Adventures in Meta-Blogging: What is the Truth Value of Writing About Rights?

Some words about the epistemological status – or the truth value – of the narrative contained in this blog. I argue that all writing about human rights and democracy is a mere proposal and an attempt at truth. Whenever I say something about those topics I do not pretend to proclaim the truth. If there is any truth in the world at all, then probably not in the domain of political theory, morality and values. Perhaps there is, but we won’t know. It’s likely that all we can say about such subjects is mere opinion.

However, even if in political theory or morality we cannot prove anything or be certain about anything, this doesn’t mean that all opinions are equivalent. There can be good and bad opinions because opinions are – or should be – based on arguments and reasons, and arguments and reasons can be good or bad. If all opinions were of the same quality then no one would ever try to convince anyone.

Opinions are, by nature, non-despotic: they can’t be forced on you. The truth can. No one can escape the truth. The laws of physics for example have a despotic character. You have to accept them. Opinions can be accepted or rejected, depending on the (perceived) force of the arguments for or against, on your personal disposition, your intellectual powers of understanding etc. Another characteristic of opinions is that they are part of a contradictory world of different opinions. An opinion exists only as long as its contrary also exists. If the latter ceases to exist, then the former becomes what we may call some form of truth, at least to the extent that

1. opposite opinions disappear as a result of free discussion and persuasion rather than force and coercion
2. an opinion that is the object of a worldwide consensus resulting from free discussion and persuasion can reasonably be called a truth.

Truth implies consensus. Who dares to resist the truth? Only a fool or a moron. Truth eliminates debate because no one contradicts the truth. As long as someone who is neither a fool nor a moron contradicts the truth and gives good reasons for doing so, we have not yet attained the level of truth and remain in the world of opinion. This world is one of plurality and contradiction; the world of truth is one of uniformity. Only when everyone is convinced and when there remain no good reasons or arguments against a claim do we have something like the truth. Even when some opinions are predominant, they remain mere opinions as long as good arguments against them are available, or, in other words, as long as contradictory opinions based on good arguments—and not mere prejudices—are available.

As everyone who expresses an opinion, I also would like to see my opinions, expressed throughout this blog, elevated to the status of truth. But that depends on many things: the force of my arguments, the disposition of my readers etc. It’s not a result that I can determine or even predict. If I would force this elevation—on the condition that I would have the power to do so—then I wouldn’t be acting democratically and I would therefore be incoherent. Democratic politics does not take place in the world of truth or the world of uniformity and despotism. Opinions are the fabric of democracy. Democracy is the game of different and contradictory opinions, some of which become temporarily predominant because they are backed by the better arguments or the arguments that can convince a majority, on the condition that we speak about a perfect democracy unhindered by manipulation. The predominant opinions then inform government policy, but non-predominant ones continue to exist and continue to make their case in an effort to become predominant themselves. If these other opinions no longer exist, then it is not opinion but truth that informs government policy. Which can and does happen, even in the case of perfectly democratic governments. But it’s not typical of a democracy and not its essence. One can even say that the job of a democracy is finished when it happens.

For example, the fight against inflation is no longer an opinion. There are no longer good arguments for the opposite policy and everyone is convinced that it’s a good policy. Hence, there is no democratic debate for or against the fight against inflation. The policies of all governments, including democracies, are inspired by this truth, but this has nothing to do with democracy. Democracy can only enter the stage when different actors present different and contradictory opinions, for example opinions regarding the maximum or minimum amount of inflation, or opinions regarding topics such as abortion, equality, justice etc. There is intense debate about those topics. The predominance of opinions regarding those topics, and hence also government policies, shift from one side to another.

But what we see in topics such as abortion and many others, is that democracy does not only stop when an opinion is elevated to the level of truth. It also stops when contradictory opinions continue to exist but are no longer argued. Proponents and opponents of abortion have practically stopped giving reasons and arguments. They just throw citations from the Bible or general and vague claims of rights at one another. In fact, their opinions have not been elevated to the level of truth but have rather descended to the level of prejudices or “feelings” or beliefs. Democracy requires opinions, not something more or less. Opinions are based on arguments and reasons, not on evidence, proof, certainty, prejudices, feelings or beliefs. Democracy only has a function when there can be debate and there can only be debate when there are opinions, not when there is more or less, not when everything is either truth or belief. Of course, beliefs should not be excluded from democratic politics, just as truth should not be excluded. Beliefs can be a powerful force behind debates. They can inspire thinking and discussion, but they will never be the essence of democracy. If there is nothing more than beliefs, then there is no democracy.

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

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

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

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

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

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

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

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

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

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

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

• the existence of a right to do wrong (also here)
• the relative absence of talk about duties in human rights discourse
• and the fact that morality is a major cause of human rights violations.

More about human rights and morality here.

Human Rights and Negative Utilitarianism

nuclear explosion

 

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

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

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

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

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

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

Is Morality Becoming Harder?

In order to get this post off the ground, let’s assume the following: on the level of general principles, what it is to be moral hasn’t changed a lot over the ages. Help the poor, care for your children, avoid doing harm etc. Being a moral person, however, may have become a lot harder, especially during the last few decades. Harder not necessarily in the sense of the dictates of morality having grown more numerous or more demanding – although they may have (new technologies for example may create new moral rules, but let’s leave that aside for the moment) – but in a negative sense: has it become harder to ignore the dictates of morality?

I think it has. It’s now easier than ever to help the poor: there are websites that tell you which charity is most trustworthy and effective; you can wire money with your phone in less than a minute; information propagation technologies tell us where people suffer the most harm at this very moment, and who’s there to help; evildoers are named and ranked; and so on. This means that the usual excuses for inaction in the face of suffering and harm have lost a lot of their pertinence. How do I know that I’ll be doing something effective rather than wasteful? There are so many evils in the world – how do I select the ones that deserve my moral action? Why do people closer by and more able to help not step up first? Even the dodge that sufferers of harm somehow must have deserved what is coming to them is being undercut by neuroscience and social psychology. For example, it has been shown that adversity at a very young age can have an impact on the brain causing self-destructive behavior in adulthood.

So, the combination of science and technology seems to force us towards morality – to the extent of course that we can agree on what it is to be moral, but I assume here that in general we can. However, if people are being forced towards morality, then shouldn’t we fear a backlash? We don’t like to be forced. If it’s harder to ignore morality, morality may become harder. Harder on us, I mean. Maybe we won’t like to live without our usual dodges.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More posts in this series are here.

The Ethics of Human Rights (91): Moral Realism vs Moral Subjectivism

Proponents of human rights are often cast as moral realists, and opponents as moral subjectivists. Let’s start with the latter. Opponents of universal human rights tend to be cultural relativists who believe that moral standards and values derive from – “are relative to” – different cultures. When those standards and values are incompatible with human rights, then human rights should give way. Giving priority to human rights would mean imposing the standards and values developed in and by one particular culture onto another. And that would be cultural imperialism and disrespect for human diversity.

My use of the word “developed” is intentional: it indicates that most relativists are also constructivists who argue that moral values are constructed and transmitted, rather than discovered. Not necessarily consciously constructed – more often unconsciously and without planning or intent. Relativists/constructivists argue that cultures refine throughout the ages what is best for them. It’s probably best to call this meta-ethical view a form of subjectivism in the sense that moral standards and values are

1. rules of conduct specific to a particular subject – a culture in this case – rather than universal and objective, and
2. subjective in the cognitive sense, meaning created by human subjects rather than a fact that can be discovered in the world.

I personally conform to the standard representation of a human rights proponent since I have my quarrels with cultural relativism as a form of moral subjectivism. I believe in universal rights that should override certain cultural norms. Human sacrifice for instance is wrong. Culturally sanctioned gender discrimination is wrong. And so on. However, this doesn’t mean that I have to reject moral subjectivism tout court and adopt moral realism. I don’t want to claim that statements such as “human sacrifice is wrong” are true in an objective sense, even though I have strong beliefs about such statements. Most moral realists do make that claim. Let’s have a closer look at moral realism and then try to loosen the link between moral realism and human rights theory.

Moral realism is a cognitivist and objectivist theory about morality: some ethical propositions are objectively true, independent of subjective opinion, like some propositions about the world are objectively true. And we can know and discover these objective moral truths. The implication is that true ethical propositions are true independently of culture. “Honesty is good” and “slavery is bad” are moral facts according to moral realists. If some – or all – cultures were to reject these facts and adopt contrary moral values, then that wouldn’t change the true nature of those moral facts. Morality is “out there”, but individuals or cultures can decide to ignore it. A moral realist who is also a rights proponent will say that human rights are true and that opponents of rights are simply mistaken about what is objectively right (or lying about what is right).

I don’t have a very strong conviction about the relative merits of different meta-ethical theories (it’s a tough problem), but I do have my suspicions. I tend to believe that moral realism is wrong. Maybe it’s not, in which case it would be perfectly OK to be both a proponent of human rights and a moral realist. Moral realism certainly isn’t incompatible with human rights. I want to argue against the conventional wisdom that it is necessary to be a moral realist in order to believe strongly in human rights. It’s not. And it’s good that it’s not because it may turn out that moral relativism is wrong, as I suspect.

I defend a position which we could call universalist intersubjectivism (and I’m terribly sorry for the ugly term; I’m sure it’s as catchy as everything else I write). Intersubjectivism means that morality is about opinions, but not about subjective opinions, unfounded opinions or opinions that evolve more or less unconsciously and automatically throughout the life of a culture or a nation. Moral opinions can be good or bad. They are good when they are tested in common deliberation and exchange of arguments between rational subjects – hence intersubjectivism. The goal is to come to some form of agreement – hence universalist intersubjectivism. Intersubjectivism is universal rather than relative, and it’s also a weak rather than a strong cognitivism: we can distinguish good from bad opinions because we have the test of the marketplace of ideas, but the good opinions will probably not ascend to the level of truths. Morality is not (only) the product of cultural development, traditions or evolutionary psychology, but also of reasoning and argumentation. Reasoning, however, that will – most likely – fall short of truth claims.

So I don’t believe in the realism of moral realism. There’s only intersubjective agreement about justified opinions, no objective moral truth. Moral claims such as human rights or the foundational values that require human rights for their realization (e.g. “peace is good”) are not objective moral truths or moral facts but justified opinions that have withstood the test of argumentation in the marketplace of ideas. For example, it doesn’t have to be true that individuals should be treated as moral agents with a right to think for themselves. All we need is that this view about individuals is reasonable, justified and able to survive deliberation and argumentation. It need not even be a very common view, since argumentation may not be close to what it can ideally be. The intersubjective agreement that we aim at is limited to what rational actors can decide to agree to in a setting that is favorable to argumentation. In many circumstances in real life, this setting is absent and actors are less than rational.

When that is the case, intersubjective agreement on the importance of human rights may be a minority point of view. I believe, however, that we can improve social argumentation and extend intersubjective agreement as long as we make the effort of designing and protecting the marketplace of ideas. And as long as we depart somewhat from the moral realist position. The moral realist who maintains that moral truths are “out there” waiting to be discovered, is unlikely to view argumentation as very important. Those, on the other hand, who claim that morality is about argued opinions that can withstand the test of controversy will be more favorable to fostering institutions for argumentation. Moral realists are also more likely to be dismissive of people with the “wrong” views, and dismissiveness has never convinced anyone.

More on the same topic here and here. More posts in this series are here.

The Place of Human Rights in Morality

Morality can be divided into three parts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More posts in this series are here.

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

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

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

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

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

More posts in this series are here.

The Ethics of Human Rights (84): Aggregation Across Persons

Is aggregation across persons – making a decision that some people should bear losses so that others might gain more – ever permissible?

On the one hand, studies have shown that people faced with trolley problems would often sacrifice one person in order to save several others. Ticking bomb arguments – in which a single terrorist is tortured so that millions can be saved from an impending explosion – can also count on the agreement of large majorities.

On the other hand, an exchange like this one leaves most of us shocked:

Ignatieff: What that comes down to is saying that had the radiant tomorrow actually been created [in the USSR], the loss of fifteen, twenty million people might have been justified?
Hobsbawm: Yes.

The thinking in both cases is plainly utilitarian – that it’s acceptable to trade off the lives of some so that others can benefit. And yet our reactions to the two cases are polar opposites.

What can account for this difference? In the former examples, the good is more obvious, namely the saving of lives. The good that could – perhaps – have come from communist tyranny is rather more vague, more uncertain and less immediate. Trolley problems and the ticking time bomb scenario also present a balance between the good and the harm that supposedly needs to be done in order to achieve the good that is more clearly in favor of the good: it’s typically just one person that has to be sacrificed or tortured, not millions as in the case of communism.

So there’s a clear, immediate and widespread good that is supposed to come from the trolley sacrifice and the ticking time bomb torture (I say “supposed” because the hypotheticals don’t tend to occur in reality), and the harm that needs to be done to achieve the good is limited. This suggests that we favor threshold deontology: things which we normally aren’t supposed to do are allowed when the consequences of doing it are overwhelmingly good (or the consequences of not doing it are overwhelmingly bad). This theory is different from plain Hobsbawmian utilitarianism in the sense that it’s not a simple aggregation of good and bad across persons resulting in a choice for the best balance, no matter how small the margin of the good relative to the bad. A crude utilitarianism such as this does not agree with most people’s moral intuitions. Neither does dogmatic deontologism which imposes rules that have to be respected no matter the consequences.

However, threshold deontology creates its own problems, not the least of which are the determination of the exact threshold level and the Sorites paradox (suppose you have a heap of sand from which you individually remove grains: when is it no longer a heap, assuming that removing a single grain never turns a heap into a non-heap?).

The moral problems described here are relevant to the topic of this blog because the harm or the good that needs to be balanced is often a harm done to or a good done for human rights.

Other posts in this series are here.

The Ethics of Human Rights (81): Changing Morality

Morality is a moving field. Its scope changes over time. Things which used to be considered an appropriate object of moral approval or disapproval are no longer, and vice versa. It’s difficult to say if the field is becoming larger or smaller. I would guess smaller, but that’s a very uninformed guess. It’s based on my impression that we tend to become more tolerant of each other’s behavior, especially when this behavior is strictly self-regarding and doesn’t involve the risk of harm to others. For centuries, mutually agreed divorce, homosexuality, masturbation, suicide and a large set of other types of behavior were not deemed morally neutral. Many of those could even land you in jail or in hell. Today, in a lot of societies around the world, these things are considered private choices that should not be interfered with and should not even be judged by others. Perhaps some of those behaviors should also be viewed as “rights”.

But even some types of other-regarding behavior that used to be seen as immoral have become acceptable over time. For instance, many types of speech were once considered harm producing – blasphemy, pornography, lèse majesté etc. – but are now believed by many to be less harmful or not harmful at all.

And yet, the reverse movement has also occurred. Slavery used to be morally neutral or even morally required (see Ephesians 6:5) and is now considered one of the worst evils. Cruel and unusual punishment used to be completely acceptable and even enjoyable. The proper treatment of animals, women and indigenous people has also become part of morality, or has shifted place within morality.

So instead of claiming that the field of morality is shrinking, it’s safer to say that it’s moving. Moving where? I guess morality has been moving away from private and self-regarding behavior and towards social behavior. I think this movement is on the whole salutary. Moral progress? To some extent, and certainly not in all domains. On the other hand, the movement of morality can convince some that all morality is just subjective and relative and that everyone can do as they please. If opinions about morality change, then morality is perhaps no more than subjective opinion. That wouldn’t be progress at all, of course, since it would destroy morality completely. Morality can never be completely subjective since it implies a judgment about how others should act and what others should believe.

More here. Other posts in this series are here.

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

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

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

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

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

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

More posts in this series are here.

The Ethics of Human Rights (78): Our Duties to People in Other Countries

If we leave aside the minority view that we don’t have any moral duties to other people, as well as the somewhat more common view that we only have duties to a very limited group of people (our tribe, family or nation for example), then we end up accepting that we owe something to the rest of humanity. But what exactly? I don’t want to discuss whether we owe human beings in general the same as what we owe the people we know or the people we are associated with. What I’m interested in here is simply the nature of our obligations to “distant” people, and the basis or reasons of those obligations. Whether they’re stronger, weaker or just as strong as the obligations to “those nearer and dearer” is not the topic of this post (I have an older post about that).

1. What should we do? What are our obligations?

I think there are basically three types of obligations to distant others:

• we have a duty to protect their human rights; this implies both abstaining from violating their rights and assisting them in the protection of their rights when those are violated (this is a legal duty)
• we have a duty to create a more just global order (a duty of justice)
• and we have a duty to act benevolently (a duty of beneficence).

