Why Do We Need Human Rights? (37): The Right to Life

Of all human rights, the right to life is probably the least controversial. It’s almost universally accepted and it’s supposed to have absolute or quasi-absolute power: most of us have a hard time accepting or even imagining justifiable limitations of this right. Hence, the question of the justification of the right to life seems relatively uninteresting. Compared to some other rights, it’s clear why we need it: we all want to live, or at least decide for ourselves whether or not we want to live.

If, for instance, you ask people why we need the right to free speech, or why violating this right is wrong, then they’ll have a much harder time coming up with a solid answer (even though there are solid answers). They’ll also assume that they would somehow be able to live without it. Life would perhaps not be pleasant or fulfilling, but it would go on. Not so without the right to life.

So why talk about the justification of the right to life? Well, because on closer inspection things aren’t so simple. If you ask yourself why killing is wrong, the answer is surprisingly difficult. The best attempt to answer the question has some unappealing results. We can argue that killing is wrong because living allows you to do things, be someone, become someone etc. (See here for instance). It’s because life is this fundamental prerequisite and this necessary condition for everything else that a right to life is basic, quasi-absolute and easy to justify in the minds of most people. It’s a justification without which there are no other justifications. It’s axiomatic. You can’t not take it for granted.

But if killing is wrong not because it takes away a life – living in itself is not valuable – but because it takes away the ability to act and be, then it’s OK to kill off people in an irreversible coma, harvest their organs etc. The harm imposed by killing can’t be the mere fact that life stops; a person whose life is ended by way of killing can’t experience the harm of absence of life. This person can’t experience anything. A dead person can no longer have any experiences, and taking away people’s ability to experience, in other words their ability to do things and to be someone, is indeed an imposition of harm. A special harm, yes, but a harm nonetheless. Contrary to the usual type of harm, this harm does not imply the experience of harm – how can it? – but rather the harm of absence of experience.

So it’s the imposition of complete and irreversible disability – the complete and final lack of the ability to do things and be someone – that is at stake, that makes killing wrong, and that justifies a right to life. Not the absence or the taking of life as such: the mere absence of life is not a harm. The disability has to be irreversible, because anesthesia for example has the same disabling effect, but in a reversible manner. That is why killing the anesthetized and harvesting their organs is still wrong.

This answer to the question of the wrongness of killing is discomforting. Many of us would shudder at the conclusion that killing off people in an irreversible coma is right because it doesn’t mean imposing harm (the harm – complete and irreversible disability – has already been done). It doesn’t sound right. We sense that we would still impose a harm. But which harm? It can’t be a harm that they can experience, given that they can’t experience anything (so we’re not talking about cases of locked-in syndrome here). Hence, irreversible coma is the same harm as death. Killing people in an irreversible coma does not mean imposing extra harm. It’s not the loss of anything valuable that hasn’t been lost already by the event of the irreversible coma.

And yet, this still sounds unsatisfactory. Many of us would try to keep comatose people alive. After all, what looks like irreversibility may not be so in the future. But even if irreversibility is a certainty, we still wouldn’t be OK with pulling the plug. I’m afraid I have no solution. I’m stuck. And the absence of a solution complicates the justification of the right to life: if killing off irreversibly comatose people is not wrong, then the right to life loses part of its meaning.

More posts in this series are here.

Why Do We Need Human Rights? (29): Human Rights as Expressions of Human Duties in Early Protestant Thinking

Rights are often described as correlates of duties: if you have a right to something, someone else – or maybe everyone else – has a duty to respect your right. However,  it’s also possible to conceptualize your right as a means for you to execute your own duties. So, rather than your rights being my duties, your rights are your duties. This may sound weird but bear with me for a second.

Many early Protestants conceived of their rights exactly in this way. And if you know that Protestant thinking was one of the main driving forces behind the human rights revolution in the 17th and 18th centuries, then you also know that it’s important to understand the early Protestant mindset.

