Migration and Human Rights (45): Open Borders, Luck Egalitarianism, and the Common Ownership of the Earth

Luck egalitarianism is a school of thought in moral philosophy that argues in favor of interventions in people’s lives aimed at eliminating as far as possible the impact of luck. If you have the bad luck of being born into a poor family, your prospects in life should not be harmed by this and society should intervene in order to correct for it.

I’m not going to endorse luck egalitarianism because it’s a theory that suffers from some serious defects. However, the basic intuition seems sound to me and can be used to argue against immigration restrictions. Your country of birth is also a matter of luck, good luck or bad luck, depending on the country. It’s either good luck or bad luck because the place where you are born has a profound impact on your life prospects. The mere fact of having been born in Bolivia rather than the U.S. makes it statistically more likely that you will be poor, uneducated and unhealthy. Since no one chooses to be born somewhere, no one can be said to deserve the advantages or disadvantages that come with being born somewhere.

Hence, if Americans for example are just lucky to have been born in the U.S. and didn’t do anything to deserve being born there, what right do they have closing their borders and allowing access only to a chosen few selected according to criteria that they have unilaterally decided and that mainly serve their own interests? None whatsoever. In claiming that right they make it impossible for others to do something about the misfortune of having been born in a poor country. Hence, they double other people’s disadvantage.

As Joseph Carens has put it, immigration restrictions are the modern equivalent of feudal privilege, inherited status, birthrights and class rule. In our current, so-called modern and Enlightened societies, the good luck of being born in a wealthy country supposedly gives you the right to exclude others, just as in the olden days the fact of having been born in the class of nobles or aristocrats gave you the right to condemn others to the class of paupers. The lottery of birth yields unfair advantages in both cases.

One may claim that none of this necessarily argues in favor of open borders. The fortunate of this earth could compensate for their good luck by other means. For example, they could have a duty, not to open their borders, but to transfer money and resources to those who have had the bad luck of being born in the wrong country.

Obviously, assistance is a moral duty, but I fail to see how the fulfillment of this duty could grant you the right to close your borders. Those who argue that assistance is enough often use a domestic analogy. Consider Hugh Hefner, for example. The point is not that he probably wouldn’t have had the wealth he has now if he hadn’t been born in a country (or granted access to a country) where the average citizen is wealthy enough to spend large amounts of money on soft porn. The point is that there are millions of other people in the U.S. who, through no fault of their own, are burdened with bad luck, a lack of talent or a lack of education opportunities making it difficult or impossible for them to collect a Hefnerian amount of wealth, or even just a fraction of it. These people don’t deserve their lack of talent etc., just as poor Zimbabweans don’t deserve to have been born in Zimbabwe. Should Hefner therefore open the doors of Playboy Mansion? Or is it enough that he pays taxes to fund the welfare state? Most would choose the latter option.

What’s the difference between this domestic situation and the international one? If Hefner doesn’t have to welcome thousands of unfortunate U.S. citizens to his Playboy Mansion, why should the whole of the U.S. citizenry have to welcome millions of immigrants onto their territory? Well, because it’s not their territory, at least not in the way Playboy Mansion is Hefner’s property. People don’t have property rights to a part of the surface of the earth like they may have property rights to things. I have a long argument here in favor of the common ownership of the earth, and I invite you to click the link and read it. It’s too long to repeat it here, but suffice it to say that it leads to a strong presumption in favor of open borders without destroying the possibility of having borders and states in the first place.

More on open borders here.

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What is Freedom? (3): The Paradox of Self-Ownership: The Right to Sell Yourself Into Slavery

Self-ownership, or the property of your own person, is a metaphor for the right to exclusive control of your own body and life. It captures some important intuitions: for example, that you should have a right to end your life as they see fit, that no one should be enslaved and that you generally have a right to decide what to do with your own life. As such it supports the idea of personal autonomy. For some, it also supports the right to abortion and it invalidates taxation.

Others even believe that self-ownership implies a right to sell your own body and life, just as you have a right to sell your other property. If that’s the case, then you have a right to sell yourself into slavery.

However, if self-ownership is understood as merely a metaphor for autonomy then there can’t be a right to sell yourself into slavery. Autonomy, or any other value for that matter, can’t be made to include the seeds of its own destruction. In other words, autonomy can’t include the right to autonomously abdicate your autonomy. Take this quote from Mill:

The ground for thus limiting his power of voluntarily disposing of his own lot is apparent, and is very clearly seen in this extreme case. … [B]y selling himself for a slave, he abdicates his liberty; he foregoes any future use of it beyond that single act. He, therefore, defeats in his own case, the very purpose which is the justification of allowing him to dispose of himself. (source)

If you insist that values or rights should be made to include their own negation, you’ll end up in Absurdistan. Democracies, for example, should then include the possibility to vote democracy away. Freedom should include the freedom to create totalitarian government. Tolerance should include tolerance of intolerance and of the forces intent on destroying tolerance. I don’t think we want to go there.

So, autonomy must include certain limits if it’s not to collapse under its own weight. This means that it’s legitimate to deny the moral value of – and perhaps even to forbid – autonomous actions that forfeit autonomy. Just like democracy is limited and suppresses anti-democratic movements and votes, and just like tolerance is limited and excludes tolerance of intolerance.

More on self-ownership here.

What is Freedom? (2): A Right to Self-Ownership?

Libertarians stress the importance of the right to self-ownership. I would argue that it’s an interesting and useful right in the context of human rights more generally, but also one that is a bit of a problem. When we say that people have a right to self-ownership we mean that they own themselves in just the same way that they can own objects. It follows that people have the same rights over themselves and their bodies as they have over objects:

  • they are free to use their bodies as they please
  • they can claim that others, including the government, refrain from using it
  • they can use the government to protect themselves against others trying to use it
  • and they can transfer property rights to others.

Self-ownership rights understood in this sense are the core of libertarian philosophy and are believed to justify standard libertarian policy recommendations such as the elimination or reduction of taxation, the freedom to sell organs, use drugs, engage in all forms of consensual sex etc. And indeed, self-ownership can be an attractive right to non-libertarians as well: it can be used to justify the prohibition of slavery and rape, to protect people’s rights to euthanasia and assisted suicide, to solve the forced transplant dilemma, to support the rejection of capital punishment on the basis of a theory of non-instrumentalization etc.

However, useful as the right to self-ownership can be, it’s not without drawbacks. The right can, and in the minds of most libertarians does imply a denial of the obligation to help others in need (apart from an obligation based on prior wrongdoing and assistance based on voluntary agreement). Such an obligation would be a form of slavery. It would mean the forced use of our bodies and labor power for the benefit of others. Libertarians often reject taxation for the same reason. All this seems needlessly selfish and contrary to moral intuition.

It also seems incoherent. Most if not all libertarians accept taxation for the funding of some collective goods such as highways and the police force. It’s not clear how they can accept a limitation of the right to self-ownership for the sake of some types of taxation but not others. Taxation is always the non-consensual use of persons for the benefit of others, whatever its purpose.

If you view the right to self-ownership as an absolute right – or axiomatic – you may wind up accepting some absurd conclusions: you’ll have to claim that it’s impermissible to gently push the arm of a driver holding his steering wheel and heading towards of group of school children, because that would mean using the body of the driver without his consent to aid others in need. Self-ownership therefore can’t be an absolute right, at least not in a non-solipsistic world. Minimally, it should be limited for the sake of the self-ownership rights of others: imprisoning murderers or slave holders means limiting their self-ownership rights for the sake of the same rights of their potential victims. And, on top of that, it’s probably also necessary to limit self-ownership rights for the sake of certain other values. The problem is that it’s difficult to think about a limited right to self-ownership: every limit to that right seems to destroy it completely. Either you own yourself or you don’t.

There are, I think, three ways to react to these problems with the right to self-ownership.

  • You can bite the bullet and maintain that the right to self-ownership is the fundamental right and should be absolute whatever the consequences.
  • Or you can hold on to the right but only as one value amidst others, and to be balanced against others.
  • Or you can abandon it, claiming that it only has a rhetorical value, and that it’s better to focus on the “derivative” rights – such a the right not to suffer slavery – and try to justify those derivative rights independently (e.g. an anti-slavery movement doesn’t need the concept of self-ownership in order to be effective).

As a good value pluralist, I prefer the second option. The rhetorical and unifying force of the right to self-ownership should not be underestimated. If we manage to prune its extreme libertarian outgrowths (such as selfishness and extreme marketization in the form of organ sales or the “right” to sell yourself into slavery), we’re left with a powerful concept that can be of great value in the struggle for individual liberty (which isn’t a libertarian monopoly by the way). But it can’t guarantee liberty by itself. It depends on and is only meaningful together with a theory of ownership of the rest of the world. Imagine that one other person owns the entirety of the world, minus yourself (i.e. you only have self-ownership). That means that when you want to eat you’re a thief, and when you want to move about you’re trespassing. That’s hardly freedom. Self-ownership without a theory about how the rest of the world is owned can be utterly meaningless.

So the question then turns to the way in which nonhuman things and beings should be owned and distributed. Who can own what? Libertarians would claim that self-ownership provides a basis for ownership in general, and they use Locke’s theory of property to argue for that claim (I own myself, therefore also my labor, therefore also the fruits of my labor – since hardly anything in the world today hasn’t been touched by human labor, almost everything can be said to be owned by someone).

However, I argued elsewhere that this is a difficult if not impossible move. Hence, ownership should be justified independently from self-ownership, and should probably include the notion of a “fair share”, whatever that means. Perhaps this notion can be based on another element in Locke’s theory, namely the “Lockean proviso” that we should leave enough and as good for others, or on some form of sufficientarianism (meaning that all should have enough resources for basic subsistence, for a decent life, for a life worth living etc.). Or it could be based on the persuasive claim that the earth is the common ownership of all, regardless of the labor some have put into it. But I’ve already discussed those issues here and here respectively.

The Ethics of Human Rights (47): What’s So Funny About Paternalism?

In general, those who promote human rights will not be tempted to engage in paternalistic policies. That’s because human rights are about protecting people against each other, not about protecting people against themselves. And one of the foundations of human rights is the moral value of personal autonomy: people have a right to organize their lives according to their own plans and reasons, free from the influence and manipulation of others, even if others believe they are mistaken or self-destructive. Personal autonomy in this sense of the word is the basis of rights such as the right to privacy, property, political participation etc.

So, paternalism can be seen as detrimental to human rights. On the other hand, all societies are to some extent paternalistic, with the apparent consent of all. So what’s the deal? Let’s go through this topic in a systematic way, starting with some definitions, typologies and proposed justifications of paternalism, in order to end up with a clearer vision about paternalism’s temptations, dangers and limits.