1.1. Protect rights

This duty is in fact a set of different sub-duties:

• A negative duty to stop violating rights ourselves. For example, if we apply a strict policy of closed borders, we violate certain rights of people in other countries (their freedom of movement, their right not to suffer poverty etc.). Our duties demand that we stop this policy.
• A negative duty to stop assisting others who violate human rights. For example, the oppressive government of another country violates the rights of its citizens by means of weapons supplied by us (or by firms established in our country and exporting with our approval). Our duties demand that we stop assisting this government in this way.
• A positive duty to intervene in order to stop human rights violations. For example, the West should have intervened when the Rwandan genocide was in progress.
• A positive duty to intervene in order to prevent human rights violations. For example, the West should have intervened when it became clear that a genocide was about to occur in Rwanda.
• A positive duty to intervene in order to create the preconditions for human rights. For example, when the institutions in other countries are dysfunctional or absent (in the case of failed or weak states) we have a duty to assist these countries’ efforts in institution building, so that they end up with institutions capable of protecting the rights of their citizens.
• A positive duty to intervene in order to assist people’s efforts to overcome their poverty. Since poverty is a human rights violation, this is not really a separate duty: we shouldn’t create or aggravate poverty in other countries, we shouldn’t assist when others (e.g. foreign governments) create or aggravate poverty, and we have a duty to end and prevent poverty, and to create the institutions that make it possible to end and prevent poverty. However, I mention it separately because some of the specific means of intervention are peculiar to poverty, and don’t apply to other human rights (take for example development aid).

Our duties to intervene can cover

• either only gross violations of some human rights (crimes against humanity, emergency action to alleviate widespread human suffering resulting from war, civil war, famine, drought, natural disasters or other humanitarian crises) – also called r2p
• or violations of human rights in general.

Gross violations may warrant specific types of intervention that are not allowed for violations in general, for example military intervention. More mundane violations require other types of intervention, such as aid, conditional aid, diplomatic intervention, economic boycotts, universal jurisdiction etc. Intervention can also be either multilateral through the UN, or unilateral. Preferably it’s a legal form of intervention, but if necessary it can also be illegal – morality trumps law.

1.2. Create a just global order

Perhaps we should do more than just rid the world of human rights violations and extreme poverty. The world is a very unequal place, and will continue to be so even when all human rights are protected and poverty has been eliminated (given a certain definition of poverty). So maybe we also have a duty to create a more egalitarian distribution of wealth, resources and/or opportunities across countries.

However, this duty is much more controversial than the previous one (1.1). Contrary to human rights violations, there is also no legal standard prohibiting an unjust and grossly unequal global order. Hence, given the uncertainty about this second type of duty, it’s safe to argue that we should take it to be a negative duty at most. In other words, we should not make the world more unequal and more unjust than it already is, and we should try to remove or improve institutions that make the world order unequal and unjust. More specifically, we have to

• remove unfair trade agreements or trade restrictions
• remove the current system of national border restrictions and allow freedom of movement
• pay reparations or otherwise correct the lingering effects of a violent and exploitative history
• improve economic regimes that make it impossible to have equal and fair access to natural resources
• improve international institutions, shaped by the wealthy countries to their advantage
• etc.

Obviously, many of these actions also remove human rights violations and are therefore covered by the first type of duty. However, even when they don’t they may be required by morality.

1.3. Act benevolently

The classic description of this duty is Peter Singer’s. He gives the example of a child drowning in a pool. We all believe that there’s a strong duty to save this child, even if there’s a certain cost to ourselves – e.g. it’ll ruin our expensive suit. The equivalent of the drowning child happens all the time in distant places, and there are systems in place that allow us to save people all over the world, at a cost that isn’t much higher than the price of a suit. In many cases, all we have to do is donate some money.

This duty to act benevolently can be interpreted more widely. It can involve more than the requirement to save people from disaster. Singer claims that it implies a radically egalitarian obligation: we ought to help others until the next increment of aid would do more good spent on ourselves than transferred to others. Practically, this means helping others until we are ourselves barely better off than the rest. This is extremely demanding, and very controversial, but the narrow interpretation of the duty of benevolence is widely shared.

Again, these three different duties are not always clearly different. There are overlaps. The duty to act benevolently is partly justified by the rights of the beneficiaries: a drowning child and a starving Ethiopian have a right to life. Creating a more just global order will improve respect for people’s rights, and improving respect for people’s rights will make the global order more just. Still, there are differences between these duties and it’s interesting for human rights activists to consider the possibility that people can appeal to moral obligations that go beyond respect for their human rights.

2. Why should we do what we should do? What is the basis of our obligations?

So, now that we stated what we should do, how can we explain why we should do those things? There may be different reasons why we have obligations to help other and distant people:

• We may be responsible ourselves for their predicament (or at least partially): we may have violated their rights, helped others to violate their rights, or established and maintained an unjust international order (for example because we have been colonizers or because the international trade system that we have imposed is biased in our favor).
• People have rights, and these rights by themselves create a duty for everyone else to respect and to promote respect for those rights. The duty to protect other people’s rights is not a duty only for those who are responsible for violating these rights. And neither is it a duty limited to those who have a special relationship with victims of rights violations or to those whose social duty it is to promote respect for rights (e.g. judges or police officers). We all have this duty, and we have it simply because others have rights. Hence, we pay taxes that fund the legal institutions that protect citizens against others who violate their rights, that fund schools and hospitals etc. There’s no reason to think that this does not apply globally as well.
• We may have an obligation to help other and distant people not because their rights create a moral duty to assist, but because other moral values such as justice and/or benevolence or beneficence create such such a duty. If it is in our power to do something about suffering, injustice and inequality without too much of a sacrifice of our own interests and without violating some deontological demands (e.g. do not kill), then justice and/or benevolence may require that we do it.
• Duties to help others can also be based on enlightened self-interest: national governments have a duty to protect the rights, security and prosperity of their own citizens, and in some cases this means protecting the rights, security and prosperity of people in other nations. The poor and oppressed may become refugees; civil wars may spread to other countries or may foster international terrorism; unstable economies may harm the global economic system and the environment etc. Conversely, free and prosperous nations benefit the rest of the world because of the gains of trade, cooperation in science and culture etc.

Terrorism and Human Rights (41): The Ticking Time Bomb Scenario

I recently wrote a blind referee report for a paper about the so-called ticking time bomb scenario (a short intro about the concept is here), and it occurred to me that it may make a useful blogpost. I can’t show you the paper itself, since it’s not published yet and I don’t know who wrote it (that’s what blind refereeing is about), but I don’t think that’s necessary in order to understand my comments. Undoubtedly, by publishing my comments here I also violate the blind refereeing process, since there’s a chance the author(s) of the paper, whomever it is, might find my comments here and hence find out who I am. It’s a small chance, since this is a small blog. But, truth be told, I don’t care because I object to the whole blind refereeing thing: it stifles discussion. I only go along with it because I get to read interesting papers.

So here goes:

While the authors do an excellent job of doing what they set out to do, I have an objection to their basic objective. The paper is intended as a defense of thought experiments in philosophy in general and of the Ticking Time Bomb scenario (TBS) in particular. That in itself is a laudable objective, and the discussion of the ways in which the use of TBS as a thought experiment has been misunderstood, especially by opponents of torture, is on the mark.

However, it is my view that the authors focus too much on TBS as a philosophical device and as a thought experiment and lose sight of common usage of TBS. As a result, they run the risk of producing a paper on a topic that is irrelevant to the main discussions regarding the topic. If one were willing to count, one would find that a large majority of citations of TBS are not in the context of strictly philosophical discussions regarding our deeply held moral intuitions, but rather in a context in which philosophical discussions about TBS are intended to have policy implications. In fact, TBS is hardly ever a purely philosophical device and almost always a philosophical slash political device. A paper on TBS – even a philosophical paper – should not lose sight of the ways in which discussions about TBS are often intended to have policy implications, especially when these intended policy implications are highly disturbing.

The authors make assumptions about the motivations of proponents and opponents of discussions about TBS. For instance: proponents are assumed to use TBS as a merely philosophical device intended to highlight our moral intuitions, whereas opponents are assumed to be motivated by their fear of the – supposedly non-existent – policy motivations of proponents. The authors seem to be arguing two things:

1. Those who use the TBS in order to argue that a ticking bomb should perhaps authorize torture only or mainly do so in order to highlight moral intuitions, not in order to actually promote the use of torture were a ticking bomb to be found.
2. Those who object to the use of the TBS as a means to argue that a ticking bomb should perhaps authorize torture therefore miss the point.

I believe that both arguments are wrong, sociologically speaking. The authors would probably agree and respond that they do not speak sociologically but philosophically and that their point is an “ought” rather than an “is”: even if TBS “is” used as a policy device and a means to promote torture, it “ought” to be used as a mere philosophical device (“the proper use of the TBS is not intended as a policy-making device”, p. 12). Be that as it may, the paper would benefit from

1. A clearer statement of this difference.
2. A clear recognition of the actual way in which a majority of citations of TBS are evidently philosophical slash political in nature rather than merely philosophical.
3. A more thorough discussion of the respective motivations of proponents and opponents of the use of the TBS experiment.

The paper also contains some statements without arguments. For example, the already cited phrase “the proper use of the TBS is not intended as a policy-making device” (p. 12). While the usefulness of TBS as a philosophical thought experiment is very well argued elsewhere in the paper, the claim that this and only this use of TBS is the proper one is merely stated, not argued. Many actual users of TBS would disagree and would claim that it is and should be a policy making device. For example, one could make the case that the frequent use of TBS by Bush/Cheney officials was intended as a justification of actual torture. Another phrase that does not receive sufficient argument: “strenuous attempts to show that the TBS … leads to terrible social policy are misguided” (p. 26). Perhaps actual torture during the Bush/Cheney administration combined with frequent citation of the TBS by that administration would indicate that those “strenuous attempts” are not in fact “misguided”. If the authors wish to maintain the two cited phrases, they’ll have to make the argument.

More posts in this series are here.

The Ethics of Human Rights (76): Human Rights and Desert

James Nickel has written a highly interesting paper (draft) in which he attempts to broaden the moral base of human rights. As he points out, the notion of desert doesn’t figure prominently in discussions about human rights and he may be able to open a promising line of inquiry. However, at this point I remain unconvinced by his arguments. He briefly mentions two problems with his attempt, an ontological and a political one, but seems to give them less weight than I would. Both problems deserve more attention and may prove to be fatal to his approach.

Regarding the ontological problem, I think desert is similar to love: we’ll never know for sure if there is such a thing, both in the abstract and in particular human beings. And if we want to limit the rights of undeserving people, we’d better be as sure as possible that they are really undeserving. At one point, Nickel argues that negative deserts are the reason why we put criminals in prison and restrict their freedoms. Not so long ago, a majority believed that certain people deserved to be slaves. Why should our current beliefs about desert be necessarily a lot better than theirs? Prudence is required when judging people’s deserts, especially given the likelihood that future advances in genetics, psychology and sociology will show that what we now call bad behavior or lack of virtue is in fact caused by things outside an individual’s power.

The political problem is linked to the ontological one: given the difficulty of finding and judging desert and the importance of getting it more or less right we’ll need lifetime monitoring of individuals’ private lives, possibly even their thoughts and motivations if one day that will be possible. I don’t have to spell out the possible consequences for human rights.

Furthermore, we don’t really need desert. Limitations of the rights of prisoners for example don’t need to be based on desert; the fact that these limitations are necessary in order to protect the rights of others is a sufficient justification. Rights are constantly in conflict with each other and the normal way of dealing with this is to determine the lesser evil: limiting some rights of convicted criminals is acceptable if that is necessary to preserve important rights of potential victims. The same is true for privacy and speech, speech and physical security etc. If you insist on using desert as a justification for incarceration, you’ll also have to deal with the thorny problems of retribution and proportionality. And I think that’s a dead end. (See here and here for instance).

Similarly, using desert as a positive justification for human rights is not necessary, given the many types of justification that are available (see here). Not only is it unnecessary, it may also be dangerous given the risks I cited above. For example, the right of the innocent not to be punished can be based on the fact that they don’t deserve punishment (although, as I’ve argued, the fact-status of this claim may (turn out to) be dubious). But it can just as well be based on their other human rights. Taking the latter option allows us to avoid the ontological and political problems linked to desert.

In short, I have no visceral dislike of the attempt to use desert as a basis for human rights – the more justifications for rights the better. I see some problems, but I’m open to the possibility that I overstate them.

More posts in this series are here. This post is a rewrite of an email I sent to James some time ago, replying to his mail offering me a draft of his paper.

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

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

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

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

More posts in this series are here.

Discrimination (16): When Is It OK to Discriminate?

Discrimination is generally blameworthy and therefore often illegal as well. However, there are situations in which it’s acceptable to discriminate and unacceptable to legislate against discrimination. I’m not referring to rules that apply unequally to different people in order to produce a more equal outcome, such as rules regarding affirmative action (which are sometimes claimed to be a form of positive discrimination); nor am I referring to rules regarding different height requirements for male and female candidate police officers. These are two examples of rules that discriminate in order to make outcomes more equal, and they can therefore, paradoxically, be seen as anti-discriminatory. Conversely, rules that apply equally to all can have a “disparate impact“: e.g. one uniform and “neutral” height requirement for police officers would mean that fewer women will be allowed in the police force and would therefore have a discriminatory impact on women. Even if such rules are not intended to discriminate against women, they obviously do. (I’ll come back to intent in discrimination at the end of this post).

So, I’m thinking about rules like those, or rules that not only have unequal outcomes but also apply unequally (take the rules against gay marriage for instance). Can some such rules, which clearly discriminate some groups of people (given a certain understanding of discrimination), ever be justified?

I think they can. Discrimination can be unobjectionable if the benefits outweigh the harm done by discrimination. “Benefits” meaning not the benefits from the discriminator’s point of view, since those always, by definition, outweigh the harms for others – that’s the point of discrimination. We have to look at the benefits generally speaking, from a neutral point of view. For example, the safety of airline passengers and hence their rights to life and physical security outweigh the discrimination imposed on people who are not allowed to be pilots because of their bad eyesight. Another example: the importance of a good education for our children outweighs the discrimination imposed on people who want to be teachers but don’t have the qualifications. Discrimination of people with a physical disability or intellectual deficiencies is acceptable and even beneficial in these cases, not because those who can become pilots and teachers benefit from the exclusion of rivals, but because society as a whole benefits, and because this benefit outweighs the harm done to those excluded.

The downside of the consequentialist balancing inherent in these examples is that it is seldom clear what the exact harms and benefits of discrimination are. After all, every historical instance of discrimination was once defended on the basis of its beneficial consequences: equal voting rights for women was supposed to lead to irrational politics; legalization of homosexuality would lead to immorality; miscegenation would lead to the downfall of the white race etc. However, these examples don’t prove that there can’t be any forms of discrimination that can have some real and overriding benefits, and in fact we daily assume that they have: we give good teachers a job as a teacher, we give talented people higher wages etc. because we believe that society as a whole benefits from this.

Maybe we shouldn’t talk about discrimination in cases of acceptable and beneficial discrimination. I argued here that we should probably limit the concept to those cases in which the equal rights of those who are discriminated are violated and, more specifically, are violated for no other reason than their membership of a socially salient group. The would-be pilots and teachers in the examples above don’t have an equal right to be pilots or teachers or to any other specific job. There is no such right. There is a general right to work, but that right isn’t violated since people with bad eyesight or without the qualifications to become good teachers have ample opportunities to find a job elsewhere (under normal economic conditions).

Also the second condition for discrimination is absent in these examples: the people in question are certainly not part of socially salient groups (which is another way of saying that people with bad eyesight or without the qualifications to become good teachers are not regularly put at a disadvantage in society). Hence they are not discriminated when they are excluded from certain jobs on the basis of qualifications.

If, however, the would-be pilots and teachers were black – and therefore part of a socially salient group – and if they were excluded for no other reason than their skin color, and if this exclusion would violate their right to work (or any other right), then there would be discrimination. Their exclusion would violate their right to work when they regularly face this kind of exclusion, not when that sort of things happens only exceptionally and when they therefore have ample opportunities elsewhere.

This last point about alternative opportunities is crucial. Single instances of discrimination usually don’t violate people’s rights and therefore aren’t really discrimination according to the definition given here. Discrimination requires violations of people’s rights and violations based on people’s membership in socially salient groups. And violations of rights imply the absence of alternative opportunities  (I once gave the example of one lonely restaurant owner refusing to serve blacks, or the isolated landlord refusing to rent a house to Italian immigrants).

In this older post I argued that forcing some people to stop discriminating would violate their rights, such as their right to free association, to property, to religion etc. and that it can only be acceptable to force them to stop if the discrimination they inflict is so widespread and historically deep that it limits the rights and options of the targets of discrimination.

Nevertheless, this rule still leaves us with a few hard cases. The rights of discriminators may still receive priority even when the discrimination does severely limit the options and rights of target groups. Suppose there’s a general disapproval to marry “outside of one’s race” among the majority white population in a society. Most of us would not want legislation against this kind of discrimination because that would drastically limit the right to marry of the discriminators. Discrimination here severely impacts the choices and opportunities of non-whites, and yet seems acceptable. The whites in question may be immoral and repugnant, but this doesn’t render their rights null and void and doesn’t justify legislation prohibiting an exclusive preference for white husbands and wives. The reason, I think, is that it’s very difficult to do something about the actions of the whites. You can force people to hire blacks, serve them in your restaurant, admit them in your school etc. But you can’t force people to marry someone. So, the system I set up here to separate cases of discrimination from other cases isn’t perfect. It won’t solve some hard cases, but maybe those can never be solved.