How exactly did they view human rights? The individual, according to early Protestants, has certain duties towards God: to exercise his or her religion, to honor God, to worship, to rest on Sunday, to proselytize, and to treat neighbors with care and love. These duties were then transformed into rights, not the rights of others but the rights of the duty bearers. A right became the expression of a duty. If it’s a duty to proselytize, then Protestants should have the right to free speech as a means to proselytize. If it’s a duty to worship God, then Protestants have a right to religious liberty. Etc. Protestants didn’t demand their rights and their freedom from government in order to pursue their desires and private wants, but in order to better be able to perform their religious duties.

Why do I mention this? It’s ancient history by now. These days, hardly anyone conceives of their rights in this way, and Protestants – especially American Protestants – are no longer at the frontline of the battle for human rights (if anything, they oppose many contemporary interpretations of human rights, such as same-sex marriage, abortion, social security etc.).

I mention it because it’s interesting to see how different people belonging to different traditions and cultures can account for human rights in different ways, using the resources available in their own heritage. I don’t think this particular Protestant interpretation of human rights is a convincing account – neither for me personally (I’m an agnostic) nor for present-day Protestants. But I do think that it can inspire others, and particularly those who belong to traditions that contain strong anti-rights strands, to have another look at their heritage and try to find an account of human rights that can be supported by other strands of the same tradition. I mean, if what we would now call fundamentalist Protestants could do it centuries ago, why not pious Muslims today?

All this boils down to the problem of the justification of human rights. Why do we need human rights? Even if you share Richard Rorty’s skepticism about foundationalism – as I do – you’ll still have to answer the question “but why?” if you talk about respecting rights to those who are hostile to them. There’s no way around that question. A particularly powerful answer is one that uses the resources available in the traditions of those who are hostile. An even more powerful answer is one that those people can come up with themselves. Seeing how others did it may inspire them. And I have no problem with different people coming up with totally different and even incompatible justifications of human rights. To put some words into the mouth of Jacques Maritain: I don’t care why people adhere to and respect human rights, as long as they do.

More on the justifications of human rights here, here and here.

Crime and Human Rights (13): What’s the Use of Criminal Punishment?

Criminal punishment, even in our non-medieval and so-called Enlightened societies, is the deliberate, intentional and organized imposition of harm on those we believe to be guilty of a crime. That remains the case even if we assume that those who are punished are in general guilty and that all necessary preconditions for criminal punishment are present (for example, that people are punished only after a fair trial, conducted by those authorized to conduct it; or that only those people aware of the moral significance of their actions are punished).

Given this imposition of harm, it’s important to be able to justify our systems of criminal punishment. Usually, but not always, the justifications people offer invoke the need to protect the rights of victims – actual or potential – but it’s far from certain that any justification can withstand even superficial criticism. Let’s look at the different justifications in turn. I think we can distinguish at least 5 common types of justification:

  1. Internalization
  2. Deterrence
  3. Rehabilitation
  4. Incapacitation
  5. Retribution

I’ll first offer a more or less neutral description of these different justifications, before criticizing them.

Justifications of criminal punishment

1. Internalization

The system of criminal punishment is justified because it is an expressive affirmation of shared values within a community (in other words, it’s a form of signaling). This affirmation serves to internalize shared values. When the members of the community have successfully internalized the shared values of the community, it’s assumed that crime will occur less frequently.

2. Deterrence

According to this second type of justification, criminal punishment is justified when it can be shown that the threat and practice of punishment is necessary for the prevention of future crimes, not through internalization of the norms expressed in punishment, but through fear of punishment. Punishment is supposed to reduce the prevalence of crime because it works as a threat. It’s assumed that most rational people who perceive this threat engage in risk analysis, weigh the possible costs and benefits of an intended crime, and conclude that the costs outweigh the benefits (the cost evaluation is a combination of likelihood of the threat – i.e. enforcement – plus severity of the threat). As a result, people reduce their willingness to carry out the crime.

3. Rehabilitation

Unlike internalization (1) and deterrence (2), this third type of justification does not aim at a general prevention or decrease in crime. Criminal punishment is justified because it prevents a particular criminal from engaging in future crimes. Prevention occurs because it’s believed to be possible to change the criminal’s propensity for crime through rehabilitative efforts within the penal system.

