Why Do We Need Human Rights? (19): Justifying Human Rights

Justifying human rights means answering the question “why do we need human rights?”. In this post I won’t try to answer that question but rather discuss the reasons why we need to ask it in the first place. We need to ask that question because the desirability or necessity of human rights isn’t self-evidently or axiomatically true, like it’s the case with a phrase such as “nothing can both be and not be at the same time and in the same respect”. The latter phrase doesn’t require proof and can or even should be accepted as such. The same doesn’t apply to phrases such as “we need human rights”, “human rights are desirable rules”, “human rights are rules of morality” or “people ought to respect human rights”. Those phrases aren’t self-evident. They require rational and argumentative support. Not proof, of course, since there is never any proof in moral, legal or political matters. What they do require is the support of sound arguments.

Fortunately, it’s the case that many people, perhaps even a majority of humanity, believe that those phrases about human rights are actually self-evidently true. And a substantial part of those people, for a substantial part of their activity, act as if those phrases are self-evidently true. Still, this sociological fact about public opinion and public behavior does not absolve us from the duty of answering the question “why do we need human rights?”. After all, slavery was once believed to be self-evidently necessary by a majority of public opinion (as far as we can tell), and yet this wasn’t, fortunately, a good reason not to ask why it should be necessary. What ought to be can never be settled by pointing to what is (otherwise we would commit the so-called naturalistic fallacy).

In general, people should give reasons for their beliefs and actions. Some would even say that giving such reasons is what makes us human. Giving a justification for human rights is therefore an intellectual necessity. And it would require this even if every single individual believed that human rights are necessary and always acted in accordance with this belief. But, of course, not every individual believes this, or acts according to this belief. Hence the exercise of justifying human rights also has a practical necessity: some of those who don’t believe in human rights, or whose belief isn’t sufficiently strong to guide all their actions, may be persuaded by a good justification. I say “some”, because others are perhaps not open to rational persuasion or argumentation. Good luck trying to convince Ted Bundy or Osama bin Laden of the desirability of human rights. But even when faced with people like them, it’s good to have a sound justification of human rights, not because it will help to convince them, but because it will help us to know what we are doing with them and why we are doing it.

So, if it’s accepted that we have to try to produce a sound and possibly convincing answer to the question “why do we need human rights?”, and that this answer should be based on rational arguments, we still haven’t said anything about the content of such an answer. I think there’s a good reason for keeping that content as open as possible. I don’t believe that it’s possible to find the One or the Best Justification. There are many good ways of justifying human rights, none of them obviously better than all others. Some justifications will be more convincing to some people, others more to other people. Some justifications may even be in conflict with each other, or logically incompatible. And other justifications may be deeply flawed and yet convincing to many. None of this is a problem. None of it implies that human rights are self-defeating, incoherent or wrong. All that matters is that a maximum number of people find their own justifications and are sufficiently persuaded by them.

Justifications may be based on religious revelation or logical reasoning. On utilitarian calculations or on moral and deontological rules. On strong principles or on opportunistic reasons (opportunism on the part of rulers who believe that their rule may be safer when they respect human rights, or opportunism on the part of citizens who believe that their own rights will be safer when they respect the rights of others in a spirit of reciprocity). Justifications may use one moral value (for example dignity, equality or liberty) or may try to accommodate the plurality of human values. They may be based on a conception of a minimally good life which human rights are supposed to guarantee, or on something more. Justifications can also be derivative: like postulating one fundamental human right (e.g. the equal right of all to be free) and then trying to deduce all other rights from this basic right. And, finally, it may not be the content, the postulates, the basis, the structure or the motivation of the justification that can differ, but also its form: justifications may be rational endeavors like the examples cited here, or may ditch rationality altogether and use emotions such as sympathy. Whatever helps.

Terrorism and Human Rights (20): Targeted Killing of Terrorists

Are governments, or even private individuals, allowed to kill terrorists when killing them is the only way to prevent a terrorist attack? Intuitively, I would say “yes”, but only if certain conditions are met: the attack must be imminent, and no other solution is possible. In fact, these conditions limit the possibility to cases such as killing a terrorist with explosives clearly visible, and seen – from a distance – to be moving towards a target.

Most cases will be different and will make it possible for the police or bystanders to disable the terrorist in some other way, short of killing him or her, and without putting themselves at risk. I never understood why the British SAS needed a policy to target and kill IRA terrorists when they were not engaged in an imminent terrorist attack and when they could easily be arrested (see here for the story).

Now, one could reply to this with this question: why should we treat terrorists better than soldiers? In a war, soldiers can be killed almost at will. If an army spots enemy soldiers, it can kill them without violating any law of war, even if these enemy soldiers are not engaged in an imminent attack. So why can’t we kill terrorists in the same way? In fact, we should treat soldiers better, since many of them are conscripts who do not target innocent civilians. Terrorists are (normally) volunteers who target innocent civilians. That makes two aggravating circumstances.