A final word about intent. There’s no mention of intent in the definition of discrimination given here. That means that rules with a disparate impact can be cases of wrongful discrimination even if there is no intent to discriminate. Take again the case of height requirements for police officers: a single height requirement for both genders is not necessarily discriminatory, but when it is part of a wider social pattern of gender inequality, then it may violate women’s equal rights because the total set of gender biased rules makes it difficult for women to have ample employment opportunities elsewhere. Women are then a socially salient group. Intent is irrelevant here. Even if the height requirement is motivated by efficiency reasons, it contributes to discrimination and rights violations. The goal of anti-discrimination is equal protection of rights, whatever the causes of rights violations.

Now, imagine the height requirement isn’t part of a wider pattern of gender inequality. In that case, women have ample opportunities elsewhere and their equal right to work is therefore not violated. Hence there is no discrimination.

The Ethics of Human Rights (73): The Link Between Corporate Social Responsibility and Reparations for Slavery

Daimler-Benz … avidly supported Nazism and in return received arms contracts and tax breaks that enabled it to become one of the world’s leading industrial concerns. (Between 1932 and 1940 production grew by 830 percent.) During the war the company used thousands of slaves and forced laborers including Jews, foreigners, and POWs. (source)

Can companies violate human rights and should they be held morally and legally responsible if they do? Or are companies just legal fictions that can’t do anything? In the latter case, if a company seems to be engaged in wrongdoing, then it’s really just the employees, the bosses or the shareholders – or all of them – that have done wrong. It’s therefore always the individuals who should be held responsible and not the company as such. This latter view is expressed in the following quote:

[C]orporate action and corporate responsibility is something of a metaphor. Corporations don’t misbehave, speak, think, and so on. People acting on behalf of corporations do. I support applying the First Amendment to the “speech of corporations” because I think the restrictions on such speech end up interfering with the rights of people, both as listeners and as people who associate in order to create an enterprise in which some of the employees speak on the enterprise’s behalf. “Corporations have First Amendment rights” is useful shorthand for conveying that, but we have to recognize that it’s just shorthand.

And because this is just shorthand, I find it hard to fault the Mercedes-Benz of today for the actions of the Mercedes-Benz of the Nazi era. Whatever Mercedes-Benz officers and employees did then is their responsibility — not the responsibility of the very different people who run the company today. And that action during the Nazi era strikes me as not really relevant to Mercedes-Benz’s current actions, or to what should be our attitudes with regard to the company and its products today. (source)

That sounds persuasive, until you start to think about the transtemporal aspect of things. Indeed, current Mercedes employees or bosses are not the same as those of the Nazi era, but the company is. It’s Mercedes now and it was Mercedes then. It’s not absurd to suggest that the company profited from its Nazi era wrongdoing – or from the wrongdoing of its people back then – and that this advantage extends to our current time.

I’ll explain. Suppose that the Nazis liked company X and its people, and that this liking led to the government backed discrimination or even elimination of competitors Y and Z. Y and Z never recovered after the end of the Nazi era, and hence company X continues to this day to profit from the absence of competitors Y and Z. And I could suggest numerous other examples of ongoing advantages resulting from actions taken decades ago (e.g. continuing returns on savings which accumulated while the wrongdoing took place and which resulted from the wrongdoing; continuing returns on expropriated goods, etc.).

This discussion is similar to the one about reparations for slavery. None of the current white citizens of the US are responsible for the slavery that ended more than a century ago, and yet they do still profit – as a group – from the defunct institution, even those whites who don’t have forefathers directly implicated in slavery or who came to the US after the end of slavery. Of course, those who do have implicated forefathers profit directly from the wealth their forefathers accumulated through slavery and subsequently transferred across generations. But whites in general profit from the fact that slavery has imposed disadvantages on blacks even after its demise (lack of education, lack of certain skills, segregation, forced migration etc.). These disadvantages were and still are benefits to whites. For example, they make it easier for whites on the job market and elsewhere.

However, the guy quoted above may insist that the “group of currently living whites” is a lot like Mercedes: the group is a social fiction in the sense that it can’t act and hence can’t be responsible. Only individual whites can act. And what they do today can’t have effects on the past. Hence they can’t be responsible for what happened in the past. A fortiori, the group of whites can’t be responsible either. I agree that all of this is correct, but it doesn’t follow that the group shouldn’t be forced to pay reparations. Just as Mercedes today, it continues to profit from wrongdoing done in its name in the past, and that is unjust. Hence they should pay compensation for the unjust profit they reap.

More on corporate social responsibility here and here.

The Ethics of Human Rights (72): Who’s Responsible for Helping the Poor?

If you’re a heartless cynic, you’ll reply “no one” or “that they help themselves” when asked who should help the poor. If not, you’ll probably offer one of three answers:

1. Those who caused poverty are responsible for ending it. The main champion of this line of thought is Thomas Pogge who we’ve mentioned before on this blog.
2. Those who can end poverty are responsible for ending it. Who caused poverty and how is really not important. Here it’s Peter Singer who is the main proponent. (I also mentioned him before).
3. Those who are in a special relationship with poor people are responsible for helping them. The best known representative of this view is David Miller.

The problem is that all three answers sound appealing and yet they are mutually incompatible in some respects. At the same time they seem incomplete without each other. Let’s look at the pros and cons of each answer before dealing with the relationships between them.

Answer 1 focuses on causation: those who caused poverty are responsible for ending it. And Pogge has argued very successfully that all poverty as it currently exists in the world is to a large degree if not entirely caused by the actions of people and institutions:

The existing global trading regime contributes to the perpetuation of poverty through the asymmetrical market opening that took place in the 1990s. Poor countries still do not enjoy unfettered access to our markets and are still hampered by anti-dumping duties, quotas and very high subsidies, for instance on agricultural products and textiles. Not only do these subsidies make poor countries’ products uncompetitive on rich countries’ markets. They also hamper poor countries’ products in other markets because they allow the rich countries to undersell these products everywhere. By upholding a global economic order that grandfathers the rich countries’ right to impose such protectionist measures into the global trading system, the rich countries greatly contribute to the persistence of the world poverty problem. (source)

Pogge also claims, convincingly, that focusing on the causes of poverty delivers a stronger account of duty. The negative duty to right a wrong for which you are responsible is stronger than the positive duty to help irrespective of whether you’re responsible for the predicament of those you have to help. It does seem to be a widespread moral intuition that the negative duty not to harm, to prevent harm and to rectify harm once you’ve done it is at least more urgent and perhaps also more important than the positive duty to do good. The latter duty is central in answer 2. The idea that we should help because we caused harm seems to carry more weight than the idea that we should help simply because we can.

And yet, there’s a competing intuition that we should help because others have needs, whether or not we are responsible for those needs. So answer 1 doesn’t seem obviously superior to answer 2. In defense of answer 2, Singer gave the example of the drowning child in a famous 1972 paper. Nobody would condone your failure to help a drowning child because you weren’t the one who threw her in the pond. The simple fact that you pass by and that you can help at a minimal cost to yourself is sufficient to ground a duty to help. Poverty, according to Singer, is the same, even if it is poverty far away: the minority of wealthy people in the word can end poverty at a small cost to themselves. We should help people if we can and it doesn’t matter why people need help or who caused the problem in the first place.

If you wish, you can listen to his argument here:

He obviously explains it better than I can.

So we have two strong and seemingly incompatible intuitions here. The advantage of answer 1 is that it appeals to our understanding that negative duties are more urgent. Hence, focusing on causation and personal responsibility can, in theory, accelerate the struggle against poverty. We are more likely to act if we are convinced that we did something wrong.

The advantage of answer 2, on the other hand, is that it renders discussions about the facts of responsibility moot. Indeed, Pogge’s case about the West’s responsibility for poverty in the world is strong but not watertight. One can argue that people are partly responsible for their own poverty, or that local governments and natural conditions are also to blame. Hence, paradoxically, answer 1 can delay effective action because responsibilities first need to be attributed, and that is inherently controversial. Answer 2 then suddenly seems the more effective approach. Furthermore, answer 2 is able to deal with poverty that has no human causes: answer 1 seems unable to force action against poverty caused by natural forces.

And then there’s answer 3 making things even more complex. Answer 1 and 2 also accept that some people have greater duties than others – those who are responsible and those who can help respectively – but answer 3 takes this notion a step further. Those who are in a special relationship to the poor have greater duties to help. Part of the reason for this claim is that a relationship often yields a larger remedial capacity. Parents are better able than strangers to help their children because they have a special relationship with their children: they know them, care more for them, are closer and understand them better. The same can be said for national, linguistic or ethnic communities, according to David Miller. He speaks about “solidaristic communities” where people identify themselves as fellow members sharing a culture or beliefs with other members. This makes distributions easier and more effective.

It’s now the turn of answer 3 to claim to be the more effective one. And indeed, distance does play a role, not only in the effectiveness of actions but also in the willingness to help. Even Singer accepts the latter fact. We may want to change the facts but that takes time. In the meantime, it may be better to count on solidarity within groups than on the duties defended by answers 1 and 2.

It seems to be a widespread intuition that we can give extra weight to the interests of those close to us. This does not imply that we are allowed to neglect the world’s poor, but it does mean that our efforts to help them should not be at the expense of those close to us, including ourselves. If we have a duty to give, then this duty is limited by what we need for ourselves and for those close to us.

So, this concludes the description of different answers to the question in the title of the blog post. The relationship between these answers is a difficult one. They seem incompatible: either we look for those responsible for harm and force them to remedy; or we look for those who can offer a remedy and force them to act; or we look inside solidaristic communities. The duty bearers will sometimes be the same according to all three answers, and then there’s no problem if one, two or three justifications of their duties are successful in forcing them to act. But it can happen that the duty bearers are different people in the three different answers, and then there’s a problem. And we shouldn’t underestimate the probability of this. I personally tend to favor answer 2, but I don’t really have a good argument for this.

The Causes of Human Rights Violations (47): Globalization

Human history is often viewed as a widening circle of moral concern. In the olden days, the claim goes, people cared only about their siblings and tribe. Then they started to care about their class, their nation, their religious community, their civilization, and ultimately their shared humanity. Cosmopolitanism, or the equal respect for all human beings whatever their affiliation or location, is then the end-state of morality (although some want to go further and include animals or even inanimate objects in the circle of moral concern). This end-state dovetails with human rights concerns because human rights are also the rights of all humans, whatever country, class or culture they belong to.

The widening of moral concern – if it indeed occurred as described – went in tandem with other and more familiar globalization processes, such as increased international trade, integration of different economies, the development of international law, increased communication through the internet, easier transportation, intercultural dialogue, migration etc. And all these different processes interact: communication and transportation foster trade, trade fosters communication, communication widens the circle of moral concern etc.

This story implies that globalization – of any kind – is always or unequivocally beneficial from the point of view of human rights. However, that may not be true. Let’s look at some of the pros and cons of different types of globalization.

Pros

• Increased migration is almost without exception beneficial to the prosperity and freedom of all parties involved, although the migrants obviously benefit most.
• Intercultural dialogue promotes tolerance and agreement on human rights, and this dialogue is not only fostered by new technologies but also by international trade. Better communication as well makes people care more about what happens in the world and makes it more difficult for oppressive regimes to hide their oppression. In this sense, communication and trade drive the widening circle of moral concern.
• Economic interdependence between countries creates a self-interested incentive for governments to promote rights and democracy elsewhere in the world and makes it more likely that international law can impose itself over concerns about national sovereignty. Global economic collaboration requires international regulation, and economic regulation can open the door for other types of regulation, including rights regulation. Countries that depend economically on an international institutional and regulatory system, will have a much harder time invoking their sovereignty when faced with accusations of rights violations, since they already lost a huge chunk of their sovereignty due to economic integration.
• The increasing importance of multinational companies makes it easier for consumers in one part of the world to lobby for corporate responsibility elsewhere in the world.

Cons

• Outsourcing, a commonly cited aspect of globalization, can result in people losing their jobs, and the threat of outsourcing can force people to accept lower wages or inferior labor conditions. And work is a human right.
• The threat of cheap foreign labor and cheap foreign products can lead to protectionism and immigration restrictions, two major causes of poverty in developing countries.
• Globalization may erode the welfare state because a large part of the tax base – corporations, financial intermediaries and skilled workers – become internationally mobile and can thereby avoid to pay the taxes that governments need to finance their welfare systems. The tax base can also decrease because governments cut taxes in an effort to maintain the competitiveness of local businesses.
• The previous three phenomena – outsourcing, labor and product competition and pressure on the welfare state – may not only lead to restrictions on international trade and migration, but can also counteract the widening circle of moral concern: politicians and local businesses can and often do use these threats to stir up xenophobia. A xenophobic public is more likely to vote in favor of trade and immigrations restrictions. On the other hand, there’s some evidence that people’s circle of moral concern is wider in countries that are more affected by globalization.
• Globalization implies a certain degree of power deflation: states lose power vis-à-vis the market, multinationals, international institutions and each other. This in turn means that decisions affecting the well-being of people are taken by outside forces. Democratic self-government – which is a human right – is then threatened.
• The interconnectedness of international financial markets increases the likelihood that a local financial or economic crisis spreads to the rest of the world.
• A higher number of increasingly globalized multinational companies also means a higher risk that some of those threaten indigenous cultures, exploit poor workers etc.

On balance, however, I believe that globalization is good for human rights, even though I can’t quantify the pros and cons.

Why Do We Need Human Rights? (33): A Full Human Life

Again, I feel the need to rewrite an older post. Not a good sign. Still, here we go.

One way to look for an answer to the question in the title of this post is to focus on the kind of life we can achieve with the help of human rights. Ideally, most of us want a life that isn’t just mere existence or survival. Not even decent survival or a successful struggle for life is enough. We want a full human life. However, a full human life has a different meaning for different people. It’s a controversial notion, and we probably will never agree on the definition of a full human life.

Human rights won’t be able to help achieve all visions of the good life, and rightly so because some visions are destructive and harmful. However, they do give us the freedom and capabilities to try to achieve a very wide range of visions of the good life. Perhaps part of the good life is precisely this ability to make a free choice between a wide set of visions of the good life, to pursue that choice, to have the capabilities to do so and to have a reasonable chance of success whatever our choice. It’s now widely accepted that “a full human life” should be left to individual choice and can’t logically mean something that would be imposed on people.

Human rights give us the choice of a good life, the capabilities to pursue it, and a good chance to do it successfully. But how exactly do they do that? In order to pursue our self-chosen vision of the good life, we need some degree of freedom so that our life plans aren’t dominated, controlled or imposed by others, by governments, religious leaders, etc. For example, we need to be able to decide freely which kind of religion we want to practice, where to live, what job to do etc. Also, if we are to be able to plan our life freely, our choice of plan must be a real choice. Hence, we need a minimum of education, information and physical resources and capabilities (e.g. good health) in order to make an informed choice from a wide range of options, and in order to try to realize our choice. All these resources and capabilities are protected by human rights.

However, this thin and at the same time all-encompassing vision of a full human life may already be too specific and controversial. Some cultures or individuals may not want to give their female members the choice of deciding to shape their own vision of the good life. So how do we reply to that concern?

Perhaps we may get somewhere if we rephrase the question in the title of this post so that it states “why do I need human rights?” instead of “why do we need human rights?”. People usually are more willing to accept reasons for the importance of their own human rights than they are to accept reasons for the importance of the rights of others. More specifically, when the possibility to shape your own life is the reason for accepting human rights, there will be few people rejecting this reason as long as it’s about their own lives.

Once we can convince people of such a reason for the importance of their own human rights, we can then try to take the next step and try to convince them of the importance of the rights of others. At that moment, we may use elements outside of the system of human rights. Perhaps we can’t convince them of the importance of the rights of others when we focus on those rights, but maybe we’ll be more successful using other, non-rights based moral imperatives. These imperatives then apply the value people see in their own rights as a means to persuade them of the value of the rights of others.

For instance, the old maxim called the Golden Rule – “do unto others as you would have others do unto you” – does have some power of persuasion, but in this context it requires that we first convince people that human rights are necessary for themselves as human beings and that they view other human beings as human beings. Since we’re dealing with people who deny the rights of others, we may run the risk of including the conclusion in the premise. In other words, people who believe in the Golden Rule probably don’t need to be convinced of the general importance of human rights, and those who need to be convinced may not be swayed by the Golden Rule.

Similarly, we could try to persuade people of the importance of the rights of others by appealing to Kant’s categorical imperative: “act only according to that maxim whereby you can, at the same time, will that it should become a universal law”. But again, this may fail, since it’s very unlikely to find a Kantian who isn’t already convinced by the general importance of human rights, or to find an opponent of the rights of others who can be convinced by Kantian arguments.

Still, you don’t know if you don’t try, so let’s leave aside these worries for the moment and go back to the first step in this strategy: how can we convince people that human rights are important for themselves? I still think a description of the ways in which these rights can help them to achieve a self-chosen vision of a full human life is promising, even if the definition of this full human life has to remain very abstract and vague and can’t include anything more specific than the capacity to choose your own path through life and your own final goals and perspectives.