4. Incapacitation

This fourth type of justification also doesn’t aim at a general prevention or decrease of crime. Punishment is justified because it prevents a particular criminal from engaging in future crimes, not by way of rehabilitation but by way of incapacitation, which means either incarceration or execution.

5. Retribution

Criminal punishment is justified because criminals deserve to be punished in a certain way.

Consequentialism and deontology

Justifications 1 to 4 are consequentialist in nature: punishment is justified because of the good consequences that result from it, or because of the bad consequence that would result from our failure to punish. They all assume that punishment can prevent crime and hence protect victims – real or possible victims. Justification 5 is of a more deontological nature: punishment is a good in itself in the sense that it is required by justice irrespective of the likely consequences.

Contradictions between justifications

Notice how these different justifications may be incompatible.

Contradiction between (3) and (5)

Rehabilitation (3) means, by definition, flexible sentencing. Penal officials and judges need to have discretion, otherwise they can’t differentiate between successfully rehabilitated prisoners and others. Such discretion typically invokes anger among those who adopt a retributivist justification (5). Retributivism focuses on just desert in sentencing: a criminal should get the sentence he or she deserves, and usually this means a sentence that is in some way proportional to the gravity of the crime and to the harm done to the victim and to society. That is why retributivists demand uniformity in sentencing, and sometimes even mandatory sentencing. The discretion inherent in rehabilitation provokes feelings of unfairness among retributivists.

Contradiction between (4) and (5)

But also incapacitation (4) is often at odds with retributivism (5). For example, incapacitation in the form of incarceration may be less than what the criminal is supposed to deserve. Perhaps the criminal deserves to die according to the retributivist.

Contradiction between (2) and (5)

Retribution (5) can be incompatible with deterrence (2) because effective deterrence may require punishment that is more severe than the punishment that the criminal deserves. For example, there’s no reason why those who believe in deterrence should reject capital punishment for petty theft if it can be shown that such a punishment effectively deters this crime and that the benefits of deterrence outweigh the harm done by the execution. Something more is required to reject such a punishment, and that’s where retribution comes in. Retributivists would claim that petty thieves don’t deserve to die.

Contradiction between (3) and (4)

And a last example of a contradiction between different types of justification of criminal punishment: incapacitation (4) may make rehabilitation (3) more difficult. After all, it’s not obvious that prison is the best locus for rehabilitation. On the contrary, it’s often argued that prison is a school for criminals. Rehabilitation may then require a sentence such as a fine or GPS tracking.

A scale of decreasing ambition

We can view justifications 1 to 5 as being on a scale from most to least ambitious.

1. Internalization

Internalization (1) is obviously the most ambitious since it promises moral education of the citizenry and moral compliance with the law. The obvious problem here is that the desired outcome is highly uncertain, perhaps even utopian. It’s not sure that this uncertain objective justifies the very real harm imposed by criminal punishment.

2. Deterrence

Deterrence (2) is somewhat less ambitious since it discards the educational function of punishment as highly unlikely and aims instead at grudging compliance based on fear (as opposed to moral compliance based on conviction). Still, it’s relatively ambitious since it expects a society wide reduction in crime resulting from fear and rational risk analysis on the part of potential criminals. The data have shown that deterrence as well is overambitious.

3. Rehabilitation

Rehabilitation (3) in turn discards some of the unrealistic assumptions of deterrence (2), such as rationality on the part of future criminals and strict enforcement of the law, and tries to avoid some of the counterintuitive consequences of deterrence (2), such as the tendency to increase the severity of punishments resulting from the need to tip the scale in the risk analysis of criminals. It also tries to avoid the immoral instrumentalization inherent in deterrence. Moreover, it’s not clear that deterrence works, empirically.