Definition of paternalism

Paternalism is

  • interference
  • usually by the government
  • with an agent’s strictly self-regarding actions
  • and against the will of the agent.

It’s the use of coercion, force or incentives, against the initial will of the agent, with the purpose of imposing or preventing a certain type of action or lifestyle that has, respectively, positive or negative consequences for the agent and that does not harm or benefit a third party.

The purpose of paternalism is therefore to make the agent who is the object of paternalistic force, better off. She’s better off because she is forced, by the paternalist, to do good things to herself or to abstain from doing harm to herself.

Types of paternalism

This definition allows us to distinguish two types of paternalism: positive and negative (these qualifiers do not imply value judgments):

  • positive paternalism means forcing people to benefit themselves
  • negative paternalism means forcing people not to harm themselves.

The latter is much more common, I believe. Examples are anti-drug legislation, laws forcing people to wear seat belts or crash helmets etc. An example of the former are laws requiring people to contribute to a pension fund (although that case may not be strictly self-regarding since part of the motivation for such laws is the protection, not only of the future pensioner, but of his or her descendants or society in general).

Paternalism should therefore be distinguished from other types of coercion that aim at preventing people from harming others or forcing people to benefit others (such as laws against murder or laws imposing taxation respectively). Such non-paternalistic types of coercion focus on other-regarding consequences, whereas paternalistic coercion focuses on self-regarding consequences. Paternalism wants to limit the harm people’s actual or possible voluntary actions can do to themselves, and maximize the benefits that people’s possible but not voluntarily chosen actions can produce for themselves.

Paternalists are therefore “do-gooders” who want to maximize people’s utility, benefits, happiness, wellbeing etc. and who believe that this requires more than mutual protection.

(Other typologies of paternalism are, of course, possible: a soft form of paternalism would not intervene if people consciously and with full knowledge harm themselves, and only when self-harm results from lack of information; or would only intervene using incentives or “nudges” rather than coercion; hard paternalism would discount knowledge and intervene anyway; paternalism may be limited to the means people choose for their ends, or may also include these ends etc.).

Justifications of paternalism

Paternalists offer different reasons why they think that people, in some cases, should be prevented from engaging or forced to engage in certain actions.

  • As stated a moment ago, there may be a lack of knowledge on the part of the agent forcing the agent to unwittingly harm herself or fail to benefit herself. And this can be a lack of knowledge of different kinds:
    • First, the agent may not be aware of the harmful self-regarding consequences of a chosen or intended action, or may not be aware of the beneficial self-regarding consequences of an unchosen and unwanted action. In such cases, there are two possibilities. Either the simple delivery of information regarding the consequences – for example through education or communication – is enough to convince the agent to avoid harmful action or to choose beneficial action, and then no paternalistic action is necessary. Or this is not enough and paternalistic action is necessary. An example of the latter can be marijuana: according to some paternalists, the consequences of marijuana use are harmful, but this “information” doesn’t seem to register with users.
    • The absence of knowledge may be a deeper problem. The agent may not be aware of her true interests. Example: a terminally ill patient who wants to die may not be aware that her true interest – according to some – is respecting God’s will and God’s rules against suicide.
  • In many cases, people justify paternalism not because there’s a lack of knowledge, but because there’s a lack of “character” on the part of the agent. The agent may know very well what is and is not in her interest and what actions have beneficial or harmful consequences, but she just can’t bring herself to engage in or avoid those actions. There’s clarity about her interests and about consequences, but not the will, the courage, perseverance etc. to act correctly.

Most cases of paternalism, I guess, are of the first kind, where it is assumed that there’s a lack of continuous knowledge and a lack of conscious and lasting awareness of the consequences of certain actions, and that someone else, e.g. the state, knows better.

Hence, paternalism deserves its name. Paternalists assume – much like Plato – that society is divided into two groups of people, the “fathers” and the “children”, those who know better and are more rational, and those who don’t know and can’t be counted on to take their lives into their own hands. However, paternalism goes beyond the father-child metaphor because it believes that the “children” will never fully grow up: knowledge about consequences acquired through information and education, knowledge about which actions are or are not in the best interests of people, or knowledge about how people can act to best serve their true interests will often not be enough to act in a certain way. Apart from knowledge, character can be lacking, and that’s a fault that is much more difficult to correct without continuous paternalistic force.

The temptation of paternalism

So, all that sounds pretty awful, and yet all or most societies engage in some kind of paternalism without much public opposition. The examples given above are quite common. And indeed, some forms of paternalism are quite harmless and difficult to avoid. John Stuart Mill cites the case of a bridge that is about to collapse. The circumstances are such that only engineers are in a position to know this. Regular drivers don’t and can’t know the consequences of their actions – in this case driving across the bridge – and should therefore be prevented from acting by those who know better. This isn’t usually called paternalism, but there doesn’t seem to be a clear difference between this case and real cases of paternalism, such as laws forcing people to wear crash helmets (assuming that the reason why people don’t wear helmets is an insufficient awareness of the possible consequences), or moral rules dictating that we should try to convince our friends not to commit suicide if they are so inclined.

So, paternalism is there to stay. I don’t think there are many “hard anti-paternalists” around. Hence, as is often the case on this blog, we are faced with value pluralism and two contradicting values: in some cases it’s obviously good to protect people against themselves, but at the same time it is generally correct to respect people’s autonomy, their self-determination and their right to make their own decisions and to live according to their own reasons and motives, free from external forces.

Where’s the trade-off? I would say that the burden of proof is on those wishing to limit people’s autonomy, given the general importance of autonomy. Their case can made stronger when, for example, there’s absolutely no doubt that a certain course of action will produce serious harm to the agent. Otherwise the case for paternalistic coercion is less strong and the best we can do is simply warn people of the possible consequences. Their case can also be made stronger when medical opinion about an agent’s neurological or psychological disorders is unanimous.

The dangers of paternalism

The burden of proof is on paternalists because of the risks inherent in paternalism. We also tend to overestimate the effectiveness of paternalism. Generally, individuals are the best judges of their own needs and wants and of the means to realize them. It’s not obvious that a paternalistic class of “fathers” can have better knowledge, given the vast number of people, options and risks involved. And even if individuals make mistakes, the harm done by forcing them into a system in which they are treated like children may be greater than the harm they do to themselves when left alone. Most people value the freedom to decide for themselves and the value of this freedom can sometimes compensate the cost of self-inflicted harm. It’s also likely that mistakes make people better judges.

Does that mean that people should have the freedom to damn themselves? In most cases, yes, if that’s someone’s free and voluntary choice, made in the light of all the information available and accessible to her.

What Are Human Rights? (27): What Does It Mean To Have Rights?

When thinking about what it means to have a right it’s sometimes useful to replace the word “right” with another and similar word. Let’s review a few of those words and see how far they get us. You’ll notice immediately that those words only describe part of what we usually understand by the word “right”. Hence, they’ll allow us to clarify only part of the meaning of the phrase “to have a right”. Perhaps taken together they’ll provide an overall definition. (Some of the definitions are based on the famous work by Hohfeld).

Rights as privileges

Formally this can be stated as follows:

A has a privilege to do X if A doesn’t have a duty not to do X.
A has a privilege not to do Y if A doesn’t have a duty to do Y.

For example, in the U.S. I have the privilege to speak my mind, because I don’t have a duty to keep silent. Or, I have the privilege not to vote for our Dear Leader because I don’t have a duty to do so.

Rights as permissions

Similarly, one could say that rights are permissions. That sounds somewhat weaker than “privilege” but formally, this way of talking about rights has the same structure as “rights as privileges”:

A has a permission to do X if A doesn’t have a duty not to do X etc.

It’s about what a rights bearer is at liberty to do, not what he has to do or shouldn’t do. Hence, rights as liberties is again another way of saying the same thing. The fact that I have the privilege, the permission or the freedom to speak my mind doesn’t imply that I must speak my mind.

Rights as claims

A more relational understanding of rights focuses on the claims we may have on others. Having a right then means having a claim on someone.

A has a claim that B does X if B has a duty to A to do X.
A has a claim that B doesn’t do Y if B has a duty to A not to do Y.

For example, I have a claim that my employer pays me a fair wage because my employer has a duty to do that (see article 23 of the UDHR). I also have a claim that he doesn’t impose slave-like or dangerous working conditions on me because he has a duty not to do that.

Usually, and at least in the case of human rights, I have such claims vis-à-vis every other human being.

Rights as immunities

This is similar to rights as claims but it’s a bit stronger.

A has an immunity if B doesn’t have the legal, moral or political ability or power to do X to A.

For example, I have immunity against self-incrimination because a judge does not have the power to force me to testify against myself.

Rights as limits

Again, similar if not identical to immunities:

A has a right to X if B doesn’t have the legal, moral or political ability or power to interfere with A doing X.

For example, I have to right to practice my religion because no one else is allowed to interfere with me practicing my religion.

Rights as provisions

Having a right can mean more than the ability to limit interference it can also mean being entitled to the provision of some goods or services.

A has a right to X if B has the legal, moral or political duty to provide A with X.

For example, I have the right to an amount of food that guarantees my decent survival. The state, among others, has a duty to provide this food if I can’t acquire it independently. But also so-called non-interference rights or negative rights fall under this heading: I have a right to be protected by Courts and the police force – to be provided with protection – if people impose a religion on me, harm my bodily integrity etc.

Rights as properties

You could say that all rights are in essence property rights. We have a right to have rights; our rights are our property. In the words of John Stuart Mill:

When we call anything a person’s right, we mean that he has a valid claim on society to protect him in the possession of it. … To have a right, then, is, I conceive, to have something which society ought to defend me in the possession of. (source)

Formally:

A has a right to X if society has a duty to protect A’s possession of X.

Again, very similar to the formulation of rights as provisions. For example, I have a right to free speech if I can call on judges and Courts to assist me in my struggle against those who want to take this right away from me.

Rights as sovereignty

Very similar to the notions of rights as claims, immunities, limits and properties is the notion of rights as sovereignty. My right to freedom of opinion or my right to property make me a small scale sovereign over my mind or my possessions, in the sense that others aren’t allowed to interfere, invade, dispossess or modify. All these notions of rights focus on the rights bearer’s ability to control whether others must or must not act in certain ways.

Rights as interests

Conversely, rights as interests focus on what rights do to the rights bearer. Rights serve to further the rights bearer’s interests. People have rights because rights make them better off. What these rights imply for others is of secondary importance. Formally:

A has a right to X if X makes A better off.