This kind of justification of human rights, because it builds on a vision of a full human life that is very vague and that only includes the free choice of what it means to have a full human life, holds across a wide range of different individuals, ideologies and cultures. A vision of a full human life that is paradoxically “thin” can justify human rights, at least as long as we limit the ambition to egocentric justification, i.e. a justification of people’s own rights. Justifying rights as something that people need to respect in each other is then the next and more difficult step. Also paradoxically, this thin version of a full human life doesn’t justify a thin set of human rights but rather a set that contains many rights that are still controversial, even among those who generally view human rights in a positive way.

More on justifications of human rights here.

The Ethics of Human Rights (67): What Kind of Redistribution Does Luck Egalitarianism Require?

Luck egalitarianism is the theory of justice according to which bad luck that falls on people through no fault or choice of their own, is an injustice that has to be remedied. Whatever the merits of this theory, it does broadly correspond to certain widely shared moral intuitions. When you lose a limb in an accident, or contract a terminal illness, you probably feel like “why me?” and ask yourself: “what did I do to deserve this?”, “why should I of all people suffer this fate”, and “why should I be worse off than others through no fault of my own?”. You’ll have the same feelings when you happen to be born in a poor country, with a disability, in a dysfunctional family or in a discriminated cast or class. Such instances of bad luck lead to vastly unequal opportunities. And it does seem to be the case that inequality that is attributable to differences in our unchosen circumstances or abilities is less acceptable – morally speaking – than inequality that is wholly attributable to the responsible choices we make.

Of course, bad luck is unavoidable, but we can do something about the unequal opportunities it creates. This will inevitably lead to some kind of redistribution. The redistribution required by luck egalitarianism means that the lucky among us should transfer to those less fortunate some of the advantages that have come to us through luck. For example, we should pay taxes that are used to make life easier for the disabled. We can’t redistribute luck (for example, we can’t redistribute disease, accidents etc.). Hence we have to redistribute the consequences of luck. We should make the consequences of bad luck less severe or a bit easier to carry, and we should do so by skimming some of the beneficial consequences of good luck.

The redistribution required by luck egalitarianism is asymmetric: something must be done to help the unlucky, and that means taking something from the lucky; but it’s not the case that something must be done to make the lucky less lucky. It’s bad when people are worse off because of bad luck, but it’s not equally bad when people are better off because of good luck. Merit is important in life, and we admire people who are better off not because of good luck but because of what they did and who they are. But this admiration doesn’t imply condemnation of those who are better off simply because of good luck. The latter shouldn’t be condemned but they should part with some of their advantages in order to help those who are worse off because of bad luck. Bad luck is objectionable, and good luck is unobjectionable. But unobjectionable doesn’t mean that we are not allowed to confiscate part of the benefits of good luck in order to do something about objectionable bad luck.

And here we encounter one possible objection to luck egalitarianism: it seems like the theory doesn’t allow taxation of those who have acquired their wealth without any good luck (that is, if there are such people). Normally, most of us would want to impose a duty to help also on those who are better off not because of luck but because of what they did.

Other objections are here. More posts in this series are here.

Discrimination (13): Is Disability Just a Case of Bad Luck or Is It Discrimination?

When people think about disability they usually don’t see it as a moral issue. A disabled person supposedly suffers from bad luck, and the problems she encounters while living her life with a disability don’t result from the decisions or actions of her fellow citizens. They are instead caused by ill health or by biological and anatomical inadequacies, things for which no one is to blame. Brute misfortune, that is all.

Of course, a disability can be caused by someone else’s misconduct, for example industrial pollution or paralysis following an accident caused by someone else. However, let’s focus on blameless disability, the kind that is not anyone’s fault.

There’s a problem with the view that this kind of disability is no more than misfortune. The threshold level of normal human functioning that determines the difference between disability and non-disability isn’t just determined by biological facts, but also by social practices and the artificial social environment. For example, imagine a society that has developed technologically up to a point where people don’t have to use their hands anymore. No more computer keyboards, steering wheels in cars, remote controls etc. Let’s assume that everything that needs to be done can be done by programming and brain power (not a far-fetched assumption). A person who loses her hands in an accident will not be considered “disabled” in such a society. This accident will not push her below the threshold level of normal human functioning. In fact, most likely it won’t even be viewed as an accident, but rather a small nuisance, depending on the level of pain involved. Much like we in our existing societies react to a bee sting. It’s usually not disabling.

Now, when we take the same example of a person losing her hands, but situate her in a country such as the U.S. today, then we would say that she is disabled and that she has fallen below the threshold level of normal human functioning. But the reason we say this isn’t simply a biological or anatomical one, otherwise she would also have to be disabled in the imaginary society described a moment ago. The reason we say that she is disabled depends on the social circumstances and the social system in which she finds herself after losing her hands. Because U.S. society has been designed in such a way that people need to use their hands a lot of the time, we say that someone without hands is disabled. The decision to count someone as disabled has less to do with biology and anatomy than with the social practices and the artificial social environment we live in. The level of functioning a person can achieve depends less on her biological or anatomical abilities than on the artificial social environment in which she finds herself.

Hence, disability isn’t just something that happens to people; it’s something that we as a society have decided should happen to people. There’s nothing about our society that necessarily relegates people without hands to the category of the disabled. On the contrary, we have willingly designed our society in such a way that people without hands are disabled. We could just as well design our society in another way. Technology permitting, of course, but technology is also – up to a point – a choice: we just simply decided to develop technologies and the wider social environment in such a way that they don’t really take into account the needs of people without hands.

The fact that we designed our society in the way we did seems to indicate that we don’t care a lot about the disabled, at least not enough to do something for them. And such an absence of care can be viewed as a type of discrimination. After all, until some decades ago, men didn’t much care about the education of women, even though society was quite able to give women the same kind of education as men. The relative lack of education of women wasn’t a necessary fact of life but a choice. And that choice was a symptom of discrimination.

Of course, the analogy is shaky because gender discrimination was and is often a conscious choice, whereas the disabled are only rarely consciously disadvantaged. However, as I’ve stated before, the fact that discrimination is unconscious doesn’t automatically excuse it.

More on luck. More posts in this series.

The Causes of Human Rights Violations (43): Disgust

Disgust can be good or bad for human rights. It’s probably true that no amount of rational argument against torture, incest, cannibalism etc. is as strong as the feelings of disgust produced by such actions. Some, such as Leon Kass, have therefore conceptualized disgust as a kind of moral wisdom: wisdom which can’t necessarily articulate itself or reason about itself, but which nevertheless guides our actions in a morally sound direction and guides them better and more effectively than rational argument. Disgust or nausea often makes us shudder, literally, at the immorality of others or ourselves. As a result, it helps to bring about a better world, and it does so more effectively than reasoning or persuasion (in this sense, disgust is similar to other emotions such as sympathy and shame).

Disgust is not an argument, but that’s a strength rather than a weakness if you believe the likes of Kass. It grips us, whereas arguments can be boring or unconvincing. (This can also explain why many of us have a love-hate relationship with disgust: we’re disgusted by some things, but at the same time we relish this disgust). Because of its gripping force, disgust is the human psyche policing itself and other psyches, keeping desire and passion in check and in the process making life in society a lot easier.

That is why some view disgust as the evolutionary origin of morality and law. Initially a protection mechanism against putting bad, rotten or infected stuff into our mouths, disgust quickly evolved from an emotion focused on physical health to one including morality. Moral disgust came about as one of society’s self-preserving forces, and human evolution favored the emotion because it produces social benefits such as taboos, rules and order. Human evolution favored this extension of the feeling of disgust into the realm of morality because it made social life easier, more orderly and more peaceful. These supposed evolutionary origins of moral disgust give it an added advantage compared to more rational approaches to morality: the latter can be unconvincing but most people in the world will even fail to hear them, whereas the evolutionary origins of moral disgust means that it drives all people, even those who will never hear a moral argument in their entire lives. Moral disgust therefore delivers immediate, reflexive and almost universal moral judgments.  

Complicating this simple evolutionary theory is the fact that disgust doesn’t seem to be innate, at least not in all cases: children are notoriously lacking this emotion and don’t develop it until they are three years old or something. This diminishes the strength of the evolutionary part of the argument. However, a more important problem with the argument is the fact that the objects of disgust are not the same throughout history and across societies. What was disgusting centuries ago isn’t anymore – or vice versa – and different societies find different things disgusting. Agreed, the range is somewhat limited: disgust is mostly about things related to the human body (e.g. torture), and more specifically to metabolism (eating and excreting disgusting things with our disgusting intestines), sex (doing disgusting things with each other with our disgusting organs) and mortality (being a disgusting corpse). But within this range many different things can be viewed as disgusting, and it’s not obvious that all the things we would label immoral from a reasoned point of view are always and everywhere disgusting, or that everything that is seen as disgusting by some is also immoral upon reflection.

For all these reasons, we have to conclude that disgust isn’t a very reliable moral faculty. It can make mistakes, and often has. Not so long ago, the supposed body odor of blacks, their curly hair and facial features routinely provoked disgust among whites (still today but less commonly so). And I’m convinced that this disgust was a major cause of the subjugation of blacks. The same is true for some, now less pervasive beliefs about the disgusting nature of homosexual activity.

So it’s clear that disgust can be either beneficial or detrimental for human rights. Lack of disgust where disgust would be appropriate can lead someone to violate someone else’s rights, but inappropriate disgust can have the same result. One would therefore be wrong to label disgust as a kind of moral wisdom, superior to rational thinking about morality. 

The problem is then how to distinguish good disgust from bad disgust. For example, why is disgust directed at pedophilia appropriate, whereas disgust about interracial sex is not? Whatever the answer, we won’t get there without reasoning. Hence, reasoning reclaims its position at the top of moral faculties. Disgust, rather than a type of moral wisdom, seems to be a socially transmitted and culturally specific substitute for the absence of reasons.

This is why many argue against the use of disgust as a tool for human rights protection. In theory, it could work, just as the incitement of shame and sympathy can work. But it’s dangerous:

maybe we should try portraying racism and racists as disgusting. The powerful influence of this emotion might help push racism to the edge of society or eliminate it altogether, but my response is that we still shouldn’t do it. It’s not ethically appropriate to deliberately depict any group of people as disgusting because disgust makes it very easy to dehumanize, and that would do the very thing we seek to undo. (source)

More posts in this series are here.

What Are Human Rights? (43): A Bit of Etymology

There’s an interesting story to tell about the word “right”. It’s of course a homonym. The word has at least three completely different meanings:

• right as opposed to left
• right in the sense of correct (“consonance with facts and reality”)
• and, obviously, right as an entitlement or moral title, i.e. a moral claim or a legally permitted action grounded in a moral claim.

However, these meanings, although apparently unrelated, have a common core:

How did it come to mean “the opposite of left” and also “something to which one is legally, morally or naturally entitled”?  This wouldn’t be so weird—words have multiple meanings all the time—except that Spanish “derecho”, French “droit”, Portuguese “direito”, German “Recht” and other words all carry the same double-meaning. In German, you can also say “Du hast Recht”, “you’re right”, so “Recht-recht-recht” has the same triple meaning in German as “right” (entitlement), “right” (not left) and “right” (correct) in English. In Slavic languages, the correct/not-left/entitlement words also share the same root (“prav”), which yields Russian “pravda” (“truth”) to boot. The connections between the different senses of “right” are old, and deep.

What links all the words? The answer is a sense of naturalness, appropriateness, correctness. In a world where goodness (right) prevails, people will get what they are morally due (their rights), and will be correct (right) in their thinking and doing. …

Where does the not-left meaning come in? Simply, as the OED explains, because the right hand is the stronger and more appropriate one for most people to use for most tasks. Tellingly, the word “left” in several languages is cognate to English sinister, like “sinistra” in Italian. In many cultures, including non-European ones, the left hand is considered debased, suspicious, perhaps appropriate only for dirty tasks. (Items should not be handed over or received with the left hand in many Asian cultures, for example.) “Left” itself in English comes from a root meaning “weak” and so, in some contexts, “worthless”.

With all this history, it’s no surprise that left-handers have long found the world less than congenial. The Wikipedia article on “Bias against left-handed people” is thousands of words long. (source)

I’m surprised this isn’t a more common line of attack in politics.

More posts in this series are here.

What Are Human Rights? (39): Human Rights and Human Duties

For some people, there’s too much talk about human rights. They see human rights as a symptom of a typically modern type of moral decay, of a culture of self-importance and egoism, and of an exaggerated sense of entitlement. We want more and more of society and the state, and at the same time we are less willing to contribute. Instead of rights talk, they say, we should promote a sense of duty. Instead of rights declarations and rights in constitutions and treaties, we should have lists of duties and responsibilities, and have the state enforce those duties rather than rights.

You often hear this duty talk when the topic is crime (defendants have “too many rights”) or anti-social behavior (whatever that means), but it seems to be focused mainly on economic human rights. Rather than a right to unemployment benefits people have a duty to work and to support themselves. Rather than a right to very expensive healthcare for everyone, people have a duty to live a healthy life. And so on.

My point here is not to deny the importance of the duties mentioned above, or of a lot of other duties. And neither do I want to claim that human rights talk can’t be frivolous. I merely want to mention a couple of risks that come with duty talk. First of all, there’s the danger of rights becoming dependent on duties. If duties are given too much importance, people will be tempted to claim that your rights can only come after you have proven to be a responsible person. That would be wrong. Rights are unconditional. People have rights, end of story. They don’t have rights because they are responsible citizens respecting their social duties. Even irresponsible citizens, and even criminals have rights.

In addition, duty talk is somewhat superfluous. Duties are inherent in rights. Someone’s rights are everyone else’s duties. (It’s wrong to view respect for rights as the duty of the state only). I don’t have a right to violate your right; I have a duty to respect it. Rights would be meaningless words without such duties. So what’s the added value of emphasizing duties?

More posts in this series are here.

Crime and Human Rights (18): The Cruelty of Life Imprisonment Without Parole

My dismissal of capital punishment on moral grounds shouldn’t be understood as implying that this type of punishment is the worst possible one or that I’m ready to accept any other sentence in order to avoid executions. Life imprisonment without parole (LIWOP), for example, is often advanced as a good alternative to capital punishment and a means to convince people to drop their demand for that sentence. That makes LIWOP seem almost benign, which it isn’t. It’s particularly cruel, for reasons I discuss below.

That is why I tend not to argue as follows: capital punishment is bad because there is a less cruel punishment available – LIWOP – that does much of the things capital punishment is supposed to be doing (incapacitation, deterrence etc.). I argue instead that there are other reasons, beside overreach, not to use capital punishment. However, this post is not about those reasons, but rather about the reasons why we should also not use LIWOP.

Of course, “death is different” and capital punishment is particularly cruel. But LIWOP is also cruel, albeit mostly for other reasons. In one respect, it’s cruelty is similar to that of capital punishment. It’s irrevocable. The absence of parole means that “life” really is “life”. Of course, there’s often the possibility of clemency or appeal. But given the general “tough on crime” mentality among politicians and prosecutors, clemency for LIWOP cases is very unlikely, as are possible extensions of the right to appeal.

We also see, in the U.S. for instance, that clemency is more likely to be granted in capital cases than in cases of LIWOP since LIWOP is supposed to be “so much less cruel” (although also in capital cases the frequency of clemency is going down, most likely for the same “tough on crime” reason). Also, appeal procedures are much more developed in capital cases than in LIWOP cases. And when there is a successful appeal in a LIWOP case – for example because of new evidence of errors in the handling of the case – then these new elements are much less likely to be considered important enough to review the sentence, again because LIWOP is so much less “cruel”. Some people even argue that it is better to get a death sentence in the U.S. than LIWOP, because the appeals possibilities and clemency success rates are much higher. Especially innocent defendants have a much higher chance of getting their names cleared and escaping their sentence when they are convicted to die. Talking about irony.

Why does irrevocability make LIWOP particularly cruel? Some people say that LIWOP is a death sentence without an execution date. That in itself, however, may not make LIWOP cruel – you could say that all human beings are under a death sentence without an execution date, by the simple fact of human mortality. Still, LIWOP is a sentence to die in prison. It removes any prospect of change, rehabilitation or redemption. Whatever the prisoner does during his sentence, nothing is going to make any difference. Society tells these people that whatever they do, however much they try to redeem themselves, society’s not going to care. It’s not a sentence without an execution date, it’s an execution without a date: we basically tell these people that their lives are over. And we show this by withholding recreational and educational opportunities. Those resources, we say, are limited and better spent on prisoners who will get out some day. So that makes redemption not only useless but also impossible. It’s a self-fulfilling prophecy: we believe that they are irredeemable, and hence we treat them in such a way that they become irredeemable. If you don’t think that’s cruel, check your moral compass.