In answer to this, we could state that terrorism isn’t a war; it’s a criminal act. Some things are allowed in a war which aren’t allowed in peacetime. And terrorism is horrible and not peaceful at all, but not everything that is horrible or a breach of peace is necessarily a war. If we are allowed to stop the crime of terrorism with targeted killings – even if the crime is not imminent – then why not normal murder as well? For example, we may know that someone is about to commit (a non-terrorist) murder, but the act is not imminent. If you accept the SAS tactic, you also have to accept the preventive killing of normal murderers.

Some go even further, and accept not only targeted killing in cases without an imminent threat, but also killing after the fact. They would accept the killing of Osama bin Laden, even if he wasn’t planning a non-imminent attack. They would justify this killing based on his past actions. (Another example is the targeted killing by Mossad of the people involved in the Munich Olympics killings, made into a movie by Spielberg). I think that’s just as unacceptable as the targeted killing SAS style. It’s punishment without due process.

Limiting Free Speech (6): A Right Not to be Offended or Insulted?

In the previous post in this series I concluded that insulting or offending speech should not be forbidden, and is not a legitimate reason to limit the right to freedom of speech. Such limits are possible in general but should be exceptional given the importance of the freedom of speech. In the current post, I’ll flesh out the argument against limits on offending speech.

Offending speech is a slightly broader category than derogatory speech. The latter can be said to imply the intention to offend, ridicule or belittle, but offending speech in general does not imply this intention. People can be – and regularly are – offended by speech (or actions) that is not meant to offend.

Let’s assume, for the sake of argument, that there is such a thing as a right not to be offended. Such a right would create a duty not to offend. This duty goes much further than the duties normally assumed to be generated by tolerance. Tolerance forces people to abstain from

  • interfering with other people’s beliefs or practices
  • suppressing other people’s beliefs or practices
  • persecuting people with other beliefs or practices.

The focus is on the duties to abstain from actively interfering, suppressing or persecuting (or coercing in perhaps other ways). Tolerance forces us to leave people alone, even when – or rather especially when – we dislike, disapprove of or feel insulted by these people, because only then will we be tempted to intervene. We will not be tempted to intervene with people who leave us indifferent, in which case tolerance and the duties that arise from it are irrelevant.

A presumed right not to be offended can therefore be thought of as an exception to the duties of tolerance. When we accept such a right, we in fact claim that this right trumps some of our duties of tolerance in certain cases, namely in the cases when other people offend us. We should not tolerate offense, and the right to free speech of the offenders (of those who cause offense) should be limited by our right not to be offended. I say “some of our duties” because I don’t think that many people would claim that a right not to be offended should make it possible to go beyond limiting free speech, and should for example allow us to persecute offenders (some Muslims went this far in the case of the Muhammad cartoons).

If we assume that there is a right not to be offended and that this right has the consequences for tolerance which I have described, then we’ll quickly run into some insurmountable difficulties – and these difficulties will be a reason to reject the right not to be offended.

What are these difficulties? Let’s make a difference between active and passive offense. We can offend others by merely having certain beliefs or ways of lives. This passive offense does not result from an intention to offend. Active offense takes place when

  1. we knowingly and intentionally seek to offend others, by for example making certain derogatory claims about their beliefs and ways of lives, AND
  2. these others take offense.

If we focus on passive offense, then we must accept that it cannot be in itself offensive or disrespectful to have certain beliefs or ways of lives. Offense should entail the active intention to insult and cause offense. If we do not accept this, then we have to conclude that a right not to be offended triggers the duty to change beliefs or ways of life. And that is obviously outrageous.

Now, regarding active offense, the issues are, at first sight, much clearer. However, the problem is that there is no clear distinction between active and passive offense. It can be part of my beliefs and way of life that I should subject all views to rigorous criticism. And such criticism can cause offense. I know this, but still insist that I should criticize. Hence, I create active offense. A right not to be offended would then imply the duty to change my views and way of life, again outrageously.

Or it can be part of my beliefs that everybody should hear the word of God (my God). This as well can be insulting to adherents of another religion, who consider me to be a sinner, a false messenger leading humanity astray. A right not to be offended would again force me to deny myself.

Another problem with a possible right not to be offended is the fact that everything can be considered offensive by some people. It is impossible to predict what will or will not be considered offensive by someone, somewhere. A duty not to offend would ultimately lead to a duty to remain silent.

So, if offense is to be prohibited, and freedom of speech limited, then the only options would seem to be:

  • remain silent
  • force people to change their beliefs and ways of life
  • force people to be hypocrites.

Any one of these options is a nightmare. And the second one is self-contradictory because the rationale behind the proposal for a right not to be offended is precisely the necessity of respect for people’s beliefs and ways of life.

So it seems that offense and disrespect are a necessary price to pay for freedom of speech and the right to live your life according to you own choices and beliefs. However, this doesn’t mean that offense, ridicule, belittlement and disrespect are virtues. We shouldn’t make them illegal, but they shouldn’t be cherished either. They make it more difficult to have a rational debate on important subjects. They poison the debate and make it difficult to argue and persuade. So there are good reasons to avoid them, even if there are no good reasons to prohibit them.