Rights as abilities

Another way to focus on the rights bearer rather than the duty bearer is to view rights as abilities. That allows us to see that rights as liberties, privileges or permissions only describe part of what we understand by rights. Indeed, I have a right if I have the freedom, privilege or permission to act in a certain way. And rights as claims, immunities and limits protect me against others who would interfere with my freedom, privilege or permission to act in a certain way. And yet I can be free to do X because 1) I’m free from a duty not to do X and 2) I’m free from the interference of others, but at the same time I may be unable to do X. For example, I may have the permission and freedom to practice whatever religion I choose, and others don’t interfere, but I lack the education or mental capacities to choose and practice a religion. Rights as abilities would then provide me with the necessary education, rather than only the freedom, privilege, permission or limits on interference.

Rights as trumps

Following Ronald Dworkin, we can view rights as trumps. Rights are norms with a special force. They provide particularly weighty reasons to do or not to do something, reasons that are weighty enough to override other reasons or concerns. Rights give reasons to treat people in certain ways or permit them to act in certain ways, even if certain other goals or objectives would be better served by violating their rights. Within the system of rights, it’s possible to give some rights a higher trump value and hence a higher priority than others, perhaps depending on the circumstances (meaning that one right only trumps another when certain conditions are met, and not systematically).

Formally:

A has a right to X if X overrides all other concerns.

Only if we combine all these different definitions of rights can we perhaps have an overall understanding of them.

Why Do We Need Human Rights? (22): Private Property Rights, Justifications Based Not On Their Origins But On Their Purpose

Property is the set of rules governing people’s access to and control of things. Three types are traditionally distinguished: private property, common property and collective property.

Types of property

1. Private property

In the case of private property, an individual agent (usually persons, but also families, businesses etc.) has a right to private property if he or she has a right to control the object and to regulate access. Control means sole decisional authority: the individual agent is the only one who has a right to decide what should be done with the object or what should happen to it.

This right allows the owner to decide, to some extent, to do things with the object that affect other people. Private property rights include the right to use property in ways that disadvantage other people, as long as these disadvantages do not include violations of the rights of other people. For example, a factory owner can decide to close her factory. A rich person can decide to buy and own a large house even if some other families would benefit more from living there.

However, a factory owner deciding to use his factory in such a way that it harms the health of workers or of neighboring families violates the rights of these people, and her property rights do not include a right to violate the rights of others. In such cases, rights have to be balanced and the more important right (depending on the circumstances) should prevail.

2. Common property

In the case of common property, the purpose is not individual control and exclusive access, but, on the contrary, equal access to all. Common property of a park or a common grazing field, for instance, is meant to stop certain people using it as if it was private property and as if others were precluded from using or accessing it. If farmers are allowed to use a common field for their cattle, common ownership would imply that no farmer overuses the field and brings so many cattle that there’s no grass left for the cattle of other farmers. Farmers who violate this rule of common property act like the field is their private property because they exclude others from using it. (That’s also called the tragedy of the commons, to which I will return below).

3. Collective property

In the case of collective property (sometimes also called joint property), the purpose is not only equal access to all but also equal control and decisional power. The community as a whole determines, through systems of collective decision making, how the resource is to be used. Each individual’s use is subject to a decision process to be concluded to the satisfaction of each of the co-owners – or of a majority, depending on the type of collective decision procedure. Collective ownership of a farm, for instance, means not only that all farmers belonging to the collective have an equal right to access the farm (as in common property), but also that all farmers have an equal say in the management of the farm. The latter is not (always) the case in common ownership: equal access to a commonly owned park does not (necessarily) imply an equal say in the management of the park.

When does property make sense?

In many cases, talk of property only makes sense under conditions of scarcity. In the case of private property, there would be no reason to demand exclusive control over and access to things if these things were so numerous and abundant that no one else would want to control or access what you want to control or access.

And yet, in the case of intellectual property for example, which is by definition, in our age at least, anything but scarce given the means of reproduction, we still talk about private intellectual property in the sense of exclusive control of access. But in general, it makes sense to view private property as meaningful only in circumstances of scarcity. (Perhaps that’s a good reason not to talk about “intellectual property” at all). The same is true of common property: if the whole wide world were a park, there would be no risk of some people excluding others from accessing it, and hence no need to talk about the common property of the “park”. And the same is true for collective property.

What does property require?

First, it requires rules. It only makes sense to view types of ownership as rule based. Property is in essence a rule. You can’t say that something is your property simply because you have it, hold it, exclude others from it etc. You have property because there are social rules granting you property of something and granting you rights to defend it. People should not rely on their own strength or willingness to cooperate in order to defend their holdings.

Because the state intervenes in the enforcement of property rules and rights, it’s important to have a morally sound justification of those rights. Hence, property also requires a justification. We wouldn’t want the state to use its power for immoral or unjustified ends. I’ll focus on the justification of private property in the remainder of this post because that’s arguably the most common type and the one that most often raises moral issues.

Some of those issues are the morality of taxation and eminent domain, the needs of the poor, the justification of redistribution, the property we’re allowed to own (guns?) or sell (organs?), the things we’re allowed to do with our property (shoot our gun at people? suicide?) etc.

Justifications of private property

What is the point of private property? It must have some moral value, otherwise the moral issues just cited wouldn’t arise in the first place and private property wouldn’t receive legal protection. From the discussion above, we know what private property is, which other types of property there are, which rights property entails, when it is likely to make sense, and what it requires. But we don’t yet know why there should be private property. Some would say that there’s no way for property rights to come about or to be justified because if you go back far enough in time – and sometimes that’s not very far – all “property” is in fact the result of theft of commonly owned resources.

John Locke is famous for his attempted justification of private property. My body is my own and my property, and hence I also own the power of my body. Through labor I incorporate the power of my body in the goods I produce. By working on an object, I mix my labor with the object. If someone wants to take this object away from me, he also takes away my labor, which means that he takes away the power of my body. He therefore uses my body, which is incompatible with my right to possess my own body.

However, justifications like these tend to be very shaky. Hence, I think it’s better not to focus too much on the ways in which, historically or theoretically, a right to private property has/can come about in a world that’s originally equally owned by all. We should rather think about what would happen when a right to private property, taken as a given, would disappear, and distill a justification from that (in other words, trying to look for a consequentialist justification).

We can, in fact, without much trouble, list a number of harms that would result from the elimination of a right to private property. Kant defined property as “that with which I am so connected that another’s use of it without my consent would wrong me”. What wrongs would that be? Here’s a tentative list:

  • Private property is a means to protect the private space. Without private property, without your own house or your own place in the world, and without your own intimate and personal things, it is obviously more difficult to have a private life. The four walls of your private house protect you against the public. Without private property, there is no private world (another example of the indivisibility and interdependence of human rights).
  • Just as there is no light without darkness, there is nothing common to all people and no public space without private property. So private property protects publicity, commonality etc. Freedom of speech, one of the most public acts, is difficult to imagine without privacy and secrecy, and hence without private property.
  • Independence, self-reliance, autonomy, and therefore also freedom, are important values, and these values rely heavily on private property.
  • Private property is also important for the creation and maintenance of relationships. You have your own house and your own place in the world, but not in the world in general. You live in a particular world, in a very concrete social context of friends, enemies, neighbors and other types of relationships. A place in the world is always a place in a particular community, even if you have to transcend this community now and again. And it’s difficult to imagine a place in a particular community without you own home and hence without private property.
  • Private property is an important tool in the creative design of your personality, especially, but not exclusively, when you are an artist.
  • It is obvious that without private property there can be no help or generosity. Generosity and the absence of egoism are important for the preservation of a community.
  • Private property prevents the tragedy of the commons, referred to above. If everyone has free access to a piece of land for example, then no one has an incentive to avoid over-usage. Every additional cow an individual introduces for grazing brings full benefits to the individual, whereas the costs of overuse resulting from the additional cows are shared among all individual users of the land. Conversely, the benefits of any individual’s self-restraint will accrue to all the other individuals whether or not they also exercise self-restraint. Individual self-restraint is ultimately useless unless all cooperate, which is unlikely because the benefits of self-restraint for each individual are outweighed by the benefits of overuse. Only private property allows people to reap the benefits of self-restraint.
  • The right to private property, and in particular, the right to your own house, is linked to the freedom to choose a residence, which again is linked to the freedom of movement (again another example of the indivisibility of human rights).
  • As already mentioned above, you also own your own body. Your body is part of your private property. It is something that is yours; it is the thing par excellence that is your own. It is not common to several people and it cannot be given away. It cannot even be shared or communicated. It is the most private thing there is. Owning your body means that you are the master of it. Other people have no say in the use of your body; they should not use it, access it, hurt it or force you to use it in a certain way. This underpins the security rights such as the right to life, the right to bodily integrity, and the prohibition of torture and slavery. It also implies the right to self-determination, and therefore, the right to die. You carry prime responsibility over your own body and life.

Property is therefore an instrumental value, one which serves the realization of other values.

All these advantages of private property are advantages for everyone. Hence, everyone should have a right to private property, which may imply the need for some kind of redistribution benefiting those people who don’t have enough private property to realize all the benefits of private property (for example the homeless). Hence, the right to private property can be an argument against redistribution, but also one in favor of redistribution.

Private property as it is described and justified here is of course an ideal. The real existence of private property, and its actual distribution in the real world never matches this ideal, as is the case for all human rights. Property is often used to oppress others, and many people can never reap the full benefits of property. In the words of John Stuart Mill, the laws of property and the actual distribution of property have never yet conformed to the principles on which the justification of property rests.

But even in the ideal world, a right to private property is not absolute, nor is it absolutely beneficial, as I stated in the definition in the beginning of this post. Property can conflict with other values. There’s no way to escape value pluralism.

Communism and Corporate Democracy

In an effort to convince you that my new $19.95 book is actually worth a lot more than that, I’m blogging some excerpts. Today, the importance of corporate democracy.

What can we learn from communism? I realize that, for many people, learning from communism is like listening to the devil. But that’s intellectual laziness, dismissing something without fully understanding it. So bear with me.

For example, our capitalist systems have shed many of the extreme injustices that characterized them in the time of Marx. But it’s still the case today that ownership of the means of production yields a kind of economic power over the workers who depend on the owners and who are forced to sell their labor power because they don’t have means of production of their own.

This dependence results in economic uncertainty and possibly poverty, because of the competition between workers trying to offer the best deal to employers. The fact that no modern economy has full employment makes this competition inevitable, even though today it’s more an international than a national competition. The “reserve army” now seems to be stationed abroad. International outsourcing (or the threat of it) pushes wages down.