Opponents of capital punishment such as myself have to issue a mea culpa here. Our opposition has undoubtedly forced many more people into LIWOP. The number of LIWOP cases in the U.S. has risen dramatically, while the number of executions has fallen. One in every 35 prisoners in the U.S. is currently serving LIWOP (that’s about 41,000 people). This is the perverse and counterproductive result of well-intentioned activism. (See here for more counterproductive human rights policies). And it’s likely to become even more perverse: LIWOP cases, which tend to become more numerous as an alternative to capital punishment, don’t offer the same resources in terms of legal representation as capital cases, because people think there is less at stake, even when that’s clearly not true. Hence, a higher risk of miscarriages of justice, which are then harder to put right because of the lower probability of clemency and the less developed appeals procedures that also result from the idea that less is at stake.

So, what’s the solution? Well, obviously life with the possibility of parole. An argument in favor of LIWOP when compared to LIWP is that LIWOP is necessary for reasons of incapacitation. That is indeed a worthy goal of criminal punishment – if not the only goal -and some people do indeed deserve to be incapacitated for a very long time, perhaps even permanently. However, LIWP can also produce permanent incapacitation – by withholding parole when necessary – and can do it better because it can limit it to those prisoners for whom it can be shown, on an ongoing basis, that they are still dangerous. LIWOP means taking a decision about dangerousness once and for all, and then forgetting about the prisoner. The problem is that you can’t, at the moment of sentencing, make the decision that someone is going to be dangerous for the rest of his or her life. We simply don’t have the knowledge for such decisions. Psychology and psychiatry are not advanced enough yet, and will probably never be. Dangerousness has to be monitored continuously. People do change, except of course when the prison regime is such that they don’t get the opportunity or when the sentence is such that they don’t get the incentive.

And existing problems with parole (incompetent or lenient parole boards) are not a sufficient reason to favor LIWOP over LIWP. They are a reason to do something about those problems.

A country overview of the use of LIWOP is here and here.

The Ethics of Human Rights (64): Value Pluralism Supports Human Rights

The justification of human rights – the quest for reasons why they are important and why we need them – is probably the most important topic of this blog (some previous posts are here, here, here, here and here). One element of justification is their compatibility with an important tenet of moral theory, namely value pluralism. Value pluralism is, in my opinion, a principle of morality that comes very close to being a “moral fact“.

In short, the principle says the following. There are many different moral values – or different moral “goods” if you want – such as happiness, liberty, equality, loyalty etc. Those values differ qualitatively from each other and don’t seem to be reducible to one super value. And neither is there a clear ranking of importance so that conflicts between values can be easily decided. Different values can’t be compared to each other. Friendship is not clearly more important or a higher value than loyalty; freedom is not prior to equality; being happy is not better than developing your capacities etc. When two values seem to be incompatible, it’s hardly ever certain which of the two should be favored. And neither is it easy to say that a decrease of x in value v is acceptable if it results in an increase of x or y in value w; it’s often even impossible to determine the x and y in this equation because values are quantitatively and not just qualitatively incomparable. An increase of x in friendship is not comparable to an increase of x in loyalty. What does an increase of x in friendship even mean? Furthermore, there are problems in cases that don’t involve incompatible values: in general, is it better to strive towards increases in value v rather than increases in value w? For example, some say a society and a government should promote equality as the prime value; others prefer to maximize liberty. It’s difficult if not impossible to decide if either of these goals is the most important.

And yet, even if value pluralism is true and moral theory can’t therefore offer guidance in cases of incompatible values or in the choice of the single value to pursue in life, people have to solve conflicts between values on an almost daily basis, and they have to decide which value or values should guide their lives. If moral theory is useless in those everyday decisions, then it’s better to let people decide for themselves about what is good and right. People should be left free to live their own lives according to the guiding values they choose independently, and they should be allowed to decide conflicts between values according to their own conscience. If value pluralism is true, then there is no single way of life that is the highest and the best for all, and then it’s also true that people should be given the freedom to decide for themselves.

This is where human rights enter the scene. Human rights support this freedom in two ways, a direct and an indirect way. They allow people to choose a type of good life independently from the pressures of government or society: minority religions are free, people are free to associate, expression is free, they can use their property the way they like etc. In addition, there’s is nothing in the system of human rights that prohibits self-chosen and self-regarding value decisions, as long as the rights of others aren’t harmed (for example, drug use that doesn’t harm others cannot be prohibited on the basis of human rights).

Indirectly, human rights oppose authoritarian governments which favor and enforce one value or one way of life as the only desirable way of life: communist societies that promote equality at the expense of all other values, Catholic dictatorships that prohibit other religions, Muslim theocracies etc. If value pluralism is true, then there is no basis for coercive policies intended to systematically favor one value or one way of life. (Of course, in specific cases of incompatible values, it may be necessary for coercive government intervention in favor of one value or the other, especially when government inaction would cause more overall harm to certain values than government action; but that is the exception to the general rule that people should be free to solve those issues themselves – a rule that is based on morality’s inability to find good general reasons to favor one value over another. An example of such an action would be a government prohibition on religious child sacrifice).

One problem with the line of reasoning that I set out here is that the opposite can also be true: value pluralism can support authoritarian government. Not the type of authoritarian government that is paternalistic and that favors the realization of one value above all others, but the type that presents itself as a bulwark against anarchy, instability and factionalization. Governments which take the latter approach start with the presumed fragility of the bonds of community. These bonds, it is said, can only be maintained if society is inspired by a single purpose and a single good. The freedom to let people decide for themselves what type of life they want to pursue can undo the necessary sense of community because it erodes the single purpose, but also because groups of people will turn away from each other in disgust over the other groups’ lifestyles. Conflict and a lack of solidarity will destroy society. One purpose should therefore be enforced, not because this purpose is generally superior to all others, but because otherwise society will fall apart. I’ve argued here against this justification of authoritarianism. The crux of my argument is that you can’t enforce a common purpose; this has to come voluntarily and “from within”, and enforcing it merely encourages violent dissent on the side of those who see their own purposes suppressed. If this is correct, then value pluralism doesn’t support authoritarianism.

More on value pluralism here.

What Are Human Rights? (38): Means or Goals?

The justification of human rights is perhaps the most important problem in human rights theory. Why do we need human rights? Why should people respect human rights? Why are these rights so important? Or are they? I think there are essentially three ways to try to answer these questions.

• There’s the non-philosophical way of pointing to tradition: you could argue convincingly that human rights or at least the values embedded in human rights have always been a part of the world’s major cultural traditions, implicitly or explicitly. I’ve looked at that option here. However, this approach is fraught with problems. For example, it’s not obvious that you can escape Hume’s naturalistic fallacy: you can’t simply go from “is” to “ought”. It’s not because something is the case that it ought to be the case. Hence, you’ll end up with a pretty weak justification of human rights if you go about it this way. That’s why I’ll focus here on the two other options.
• Human rights can be justified using a consequentialist approach: rights should be respected because that brings about good consequences, for example respect for rights brings about peace, prosperity and truth.
• Or they can be justified using a so-called status approach: human beings have certain attributes that make it necessary to ascribe rights to them. For example, a person’s body and mind are hers and hers alone. Therefore, it’s up to her to say what may be done to them. Allowing anyone else to decide would be a grave indignity to her. A right to free speech is the only respectful way to treat people with a mind of their own. Status theories say that rights should be respected, not because of the consequences, but because it is fitting to do so. Rather than focus on the consequences that rights can bring about, rights are constraints on the types of consequences we can pursue. Robert Nozick is a well-known proponent of this approach. The status approach is linked to the tradition of natural rights (certain aspects of human nature make certain rights appropriate) and is evident in the famous Jeffersonian phrase about “men being endowed by their Creator with certain unalienable rights”.

I’ve personally used the consequentialist approach in some previous posts on the justification of human rights:

• there’s one here focusing on the role of rights in the pursuit of truth
• here is one about political rights
• here about free speech
• here about property rights
• here on rights in general and
• here on religious liberty.

(I also discussed consequentialist arguments against human rights, here for instance). One of my posts defending the status approach is here.

The consequentialist justification of human rights views these rights not as goals but merely as means. It’s instrumentalist in the sense that it justifies rights as particularly good instruments or means for the achievement of some other goals (peace, truth, prosperity etc.).

The main disadvantage of this approach is that it only provides a weak and contingent justification. If it turns out that, in certain circumstances, other means are more appropriate for the stated goals, then rights may be violated according to the consequentialist approach. The main disadvantage of the status approach is exactly the opposite: it may prove too much. The status approach makes it difficult if not impossible to limit certain rights or balance rights against each other. It’s hard to see how you can argue for limitations of certain rights or tradeoffs between rights without pointing to certain consequences. Because the status approach grounds human rights in attributes that are fundamental to human beings, it’s likely that limitations of rights have to be seen as attacks on fundamental attributes of human beings, and that’s obviously out of the question. And yet, we limit rights all the time in everyday life. We have to, since different rights are regularly in conflict with each other. Hence, a theory that can’t accommodate this normal feature of morality seems incomplete, to say the least.

A combination of the two approaches is therefore more promising. There’s no reason why human rights can’t be means and goals simultaneously.

More posts in this series are here.

Discrimination (12): Is Price Discrimination Immoral?

Price discrimination – or price differentiation – is a commercial policy. A seller may want to sell identical goods at different prices to different classes of customers in order to increase market shares, reach otherwise unreachable groups of customers or profit from customers’ willingness to pay.

The question is whether we should treat this type of discrimination like we treat other types. In other words, should we label price discrimination as something that is morally reprehensible, and should we also make it illegal (which are two different things – lying is often reprehensible but only rarely illegal)?

The answer is: it depends. Some forms of price discrimination are morally neutral or even praiseworthy. Offering students or poor people discounts for museum tickets or public transport has some moral benefits. Other forms, however, are clearly reprehensible:

[O]ne field experiment examined discrimination against disabled people in the context of car repairs, finding that disabled customers received higher quotes than the non-disabled customers. To get at the nature of this discrimination, the authors first conducted a survey, which revealed that “mechanics believe the disabled approach 1.85 body shops for price quotes while the non-disabled approach 2.85.”  In a second field experiment, the authors instructed participants to say the phrase, “I’m getting a few price quotes.”  This significantly changed outcomes — disabled participants received much lower offers: “Importantly, the lower offers received by disabled testers after signaling a willingness to search are not statistically different from those received by the abled,” write the authors. (source)

This is an example of so-called third degree price discrimination, which is in fact a form of statistical discrimination because the price is differentiated on the basis of an attribute of a customer segment (in this case disability), and this attribute is taken as a proxy of the customers’ ability or willingness to pay (in this case, the disabled are willing – or believed to be willing – to pay more because they can’t or won’t be troubled with shopping around).

Clearly, not all third degree price discrimination or statistical discrimination is wrong (student or senior discounts are cases of third degree price discrimination), but in this example it is wrong. Offering the disabled higher prices simply because they are disabled and hence less likely to shop around, is clearly immoral, even if it’s not based on animus against the disabled. It aggravates the disadvantage that nature has imposed on the disabled, and it’s a typical case of exploitation.

Exploitation occurs when one party in a voluntary exchange between two (or more) partners gets an unfair price for the goods or services exchanged, and when this party enters the exchange from a disadvantaged position. A price is unfair when it is below what it would have been in a fair auction. It is beyond doubt that a fair auction would have allowed the disabled, who enter the exchange from a disadvantaged position, to pay less.

More posts in this series are here.

Income Inequality (27): What’s Wrong With It? No Moral Justification

The standard “no problem” explanation of income inequality goes as follows: people have different incomes because they have different levels of human capital and productive abilities. Some earn more because they contribute more – to their employers but also to society. They simply deserve, in a moral sense of the word, their higher incomes because of the level and nature of their contributions. Increasing differences in income levels are then simply the reflection of an increasing gap in productivity and human capital between some groups in society.

However, there’s something wrong with this story: it hints at one important element but fails to draw the necessary conclusion from it. Some people contribute more in a quantitative sense of the word, in which case higher returns are probably morally justifiable. If you work more, few would begrudge you your higher income. However, that’s not the type of income inequality that is most common. Usually, people are believed to contribute more in a qualitative sense of the word and get paid more as a result (or vice versa, because they get paid more, they are assumed to have contributed more in a qualitative sense). No one claims that the salary of a CEO should be higher than that of a taxi driver doing two other jobs on the side because the former works more than the latter. He probably doesn’t. The justification people give for a higher salary for the CEO is almost always about quality. (See also here).

Now, how does a society decide which types of contributions are of a higher quality and are therefore more deserving of higher remuneration? In part, the “market” decides: skills and contributions that are highly valued by consumers will earn you a higher income. But biases, prejudices and market manipulation are also factors that determine which contributions are valued higher. For example, there’s a widespread bias in favor of people with a university degree even though their objective skills may not always be higher than those of less educated people; advertisement and popular culture instill the perception that beautiful people are more deserving; stars in sport and music are believed to deserve a very high income, higher than that of the “stars” in science for example. And then there’s the perfectly circular reasoning that some contributions are more deserving because they yield higher earnings.

Many of these social decisions about desert are arbitrary, biased, irrational and unjustifiable. And in no case is there an attempt to justify them on moral grounds. Hence, you cannot conclude that more productive contributions are a moral justification for higher income levels if you first fail to justify which types of productive contributions are morally superior and more deserving.

You could counter this by saying that all skills and contributions, no matter in what field, are in and of themselves sufficient to warrant higher pay. But then you admit that all skillful and productive people across different fields should earn similar incomes, and that is plainly not the case. 

So, even if income inequality could be justified on a moral basis – by first deciding in a rational and unbiased way which skills and contributions are morally superior and then paying more to those people who have been identified as having more of those skills and contributions – that is not how it’s done in practice. And I doubt that it can be done, because there will never be agreement on the choice of morally superior skills and contributions.

Of course, the absence and, presumably, impossibility of a desert based argument for income inequality doesn’t mean that there can’t be other, more successful justifications of income inequality. The most common one is based on incentives rather than desert. We want people to do good, worthwhile and valuable things, and generous rewards for the skillful and productive is one way of having these things. Again, there’s the problem of deciding in an unbiased and rational way which things are indeed valuable, but we may assume that the market offers a close approximation: what people want to buy and consume will often be valuable to them. Perhaps not always valuable in the sense of “valuable after rational reflection free of biases”, but that sense may be unrealistic anyway. So let’s accept – grudgingly in my case – that we don’t have to decide what exactly needs to be incentivized and what is worth incentivizing.

However, even if we assume that value and desert equal market success, there’s a problem with the incentive based argument for income inequality. It’s not right to force morality through the payment of incentives. Ideally there should be good will, and people have to do things of value for their own sake, not because they are incentivized to do it (as G.A. Cohen has argued numerous times).

The conclusion is that income inequality as it is now structured in all societies is not justified and probably not justifiable from a moral point of view. And that this is the only point of view from which it should and could be justified. Of course, the lack of a justification is only one thing that’s wrong with income inequality. More on what’s wrong with it is here, here, here and here.

Types of Human Rights Violations (8): Active and Passive Violations

You can violate someone’s rights, or you can let violations occur. You can kill, or you can let someone die. Someone’s rights are violated either because you did something, or because you didn’t do something; either because of what you did, or because you refrained from doing something; either because you acted, or because you omitted certain actions; either because you caused this violation, or because you allowed this violation to happen.

All these phrases say the same thing: you either actively or passively violate someone’s rights. I agree that these are two distinct types of rights violations. The distinction is similar to the distinction between negative and positive duties. Active rights violations imply a negative duty to forbear or refrain from doing what would otherwise cause a rights violation; passive rights violations imply a positive duty to do something so that a rights violation does not occur.

The distinction is often understood as entailing different levels of moral blameworthiness, but I think this can be misleading. In criminal law, for example, the punishment for killing is often more severe than the punishment for letting someone die. However, the difference in blameworthiness is hard to see in many cases. Take the following example: one man A poisons his wife B, and another man C fails to take his wife D, who has taken poison by accident, to the hospital. (I’m stealing this example from Jonathan Bennett). If this is all the information we have, I guess many of us would not say that C is less blameworthy than A. Letting die is equivalent to killing, at least in this case.

When people argue for a moral difference between committing and omitting, it’s not the difference between types of actions – positive/negative, causing/allowing etc. – that counts, but intention. A probably had the intention of killing, while C may simply have been confused or in panic. If we attribute the same intention to both A and C – A gives the poison to B because he hates her, and C fails to take D to the hospital because he hates her and profits from the occasion – then the difference between the cases disappears, as does the difference in blameworthiness – and the difference between active and passive violations.

Arguments for a difference between committing and omitting can be based on intention, but then it’s intention that makes the difference, not the types of actions. After all, A may have poisoned B unintentionally, while C may have intentionally refrained from assisting D. The distinction between types of actions – positive and negative – doesn’t therefore seem to carry much weight.

Perhaps it can be rescued by looking at the cost element. Active violations are often judged more immoral than passive violations because it’s generally easier and less costly to refrain from acting than it is to help. Hence, failure to refrain – i.e. actively doing something – is more blameworthy than failure to help – i.e. remaining passive. And yet, this is not always true. Let’s take the same example and modify it a bit. If A poisons B and wants to do this, and C involuntarily fails to help D who’s taken poison accidentally, then it’s true that A is more blameworthy than C: A could have easily refrained from giving B the poison, whereas C would have had to overcome his panic, carry D down the stairs, drag her into his car etc. C may even be forgiven altogether for his failure to help. However, what if A killed B because B had threatened to kill his mother, and C let D die because he hated her? The cost to A of refraining would have been very high, higher than the cost to C of not letting D die.