Rehabilitation (3) is less ambitious than internalization or deterrence because it focuses on preventing only certain particular criminals from engaging in further crimes. There’s no society wide ambition anymore. However, the success of rehabilitative efforts during the past decades, as measured by reductions in recidivism, is mixed, to say the least. It’s correct to say that most criminologists have become somewhat disenchanted with rehabilitation. And there’s also some doubt about the morality of some rehabilitation techniques (especially those that have been lampooned in A Clockwork Orange). Which is why many have scaled back their ambitions even more and now focus on incapacitation (4).

4. Incapacitation

Let’s limit our discussion of incapacitation (4) to incarceration, since capital punishment is fraught with many other problems that have been widely discussed before on this blog. The problem with incapacitation is that it doesn’t have a clear boundary. Taken by itself, incapacitation theory could justify life imprisonment for petty crimes. In fact, the whole tough on crime philosophy can be seen as an exaggeration of incapacitation theory following the perceived failure of rehabilitation.

5. Retribution

This lack of a boundary in incapacitation theory (4) has led people to fall back on perhaps the oldest and least ambitious justification of criminal punishment, namely retribution (5). Retribution can be seen as a type of justification of criminal punishment that is entirely without ambition: punishment is inflicted for its own sake, not for the possible benefits it can produce. Criminals should be punished because it’s the right thing to do and because they deserve it, not because some aim or purpose can be served by it. This element of desert allows us to avoid both punishment that is viewed as being too severe – as in incapacitation (4) and deterrence (2) – and punishment that is viewed as being too lenient – as in rehabilitation (3).

Retributivism in fact abandons the pretense that punishment has a purpose, that it can achieve a desired objective and that no other, less severe means are available for this objective. However, retributivism isn’t a solid justification of criminal punishment either. It has proven to be impossible to know what exactly it is that the guilty deserve. Lex talionis is the easy answer, but it’s no longer a convincing one in modern societies. Proportionality is the difficult answer: severity in punishment should be proportional to the gravity of the offense. That’s the difficult answer because it leaves us with a system that is inherently imprecise and arbitrary. An infinite number of punishments are consistent with this justification. Hence it’s not really a justification at all.

No justification?

So, where does this leave us? It seems like criminal punishment is not justifiable. And indeed, there’s a long tradition in philosophy that views punishment as nothing more than rationalized anger, revenge and domination. Michel Foucault for example has analyzed criminal punishment as a cogwheel in the continuation of social power relations. The fact that there are so many African Americans in U.S. prisons and in execution statistics can be viewed as a symptom of continued racist domination. Nietzsche has described criminal punishment as being motivated solely by a deep natural desire to punish, subordinate and coerce. And indeed, if you want to punish someone for a crime, you first need to establish control over the would-be punishee. All systems of criminal punishment seems to be doomed to failure if there isn’t a prior system of control. This would indicate that there is already a prior system of control operating in society before criminal punishment takes effect, which in turn seems to indicate that systems of criminal punishment are merely the strong arm of deeper systems of control.

On the other hand, it seems difficult for anyone who’s serious about human rights to simply abandon criminal punishment. Without criminal punishment, we in fact expect victims of crime to either fend for themselves or undergo their suffering and rights violations. Neither outcome would be just.

The Ethics of Human Rights (35): The Global Origins and Foundations of Human Rights

As Jacques Maritain put it when discussing the work on the Universal Declaration of Human Rights:

the nations should and could reach practical agreement on basic principles of human rights without achieving a consensus on their foundations. (source)

In other words, different countries and cultures in the world can – and could in 1948 – agree on the list of human rights as long as nobody asks them why, because they all will have different reasons. Even if we take the charitable view and assume that no one accepts the UDHR and human rights in general for opportunistic reasons (because it reduces international pressure and confers legitimacy for example), we still have to say which substantial reasons different nations, cultures or religions tend to use in order to justify the importance and acceptance of human rights. These reason will emanate from their own culture, religious texts, traditions and history.

To some extent, different cultures can and do find their own foundations of human rights. In this sense, human rights aren’t simply western rights which are imposed on or adopted by the rest of the world. Of course, some of these foundations will be universal because some values are universal in the sense that they belong to all cultures in the world. Homicide, for example, is universally considered to be immoral. In other cases, however, different cultures will find different reasons to justify human rights. For example, the right to free speech in the West will be viewed as justified by the necessity of counterbalancing government power, whereas in other cultures it may be viewed as something to promote prosperity or religious tolerance.