We should also acknowledge that economic dependence in a system of private ownership of the means of production can be psychologically detrimental in the sense that it makes creative productive activity, self-expression and self-development (which require the free use of means of production) very difficult if not impossible. Moreover, it means that people are forced to work in systems based on discipline, supervision and control. Corporations have become islands of authoritarianism in a democratic world. If democracy and self-government are important in politics, why not in business?

Given the importance of work and production in the life of an individual and their potentially beneficial role in personal self-development, and given the importance of democracy and self-government, it is justified to give people a say in the way in which the means of production are used. The owners of the means of production should not be entitled to decide unilaterally on the conditions, organization, purposes, processes and meaning of production. Production is an important part of human life and people should have a say in it.

Concretely, this means a kind of corporate democracy and corporate participation. Participation, not by the shareholders (corporate democracy is today mostly viewed as a right of shareholders), but by the people directly involved in production, i.e. the “workers”.

Communism traditionally proposes the end of the employment relationship (or the right to rent people) and the common ownership of the means of production as the ways to achieve this participation and to abolish so-called alienation (which means working for a wage, or working in an obscure system of division of labor, rather than working for a product). The workers in the factory, rather than the capitalists or the shareholders, would own the factory and all the assets in common. Or, more correctly, society as a whole, which in communism means the class of workers, would own the totality of all means of production, because otherwise the workers would be tied to one specific means of production and wouldn’t be able to switch freely to another one.

This would obviously spell the end of private property, not necessarily private property as such, but in any case private property of the means of production.

This is unacceptable because private property is an important value. It’s unequal distribution should be criticized, as well as the exclusive right of decision of the owners of the means of production, but there are good reasons to keep the right to private property more or less intact.

Common ownership of the means of production, as proposed by traditional communists, is not the only means to create corporate participation and worker control over production. Communism should simply mean the community of workers in a factory or corporation deciding more or less democratically on their work. Modern-day capitalism has in some cases reconciled private ownership with large measures of worker participation. Many decisions in companies are now taken by the owners and the workers together. (This participation is not incompatible with the free market either. A free market is a system between economic agents, not within them). But we should try to go further and extend and deepen this participation in order to make production and work more meaningful.

Private property of the means of production should not be understood as an absolute right to govern the workplace dictatorially. And the abolition of private property is not a prerequisite for corporate democracy. This is evident if we take a look at historical cases of communist rule, where private property was abolished (to some extent) but corporate governance continued much along the same lines as in capitalism. The bosses changed – autocratic party members and government bureaucracy instead of capitalists – but the workers didn’t have more influence.

This proves that corporate democracy requires something more than or different from common ownership. Private ownership, strictly speaking, gives the employer only the right to label someone a trespasser.  So abolishing ownership will not, of itself, change how production takes place. Changes have to occur, not on the level of the ownership of the means of production, but on the level of the organization of production.

You can buy the book here. More about Marx here.

Self-Defeating Human Rights Policies (5): Land Reform

Intuitively, if poor people don’t have land of their own and are forced to work for a few major landowners who have monopolized all the fertile land in the country, there’s a bargaining problem: poor people have no other options and because they are so numerous they can be played out against each other by the landowners. Wages tend to remain low in such a scenario (supply and demand, remember). That’s a recipe for a very unequal society. So the intuitive case for land reform is strong, especially when you consider that equality in land ownership isn’t just a matter of fairness but is also good for economic growth.

On the other hand, some notable attempts have gone horribly awry. Land reform policies in Zimbabwe – supposedly implemented for the benefit of the poor but probably for other reasons – have made things even worse for the poor. Why? Cutting up large chunks of land and giving a lot of poor people a very small piece can undo economies of scale. Furthermore, expropriating large landowners forces them out of business, and a lot of know-how will be lost.

So, what’s the deal? I guess it all depends on how land reform is done. Things don’t have to turn ugly. Land reform doesn’t have to be counter-productive. Property rights in general, and more specifically property of land in poor agrarian countries, are very important for the poor.

It is sometimes implied that improving property rights primarily favors the rich, conjuring up the image of rich owners of capital securing greater rents. However, there is increasing evidence that secure land rights, in particular, are an important vehicle for the poor that may promote both equity and efficiency. Lin…, for example, showed that the move from collective to household farming in China starting in 1978 led to large productivity increases in agriculture. …

Obtaining property rights over land in urban areas can also help poor households to gain access to credit. (source)

Migration and Human Rights (32): A Human Right to Free Movement and the Common Ownership of the Earth

I’m consistently in favor of increased immigration, and skeptical of the arguments against (such as those based on notions like “importing crime”, “importing poverty” or “watering down culture”).

However, if the arguments against immigration fail, how about the quality of the arguments in favor? Poverty reduction is a strong one: the prosperity of immigrants obviously increases when they are allowed to immigrate, but so does the prosperity of the families left behind (as a result of remittances). But a more interesting argument is based on the concept of the common ownership of the earth. Humanity collectively owns the earth and its resources because the earth is simply there. No one has created it and no one therefore deserves credit for it. Consequently, all individuals have an equal claim to every part of it and collectively own every part of it. (That’s an old idea, going back at least to Kant and Grotius).

Accidents of birth do not destroy this common ownership. They don’t yield private ownership rights to those parts of the earth where they take place. Hence, these accidents should not determine who gets the exclusive usage rights over parts of the earth. Immigration restrictions are morally arbitrary since they differentiate between people based on the lottery of birth. They take the accident of being born somewhere and turn it into a rule to stay there. They are equivalent to other morally arbitrary differentiations, such as those based on race or gender. However, contrary to what happened to those other differentiations, a majority of public opinion has yet to be convinced of the morally arbitrary nature of immigration restrictions.

From the notion of the common ownership of the earth follows that every kind of private property, not only the state as the exclusive property of a part of the earth claimed by the citizens who happen to live in that state, is a privatization of common resources. I think any justification of such a privatization, and therefore any justification of any type of private property, is bound to be difficult.

If the justification of privatization – whether of territory or commodities – does not succeed, then private property and the state are by definition illegitimate. So there’s a lot at stake here. The reason why such a justification is difficult, is that private property is necessarily based on an original theft of common ownership. Even if you cultivate the land you appropriate or privatize (or better steal from the collective of humanity), and even if you incorporate your labor in the product you make based on natural resources (Locke’s justification for private property) and thereby create added value, that doesn’t change the original sin: you’ll still be like the thief who takes care of the car he’s stolen and gives it a new color.

The same is true for a farmer fencing a part of the earth, a state imposing a border and restricting immigration, an oil company extracting the oil and refining and selling it, and a primitive tribe settling down in the jungle somewhere and keeping strangers out. Even nomadic tribes are guilty of the same sin by letting their cattle graze the land and keeping other tribes away.

So this reasoning a priori invalidates all talk about immigration restrictions. But it seems that I have proven too much: all private property, not just private property of land or a country, is, in the words of Proudhon, theft. Yet, private property is extremely important from the point of view of human rights. Private property also seems to be fueling economic efficiency, as the communist experiments have shown, a contrario. Especially private property of land – important in the context of immigration – is important for prosperity. I don’t want a justification of policies removing immigration restrictions that destroys all possible justifications of all forms of private property. Moreover, while I consider existing immigration restrictions unjust, I do recognize the value of some types of restrictions. Some restrictions used by citizens to limit access to a territory that they claim is theirs are legitimate. A state is necessary for democratic self-government and for the legal and judicial protection of human rights, and it would seem impossible to imagine the concept of a state without some immigration restrictions.

These are moral goals – rights, democracy – that are at least equivalent to the moral goal of not stealing and to the moral rights of immigrants. The problem is that stealing – namely stealing a part of the earth from humanity – is precisely what seems to be necessary to achieve these moral goals. So we have a conflict between moral goals. The fact that these moral goals all seem to be equivalent – it’s not obvious that stealing is always more wrong than protecting human rights for instance – indicates that it should be conceivable to violate – or limit the force of – the principle of the common ownership of the earth in order to create private property, both of commodities and land/territory. Hence, immigration restrictions are not necessarily morally wrong, although I would still claim that the existing restrictions of all countries in the world go much too far: they don’t take the moral claim of the common ownership of the earth seriously enough, and they overemphasize the goals of residents over those of immigrants.

So how exactly do we balance these different and equivalent moral goals? For example, a country violating human rights has less rights to impose immigration restrictions because such restrictions will not serve the goal of rights. (Unfortunately, this won’t promote migration since such a country will not attract many immigrants if it winds down its immigration restrictions). A wealthy country – like wealthy people – have less rights to exclude others from a share of their wealth, since their wealth is based on the use of common property. In that case, immigrants can demand entry rights based on common property.

While national borders are drawn in a morally arbitrary way, as argued above, and while immigration restrictions that go together with the drawing of such border are therefore equally arbitrary, they are not morally meaningless. They are a morally arbitrary fact that has acquired moral significance: they have resulted in a tool – the state – that can do morally good, e.g. protect human rights and democracy.

Marx, Substructure, Superstructure and Human Rights

The substructure, according to communism, is the mode of production or the nature of productive activity. Productive activity means the production, in interaction with nature, of goods necessary to survive. This production requires, on the one hand, means of production (materials, machines, land, tools, labor etc.) and, on the other hand, relations in which production takes place (relations of co-operation or ways of organization such as relations between masters and slaves, employers and employees, landowners and farmers etc.). The combination of means (or forces) of production and relations of production is the mode of production.

The available means of production determine the relations of production. A certain degree of development in the former necessarily produces a certain degree of development in the latter. This idea is the basis of the historical evolution of society that is so important in communism.

In production, men not only act on nature but also on one another. They produce only by co-operating in a certain way and mutually exchanging their activities. In order to produce, they enter into definite connections and relations with one another and only within these social connections and relations does their action on nature, does production, take place. These social relations into which the producers enter with one another, the conditions under which they exchange their activities and participate in the whole act of production, will naturally vary according to the character of the means of production. With the invention of a new instrument of warfare, firearms, the whole internal organization of the army necessarily changed: the relationships within which individuals can constitute an army and act as an army were transformed … Thus the social relations within which individuals produce, the social relations of production, change, are transformed, with the change and development of the material means of production, the productive forces. K. Marx, Wage Labor and Capital

These social relations are therefore independent of the will of the participants. They depend on technology, the availability of land etc. Each major change in the relations of production and the organization of production, caused by changes in the means of production, leads to a major change in the type of society we live in.

The combination of means of production or productive forces on the one hand, and relations of production on the other, is the substructure and determines the superstructure or the collection of different forms of consciousness, such as law, morality, religion, philosophy, politics etc.