Again, like in the case of intention, cost can be used to differentiate blame, but it’s cost and not type of action that differentiates.

To conclude: the distinction between active and passive types of rights violations is real, but one should be careful when attaching different levels of blameworthiness to these types.

More posts in this series are here.

The Causes of Human Rights Violations (39): The Self-Perpetuating Cycle of Widespread Human Rights Violations

Sorry for the strange title, but there is a logic behind it: it’s more difficult to end human rights violations the more widespread they are, and not just in a logistical sense. If rights violations are widespread, then they can become the moral norm. How does this happen? First, if everyone or a large group of people is victimized, victims start to believe that there’s nothing special about their predicament. Why would they make a fuss about something that happens to so many people, all of whom also don’t make a fuss. People don’t want to be crybabies and tend to align their behavior to that of others. They may suffer in silence or even fail to conceptualize their suffering as suffering. (This is similar to the bystander effect: if bystanders witness a crime, they first look at the reactions of other bystanders in order to see if the others judge the situation as one which requires intervention. When all bystanders do this simultaneously, then no one interferes).

A next step turns all of this into a vicious circle. When a certain practice is widespread, those who engage in it tend not be held blameworthy. Blame is always and only linked to practices that are more or less exceptional. It can’t be a perpetual and universal condition, because then it loses its meaning. This lack of blame then reinforces the sense that certain practices are normal, which again makes blame impossible. And so on. Hence, widespread human rights violations are their own cause.

Take this interesting story about sexual harassment at the Oxford University around the middle of the 20th century:

[A] group of remarkable [female] philosophers … were taught classics by a brilliant and charismatic professor, Eduard Fraenkel. In addition to imparting lessons to his female students about Aeschylus’s Agamemnon, he would engage in what nowadays we would describe as egregious cases of sexual harassment. What’s strange is how little psychological impact his behavior seems to have had on the young women he pawed over. Warnock writes that she had never “after the beginning, seriously minded his advances…the impropriety of his sexual behavior seemed utterly trivial compared with the riches he offered us”. Iris Murdoch concurred. Just imagine a female student today writing, “Professor Grope was a first-rate teacher, though it’s true that each week he tried to put his hand up my skirt…” (source)

At the time when sexual harassment was widespread behavior, it became the normal thing to do, nothing special and therefore also not blameworthy.

The obvious question is then: how do we escape from this self-perpetuating cycle of human rights violations? The easy answer would be that we can’t. This answer fits nicely with the fashionable idea that our morality isn’t a rational thing but rather a rationalization of universal, innate and ingrained moral emotions such as disgust – in other words, a fancy story built on gut reactions. This idea in turn corresponds to the recent finding that even very young children – as well as primates – have a sense of morality even though they don’t have the full ability of reason.

However, this answer won’t do because it’s obvious that we can escape from the cycle and that we can change our moral sense. History is rife with practices that were once considered normal and yet somehow became abnormal and blameworthy: slavery, gender inequality, sexual violence etc. Many of these changes have come about through a mix of reasoning, deliberation, storytelling and appeals to honor. To some extent, it’s true that morality is a reflection of common practice and determined by it. But fortunately it’s more than that.

More about catch 22 in the field of human rights is here. More posts in this series are here.

The Ethics of Human Rights (63): Human Rights and Moral Subjectivism

Human rights seem to be vulnerable to a common argument in morality: how can we objectively determine that some action is morally wrong? I may think it’s wrong, but you may think something else. Which one of us is correct? There seems to be no way of knowing. Morality is therefore subjective: if something is wrong, it’s wrong for me, for my religious group, my culture etc. If you, your church or your culture thinks it’s OK, then go ahead and do it.

This subjectivism and relativism seem inevitable in our age of moral and cultural pluralism. Western societies are no longer characterized by a quasi-general agreement on the precepts of the Bible, and our colonial hangover has made us weary of supposedly objective morality. There’s no more “true or false” about moral norms, just “ours” and “theirs”. This coexistence of different and often incompatible and contradictory norms or moral systems should be accepted in a spirit of tolerance, and should even be celebrated as part of the richness of human life.

It’s not clear what if anything is left of human rights once we’re done with this. Since these rights are also moral norms, it seems as if they too should be demoted to the rank of personal or group preferences, with no moral force over people holding other preferences. If human rights aren’t true and objective norms, but merely our norms, and if these norms lack any backing more sophisticated than our subjective preference for them or the fact that they are in our holy book, then there’s no point in talking about human rights at all. Drop the “human” part and replace it with “ours” or “mine”. The only good that human rights can possibly do is symbolic affirmation of group membership (“Free speech is a right!” – “Ah, yes indeed, you must be a liberal! Welcome!”). They’ll offer no protection at all, since all violators obviously have different subjective norms, and have an equally valid justification for those norms, namely that they are theirs or that they are in their books.

Fortunately, none of this is inevitable. We may never be able to say that it is objectively “true” that people have this or that human right, or that it is “true” that a particular human right is an important moral norm. However, there’s considerable space between such objective truth claims on the one hand and merely personal, subjective, cultural and relative claims on the other. We may produce good arguments and make a reasonably convincing case that rights claims are good claims. Not true claims, but good claims in the sense that they are strong and difficult to argue against. Rights claims will then perhaps be accepted by people who initially held anti-rights preferences, not because they are forced by the objective truth of those claims – as they may be forced to accept the laws of gravity when the truth of those is demonstrated to them – but because they have allowed themselves to be convinced by the force of our arguments.

More posts in this series are here.

The Ethics of Human Rights (62): Human Rights Consequentialism

A few additional remarks following this previous post.

A really crude simplification would divide moral theories into two groups: deontological and consequentialist theories; or, in other words, theories that focus on duties and rights and theories that focus on good consequences. At first glance, human rights activists should adopt deontology. We have rights independently of the consequences that follow if they are upheld or not. Rights are strong claims by individuals against society and the state, claims that can’t just be put aside if doing so would yield better overall consequences. You can’t torture one individual if this torture would cure millions of chronic headache.

Consequentialist theories, as opposed to deontological ones, usually do accept the sacrifice of a few – including their rights – for the benefit of many, or they accept a small sacrifice for a larger good even if only one individual profits from this larger good. A larger good can justify a smaller harm. And indeed, there are many circumstances in which violating the rights of some would deliver greater goods for many.

For example, closing down the Westboro Baptist Church would give many people some or even a lot of satisfaction while imposing serious harm on only a few (it’s a small band of crazies). The consequentialist calculus is likely to show that in this case the sum of satisfactions outweighs the sum of harm. The fact that the harm we’re talking about here means a violation of rights (free speech,  freedom of association and freedom of religion for the church members) doesn’t count in the consequentialist calculus. A harm is a harm and it’s the intensity not the nature of the harm that is important.

It’s not surprising that proponents of human rights have problems with this: human rights are important for everyone, but especially for minorities who risk being crushed by the interests of the majority.

It seems, therefore, that consequentialist reasoning is inimical to human rights. And yet, almost all if not all theories about human rights allow for some consequentialism. For example, there’s the case of catastrophic consequences. When faced with the possibility of catastrophic consequences it seems stupid and contrary to moral intuition to hold on to rights, no matter how dear these rights are to you in normal circumstances. The archetypical case is the ticking bomb.

Some proponents of human rights – and I’m one of them – go even further and justify rights on a consequentialist basis: rights are necessary because we need them to realize certain fundamental human values. And, in order to limit the consequentialist logic that would allow violations of rights for every tiny marginal good, we do four things:

1. We claim that it is an empirically verifiable fact that human rights are among the best, if not the best means to realize the values in question. This is true on average and, especially, in the long run. Hence, sacrificing rights in order to realize those values isn’t the best short term or long term strategy.
2. Even if there are isolated cases in which the values in question are better served by other means – other means than human rights and other means that require setting aside or violating human rights – then it’s still better to ignore those other means. If not, we will leave human rights with less authority and less force to produce good consequences in the future. Part of the force of human rights lies in their imperative and rule-like character. Setting them aside, even occasionally, because we think that’s necessary for certain goals, destroys their future power. They are not like antibiotics whose power depends on their limited use. On the contrary: the more we use human rights, the more power they have, and hence the more effective they are in doing what they usually do best.
3. We claim that the values protected and realized by human rights are among the most fundamental human values, if not the most fundamental. Hence, consequentialist reasoning will have a hard time coming up with more fundamental values that justify sacrificing human rights or the values protected by human rights.
4. We claim that consequentialist reasoning has some theoretical limitations: for example, we may know in general what consequences tend to follow from certain principles such as human rights, but it’s much more difficult if not impossible to know the precise consequences of specific actions (especially the long term consequences). This is also true for actions that imply human rights violations. Hence, even if there are, in theory, better ways to realize the values normally realized by human rights, and even if there are, in theory, more fundamental values than those realized by human rights, we don’t know if our specific actions aimed at the realization of values do in fact produce those values. Hence, we have reasons not to engage in consequentialist calculations that imply violations of human rights.

More posts in this series are here.

The Ethics of Human Rights (61): Human Rights and Rule Consequentialism

In a previous post, I’ve argued that deontology, when compared to consequentialism, seems to be more amenable to human rights because consequentialism – or at least some forms of it, such as act consequentialism and utilitarianism – tends to focus on the maximization of good consequences (be it welfare, utility or whatever) at the expense of rules, including rules on human rights. Rules, according to consequentialism, are useful only when they maximize the good, and can be put aside when they don’t. Hence they aren’t really rules at all. Conversely, human rights – which really are rules – tell us that we should not do certain things to indviduals, not even if doing those things would maximize overall social utility.

However, in that older post I also pointed to some elements of deontology that are problematic from a human rights perspective. An example: many but not all deontological theories tend towards moral absolutism. Human rights are not absolute rules, for different reasons but mainly because different rights are often incompatible and need to be balanced against each other. This absolutism is a problem that can be overcome by threshold deontology. However, this modified form of deontology creates other problems.

And yet, I forgot to mention the main argument against a marriage of human rights and deontology, namely the fact that human rights are typically justified in a consequentialist manner and that deontological justifications of human rights are extremely unconvincing. When we want to sell human rights to those among us who believe that they are superfluous or perhaps even nefarious we usually cite the good consequences that follow from (or would follow from) respect for human rights. I myself am heavily invested in this effort (see previous posts here).

If you want to justify human rights without reference to their good consequences – if, in other words, you’re looking for a deontological justification – then you’ll have an extremely hard time coming up with something interesting and non-tautological. The claim that humans have human rights simply because of their humanity is true enough (in the sense that humans don’t have to deserve their human rights and don’t have these rights bestowed upon them by their benevolent rulers) but it won’t get you very far persuasion-wise.

Take, for example, the right to free expression. You might argue that free expression is good in itself – whatever the possible consequences (such as epistemological progress) – because humans are essentially expressive beings. However,

Self-expression can take an indefinite number of forms beside speaking, and a deontological right to do whatever we want as a matter of self-expression is ridiculous. The basic reason it is so is because our acts of self-expression can affect others, and often deleteriously. (source)

Consequences are hard to ignore. They tend to creep into all efforts at justification. So, the conclusion of all this seems to be that human require or are a form of rule consequentialism. This is a modification of the original form of consequentialism, also called act consequentialism. Rather than regarding morality as a matter of selecting acts that produce the best overall consequences (good consequences minus bad consequences), rule consequentialism is about selecting rules in terms of the goodness of their consequences. It’s those rules that determine whether acts are morally right or wrong, not the consequences of acts. Of course, the conjecture is that the chosen rules will generally promote acts that produce good consequences. And yet, even if they don’t or won’t in certain cases (or if we think they don’t or won’t), we better stick to the rules anyway because violating them for the purpose of a small benefit can lead to greater long term disadvantage.

Rule consequentialism avoids some of the pitfalls of act consequentialism and simple utilitarianism, such as the tendency to dump rules when a small benefit can be produced by dumping them (e.g. torturing one to save two others from torture); the calculation problem (consequences are hard to assess and compare, especially when the time frame isn’t limited, and it shouldn’t be); the information problem (consequences are difficult to predict, especially for people who lack knowledge of a certain area or who are in a hurry); etc.

I won’t claim that rule consequentialism is without problems (there’s an overview of criticisms here), but compared to act consequentialism, utilitarianism and deontology it sure looks promising from a human rights perspective,

Note that I’m revising here my older opinion on rule consequentialism as I have expressed it in this post.

More posts in this series here.

The Ethics of Human Rights (60): Absolute Human Rights and Threshold Deontology

There’s this difficult contradiction between two moral intuitions about human rights. On the one hand, we tend to feel very strongly about the extreme importance of a particular subset of human rights. Especially the right to life, the right not to be tortured and the right not to be enslaved are among those human rights which are so fundamental that their abrogation or limitation seems outrageous. Other rights, such as the right to free speech or the right to privacy, are hardly ever considered to be absolute in this sense – which doesn’t mean they are unimportant (something can be a very important value without being a moral absolute). Some restrictions on those rights are commonly accepted.

On the other hand, the horror that is provoked by the mere thought of limiting the right to life or the right not to suffer torture and slavery doesn’t preclude the fact that there are few consistent pacifists. Most of us would decide not to submit to a Nazi invasion and to fight back. Hence, the horrific thought of abrogating the right to life does not stop us from conceiving and actively engaging in killing. There’s also the Trolley Problem: experiments have shown that most people would sacrifice one to save many. The same is the case in ticking bomb scenarios.

True, there are some consistent pacifists, as well as some who oppose torture under all circumstances, whatever the consequences of failing to kill or torture. But I’m pretty sure they are a small minority (which doesn’t mean they are wrong). The more common response to the conflicting intuitions described here is what has been called threshold deontology: faced with the possibility of catastrophic moral harm that would be the consequence of sticking to certain rules and rights (catastrophic meaning beyond a certain threshold of harm) people decide that those rules and rights should give way as a means to avoid the catastrophe.

Threshold deontology means that there are very strong and near-absolute moral rules, which should nevertheless give way when the consequences of sticking to them bring too much harm. Threshold deontology can also be called limited consequentialism: rules may not be broken whenever there’s a supposedly good reason to do so or whenever doing so would maximize or increase overall wellbeing; but consequentialism is the only viable meta-ethical rule to follow when consequences are catastrophically bad or astronomically good.

If this is correct, then why not simply adopt a plain form of consequentialism? Do whatever brings the most benefit, and screw moral absolutes – or, better, screw all moral rules apart from the rule that tells us to maximize good consequences. This solution, however, is just as unpopular as strict absolutism. We don’t torture someone in order to save two other people from torture; and we certainly don’t torture someone if doing so could bring a very small benefit to an extremely large number of people (so that the aggregate benefit from torture outweighs the harm done to the tortured individual).

Unfortunately, threshold deontology is not as easy an answer to the conflict of intuitions as the preceding outline may have suggested. The main problem of course is: where do we put the threshold. How many people should be saved in order to allow torture or killing? It turns out that there’s no non-arbitrary way of setting a threshold of bad consequences that unequivocally renders absolute rights non-absolute. At any point in the continuum of harm, there’s always a way to say that one point further on the continuum is also not enough to render absolute rights non-absolute. If we agree that killing or torturing 5 for the sake of saving one is not allowed, then it’s hard to claim that 6 is a better number. And so on until infinity.

We can also think of the threshold in threshold deontology not in terms of harm that would result from sticking to absolute principles, but in terms of harm done by not sticking to them. The threshold then decides when we can no longer use bad actions in order to stop even worse consequences. For instance, we may verbally abuse the ticking bomb terrorist. Perhaps we can make him stand up for a certain time, of deprive him of sleep. At what moment should our near-absolute rules or rights against torture kick in? At the moment of waterboarding?

However, the same problem occurs here: a small increase in harm done to the terrorist can always be seen as justifiable, as long as it is very small. Again no way of setting a threshold because of the infinite regress that this provokes. Also, how should we evaluate the following case, imagined by Derek Parfit: a large number of people inflicts a small amount of harm on the terrorist, who is in immense pain as a result, and it’s impossible to tell whose infliction of harm has resulted in the pain threshold being passed. His absolute right not to be tortured is violated, but no one is responsible. This also sucks the power out of our moral absolutes.

Still, the problem of setting the threshold in marginal cases doesn’t mean that there are no clear-cut cases in which harmful consequences have clearly passed a catastrophic threshold. Nuclear annihilation caused by a ticking bomb is such a case I guess. That’s a catastrophe that may be important enough to abrogate the near-absolute rights of one individual terrorist.

However, this means that threshold deontology is useful only in a handful of extreme cases, most of which will fortunately never occur. In the real world, beyond the philosophical hypothetical, most cases of harmful consequences don’t reach the “catastrophe” level. Hence, in the case of a number of rights simple deontology is often the best system, at least compared to threshold deontology – which is most often irrelevant – and plain consequentialism – which would make a mockery of all rights and sacrifice them for the tiniest increment in wellbeing (see here). If we want to protect the right to life and the freedom from torture and slavery in day to day life, we might just as well pretend that they are absolute rights and forget about the catastrophic hypotheticals.