There’s a nice German term for this: human rights are said to be Begründungsoffen, their justification or foundation is open in the sense that they can be justified by different religious, cultural or intellectual traditions. That’s a big advantage. One can legitimately object to making universal claims grounded on such particularized foundations as Christianity, dignity, likeness of God etc. Muslims probably won’t accept human rights if they can only be justified by the teachings of Jesus. They can be justified in this way, and that’s a powerful justification for Christians, but they can also be justified in other ways. There isn’t one ultimate justification for human rights. All different justifications have a particular plausibility for a certain group of human beings, whether this group is a culture, a nation or a religion.

These different cultural paths to human rights, based on different cultural and historical resources, should, however, not discourage dialogue. If you’re convinced that different cultures can find their own way to human rights, you may conclude that intercultural dialogue isn’t necessary. It is necessary, because it’s utopian to believe that each culture will find its way to an identical set of human rights or an identical understanding of human rights. The moralities of all or most cultures or groups will condemn homicide, torture and slavery, but will perhaps provide different exceptions. And other values, such as free speech or freedom of religion may not find an equally strong justification in all cultures. It’s unlikely that the entire set of human rights as present in the Universal Declaration will find a strong and broad justification in all cultures. There’s still a lot of disagreement between cultures on the foundation, importance and extent of things such as discrimination, religious freedom etc.

That is why human rights treaties and declarations don’t just codify a universal moral consensus but also try to steer different moralities into a certain common direction. They want to change norms rather than just describe them. In other words, they formulate a justified morality rather than an existing morality. They want to create a consensus, not describe one. Creating a consensus is impossible if all cultures limit themselves to independently and solipsistically justifying human rights using only their own resources. Intercultural dialogue is necessary, and this dialogue will not just be the exchange of descriptions of different moralities but will try to go beyond existing moralities and formulate a consensus that is wider that the sum of existing norms. It will contain a set of norms that are based not solely on existing moralities but also on justified reasons. Not just on the sum of different moral codes but on the agreements of people discussing about good reasons for human rights, reasons that go beyond “my God/prophet/history/tradition says …”. This dialogue will result in a wider global agreement on the importance of human rights, an agreement that can ultimately result in greater respect for human rights.

For the benefit of those who don’t even believe in the first step – finding the sources of human rights in different cultures – here’s a sample of those sources:

  • Christianity, and more generally the Abrahamic religions – so that includes Judaism and Islam – postulate the equality before God. All human beings are equal creatures of God, and created in the image of God. That notion bestows a sacredness to life that is not a function of national origin, status or affiliation. This is also apparent in the Judaic maxim that he who destroys one person has dealt a blow at the entire universe and he who saves one person has sustained the whole world.
  • Protestantism has developed the freedom of conscience, the right and responsibility of every man to worship as his conscience dictates, to make his own judgments, uninhibited by a religious hierarchy.
  • The Indian emperor Ashoka (third century BC) is famous for the Edicts of Ashoka, a collection of 33 inscriptions on the Pillars of Ashoka, as well as on boulders and cave walls found throughout India. These are social and moral precepts in favor of tolerance and individual freedom, the doing of good deeds, respect for others, generosity, fairness in the exercise of justice, caution and tolerance in the application of sentences, and kindness to prisoners. His was the first welfare state, providing free education and hospitals.
  • Akbar, the great Mughal emperor in sixteenth century India, was famous for his religious tolerance.
  • The Qur’an claims that there can be no compulsion in religion. Islam also knows the principle of equality and generosity: “Not one of you (truly) believes until he wishes for his brother what he wishes for himself” (An-Nawawī’s Forty Hadith). Caliph Omar, in the 7th century: “Only decide on the basis of proof, be kind to the weak so that they can express themselves freely and without fear, deal on an equal footing with litigants by trying to reconcile them”.
  • Mencius, arguably the most famous Confucian after Confucius himself, has said: “Try your best to treat others as you would wish to be treated yourself, and you will find that this is the shortest way to benevolence”.
  • Lao Tzu, a central figure in Taoism, has said: “Regard your neighbor’s gain as your own gain and your neighbor’s loss as your own loss”.
  • In the Mahabharata, one of the major Sanskrit and Hindu epics, it says: “This is the sum of duty: Do naught unto others which would cause you pain if done to you”.
  • Siddhartha (the birth name of the founder of Buddhism, Gautama Buddha) has said: “What is displeasing and disagreeable to me is displeasing and disagreeable to others too. How can I inflict upon another what is displeasing and disagreeable to me?” In Buddhism, the human perfection that is sometimes called “enlightenment” consists, in part, in discerning the transcendent truth that the Other is infinitely precious and in acting toward the Other in accord with that discernment, namely, with compassion (in the words of Thich Nhat Hanh).
  • Baha’i, a monotheistic religion founded in nineteenth-century Persia, claims: “Lay not on any soul a load which ye would not wish to be laid upon you, and desire not for any one the things ye would not desire for yourselves. This is My best counsel unto you, did ye but observe it”.
  • Jainism is an ancient religion of India that prescribes a path of non-violence towards all living beings: “One should treat all creatures in the world as one would like to be treated”.