The substructure is “the real foundation, on which rises a legal and political superstructure and to which correspond definite forms of social consciousness”. “Economic production and the structure of society of every historical epoch necessarily arising therefrom constitute the foundation for the political and intellectual history of that epoch”.

Politics and law are parts of the superstructure which are determined by the substructure. They are formed by the interests of those who have economic power and they serve to defend these interests. “Political power … is merely the organized power of one class for oppressing another”. “Are economic relations regulated by legal conceptions or do not, on the contrary, legal relations arise from economic ones?” The quintessential example is the right to private property. Owners can use this right to defend their interests against the poor. They can appeal to the judiciary and the police force to defend their property and hence to maintain existing class relations and modes of production.

The right to private property makes it impossible for large groups of people to have their own means of production and hence to be economically independent and self-sufficient. In other words, it makes it impossible for people to be free.

However, the law is not only something that can be used to justify the use of force for the maintenance of the status quo. The use of force by the state for the defense of the right to property is not necessary when the poor can be convinced that this right is in their interest, that it is a human right rather than a right of the wealthy. The economic relationships and structures are maintained with political and legal force but also with legal ideology.

All ideologies are similar. Christianity can convince people to accept their situation by promising salvation in a future life, and the ideology of human rights does the same by convincing people, all people, that they have the same rights and that they are therefore equal. When this universality and equality of rights is accentuated, people do not see that others who have the same equal rights profit more from these rights. Human rights give the impression of guaranteeing freedom and equality but in reality give those who are better off tools to improve their situation even more, and at the expense of the poor. Instead of real equality there is only legal and formal equality, and the latter takes us further away from the former because the rich can use their equal rights to promote their interests. Rights give us the freedom to oppress rather than freedom from oppression.

Human rights, according to communism, are “an illusory sense of community serving as a screen for the real struggles waged by classes against each other”, an ideological veil on reality, a set of false ideas that has to cover up class rule and make it acceptable. The continuation of inequality by political and legal means is based on the combination of coercion and false consciousness. Christians are equal in heaven and thereby maintain inequality on earth, and believers in human rights are equal in the heaven of their political ideals and thereby forget the inequality that these ideals help to maintain. Again we see how the ruling class uses ideology rather than mere force to maintain its rule. It tries to instill certain beliefs in its victims and to use these beliefs as a drug, an opium to pacify them.

Like the protest inherent in the Christian ideology of a future paradise must be maintained but stripped of its ideological content, so the ideal of equality inherent in human rights must be maintained but in such a way that it becomes real equality in a real and worldly paradise, and not some kind of formal equality of rights that only aggravates real inequality and postpones paradise to the afterlife. The poor must become conscious of the fact that their formal equality only covers up their real inequality. This consciousness will be an important step in their liberation. However, as we will see later, this consciousness is conditioned by and can only come about at a certain time in the evolution of exploitation. It cannot result from education or political agitation alone.

Is Taxation Akin to Theft and Slavery?

The notion that taxation is theft and a violation of property rights is quite common, especially in libertarian circles. (A less extreme version of the argument claims that taxation may be a justified limitation of property rights but its level should be kept as low as possible because of concerns for economic incentives).

The classic justification of this rejection of taxation is a reduction ad absurdum: if a state can tax its citizens, how much can we reduce the group of people and still hold that this group can impose taxes on its members?

There are many variations of [this argument], but one begins, for instance, with the example of a man stealing a car, which most people would regard as unethical. It then proceeds to make slight changes to the story, with the identity of the thief gradually shifting from one man, to a gang of five men, to a gang of ten men who take a vote (allowing the victim to vote as well) on whether to steal the car before stealing it; … to one hundred men who take the car and give the victim back a bicycle; to two hundred men who not only give the victim back a bicycle but buy a poor person a bicycle as well. It ultimately challenges the reader to say how big a group needs to be, and what characteristics it needs to have, before the immorality of theft becomes the alleged morality of taxation. (source)

Taxation is not only rejected because it’s viewed as a form of official and legalized theft. It’s also viewed as a form of slavery. Robert Nozick, a famous libertarian, has argued that taxation of earnings from labor is on a par with forced labor.

Nozick starts from the reasonable assumption that people own themselves. Self-ownership also means that people own their talents and labor power. He then continues with the Lockean argument for private property: we produce goods by mixing our labor power and talents with elements of the material world, and by this mixing we generate ownership of those modified elements of the world. If the government taxes our income, it takes away – or steals – parts of what we own through our labor. But the government doesn’t just steal things from us. Because our labor and talents have been incorporated in the things we own – and we own them because of this incorporation – taking them from us means effectively that the government owns our talents and labor, and hence owns us. Taxation means that the government takes away our self-ownership. And that’s slavery. It also means that the government uses people as means rather than ends, violating Kant’s maxim.

If you’re convinced by this kind of reasoning and agree that taxation is slavery, forced labor and theft, then you’re morally allowed or even obliged to resist taxation and rebel against government. And you’re likely to be a libertarian.

However, you may also want to consider a few counter-arguments.

1. There’s first the issue of value pluralism. Private property and self-ownership are undoubtedly important, but not so important that they trump all other values. Hence, they can be limited to accommodate a balancing with other concerns.

2. The rejection of taxation becomes morally difficult when we consider the purpose of taxation, or better the – substantial – part of taxation which serves the welfare state and the realization of economic rights. Economic rights are primarily a duty of charity, as I’ve argued here. The state, with its welfare mechanisms, should only intervene when citizens don’t (sufficiently) help each other. And it needs taxes to do that. Taxes are the enforcement of the duty to charity. Which is why tax fraud, tax evasion and certainly the principled refusal to pay taxes are particularly reprehensible: the existence of taxes is already a stain on the reputation of mankind, because taxes exist as a consequence of the fact that people deny their responsibilities. Denying the duty to pay taxes is a double moral failure.

However, some libertarians go along with the first part of this argument and accept that people have a moral duty to help others (others who are starving for example). However, they deny that this creates a right. So, ideally, these libertarians would not commit the first prong of this double moral failure, in which case the second prong could not occur. And yet, in the non-ideal world, libertarians – and others – do commit the first moral failure, i.e. do not live up to their responsibilities to help others. Subsequently, libertarians and others who follow Nozick, are doomed to commit the second moral failure as well. What’s more, they can’t even call it a moral failure because according to them starving people don’t have a right to demand our help (the fact that we have a duty to help doesn’t necessarily give them a right to our help). Such a right would be incompatible with self-ownership. It would mean stealing our goods and our labor power and talents. It would mean using us as a means for their survival. In my view, the claim that the duty of generosity doesn’t create a right to generosity is a simple artifact invented to guarantee the supremacy of property rights.

3. Nozicks reasoning about self-ownership and property is shaky, as he himself admitted:

why isn’t mixing what I own with what I don’t own a way of losing what I own rather than a way of gaining what I don’t? If I own a can of tomato juice and spill it in the sea so its molecules… mingle evenly throughout the sea, do I thereby come to own the sea, or have I foolishly dissipated my tomato juice? (source)

4. Given the importance of talents in the libertarian argument, and the refusal to have people’s talents “harvested” for the sake of the minimal welfare of those without talents or otherwise unable to fend for themselves: is it not evident that there’s an injustice involved in the distribution of talents? Nobody decides freely to be born without talents, so the absence of talents is nobody’s fault. Should you be forced to suffer for something that is not your fault? In addition, is there not a small possibility that people are rewarded for the wrong talents and that some talents are not sufficiently rewarded? If all that’s the case, then the claim that the state can’t use the proceeds of your talents for the benefit of others becomes a lot weaker: if those proceeds could just as well have gone to other talents or the talents of others (in part at least), and if your talents are just a matter of luck, why should you have a right to keep those proceeds?

5. And finally, is it not somewhat gross to compare the fate of a taxpayer to the fate of a slave? A taxpayer retains many of the freedoms a slave can only dream of.

Discrimination (3): Libertarianism and Private Discrimination

Prominent libertarian politician Rand Paul recently caused a stir by claiming that he didn’t support parts of the Civil Rights Act of 1964, specifically the parts applying non-discrimination legislation to private businesses. Like most libertarians, he believes that if private restaurant owners, for example, want to prevent blacks from eating there, then that’s their right. Similarly, banks should be allowed not to lend to blacks, real-estate agents not to sell to blacks, private homeowner groups should be able to band together and keep out blacks etc. Same when the targets are Jews, gays, immigrants and so on.

The standard libertarian position is that only government enforced or government protected discrimination is wrong. Private actors should be allowed to discriminate. A private restaurant owner for instance should be allowed to refuse to serve blacks. However, government rules forcing restaurant owners not to serve blacks are not allowed, even though for the blacks in question the results are much the same.

It’s not that most libertarians think this kind of discrimination is acceptable and would engage in it themselves. They reject legislation against private discrimination because they consider the right to private property and the sovereignty of property owners much more important than the fight against private discrimination. They also argue that market mechanisms, which they also like a whole lot, will – over time – weed out such discrimination. A restaurant owner who refuses to serve blacks will do a lot worse than his competitors who are more open minded. He will lose benefits of scale, will have to raise his prices and ultimately also lose the bigoted white customers who detest eating in the presence of blacks but detest even more paying unreasonable prices.

Here’s a good statement of the libertarian position by a self-confessed libertarian:

(1) Private discrimination should, in general, be legal (this includes affirmative action preferences, btw). Many libertarians would make exceptions for cases of monopoly power, and most would ban private discrimination when the government itself ensured the monopoly by law, as with common carriers like trains; (2) The government may not discriminate. If necessary, the federal government should step in to prevent state and local governments from discriminating; (3) The government may not force private parties to discriminate, and the federal government should, if necessary, step in to prevent state and local governments from forcing private parties to discriminate; (4) The government must protect members of minority groups and those who seek to associate with them from private violence. If the state and local government won’t do so, the federal government should step in. (source)

Note the mention of violence in this quote: private violence against blacks isn’t allowed, private discrimination is. Why the difference? Again, property rights. Laws against violence don’t usually violate anyone’s property rights.

Now, what’s the problem with this libertarian position? Property rights are obviously very important. You don’t need to be a libertarian to believe that. I argued strongly in favor of property rights here. Likewise, the free market does an enormous amount of good. The problem with the libertarian view is absolutism and a rejection of value pluralism. There are many values in life, and many different strategies to realize them. And sometimes, some values or strategies come into conflict with each other. When that happens – as is the case here – you have to be willing to balance them and see which one should take precedence. Privacy and free speech, for example, are both important, but what do you do when a journalist exposes the private life of a public figure? You balance the right and wrong: which value is better served by publishing? Free speech or privacy? In some cases, we may believe that free speech is more important than the right to privacy (for example when the politician’s private life has relevance for his functioning). In other cases privacy will trump speech (for example when the facts published have no political meaning). Such decisions can only be taken case by case because the specifics always differ. Doctrinaire and absolutists positions in favor of one value or the other won’t do. And unfortunately many libertarians, and certainly Rand in this case, seem to think that their preferred values – property, freedom and the market – should always have priority over all other values.