I should also note that although I rely here in part on the ticking bomb case in order to make some which I believe to be important points, the case in question is a very dangerous one: it has been abused as a justification for all sorts of torture with or without a “ticking bomb”. (After all, once you can establish that torture is not an absolute prohibition in catastrophic cases, why would it then be a prohibition in less than catastrophic cases? See the difficulties described above related to the threshold in threshold deontology). And not only has it been abused: one can question the practical relevance of the extremely unrealistic assumptions required to make the case work theoretically.

More about threshold deontology here.

Human Rights Promotion (7): The Human Rights of Adolf Hitler

Suppose Hitler didn’t kill himself and was captured alive by the Russians in Berlin, or by Israeli commandos in South America. What would we be morally allowed to do to him if we had managed to capture him? Does a person like him have human rights that we have to respect? Of course. Whatever dehumanizing name you wish to call him, he was a human being like the rest of us, and we have to deal with that fact. Every human being has rights and those rights are not conditional upon good behavior. No one has less or more rights than the next person. It’s not because someone has committed horrible crimes that we are allowed to take away his or her rights.

Hitler’s rights include a right to life. This right is quasi-absolute and can only be limited if that’s the only way to save other lives. So for instance, we are allowed to shoot him on the spot if he resists arrest and threatens to kill us or others (such as hostages). But suppose Hitler is captured alive and is no longer a threat to the lives of others. Shooting him is then not allowed because that would be an extrajudicial execution.

Are we allowed to execute him after a proper trial? Maybe a living Hitler who’s kept in prison would still be able to encourage his followers to continue their murderous rampage and maybe that’s a sound argument for executing rather than imprisoning him. But I think that’s a far-fetched scenario. Only in the unlikely case that there is a real risk of an imprisoned Hitler ordering murder and that executing him is the only means to remove a threat to the lives of others, would his execution be allowed. This is equivalent to the case in which Hitler is holding hostages. However, even in this case, going after Hitler’s followers would be more effective.

So capital punishment is not an option. Remember also that other justifications of capital punishment aren’t available: we are not allowed to deter future criminals by killing present criminals, not even if it works, since that would be an instrumentalization of a human being. Going down that road ultimately leads to the devaluation of all human life. Life imprisonment without parole then? Not an option either because even Hitler can be rehabilitated. The problem with rehabilitation is that you never know who can do it until they do it. You can’t say in advance that some people are beyond rehabilitation.

Some form of criminal punishment is obviously warranted since Hitler acted with intent, knew the consequences of his actions, caused the consequences of his actions, wasn’t forced to act, was aware of alternative courses of action, violated existing law and was found guilty of such violations after a fair trial (ex hypothesi). Given the unavailability of capital punishment and life without parole, some fixed term prison sentence seems to be the only remaining option. And I know that’s a huge anticlimax for most of us.

But what do we want to achieve with that sentence? Retribution? Even if retribution is a justified end of punishment – which it isn’t since we should in general try to be better than criminals – a fixed term sentence is hardly retribution for Hitler: on any account, this is less than what he deserves. And more than this is ruled out (see above). Not only aren’t we morally allowed to execute him, but even executing him doesn’t seem enough. If anything, he deserves to be executed millions of times over, which we obviously can’t do even if we were morally allowed to do it.

Perhaps we want to achieve incapacitation. That’s reasonable enough in this case. You can hardly allow Hitler to walk the streets. But again, this is truly anti-climactic. It leaves us with our anger and sadness. But I guess there’s no way to leave our anger and sadness behind in this case. The morale of this story is that the same is true in many other, less extreme cases as well. We tend to be too ambitious when punishing criminals.

The Causes of Human Rights Violations (37): Our Brains

Using modern brain scanning technology, researchers have found delays of about half a second between a person’s brain committing to certain decisions and the person becoming aware of having made them.

Benjamin Libet is famous – or infamous if you want – for his experiments in the 1980s, showing a consistent build-up of electrical activity from the brain’s motor cortex before participants were consciously aware of their desire to move. Apparently, brain activity – unconscious buildup of electrical charge within the brain – precedes conscious decisions to perform volitional, spontaneous acts. In other words, unconscious neuronal processes precede and potentially cause volitional acts which are retrospectively felt to be consciously motivated by the subject. If unconscious processes in the brain are the true initiator of volitional acts, then there is no free will; or if there is free will it shouldn’t be viewed as the initiating force.

If unconscious brain processes have already taken steps to initiate an action before consciousness is aware of any desire to perform it, the causal role of consciousness in volition is all but eliminated. (source)

An example:

scientists in 2008 were able to predict with 60% accuracy whether subjects would press a button with their left or right hand up to 10 seconds before the subject became aware of having made that choice. (source, source)

How can a choice be free if scientists can predict it with relative certainty? It seems that our conscious experience of decision-making is nothing but a secondary effect, a mere biochemical afterthought, with no influence whatsoever on our actions and reactions.

If this demotion of free will is correct – and that’s a big if – then rights violations aren’t caused by people who decide to violate them. They are instead caused by their brains. This is a depressing idea because it implies that we can’t do much about rights violations, short of clinical or chemical interventions in the brain. It also implies that we can’t hold violators responsible for their actions, since it’s their brains rather than their conscious volition that is the real cause of those actions.

More on free will here. More posts in this series are here.

The Ethics of Human Rights (58): Economic Human Rights and Desert

First, a brief reminder: economic human rights are a subset of human rights dealing with poverty, standard of living, food, shelter, work, education, social security and health. They are set out and guaranteed in the International Covenant on Economic, Social and Cultural Rights, but also in other treaties and declarations, notably in the Universal Declaration.

Now, compare Article 11 of the Covenant to Article 25 of the Universal Declaration:

Article 11: The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.

Article 25: Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

Notice the last 4 words: “circumstances beyond his control”. It looks like the drafters of the Universal Declaration intended to refuse aid to the starving if the latter are responsible for their own predicament. The same for the unemployed demanding unemployment benefits, the sick demanding healthcare and the homeless demanding shelter when unemployment, sickness and homelessness are not beyond people’s control. The drafters of the Covenant, on the other hand, seemed to offer unconditional aid, both to those who need aid because of bad luck and to those who need it because of stupid mistakes or risky gambles.

The position set out in the Universal Declaration is, I guess, the most common one. We often hear discussions of the undeserving poor wallowing in a “culture of poverty“. And while it’s unfair to categorize all the poor in this way, it is fair with regard to some of the poor.

There are two conflicting moral intuitions at work here. On the one hand, people should get what they deserve, even if it is misfortune. If misfortune is the consequence of risky gambles, laziness or avoidable stupidity, then people should shoulder the consequences of their choices. They alone are responsible for their misfortune and don’t have a strong claim to assistance. That’s the moral or moralistic argument against assisting the undeserving poor, but there’s also an argument based on prudence: if we were to assist those people anyway, then we would create moral hazard and disincentives: people would start to take all sorts of risks, make silly gambles and be excessively lazy because they know that they’ll get bailed out when things start to go wrong.

On the other hand, it’s cruel to let people starve even if their starvation is clearly their own fault, and our moral intuitions tell us we should help them anyway. Furthermore, the difference between bad luck that happens to people and misfortune that people bring on themselves is seldom clear in the first place: attitudes such as laziness and excessive risk taking can be genetically predetermined or can be nurtured in certain disadvantaged environments. This lack of clarity results in the practical problem of identifying real desert as opposed to apparent desert: you’ll have to screen individuals’ entire lives, their nurturing as well as their genetic profiles, and that would be a horrendous infringement of liberty and privacy.

So the question for those of us in favor of economic rights is this: do we view them as conditional or unconditional? If we choose the latter, we offend some strongly held moral intuitions about desert. As a result, we may create moral hazard and encourage existing opposition to economic rights. In addition, we may also find ourselves in the unpleasant universe of absolute determinism: if desert is ruled out, then we’ll tend to assume that people’s actions are determined by nature or nurture.

If we choose the former, we will be excessively cruel in some cases, and a threat to liberty and privacy in most cases. (I say most cases and not all cases because some people are clearly undeserving and there’s no need to infringe their privacy and liberty in order to find out. Still, even those people may one day lose their label and hence their privacy with the advances of the science of genetics). We’ll also have some trouble insisting that economic rights are rights: human rights are typically unconditional – people don’t lose their right to free speech because they did something to deserve this loss.

It’s not an easy choice, and whatever we choose we’ll offend some moral intuitions. Of course, there’s no rule against offending moral intuitions, and the correct morality may offend all moral intuitions. However, in the absence of a correct morality, it’s prudent not to offend too many intuitions. A possible solution could be offered by a system of guaranteed basic income: everyone gets assistance, both those in need of assistance and those who are well off, both those who deserve assistance and those who don’t. Since this basic income is not really assistance, the problem about who deserves assistance doesn’t really arise. Of course, we would be giving something to lots of people who probably don’t deserve or need it, but at least there would be no one disadvantaged by this giving and hence no one will be complaining.

More about rights and desert here, and about rights and risk here.

Capital Punishment (41): The “Healing” Argument and the “Danger” Argument

Capital punishment is usually defended on the basis of a theory of deterrence or retribution, but there are some other, less common arguments as well. There’s for example the argument that capital punishment is necessary for “closure” and “healing” of the victim’s surviving family and friends. Capital punishment is therefore viewed as a therapy. Apart from the doubts that capital punishment can serve this purpose – what does closure and healing mean and do they necessarily require an execution? – there’s a strong case that it shouldn’t be used for this purpose even if it can be: it would amount to crude instrumentalization of the criminal, even more than in the case of deterrence. Moreover, there’s a problem with cause and effect: if people are told that they need an execution in order to accomplish closure, then perhaps they’ll start to believe there’s no other way.

Another argument in favor of capital punishment is based on guesses about the harm that would result from failing to use this type of punishment. If we don’t satisfy the public’s blood lust – or call it “punitive emotions” if you want – the public will seek to satisfy it in ways that we wouldn’t like (e.g. lynching). However, there’s again a problem with cause and effect in this argument: the justice system does not merely reflect opinion about appropriate punishment, but also shapes it. Far from reducing blood lust, capital punishment may instead promote it. This is the so-called brutalization effect.

The basis of blood lust is moral outrage, and such outrage – contrary to blood lust – is often completely justified. And it should be recognized, but it can be in ways that don’t involve executions.

More on capital punishment is here.

Why Do We Need Human Rights? (30): Strategies for Justifying Human Rights

When we try to answer questions such as “why do we need to respects human rights?”, “why are there human rights?”, “where do human rights come from?” and “what are the grounds of human rights?”, then it’s not beyond doubt that our answers will result in any practical benefits or real improvements in actual respect for human rights. One often hears the argument that all such answers are useless, since those looking for them are already convinced that human rights are important and are simply engaged in an intellectual exercise without practical consequences. These answers will – by definition – fail to produce beneficial consequences in practice, because those who violate human rights will not be persuaded by intellectual exercises.

I think that’s true for some violators. The Taliban for instance seem to be impervious to reason. Others, however, may be swayed. Hence, the exercise may be more than intellectual; there is a chance that good answers to questions about the grounding of human rights have some practical effect and can produce some improvements in levels of respect for human rights.

There’s an obvious and easy answer to those questions, but I doubt that it’s a very useful one. It’s provided by religion, and more specifically by the Judeo-Christian religion. If human life is sacred because all men and women are equally the children of God and created in His image, then there are certain things one cannot do to them and certain standards of conduct that apply equally to all human beings. With the help of some interpretation of the Bible, it should be possible to express those standards in human rights language. Some would even claim that there is no other way to ground human rights, since this grounding requires the concept of the sacredness of human life, and this sacredness can only be defended by positing a divine creator.

There are at least two difficulties with this approach. First, attempts to ground human rights in religion sound vaguely anachronistic: human rights have started their ascent during an era of increasing secularization. So it seems that they can survive and thrive without a religious basis and that there’s no need to use categories such as “sacred”.

The second difficulty with the religious approach is its lack of universal appeal: it will only persuade the persuaded. Adherents of other religions, non-believers or Jews and Christians who interpret the Bible differently will often find such a grounding of human rights hard to swallow.

So it seems that a proper justification of human rights – proper in the sense of being universally acceptable, at least potentially – has to be a-religious and purely rational. However, rational justifications also face some problems. A rational justification is limited by definition. Because you can’t appeal to the word of God, you have to use other values to ground human rights. And to some extent, you have to justify the grounds you use as a justification. However, this can’t go on indefinitely. For example, if you argue that we need human rights in order to protect human dignity or rationality, you also have to expound the reasons why we need dignity or rationality (at least, that is what you have to do when you can’t or won’t assume that our dignity comes from God). And then the same for the reasons why we need those reasons etc. At a certain point, you just have to accept circularity and admit that at a basic level of morality you need to do what is moral simply because that is what morality requires (and not because of some other reason).

Still, before you reach that point you can do useful work by linking respect for human rights to some other values that people deem important. Because people have already adopted those values, you don’t need to argue for them. Hence you can avoid the infinite regress of justification, and you can limit yourself to the reasons why the protection and realization of certain given values require human rights.

More on the justification of human rights is here and here.

Cultural Rights (14): Tolerance, a Model

To be tolerant means to accept the existence of and to avoid interfering coercively with beliefs, actions or practices that you consider wrong and objectionable. It means that you do your best to co-exist with people who are very much different from you, and different in a negative sense. You allow or permit these people to remain who they are and what they are. You consider what they are, what they do and what they believe to be wrong and objectionable, but not wrong enough to be intolerable and subject to prohibition, legal or otherwise. You tolerate them because you believe that what they do or believe should not be prohibited, or perhaps because you believe you’re not in a position to effectively prohibit. However, I would personally prefer to call the latter option “endurance” rather than tolerance and limit tolerance to the voluntary acceptance of things you could prohibit if you wanted to.

“Acceptance” here should of course be understood, not in the sense of a positive moral judgment, approval or agreement, but in the sense of a practical, pragmatical accommodation. The negative judgment remains but isn’t strong enough to warrant repression or prohibition.

We may decide to tolerate something for a variety of reasons:

• We may have a strong general sense of respect for other people and for their identity. We may respect people’s moral standing as agents able to choose their own vision of the good life. We disagree with their choices but we respect them as agents able to choose.
• We may be motivated simply by a general respect for the law, and the law happens to prescribe tolerance.
• We may believe that tolerance is necessary for the preservation of civil peace and public order, and these considerations outweigh our disgust for other lifestyles. In other words, we hate conflict more than we hate other people.
• We may be motivated by an expectation of reciprocity: if we show tolerance we expect to be tolerated. Maybe our own group isn’t in the majority either, or risks not being a majority in the future, and hence we may some day profit from tolerance.
• We may believe, as did John Stuart Mill, that even false opinions lead to social learning.
• Etc.

Those reasons can imply either equal or unequal relationships between those who tolerate and those who are tolerated.

Below I offer my own petty model of tolerance. I situate tolerance on a continuum going from what I call guidance on one side to prohibition on the other. Guidance means the attitude of emulating certain practices which you view as being important enough to guide your life and your fundamental opinions. Prohibition, the other extreme, means the attitude of suppressing certain practices which you view as being so depraved that they should be forbidden and eliminated, if necessary with violence.

One level below guidance I situate the attitude which I call positive acceptance. People accept things in a positive way if they consider them to be moral, but not necessarily moral enough to be the guiding light of life. One level below positive acceptance is indifference, which marks the boundary between things that are moral and things that are immoral.

Below indifference is negative acceptance, which means viewing things as being immoral yet not immoral enough to suppress them using the law or any other violent means. As stated above, I distinguish between two types of negative acceptance, endurance and tolerance, the difference being that tolerance means accepting something and yet having the ability to suppress. Endurance means you tolerate despite not wanting to tolerate: you tolerate because you don’t have a choice. If you had the power to suppress or prohibit, you would. You don’t suppress or prohibit and you tolerate because you don’t have the power to suppress or prohibit. Real tolerance means that you have that power but voluntarily choose not to use it, for any (combination) of the reasons mentioned above.

Some would also call endurance a type of tolerance. Personally, I want to keep it separate. (Which is why it is in light gray rather than dark gray in the image below). I distinguish three types of tolerance: people can tolerate things unconditionally, they can tolerate things if they happen only in private, or they can tolerate things that happen in public but only conditionally.

I also place all these attitude, including tolerance, on a moral scale, assuming that people decide to accept, reject, tolerate or prohibit acts or beliefs according to the moral value they attach to these acts or beliefs.