Granted, not all of these moral precepts can be immediately translated into recognizable human rights, and many precepts underlying human rights are difficult to find here. Yet, we can claim that all these cultural sources can be used, to some extent, to justify human rights.

Why Do We Need Human Rights? (10): Why Do We Need Democracy?

Regular readers will know that I see democracy as a human rights issue. The standard human rights texts (declarations, treaties and constitutions) all provide a right of the people of a nation to take part in the government, choose representatives in free elections etc. As with human rights in general, many people are in favor of democracy, but are unable to say why, or are unable to agree on the reasons why they are in favor. Some people may not have a particular reason to favor democracy, apart from a pragmatic one: it has worked quite well, especially compared to other forms of government that have been tried before, and it’s such a fuss to change.

Those who have reasons can be divided into two “camps”: those who view democracy as the best means to an independently valuable  goal, and those who view democracy as intrinsically valuable. The former group is the most numerous (and includes me). An instrumental justification of democracy can take many different forms, depending on the ultimate goal that is supposed to be promoted by democracy. The most common forms are:

  • Democracy promotes prosperity, economic growth and poverty reduction.
  • Democracy promotes peace (internally and externally).
  • Democracy leads to better political decisions.
  • Democracy leads to less repression and more respect for human rights.

I believe all of these statements are very persuasive, and taken together they form a very powerful justification of democracy (although we may need to agree on a very specific definition of democracy in order to be convinced by these statements – but that’s another discussion).

The non-instrumental justification, the one that says that democracy is good, not because of what it produces, but because of what it is, is also very interesting and persuasive. It focuses on what happens to people when they participate in government, what happens when democracy takes place, not what happens after it has taken place. So instead of pointing to beneficial consequences of democracy – more prosperity, more peace etc. – it points to the benefits of community, association, participation, self-government, self-determination etc. and how these things improve people’s characters, virtues and happiness. Read more here.

The only problem I have with this non-instrumental approach in which democracy is an end in itself, is that it tends to collapse into the instrumental approach: if democracy improves people’s character, then it’s also instrumental. It’s only an end in itself in the sense that it’s product doesn’t appear afterwards (like peace follows from democratic rule), but is simultaneous with it (people’s characters and virtues improve because of democracy, but only as long as democracy “happens”).

However, often it’s quite irrelevant which type of justification of democracy we prefer, and how successful (or not) the chosen justification is. Such exercises can be no more than “preaching to the choir”, intellectually interesting but practically irrelevant. People who already accept democracy don’t need a philosophical explanation of why democracy is so wonderful. And people who don’t accept democracy are often immune to rational justifications or to philosophy in general. Good luck approaching the Taliban with a philosophy paper on the benefits of democracy… (In fact, good luck approaching them at all).