Is legislation such as the Civil Rights Act an infringement of property rights and the freedom to do with your property as you want? Of course it is. Are such infringements always wrong? Of course they aren’t. Sometimes they are a necessary evil to gain a greater good.

There a resemblance between the libertarian views on private discrimination and the more widely accepted view in the U.S. that free speech rights and the First Amendment can only be invoked against the government, as if private actors can’t violate people’s right to free speech. The dominant U.S. free speech doctrine reflects an antiquated view of human rights as exclusively vertical. Of course, the government probably does most of the violations, particularly of a right such as free speech, but probably not in the case of the right not to be discriminated against. That’s more of a private monopoly, and markets, protest marches, boycotts, activism etc. won’t solve that problem by themselves. Just look at the market: it didn’t solve segregation, and neither would it have had it been more free. In fact, it’s likely that bigoted white customers who detest eating in the presence of blacks, will not find themselves in white only and hence more expensive restaurants, but will band together and boycott non-segregated restaurants which then lose far more business among whites than they gain from allowing blacks. Such boycotts are absolutely in line with property rights and the free market, which shows that the market can make discrimination worse instead of destroying it. (For a more sympathetic view of the power of the market, go here).

Strangely, Rand Paul himself invoked the parallel between private discrimination and free speech, but twists it to serve his goals:

INTERVIEWER: But under your philosophy, it would be okay for Dr. King not to be served at the counter at Woolworths?

PAUL: I would not go to that Woolworths, and I would stand up in my community and say that it is abhorrent, um, but, the hard part—and this is the hard part about believing in freedom—is, if you believe in the First Amendment, for example—you have too, for example, most good defenders of the First Amendment will believe in abhorrent groups standing up and saying awful things… It’s the same way with other behaviors. In a free society, we will tolerate boorish people, who have abhorrent behavior. (source)

So we have to tolerate discrimination that actually harms real people, just like we tolerate awful speech that most likely doesn’t hurt a fly? Words don’t equal behavior, although sometimes there may be a thin line between them (which is why hate speech laws can sometimes be justified).

Income Inequality (21): And Economic (In)Efficiency

Standard economic theory suggests that these problems created by income inequality are a necessary price to pay for economic efficiency: unequal rewards – however unpleasant they are and whatever consequences they have – incite those with talents, skill and perseverance to innovate and be productive. Ultimately, this serves the welfare of the whole of society. Reducing inequality means taking away incentives for doing well, and results in economic inefficiency.

Sam Bowles has argued that the opposite is true:

Inequality breeds conflict, and conflict breeds wasted resources … in a very unequal society, the people at the top have to spend a lot of time and energy keeping the lower classes obedient and productive.

Inequality leads to an excess of what Bowles calls “guard labor”. In a 2007 paper on the subject, he and co-author Arjun Jayadev, an assistant professor at the University of Massachusetts, make an astonishing claim: Roughly 1 in 4 Americans is employed to keep fellow citizens in line and protect private wealth from would-be Robin Hoods.

The job descriptions of guard labor range from “imposing work discipline”—think of the corporate IT spies who keep desk jockeys from slacking off online—to enforcing laws, like the officers in the Santa Fe Police Department paddy wagon parked outside of Walmart.

The greater the inequalities in a society, the more guard labor it requires, Bowles finds. This holds true among US states, with relatively unequal states like New Mexico employing a greater share of guard labor than relatively egalitarian states like Wisconsin.

The problem, Bowles argues, is that too much guard labor sustains “illegitimate inequalities,” creating a drag on the economy. All of the people in guard labor jobs could be doing something more productive with their time—perhaps starting their own businesses or helping to reduce the US trade deficit with China. (source)

I must say I’m not entirely convinced. Income inequality creates a lot of problems, but economic inefficiency isn’t the most important one. Justifications for the fight against inequality based on efficiency look a lot less promising than justifications based on justice and fairness.

Economic Human Rights (31b): Certain Objections

Economic rights are a subset of human rights. Put very briefly and simplistically, they are what could be called anti-poverty rights: for example, there’s a right to a certain standard of living, to social security, to work, to fair wages, to healthcare, housing etc.

It’s an understatement to say that there’s no universal consensus on these rights. Some say that these aren’t “real” human rights (like Bill Easterly for example). Others say that these rights are useless or even harmful. Here are a few of the most common objections raised against economic rights.

The big state criticism

Economic rights are believed to require invasion of privacy and hence violations of an important freedom right (freedom rights such as free speech, privacy, habeas corpus etc. are usually distinguished from economic rights, political rights etc.). In order to verify whether people have a right to social security benefits or healthcare benefits, the state has to check people’s income (legal and illegal), their family composition, their health, their medical consumption, their lifestyle etc.

The assumption behind this criticism is that the state is the only or the main party responsible for the realization of economic rights. This is not the case. People in need can call on other people to help. And these other people have a moral responsibility to help. The duties of mutual assistance, charity and philanthropy point to a horizontal aspect of economic rights. People in need do not only have a vertical right to assistance, or a right directed at the state. Their economic rights can be addressed at their fellow citizens, and these have a duty to respect and protect these rights. It’s only when horizontal duties fail that the state should intervene. If we think of economic rights in this way, the dangers of an overbearing state don’t look that ominous anymore.

The rule that economic rights should – in part – be realized by citizens has another advantage as well: economic rights tend to foster community spirit and feelings of solidarity and belonging.

But this insistence on solidarity shouldn’t obscure the rule that people have a responsibility to help themselves and support themselves. This kind of independence is a part of freedom and an important good. Solidarity comes into play only when self-help is unsuccessful or impossible, and the state comes into play only when solidarity is unsuccessful or absent.

Different kinds of duties

Another objection: some say that economic rights, if they are rights at all, are radically different from “normal” human rights – also called freedom rights – and can therefore be given a lower priority (and maybe aren’t even real rights at all). Freedom rights imply duties of abstention or forbearance, whereas economic rights require duties of active help, involvement and intervention. In the case of violations of freedom rights, the remedy is easy: stop doing what you’re doing. In the case of violations of economic “rights”, the remedy is often very difficult if not impossible. If there is no work, no one can give it to me. If a country is poor, no one can raise the standard of living.

When freedom rights are violated, the victim can go to a court and a judge can force the violator to stop his or her actions. When economic rights are violated, it’s useless to go to a court. Not only isn’t there an obvious violator who can be stopped, there is often no one who can stop the violation from happening. Hence it looks like these rights are unenforceable and often have no remedy. Rather than rights, it seems that they are aspirations or policy goals, often long term policy goals.

However, there’s again an erroneous assumption underlying all of this. The distinction between the two types of duties – forbearance and active assistance – isn’t clean-cut. Freedom rights require active intervention by the state in order to enforce forbearance. They require an efficient judiciary and police force. For some states, this may be as unattainable as prosperity. In fact, it’s precisely because of a lack of prosperity that many states are unable to guarantee protection for freedom rights. Of course, the fact that economic rights are a prerequisite for freedom rights isn’t a sufficient reason to call them rights. But neither is it a reason not to call them rights.

Conversely, economic rights often require more forbearance than active intervention. Economic rights in China during the Great Leap Forward would have been better served by state forbearance. All types of human rights require forbearance and intervention. Perhaps economic rights generally need more intervention, but that is a difference in degree and not in essence, and it isn’t a sufficient reason to reject the label of “rights” for the aspirations inherent in economic rights.

Ought implies can

There’s another criticism of economic rights, related to the previous one. Economic rights are said to violate a general rule for rights: ought implies can; there can be no obligation to do something if there is no capability to do it. You cannot have a duty to help someone who’s drowning if you can’t swim yourself. Hence the person drowning doesn’t have a right to be assisted by you. The same is said to be true of economic rights which therefore aren’t real rights. If a poor country doesn’t have the resources to help its poor citizens, then these citizens don’t have a right to be helped.

However, we don’t follow the same logic in the case of freedom rights. Freedom rights also require resources, as we have seen. When a state doesn’t have the resources necessary to protect its citizens’ freedom rights, we usually don’t say that the citizens of such a state have lost their freedom rights. People have rights irrespective of the probability that they can be protected. Or better: the less people’s rights are protected, the more important it is that they have rights. And anyway, violations of economic rights don’t occur because there are insufficient resources but because of an unequal distribution of resource, nationally or internationally. So the “can” part of “ought implies can” isn’t as fanciful as the critics of economic rights believe.

Economic rights are superfluous and useless

This is supposed to be the case because free markets should automatically produce a certain standard of living for everyone that is high enough to realize the goals inherent in economic rights. Free trade, deregulated markets and low taxes cause profits to rise, which in turn means more investments, which in turn means more and better jobs and higher incomes. All boats rise on a rising tide.

Now, it’s my belief that history – and especially recent history – has shown that this isn’t enough. Free markets are beneficial, but they don’t automatically provide high standards of living for everyone.

Economic rights are harmful and counterproductive

This is a stronger version of the “useless” argument. Economic rights are believed to require a big state (see above), high taxes and intrusive regulation. All of this hinders the economy and the creation of wealth. As a result of economic rights, there is less wealth to redistribute, and economic rights therefore undo what they want to achieve.

They are also harmful in another way: they violate freedom rights, especially the right to privacy and the right to property (because of redistribution). We’ve already seen that we can mitigate this risk when we include horizontal duties. But even if this risk is real, why should property and privacy automatically rank higher than the absence of poverty? If we assume that economic rights are real rights, then it’s not surprising to see that they can contradict other rights. Contradictions between human rights are very common. The right to privacy is often in conflict with free speech for example. Sometimes one right has to be limited for the sake of another. So why should this be a problem when dealing with economic rights?

Of course, one shouldn’t dramatize. Economic rights and freedom rights are generally not incompatible. On the contrary, they are interdependent. Freedom for the poor often doesn’t mean a whole lot. But, on the other hand, the squeaky hinge gets the oil: poverty has to have a voice if it is to be eliminated.