What Are Human Rights? (34): Different Things

Another way of phrasing the question in the title of this post: how do human rights exist? They can exist in many forms:

1. They can be part of the law. For instance, they can be included in a country’s constitution, in the international treaties a country has accepted, in customary law etc.
2. Human rights can also exist as part of a moral tradition of a certain culture, nation or civilization. They are then shared norms of actual human moralities.
3. They can exist as part of a religion, or better as part of a religion’s teachings, scriptures etc. (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights…”).
4. They can exist as part of a justified morality (as opposed to an actual human morality). E.g. some human rights are part of John Rawls‘ theory of justice. A justified morality is not the existing morality of a group; it’s a moral theory that justifies moral norms such as human rights by way of argued reasons.
5. They can be facts of life: rather than merely moral, legal or religious norms (justified or not), they are part of everyday behavior. Rather than aspirations or goals they are real capabilities. If that’s the case, then people don’t just have a legal right to free speech, or a right to free speech granted to them by their cultural or religious norms. And they don’t just have this right because a justified moral theory gives it to them. They have free speech, period.

Depending on where you live, human rights – or certain human rights some of the time – can exist in all 5 forms or in just one. Human rights exist everywhere in form 1: the Universal Declaration has become part of international customary law and is therefore binding on all countries in the world, even the few that haven’t accepted any human rights treaties and that haven’t incorporated human rights in their constitutions. Hence, human rights are part of the law everywhere.

Of course, that doesn’t have to be of much use. Several countries don’t care about the enforcement of this part of the law, or of any part for that matter. Or they are unable to enforce the law because they don’t have the resources, the institutions or popular support for rights. Perhaps the reason why the law is not enforced is the unwillingness of their dictatorial governments. Perhaps the reason is the absence of rights in form 2 and/or 3.

Rights in form 1 are important, however, and it’s preferable that the type of law that includes human rights is more than merely international customary law. That’s a notorious weak form of law. Better to have a country accept human rights treaties and, on top of that, include them in its constitution. If this can be combined with

• an effective and non-corrupt government – including a good police force and judiciary
• and with human rights in form 2 or 3 – which gives rights public support

then rights can exist in form 5. Not of course all rights all of the time. There will probably always be rights violations, even in ideal legal, political, governmental, moral and cultural settings.

Regarding rights in form 2 or 3: no existing moralities or religions include all human rights, or at least all rights properly and broadly defined. The full existence of rights in form 5 can therefore not follow simply from their existence in form 2 or 3. A particular disadvantage of rights in form 3 is that they’re unconvincing to non-believers or members of other religions in the community. Or sometimes the rights granted by God are only granted to believers.

A disadvantage of rights in form 4: no two moral theorists seem to be able to agree. They all think their reasons are supported by the best arguments. It seems naive to believe that there will one day be scholarly agreement on political morality. Not even a sincere commitment to open-minded, rational and serious philosophical inquiry seems to make that possible. And without rights in form 4, it’s much more difficult to correct the deficiencies of rights in forms 2 and 3. Or maybe that’s me being naive about the power of philosophy.

More posts in this series are here.

What Are Human Rights? (33): Something More Than Goals

You can often hear the claim that economic rights such as the right to healthcare, food and work are not really rights but merely desirable goals. A first reply would be that all types of rights, not just economic rights, are also goals. Free speech is just as much a goal as healthcare, food and work. But not all goals are rights, so it’s reasonable to ask if economic rights are really rights. What is a right? It can be different things, but it should, minimally, impose a duty. A duty implies feasibility. Ought implies can. There’s no point imposing duties on people which they are unable to respect.

A typical objection against economic rights is that they impose precisely such duties, duties which are not and will not be feasible in many countries in the world. Imposing a right to healthcare, food and work in Somalia, for instance, is imposing an illusion. It’s just too expensive. Hence, because they impose impossible duties, economic rights can’t really be rights. They are merely goals.

Now, I did argue before that the relative expensiveness of economic rights compared to “freedom” rights is often very much exaggerated. Which is why Somalia and other countries have also failed to secure freedom rights successfully. Part of their lack of success is due to their unwillingness to leave people be – which they could at no expense – but another part is due to their unwillingness and inability to fund the institutions necessary to enforce people’s freedom. Yet, no one claims that these failures turn free speech into a mere goal or aspiration rather than a right.

Furthermore, the international treaties that impose respect for economic rights have taken the cost criticism into account. They often frame economic rights in terms of “progressive realization”. Countries don’t violate the treaties if they can show that they have taken all possible measures to ensure the progressive – as opposed to immediate – realization of economic rights.

If we turn rights into goals, we lose a lot. Goals are a lot weaker in terms of moral force than rights. Those who are without food can no longer demand that something is done, that they are the victims of an injustice, and that they have a right to food. All they can do is ask or beg that a certain social goal, one among probably thousands, is taken a bit more seriously.

Finally, is it really so farcical to impose duties that exceed people’s abilities to comply? Aren’t we doing that all the time? It’s common to view “telling the truth” as a moral duty, a very strong one even. And yet, we all know that this exceeds our abilities to comply. We lie all the time, and if you deny this, you’re lying. The best we can do, morally, is precisely “progressive realization”: trying to lie as little as we can, and less than we’re used to. The same progressive realization rescues economic rights as rights: rather than imposing a duty to realize the goal inherent in the rights, they impose a duty to try to realize that goal.

The Ethics of Human Rights (54): Torture, Consequentialism and Tainted Goods

Those who defend torture normally do so on consequentialist grounds. They posit cases such as the “ticking time bomb” in which the harm done by torture is insignificant compared to the good it does. The consequences of torture are clearly beneficial, overall: OK, it does some harm to an individual terrorist who has hidden the bomb but at the same time it saves thousands or millions of lives. When so many lives are at stake, a utilitarian calculus will clearly show that the good that will follow from torture outweighs the good that will follow from the refusal to torture.

Usually, we see a kind of threshold consequentialism rather than a pure consequentialism at work in such arguments: if torture can produce one more unit of “utility” (wellbeing, life, etc.) than the refusal to torture, most consequentialists wouldn’t allow torture. The good consequences of torture must far outweigh rather than marginally outweigh the harm it clearly does. Hence the hypotheticals in examples such as the ticking bomb, in which it’s posited that very many lives are at stake. We are allowed to supersede the deontological rule that one shouldn’t torture only beyond a certain threshold of harmful consequences that would result from sticking to the rule. As someone has said, lost lives hurt a lot more than bent principles. Strict moral absolutism, whatever the possible consequences, can indeed land you in all sorts of problems.

However, let’s look a bit closer at this seemingly convincing argument. We can overlook some of the possible difficulties and still conclude that the argument is unsatisfactory. Let’s not dwell on the likelihood that in real cases, the numbers of possible terrorist victims is rather small, while the number of people who have to be tortured is probably higher than one: you may need to torture some people before you find the one who has the necessary information about the location of the bomb; then you may need to torture his friends and family because he’s trained to resist torture and because he knows that if he resists for a short time, the bomb will go off. So let’s forget that the utilitarian calculus will most likely be less unequivocal than assumed in the argument above: we’ll never or only very rarely have cases in which torture produces a very small harm and at the same time a very large benefit. The harm and benefit will be much closer to each other.

Let’s also not dwell on the fact that the greater good thinking of the argument puts the torturer on the same footing as the terrorist. The latter also assumes that he fights for a greater good and that the harm he does is small compared to the benefits this harm will produce. The similarity between torturer and terrorist is all the more striking if the torturer has convinced himself that it’s necessary to torture the innocent (when the terrorist himself doesn’t speak fast enough). Putting ourselves on the same level as terrorists means giving up our identity to save ourselves, which really is pointless. If that is correct then we have to remodel the utilitarian calculus: the harm done by self-destruction is probably greater than the suffering caused by exceptional terrorists attacks. So even the utilitarianism of the greater good doesn’t justify torture.

But let’s assume that none of this speaks against the standard consequentialist justification of torture and that we manage to use torture in a way that saves many many lives, that doesn’t impose a high cost, and that doesn’t put us on the same level as the terrorists. So we can save ourselves, our identity and the lives of many of our fellow citizens. Still, the “good” that we achieve through torture is tainted by the methods necessary to achieve it. The notion, inherent in the consequentialist justification of torture, that certain goods can be attainted by problematic means, is itself problematic. We can save ourselves, but once we are saved we believe that our success has been tainted by the immoral methods used to achieve it. We may not be willing to enjoy this success and the goods we have if they have been secured by way of torture.

Jeremy Waldron has interesting things to say about tainted goods. Read this for example.

Limiting Free Speech (46): Lies and False Statements of Fact

Should lies and false statements of fact be protected by free speech laws, or can the speech rights of those who intentionally lie be limited in some cases? The US Supreme Court believes the latter is true, somewhat surprisingly given the often quasi-absolutist nature of First Amendment jurisprudence in the US. In Gertz v. Robert Welch, the Court claimed that

there is no constitutional value in false statements of fact.

There are some obvious problems with this exception to free speech. First, it can’t work unless it’s possible to distinguish real lies from false statements of fact that are simple errors. This means it must be possible to determine someone’s intentions, and that’s always difficult. However, one could claim that a person’s speech rights can only be limited on account of lying when his or her intentions are clear.

That would save the exception, but it wouldn’t undo some of its harmful consequences. People who speak in good faith may still be afraid that their speech will unwittingly come across as false, without their good intentions being absolutely clear. Hence, they may fear that they will run afoul of the law, and limit their speech preemptively. The lies exception to freedom of speech has therefore a chilling effect, an effect which is enhanced by the fuzzy nature of the difference between facts and opinions.

Given these problems with the lies exception to free speech, how could we instead argue in favor of free speech protection for lies and knowingly false statements of fact?

One rather ironic way to do it is to appeal to the metaphor of the marketplace of ideas: free speech is necessary for the pursuit of truth (or, in a weaker form, for the improvement of the quality of our ideas). John Stuart Mill has the canonical quote:

The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

As such, this doesn’t really justify the acceptance of expressions of lies. If we need lies to see the truth more clearly, you could also say that we need evil to see the good more clearly, and few I guess would accept the latter statement. However, if we interpret this quote liberally (pun intended), we may get somewhere. We could argue that someone’s lies can motivate others to search for, investigate and disseminate the truth. For example, I think it’s fair to say that holocaust deniers have done a lot for holocaust education. They have given teachers and researchers a hook.

Another reason why we wouldn’t want to prohibit lying, at least not across the board, is the fact that lies are often necessary for the protection of human rights. This is the case that’s made in jest in the cartoon on the right, and is also the origin of the rejection of Kant’s claim that we shouldn’t lie to the murderer inquiring about the location of his intended victim. (I have an older post about the usefulness of lying here).

Obviously, nothing said here implies that lying is generally beneficial or that it should be welcomed and protected whatever the circumstances. If lying becomes the norm, we will most likely lose our humanity. In the words of Montaigne, “we are men, and hold together, only by our word” and our civilization and systems of cooperation would come crashing down if we can’t generally trust each other. However, the general albeit not exceptionless moral good of telling the truth doesn’t translate into a right to be told the truth or a legal duty to tell the truth (and to shut up if we can’t). Mortality and human rights don’t completely overlap.

If lying were to become the normal habit, free speech would lose its meaning. We have free speech rights precisely because we want to share information, opinions and beliefs, and because we want to learn and pay attention to verbal assertions. There has to be some level of general trust that people speak their minds rather than the opposite. Otherwise it’s better if there’s no speech at all, and hence also no right to free speech. Hence, the free speech defense of lying has to be limited somewhere.

That is why, despite the fact that in general there shouldn’t be a right to be told the truth or a legal duty to tell the truth, we do want some cases in which there is such a right and such a duty. Lying is legitimately prohibited in the case of libel, of witnesses testifying under oath, of someone impersonating a doctor etc. But those are cases of different rights having to be balanced against each other: the free speech rights of the liars against the rights of those suffering harmful consequences when people lie (consequences such as bad medical treatment, miscarriages of justice etc.). The duty of government officials and elected politicians to tell the truth is based on the requirement of democratic transparency, and is therefore also a case of balancing rights: democracy is a human right, and democracy can’t function if there’s no transparency and if people in power don’t tell the truth about what they are doing.

Human Rights Promotion (6): A Fatal Paradox for Human Rights Proponents?

Like the opponents of human rights, the proponents also face a paradox. Imagine human rights utopia: the world has managed to get rid of oppression, domination, exploitation, discrimination, injustice and suffering. Or perhaps human rights violations haven’t disappeared completely but people have managed to make them a rare occurrence. People find it easy to be moral and to respect the rights of others, and there’s hardly ever a slip-up.

However, we could argue that this world has lost something important. It’s undoubtedly better in one sense of the word, but at the same time it’s worse: people have lost the opportunity to show solidarity, to be charitable, to help each other and to strive towards moral heroism.

Because of the risk that a successful struggle against human rights violations results in this loss (only a potential risk at this moment in time), we should perhaps value the struggle itself, and not just the successful outcome. But then we value the struggle and at the same time we are upset about it. We are upset because we obviously believe it is a struggle that we should end victoriously as quickly as possible, but at the same time we value it because we believe that it’s generally a good thing for people to be working towards a moral goal and to act benevolently (we may also value the struggle because it allows us to signal our own personal moral worth, but that’s another point).

So, paradoxically, we want to win the struggle for human rights as quickly as possible because rights violations are evil; but at the same time we want to cherish and perhaps even prolong the struggle because of the moral value inherent in it. But that means that the struggle against human rights violations confers a certain value to these violations and makes them a bit less evil, which surely isn’t the purpose. If people are morally enriched and ennobled by the struggle against human rights violations, then it’s also these violations that enrich and ennoble. But of course we cannot acknowledge this because we want to abolish those violations; we can’t desire to abolish them and at the same time claim that they have value. If you start to see good in evil, you endanger your mental health.

More on human rights and utopia here, and on human rights and paradoxes here and here.

What Are Human Rights? (31): Instrumental and Not Fundamental Moral Principles

It may come as a surprise to regular readers of this blog, but human rights are not fundamental moral principles. That doesn’t mean they are unimportant. On the contrary. There’s a difference between important and fundamental. I wouldn’t be writing this blog if I believed that human rights are unimportant, but nothing written here is incompatible with the claim that they are not fundamental. The place of human rights in morality is at the level of subordinate principles: they are instruments for achieving or realizing other values; values such as peace, wellbeing, prosperity, freedom, equality etc.

The reason why this is the case, is made clear by the lack of meaning and usefulness of the contrary argument. Suppose that human rights are fundamental moral principles. We would then have to adopt some kind of rights deontology or rights utilitarianism:

• In rights deontology, rights are to be respected in all or most instances (deontology is a type of morality that judges an action based on the action’s adherence to a rule).
• In rights utilitarianism, the goal is to maximize overall rights protection (utilitarianism is a type of morality that judges an action based on the action’s good consequences).

Both rights deontology and rights utilitarianism demand that rights are protected, not because rights serve some other value, but because rights are the fundamental moral values. Now, this is both meaningless and unhelpful.

• It’s meaningless because in everyday conversation and thinking, we don’t view rights in this way. I have never seen anyone making a convincing case that people need freedom of speech because freedom of speech is a fundamental value. The common argument is rather that we need that right because it allows us to realize some other values (political freedom, rationality, truth etc.). The claim that a violation of our right to free speech is wrong does not express a fundamental or axiomatic moral principle. It’s the result of complex arguments about the importance of other values and about the ways in which this right protects those other values. (The latter point obviously depends on non-philosophical and empirical claims as well). The opposite claim, that protecting rights has value even if no other value is advanced, has a distinct emptiness about it.
• Placing rights at the basis of morality is also unhelpful in the sense that it doesn’t tell us what to do in difficult moral cases. In general, we should of course consider human rights as strong rules that we should respect, and we should also arrange our society in such a way that rights protection is maximized. But what should we do when different rights are in conflict with each other and are mutually incompatible? That happens quite often, and neither rights deontology nor rights utilitarianism are of any help when it does. You can only resolve a conflict between rights when there are certain more fundamental values at stake. When two conflicting rights are understood as instrumental values serving the realization of other, more fundamental values, then we can try to ascertain which one of the conflicting rights does a better job. For example, when a tabloid journalist hacks a politician’s cell phone in order to dig up some lurid details about his or her sex life, then one can argue that the politician’s right to privacy should prevail over the journalist’s right to free speech, given the fact that the right to privacy is in this case protecting more important values than the right to free speech. Privacy, intimacy etc. are more important than sensationalism or voyeurism.

Does all this mean that human rights can and should be ignored or violated if doing so maximizes the values that they normally protect? Yes. Rights are not absolute. However, because it’s generally not the case that ignoring or violating human rights maximizes the values that they normally protect, and because rights normally do a very good job protecting those values, it is best not to cast them aside every time a modest or marginal improvement in fundamental values can perhaps be achieved by doing so. Otherwise we would demote rights and decrease their importance in the general culture. And that would be detrimental to our fundamental values in the long run. Hence, it’s probably not a good idea to argue the case that human rights are instrumental rather than fundamental. If the general public is convinced that they are fundamental, then that is beneficial for our really fundamental values. Hence, maybe you shouldn’t have read this post.

Hence, there is a consequentialism inherent in rights, but it’s not a consequentialism of rights – we should arrange society in such a way that certain values are promoted, not that rights are promoted. Yet, arranging society in such a way that rights are promoted is a good proxy for a society in which values are promoted.