The Causes of Human Rights Violations (49): The Violator’s State of Mind

There are some interesting things to say about the state of mind of the rights violator, and about how this state of mind leads to rights violations and subsequent liability and punishment. There’s malevolence, of course, but that’s just one extreme of a wide spectrum of states of mind that can cause rights violations. We’ll have a look at that spectrum here, and classify states of mind according to the degree of liability and the severity of punishment that should attach to them. (By some accident of the English language, all states have a name that ends in -ence. Makes it easier to remember).

1.  Malevolence

A malevolent violator acts intentionally. She knows the harmful consequences of her actions and acts anyway. In fact, she acts precisely because of those consequences. The notion of mens rea is applicable here. An example of malevolence is premeditated murder.

2. Non-benevolence/negligence

A non-benevolent or negligent violator also acts – or omits an action – intentionally. She also knows the harmful consequences of her actions or omissions and proceeds anyway, not because she wants the consequences but because she doesn’t care enough about them. An example of non-benevolence is the failure to help persons in need (the classic case of the drowning child). An example of negligence is the factory owner failing to install safety measures for her workers. (There may be a problem with the notion of “failure to help persons in need”: given the large number of people in the world that are in some sense “in need”, we may not be able to help them all without radically changing our own lifestyles. All of us who are not now in Africa working to end poverty may then be liable. Perhaps we can avoid this excessive burden by limiting this liability to face-to-face situations such as the drowning child, but it’s not clear that there’s a sound moral basis for this limitation).

3. Unintelligence

An unintelligent violator acts unintentionally. She doesn’t know the harmful consequences of her actions, but she could have known them without much effort. Because she could have known them, she should have known them. And because she should have known them she is liable for them. It’s a form of negligence: the actor is intellectually negligent. She is not negligent in the sense that she does not care about consequences but in the sense that she does not reflect on them or does not care enough to reflect on them. An example of an unintelligent actor is the bar fighter.

4. Coincidence

A coincidental violator also acts unintentionally, and also doesn’t know the harmful consequences of her actions. The difference is that she couldn’t have known them, or couldn’t have been expected to know them, within reason. Because she couldn’t have known them, we can’t demand that she should have known them. And yet, in some cases we may still hold her liable. An example is fraternal incest between brother and sister separated at birth. Another example is the drug company selling a product that has been thoroughly tested but still has some unforeseen and unforeseeable harmful effects. Obviously this is a reduced form of liability.

5. Ascendence

An ascendental violator also acts unintentionally. She may or may not know the harmful consequences of her actions. The nature of this type of state of mind is that she doesn’t know her actions. We’re dealing here with unconscious rights violations. People may violate rights but don’t realize that they do. They may act because of tradition, because certain rules or biases were instilled in them in early childhood etc. In some cases, they can be held responsible for their actions. The word “ascendence” therefore refers to what goes above and comes before.

6. Incidence

An incidental violator is just there. We don’t know anything about her state of mind. We don’t know whether she acts intentionally or not, knowingly or not, willingly or not. We don’t know whether she could or should have known or done something. For example, we see patterns of discrimination in society, and someone must be discriminating. We may be able to identify that someone and hold her responsible even when we lack all other knowledge about her. An example would be a company systematically paying female employees lower wages.

More posts in this series are here.

Types of Human Rights Violations (7): Unintentional Human Rights Violations

The common view is that there can’t be unintentional human rights violations: only when someone intentionally harms the rights of someone else can we talk about rights violations. In all other cases we should talk about accidents, tragedies or misfortune. However, I’ve never understood this common view. There is criminal liability for accidentally running someone over with a car, but if we unintentionally reduce someone’s freedom or equal standing should that person simply suffer her misfortune rather than seek redress for violations of her rights? That can’t be true. What’s important about human rights is the harm to the victim, not the state of mind of the perpetrator. Rights are about victims, not perpetrators.

So below are a few examples of unintentional human rights violations (you can suggest more in comments).

Criminal punishment is often a very intentional human rights violation. Think of capital punishment and excessively long or discriminatory incarceration. However, let’s assume that there are cases of justified criminal punishment which merely aim to limit some of the human rights of criminals rather than violate them – the difference is that limitations, contrary to violations, are necessary for the protection of rights of others. (This is not an assumption that is evidently true – see here – but let’s leave our doubts at the door for a while).

Justified criminal punishment must be imposed intentionally. Unintentional side effects of incarceration, for instance, should not therefore be part of legitimate criminal punishment. Examples of such side effects are loss of income, loss of education opportunities, prison rape etc. These, unfortunately, are very common side effects, and incarceration thus unintentionally produces rights violations. That is something which should – but never is – taken into account when imposing prison sentences, especially when, such as in this case, the unintentional human rights violations are eminently foreseeable. (More about this here).