Religion and Human Rights (18): Euthanasia

People own their own body. Their body is part of their private property. It is something that is theirs; it is the thing par excellence that is their own. It is not common to several people and it cannot be given away. It cannot even be shared or communicated. It is the most private thing there is. Owning your body means that you are the master of it. Other people have no say in the use of your body; they should not use it, hurt it or force you to use it in a certain way. This underpins the security rights such as the right to life, the right to bodily integrity, and the prohibition of torture and slavery. It also implies the right to self-determination and therefore the right to die.

The Ethics of Human Rights (18): A Right to End Your Life

There’s currently some controversy over the Swiss Dignitas clinic where people can receive help in their attempt to end their own lives.  This is reminiscent of the controversy surrounding “Doctor Death”, Jack Kevorkian, in the U.S. some time ago, and the Oregon Death With Dignity Act.

The issue of assisted suicide or euthanasia usually arises in discussions on terminal illnes and suffering, but it is part of the wider problem of self-determination: do human beings have the right to determine and chose the time and the method of their own death, irrespective of health issues? And do other people have a right to assist them if they can’t execute their will themselves?

I’ll focus on the first question here, and I’ll avoid the legal issues for the time being, apart from this: in international human rights law, there is no right to end your life, hence no right to suicide, assisted or not, and hence no right to euthanasia (the differences between assisted suicide and euthanasia are negligable according to me).

Should there be such a right? I don’t know. I certainly support the moral right, based on some arguments which I’ll mention below. A legal right would remove some of the prohibitions on assisted suicide and euthanasia in some countries. In such countries, people have to travel abroad – to Switzerland for example – to end their lives, at least if they want to do it in a painless and guaranteed way. This means that there is discrimination: rich people have a painless way out (the Swiss ask a lot of money), whereas other people have to use painful or riskier methods or – worse – have to continue their lives involuntarily if their (medical) circumstances don’t make it possible for them to take matters into their own hands.

Why should there be a moral right to end your life? We own our own body. Our body is part of our private property. It is something that is ours; it is the thing par excellence that is our own. It is not common to several people and it cannot be given away. It cannot even be shared or communicated. It is the most private thing there is. Owning our body means that we are the master of it. Other people have no say in the use of our body; they should not use it, hurt it or force us to use it in a certain way. This underpins the security rights such as the right to life, the right to bodily integrity, and the prohibition of torture and slavery. But it also implies the right to self-determination, and therefore, the right to die. We should therefore be able to cimmit suicide without interference, at least as long as we are able to determine our will independently, and as long as our suicide doesn’t harm other people’s rights (e.g. if we throw ourselves in front of a moving car, or if we believe that our suicide leads us to heaven on the condition that we take a few infidels along with us in the grave).

The Compatibility of Freedom and Equality (7): Negative and Positive Freedom

It think it’s fair to say that both the libertarian and egalitarian conceptions of freedom are wrong. Libertarians traditionally adopt a negative kind of freedom. More precisely, they believe that individuals should be free from interference, especially interference by the government, and with their property. They don’t accept that it makes sense to view freedom more positively as the possession of resources and capabilities that are necessary to make a really free choice between alternatives and opportunities. The freedom of those without certain resources and capabilities (such as education, health and a basic income) is futile because they can’t exercise their freedom, not because they are actively interfered with but because they can’t choose between opportunities.

Such a positive freedom is preferred by egalitarians (also called social-democrats, progressives, or even liberals). These, however, often make the mistake of denying the importance of negative freedom. In their effort to equalize freedom they often show disdain for non-interference and property rights.

There is a relatively easy way to bring these two points of view a bit closer together. The main worry of libertarians is that egalitarians will use the power of the state to redistribute property. (Remember the uproar over the claim by Obama that he wants to “spread the wealth around”). As I stated here, there are good reasons to encourage voluntary redistribution by citizens, without enforcement by the state (enforcement should only be necessary when citizens fail to engage in charity). If the resources and capabilities necessary for an equal positive freedom are redistributed voluntarily by citizens, then there is no interference and negative freedom and property rights are safeguarded.

This may sound naive, but I don’t think it is. There’s already an enormous amount of private charity and remittances are also a very important source of financial aid.

Limiting Free Speech (28): Free Speech at Work

Should people be allowed to enjoy an unlimited right to free speech at work, and be able to ask courts to undo measures (such as sacking or disciplinary measures) which their employer has taken against them as a result of their speech? Or do corporations and government agencies have a right to take measures against employees engaging in certain types of speech, a right which therefore trumps the right to speech? And is there a difference between the rights of corporations and the rights of (certain) government agencies?

I could make this brief, and say that employees are citizens like all other citizens, and should have a right to free speech. I could say that, if there are any possible and acceptable (or necessary) limitations on the right to free speech, they have nothing to do with the fact that those engaging in speech act as employees or as citizens. I could say that the place where people speak – at work or elsewhere – doesn’t change anything.

Unfortunately, I can’t. The place where speech takes place does matter, as I have mentioned already in the case of hate speech (hate speech in front of an angry mob gathered at the house of a pedophile is different from the exact same speech written down in a book almost no one reads).

As I will argue, the same is true in the current case. Speech at work may be treated in another way than speech elsewhere. There are some good reasons to impose stricter limits on speech at work than on speech in general. Employers therefore also have the right to take certain measures against employees engaging in speech which may be restricted (in fact, these measures are the restrictions). Also, certain government agencies can impose more and wider restrictions than private corporations. All these restrictions on the freedom of speech are possible because they are necessary for the protection of other rights or the rights of others (I try to make this a general rule when discussing restrictions on human rights, see here).

But before I argue this, I want to sketch the baseline first. Free speech is very important, and I don’t think there are many people who believe this more than me (as any regular reader of this blog knows). As government agencies, but also private corporations, regularly violate human rights, free speech at work is perhaps even more important than free speech in general. People working for agencies or corporations engaged in rights violations, must have the right (and the possibility) to denounce these practices. So, if I argue for the right of corporations and agencies to restrict, in certain cases, the right to free speech of their employees, I have to be careful to do so without jeopardizing the important rights of whistleblowers.

The U.S. Supreme Court, which allows government agencies to limit the freedom of speech of their employees, also acknowledges the importance of whistleblowers. When the speech in question is of “public concern”,* the Court uses a higher threshold to uphold speech-related disciplinary measures against employees. (The Court uses the so-called Pickering test). (However, the Supreme Court is still oddly restrictive in this respect. Whereas, normally, free speech is considered to be very important by the Court, in case of speech at work, “public concern” is not enough to uphold the right to speech. It’s just a first threshold to be passed for the Court to asses the possibility of reviewing disciplinary action. When there is no “public concern”, there’s no right to free speech at work according to SCOTUS!).

Now, when and why should the rights of corporations and government agencies to sanction their employees for acts of speech, take precedence over the right to free speech of these employees? Corporations and agencies have a right to function without disruption. A government agency even has a duty to function without disruption, because it serves the public interest. And this interest more often than not includes certain human rights. For example, a government hospital has a duty to protect the healthcare rights of citizens. If speech acts at the hospital disrupt its normal functioning, the rights of citizens may be put at risk. If, in addition, these speech acts don’t have anything to do with the functioning or organization of the hospital, it is difficult to see why they should be more important than the rights of patients. However, if the speech acts uncover serious incompetence at the hospital, the disruption that follows these acts may be a price that is worth paying.

Regarding corporations, the burden of proof on those wishing to impose restrictions on speech at work, is heavier. Corporations usually don’t work for the protection of human rights of citizens, and therefore cannot put these rights in the balance. However, corporations are the property of certain citizens, and these citizens have a right to use this property. Speech acts in corporations can result in disturbances of a kind that makes this use of property difficult or impossible. If, in addition, these speech acts don’t serve any public purpose or address a public concern, it may be justified to consider the right to property more important than the right to speech, in certain cases. For example, should we really accept and protect flag burning during office hours and in office buildings? And who would take sides with an employee wasting huge amounts of company time on frivolous speech?

And there’s another problem with judicial protection of speech at work. Employees may claim that disciplinary measures taken against them (including dismissal) were based on their speech acts, whereas in reality these measures were based on a lack of performance. Employers may become unwilling to take such measures because of the risk of costly litigation. Outspoken but incompetent employees will then be privileged, and others discriminated. Another result: the employer’s authority and ability to organize and lead are put at risk if many of her decisions can be reversed by judges.

* This “public concern” usually means that the speech in question should have something to do with the preferable manner of operating the agency, or should contain information which is vital to proper decision-making. Both definitions of “public concern” cover the activities of whistle-blowers.

Why Do Countries Become/Remain Democracies? Or Don’t? (3): The Resource Curse

Why do countries with lots of natural resources tend to do worse than countries with less resource wealth, both in terms of economic growth and in political, social and human rights terms? We see that countries which own lots of natural resources such as diamonds, oil or other valuables that are found in the ground, are often relatively poor, badly governed, violent and suffering from gross violations of human rights.

There are many possible causes of this curse (also called “the paradox of plenty”):

1. Lack of economic diversification

Other economic sectors tend to get neglected by the government because there is a guaranteed income from the natural resources. These sectors therefore cannot develop and cannot become an alternative when the resources are taking hits. The fluctuations of the international prices of the resources can cause extreme highs and lows in national economic growth. This is bad in itself, but also makes it difficult for the government to do long term planning, since the level of revenues cannot be predicted. Dependence on one economic sector means vulnerability.

Another disadvantage of concentrating the economy on one resource sector, is that these sector often provide few jobs, especially for local people. The oil industry for example needs highly specialized workers, who are mostly foreigners. On top of that, these sectors do not require many forward or backward connections in the economy (such as suppliers, local customers, refiners etc.), which again doesn’t help the local job creation.

Even if the government tries to diversify the economy, it may fail to do so because the resource sector is more profitable for local individual economic agents.

Resource dependent countries also see their best talents going to the resource industry which pays better wages than the rest of the economy or the government sector. As a result, the latter are unable to perform adequately. See point 4 below.

2. Corruption

Corruption tends to flourish when governments own almost the entire economy and have their hands on the natural resources. More on corruption in a future post.

3. Social division

Abundance of natural resources can produce or prolong violent conflicts within societies as different groups try to control (parts of) the resources. Separatist groups may emerge, trying to control the part of the territory most rich in resources. This is often aggravated by existing social or cultural division. Division may also appear between parts of the government (e.g. local government vs central government, or between different parts of the central administration).

The resources therefore may cause divisions and conflict, and thereby cause deficiencies in government, economic turmoil, and social unrest. But the resources may also prolong conflicts because groups which manage to take control of (parts of) the resources may use these to arm themselves or otherwise gain influence and power.

