons. We want to avoid miscarriages of justice.
  2. We want to use court proceedings only to punish criminals and deter crime, not for political or personal reasons, as is often the case in dictatorships.

One important condition for a fair trial is publicity. Justice must not only be done, it must also be seen to be done, not only to deter other criminals and to give consolation to victims, but also because publicity makes it more likely that the real perpetrator is punished. Every trial is therefore a show trial. The publicity of a trial makes it possible to judge the judge and hence to correct mistakes if necessary.

The secret trial is typical of authoritarian regimes because it allows for abuses of power. It makes it easier to use the justice system for other purposes than the identification and punishment of proven criminals. It is very hard to use a public trial for power games or oppression.

On top of that, false accusations or false testimonies are more likely to remain undiscovered in a secret trial. After all, it is not only the state that can gain from a secret trial. Interested third parties can also benefit from an unfair trial.

However, publicity alone does not guarantee that trials and verdicts are fair and just (which is clear from the phenomenon of communist show trials). The following elements are just as important (as with publicity, most of them are included in the main human rights instruments, for example articles 9, 10, 14 and 15 of the International Covenant on Civil and Political Rights):

  • No punishment or imprisonment without an indictment and without swift information on the nature of the indictment. If the purpose of the justice system is to punish criminals, it’s very easy to tell the suspect who we want to imprison before his or her trial about the crime he or she is suspected of having committed. After all, the crime has been committed and the accusers surely must know the nature of this crime. It must be awful to be imprisoned without knowing why. The absence of indictments indicates that the authorities merely wish to use the justice system to terrorize the population, not to punish crime.
  • No excessively long detention on remand (detention without a lawful and fair trial and conviction). We do not want to incarcerate innocent people.
  • The possibility of an appeal to a higher court. Mistakes can be made.
  • A competent and impartial judge; fairness, according to the dictionary, means impartiality. A partial judge is an absurdity. Such a judge would be completely useless, and people would be better off fighting their cases amongst themselves, one against one instead of one against two.
  • The possibility to defend yourself and to receive free legal assistance. The possibility to argue and to give counter-arguments, to call witnesses for the defense and to question witnesses for the prosecution. This requires time, hence this must be balanced with the point mentioned earlier about the excessively long detention without a trial. Swift justice┬ácan be as unjust as detention without a trial.
  • Innocent until proven guilty. The burden of proof rests on the accusers. This is necessary to discourage wrongful accusations and also because the purpose of the trial is precisely the establishment of guilt. If guilt is assumed beforehand, then why have a trial in the first place?
  • No forced confession, because that would defeat the purpose of convicting the real perpetrator. And no obligation to incriminate yourself (the right to remain silent), which is linked to the rule that the burden of proof rests with the accusers.
  • No excessively tough penalties. The purpose is to punish, to prevent repetitions of the crime by the same criminal and to deter other criminals, not to balance the wrong that has been done by an equally painful punishment.
  • “Ne bis in idem”: no two trials for the same offense. If people can be retried continuously for the same crime, then the purpose is obviously not the punishment of proven criminals, but punishment per se. Anyway, if all the rules listed here are respected, there is no need for a retrial. This rule is also called double jeopardy.
  • “Nulla poena sine lege”: no crime or punishment without a law voted and published before the criminal deed. In other words, no retroactive laws, no laws with retroactive effect (laws which make deeds punishable after they have been committed). One cannot punish people for acts that were not a crime at the time when they were committed, because people should know what is or is not allowed so that they can plan their lives as law-abiding citizens.
  • For the same reason, laws should be predictable and should not change all the time. Nobody is responsible for a violation of a law if the law changes from day to day, because if the law changes constantly, then nobody knows the law and then nobody can respect the law. Predictability and permanence of the law are prerequisites for obedience, just as knowledge and publicity.
  • There should not be too many rules, otherwise the judges and the police will not have enough time to enforce them all or to punish all violations of all rules, which leads to injustice. Too many rules also leads to involuntary violations of rules, because citizens do not know what they are or are not allowed to do. The purpose of the justice system is to punish crimes, not mistakes; criminals who knowingly violate rules, not law-abiding citizens who unknowingly do what they shouldn’t.

All these elements put together make the justice system just, and protect the citizens against the state or against fellow citizens that want to abuse the justice system. If one element is missing, then all the others may become useless.