Immigration restrictions are imposed not because decision makers in the destination countries want to condemn large parts of humanity to a life of desperation. They are imposed because people – mistakenly in my view – believe that such restrictions serve to protect a national culture, national prosperity or law and order. However, the fact is that immigration restrictions unintentionally perpetuate poverty, and poverty is a human rights violation. Freedom of association and freedom of movement are also violated by immigration restrictions, and those rights violations are also unintentional.

Poverty in general is usually an unintentional human rights violation. Few people deliberately create or perpetuate poverty, and yet there’s a lot of poverty in the world. While some of it is due to natural causes, misfortune or self-destructive actions, most of it is the result of unintentional actions by other people: certain economic policies (such as anti-poor trade policy), or unintentional failure to act charitably. More about this here.

As you can see from all these examples, the absence of an intention to violate rights is not a sufficient reason to negate the reality of violations. It’s also not sufficient to clear people of responsibility. Even if people do not have the intention to violate rights, they should try to assess whether violations are possible side effects of their actions. And in all the examples given, this assessment is relatively easy. If you think about it, you know that you’ll violate rights unintentionally when you lock up criminals, when you stop people at the border or when you implement certain economic policies. Hence, just like the reckless driver hitting someone with his car, you may be held accountable if your actions in the spheres of justice, border control or trade – or in any other sphere for that matter – cause unintended rights violations.

One day I will offer a complete typology of human rights violations. I think…

Discrimination (6): Should People Be Liable For Unconscious Discrimination?

First of all, it’s evident that people often have unconscious motives for their actions. For example, parents “wishing the best” for their children can act out of frustration about their own past failures. So it’s likely that some acts of discrimination are based on similar “deep” motives. Some of us who genuinely believe that we are colorblind may still avoid black neighborhoods at night, cross a lonely street when a tall black male comes our way, or favor a CV sent in by someone with a “‘Caucasian” name. Tests have shown that people are more biased than they admit to themselves.

So we may be violating anti-discrimination laws without “really” and consciously wanting to. You could say that in such cases we shouldn’t be prosecuted for breaking the law, because there is no intent on our part. Discrimination takes place but no one really wants it to take place. True, normally there’s an intent requirement when deciding liability: if you drive your car and you hit someone who crosses the road where he or she shouldn’t do so, you’re not criminally liable. You killed a person but didn’t intend to. In some cases, the lack of intent diminishes rather than removes liability: if you’re in a fight with someone and the other person dies because of your actions, you won’t be charged with homicide but with the lesser crime of manslaughter if you didn’t intend to murder.

As the example of manslaughter already makes clear, intent isn’t always necessary for liability. Hence, lack of intent can’t be the reason not to make unconscious discrimination a crime.

Anyway, intent or the absence of it is often very difficult to prove. In the case of homicide/manslaughter, you can use witness accounts or physical evidence, you can reconstruct the crime and try to figure out if the killing was planned or intended, or you can interrogate the perpetrator, and even then it’s rarely easy. Things seem to be much more difficult still in cases of unconscious discrimination. Looking for intent is basically trying to look inside people’s minds, which isn’t obvious, and when people fool their own minds it’s becomes even harder.

If we accept that unconscious discrimination should be a crime in certain cases, and perhaps equivalent to conscious discrimination, then the problem is how to prove that it took place. In the case of conscious discrimination, you can often rely on the utterances of the person(s) who discriminate. That’s evidently impossible in the case of unconscious discrimination. Perhaps you can’t prove it in individual cases – if one black person’s CV is rejected, it’s probably impossible to say it’s because of implicit or unconscious racism. However, if a company rejects a large number of such CVs, and correcting for other factors such as education or skill level doesn’t remove bias in the distribution, then you may perhaps have evidence of discrimination (that’s a technique that’s useful in cases of conscious discrimination as well, by the way). So you would need to rely on statistical analysis, something that usually isn’t done in the determination of criminal liability. It’s not because x % of all killings are manslaughter that everyone charged with a killing has x % change of “getting away” with manslaughter. The decision to sentence someone for the crime of murder or manslaughter is always made on an individual basis and not a statistical one, although past conduct of the suspect can sometimes come into play.

An additional difficulty: if we accept that laws aren’t only meant to punish but also to prevent and deter, it seems that the latter goal is futile in the case of unconscious discrimination. People who are not aware that they engage in discriminatory activities will hardly be persuaded by laws telling them to stop doing so.

I’m personally not yet ready to take a firm position on these issues. For more information on this topic, take a look at this interesting paper.

The Ethics of Human Rights (32): Human Rights and the Chain of Causation

Who causes human rights violations? Causation is a key factor in the attribution of moral and legal responsibility, so it’s an important topic in human rights talk. The problem is that there is often not one single cause of rights violations, and hence not one single violator. Rights violations can be the collective responsibility of an entire group or a government for instance, but the issue I want to focus on here is another type of collective responsibility. It’s possible that there is a chain of causation: a series of events taking place over a period of time, and one event causes the next one until a rights violation occurs. The question is then: is it only the last moral agent, the last one in the chain of causation that results in a rights violation, who is the violator and the morally and legally responsible party? Or do some of the agents earlier in the chain of causation also carry some responsibility?

Let me give an example. Take the case of a drunk driver causing a fatal accident and thereby violating the right to life of his victim. Just before the accident, a pub-owner willingly sold the visibly intoxicated man more alcohol. You could argue that both persons caused the accident: the drunk because of his drunk driving, and the pub-owner because he sold the drinks. Both could have taken action to avoid the accident (assuming that the driver wasn’t sufficiently intoxicated before he bought the extra drinks from the pub-owner). And because they both could have acted otherwise, they are both responsible – morally and legally – for what happened. Both have violated the rights of the victim.

Causing something isn’t a sufficient condition for responsibility. You could go further down the chain of causation and claim that the pub-owner’s parents also caused the accident, because they had the choice of having or no having a child. By having the child, they initiated a chain of causation that led to the accident. They could have taken action to avoid the accident. However, no one would claim that they are thereby responsible for the accident. The difference between the parents on the one hand and the pub-owner and the driver on the other hand, is that the parents could not have foreseen the possible consequences of their actions. Hence, responsibility requires causation plus foresight rather than simply causation (some would say that intent should be added as well). (Of course, in some legal contexts, cause is sufficient for liability: if I drive my car into another one, I may be liable for the damages even if I didn’t intend what happened and could not have foreseen it. Product liability is another example. In other legal contexts, cause is not necessary: if my dog bites you, I’m liable, even though I didn’t cause the harm. But those aren’t the cases I’m interested in).

The pub-owner and the driver could have and should have foreseen the possible consequences of their actions, and probably did foresee them in some part of their brain. We all learn that some consequences flow from some actions, with high degrees of probability. And yet they still went ahead with their actions. Hence both are responsible for what happened because they caused it, because they could have acted otherwise, and because they could have foreseen the consequences. The chain of causation leading up to the rights violation goes back many steps (and many years if not centuries), but the chain of responsibility stops somewhere along the road. It stops with the first person in the chain of causation able to foresee the ultimate result of the chain and able to act otherwise. In our example, the pub-owner.

But, of course, this example is too simple. Often we have to go back more than two steps in the chain of causation to find the first point of responsibility. Suppose the pub-owner bought his pub from some other guy who knew at the time about the reckless way in which the pub-owner serves his customers. (Suppose the pub-owner did something similar before he bought his current pub). How far back in time and in the chain of causation should we be allowed to go in order to attribute responsibility? And do all responsible parties share the same “amount” of responsibility? Probably not; that would violate our moral intuitions, which tell us that the driver carries the heaviest burden. He had many alternative options: he could have decided not to drink so much, not to go to the pub in the first place, or take a taxi home etc. The pub-owner could of course have decided to stop selling booze, but maybe he didn’t know that the drunk was intending to drive back home. And if he knew, how could he have stopped him driving back home? The person selling the pub also could have decided to sell it to someone else, but perhaps there wasn’t another possible buyer, and perhaps he believed in redemption and didn’t want to judge a person’s future on the basis of past mistakes.

But if not all responsible parties share the same “amount” of responsibility, how do we differentiate between the levels of responsibility of the different parties and calculate each party’s share? Does time play a role? Does responsibility diminish as time passes? Those are terribly difficult questions and most of the time we just forget about them and simply punish the last link in the chain and accord him or her the full weight of responsibility, whether this is just or not. One example in which we do try to answer these questions is when a judge or a jury takes attenuating circumstances into account when sentencing: for instance, a criminal may receive a more lenient sentence when it is clear that childhood neglect or abuse contributed to his actions. However, we rarely give the parents their part of the punishment in such cases.

These questions are relevant is a huge number of human rights cases. Take the more important example of world poverty. To some degree, one can argue that the West shares some of the responsibility for poverty in the Third World (Thomas Pogge is famous for this argument). It imposes trade restrictions, it supports corrupt dictators and deficient institutions, and it inflicted colonial rule. Some of these actions go back some steps in the chain of causation. For example, a corrupt dictator may be the last cause in the chain leading to poverty, but support for this dictator by the West is an earlier cause. In the case of colonialism, the chain of causation is complicated by the transgenerational aspect: to what extent are the people in the West who are currently alive responsible for the actions of their forefathers? More on this question here.