4. Government’s unaccoutability and inefficiency

Countries which do not depend on natural resources are often more efficient in taxing their citizens, because they do not have funds which are quasi-automatically generated by resources. As a result, they are forced to develop the government machinery in an efficient way, hence a reduced risk of government break-down. The citizens in return, as they are taxed, will demand accountability, efficient spending etc.

Conversely, the political leaders in resource-dependent countries don’t have to care about their citizens. They create support by allocating money, generated by the resources, to favored interest parties, and thereby increasing the level of corruption. And if citizens object, they have the material means to suppress protest. They don’t appreciate an effective government administration as this carries the risk of control, oversight and other anti-corruption measures (see point 2). So they have an interest in bad government.

It is obvious that bad government, rights violations and economic stagnation have many causes. The resource curse is only one. There are countries which are blessed with resources and which do well at the same time. And there are mismanaged countries that don’t have any resources. As in all correlations, the causation may go in the other way: bad government can create dependence on exports of natural resources.

“When a country’s chaos and economic policies scare off foreign investors and send local entrepreneurs abroad to look for better opportunities, the economy becomes skewed. Factories may close and businesses may flee, but petroleum and precious metals remain for the taking. Resource extraction becomes ‘the default sector’ that still functions after other industries have come to a halt.” (source)

What to do about it?

Leif Wenar has argued that a strict application of property rights could help reduce or correct the resource curse. When dictators or insurgents sell off a country’s resources to foreigners or multi-national companies, while terrorizing the people into submission, they are in fact selling goods that they stole from those people. They have no right to sell what they don’t own. The natural resources of a country belong equally to all the people of that country. Article 1 of the International Covenant on Civil and Political Rights states:

All peoples may, for their own ends, freely dispose of their natural wealth and resources.

And

“the people, whose resources are being sold off, become not the beneficiaries of this wealth but the victim of those who use their own wealth to repress them”. Leif Wenar (source)

One could take legal action in western jurisdictions to try to enforce the property rights of the citizens of resource cursed countries and to charge multinational corporations with the crime of receiving stolen goods.

Western countries, investors and consumers could also boycott companies that invest in resource-cursed countries, or try to pressure campaign them to get out of these countries, or they could stop to invest in these companies.

When people finally get a grip on their resources, they open the path to better government, a better economy and better protection for human rights. Perhaps then they will not have to die trying to recapture a tiny part of the resources that are their lawful property, as happened in many cases in Nigeria, for example, where people often try to tap some oil from the pipelines channeling their property to the west. In doing so, they risk their lives. As a consequence of their actions, the pipelines can explode.

What is Democracy? (25): Corporate Democracy

Given the importance of work and production in the life of individuals, it is justified to give them some say in the way in which the means of production are used. The owners of the means of production should not be entitled to decide unilaterally on the conditions, organization, purposes, processes and meaning of production. Production is an important part of human life and people should have a say in it.

Concretely, this means a kind of corporate democracy and participation. Communism traditionally proposes common ownership of the means of production. The workers in the factory, rather than the capitalists or the shareholders, would own the factory in common. Or, rather, society as a whole, which in communism means the class of workers, would own the totality of all means of production. This would obviously spell the end of private property, not necessarily private property as such, but in any case private property of the means of production.

This is unacceptable because private property is an important value. It’s unequal distribution should be criticized, as well as the exclusive right of decision of the owners of the means of production, but there are good reasons to keep the right to private property more or less intact (or, more specifically, the right to legal protection of private property and the right to use it freely).

Common ownership of the means of production, as proposed by traditional communists, is not the only means to create corporate participation and worker control over production. Modern-day capitalism has in some cases reconciled private ownership with large measures of worker participation. Many decisions in companies are now taken by the owners and the workers together. This participation is not incompatible with the free market either. A free market is a system between economic agents, not within them.

The Causes of Poverty (8): Lack of Economic Freedom

Open markets offer the only realistic hope of pulling billions of people in developing countries out of abject poverty, while sustaining prosperity in the industrialized world. Kofi Annan

Africa must be allowed to trade itself out of poverty. Bob Geldof

Human rights do not include a right to have economic freedom or to have a free market. But one can argue that economic freedom is a necessary consequence of human rights and that the absence of economic freedom is an indication of a country’s disrespect for human rights. The right to do with your property as you like, to move freely and to associate freely are all human rights and are prerequisites and causes of economic freedom.

There’s also a strong case in favor of the theory that economic freedom promotes prosperity and hence also respect for economic rights.

Economic freedom consists of personal choice, the ability to make voluntary transactions, the freedom to compete, and security of privately owned property. This is the definition of the Fraser Institute. This institute tries to measure the degree to which the policies and institutions of countries support economic freedom. Their index measures:

  • size of government
  • legal structure and security of property rights
  • access to sound money
  • freedom to trade internationally and
  • regulation of credit, labor and business.

They conclude that economic freedom has grown considerably in recent decades and that economic freedom is correlated with income.

 

The complete list of countries is here. I don’t want to suggest that economic freedom should be absolute. There has to be regulation of markets (for health reasons, safety reasons, reasons of fair competition etc.) as well as political corrections of the effects of markets on issues of social justice, poverty and equality.

Moreover, when discussing economic freedom we shouldn’t only think of the internal structure of states but also their interaction: import tariffs, quota, subsidies and other protectionist measures also inhibit free trade, often at the expense of poor traders and farmers in developing countries.

Marx and Human Rights

According to Marx, human rights are the “rights of the egoistic man, separated from his fellow men and from the community”. They are the rights of man as an isolated, inward looking, self-centered creature

  • who regards his free opinion as his intellectual private property instead of a part of communication
  • who uses his right to private property not in order to create a beach-head for his public and cultural life but to accumulate unnecessary wealth and to protect unequal property relationships
  • who uses the right to privacy as a wall keeping out the poor snoopers watching the rich people
  • who considers fellow men as the only legitimate restraint on his own freedom, and therefore as a limit instead of the source of his own thinking, identity and humanity (this is the way in which Marx read art. 6 of the French constitution of 1793: “Liberty is the power which man has to do everything which does not harm the rights of others”)
  • who considers freedom to be no more than the ability to pursue selfish interests and to enjoy property, unhindered by the need to help other people, “without regard for other men and independently of society”
  • and who considers equality to be the equal right to this kind of freedom (everybody can emancipate himself by becoming a bourgeois).

Human rights, in this view, serve only to protect egoism and the unequal distribution of property, and to oppress the poor who question this and who try to redistribute property. On top of that, human rights obscure this fact because they are formulated in such a way that it seems that everybody profits from them. Contrary to what is implicit in their name, “human” rights are not general or universal rights. They are the rights of those who have property and who want to keep it. A specific situation of a specific group of people is generalized in human rights.

Of course, this criticism can be correct. No one will deny that human rights can serve to protect and justify egoism, oppression of the poor and indifference. They can help to shield people behind private interest and to transform society into a collection of loose, self-centered, self-sufficient, withdrawn, independent, sovereign and isolated individuals. Because the rich have more means to use, for example, their freedom of expression, this freedom can be an instrument of the rich to monopolize political propaganda and political power and to use this power to maintain their privileged situation. Economic relationships can be maintained by legal means.

However, in order to judge and possibly reject a phenomenon, one should also look at its intended and ideal functions, not only at the ways in which it can be abused. Human rights not only protect man against the attacks and claims of other people (for example the attacks and claims on his property); they also create the possibility of forcing people to help each other. They do not allow you to do something to other people (taking their property, determining their opinions etc.), but at the same time they invite you to do something with other people. In other words, they are not only negative. They not only limit the way we relate to other people, they also stimulate and protect the way we relate to other people.

Marx and Democracy

According to Marxism, democracy suffers from a contradiction between political equality on the one hand (equal votes but also equal rights, equality before the law etc. – see here and here) and economic or material equality on the other hand. The absence of the latter prevents the full realization of political and even judicial equality (equality before the law). Wealthy persons have more means (such as money, time, education etc.) to inform themselves, to lobby, to influence, to get themselves elected, to defend themselves in court etc. A merely formal principle such as political equality loses much of its effectiveness when some can use their wealth to control political debates and decisions. Even more so, political equality, democracy and equal human rights (not only the right to private property) serve to cover up, justify and even maintain material inequality, exploitation and class rule in a capitalist society.

Real material equality and therefore also real political and judicial equality can only be brought about by an anti-capitalist revolution which brings down the capitalist system of property along with the legal and political tools that are used to protect this property. Material redistribution is not enough because it does not affect material inequality in a substantial way. It only provides a minimum of basic goods. The remaining material inequality still affects political equality. Democracy is self-defeating. It can never deliver what it promises because it does not go far enough. It can only give people formal instead of substantial equality. Elections, rotation in office, economic rights etc. are superficial phenomena without effect on the deeper economic processes of exploitation and class rule. Democracy must therefore be replaced by something better.

Marxism claims that there can only be real political equality and real equality of power when the most important goods – the means of production – are the equal property of all citizens. In all other cases, the rich will have more opportunities to benefit from political participation and judicial protection. Equal rights will lead to an unequal outcome, and this is intentional.

Much of this is, of course, correct. Wealthy groups can and do use elections and human rights to pursue their interests, often at the expense of less fortunate groups. They may even use democracy to maintain exploitation. They can speak better thanks to their education; they have a better knowledge of the ways in which to defend interests; they know their rights; they have friends in high places, etc. That is why compensating measures have to be taken, not only in order to respect economic rights, but political rights as well. By way of these measures, the state redistributes wealth from the rich to the poor, in order to grant the poor more political influence and not just in order to satisfy their basic needs. Other measures enhance the independence of political parties with regard to wealthy pressure groups (for example public instead of private funding for political parties).

It is clear that we are not dealing with a potentially fatal argument against democracy. Wealth causes political inequality everywhere, not just in a democracy. Democracy and human rights are in fact the only solution to the problem of the unequal political result of economic inequality. Democracy and human rights are not merely formal. Equal voting power, equality before the law and equal rights do not cover up and do not maintain the social division between rich and poor. Democracy does not hide divisions; it shows them and it shows them in a better way than any other form of government. And because it allows divisions to become public, it offers the best chance of eliminating or softening unjust divisions. Democracy does not only serve the interests of the wealthy classes. Poor, exploited or oppressed groups also benefit from freedom of expression, from the election of their own representatives and from the possibility to claim rights (economic rights, for instance, equalize political influence because they create leisure time which can be spent on politics). Even the bare fact of being able to show an injustice is an advantage in the struggle against this injustice. If you are not able to see an injustice – and this can happen in an unfree society – then you are not aware of its existence and you can do nothing about it. Democracy at least gives poverty a voice.

The struggle against injustice means questioning society and the powers-that-be (also the economic powers). It is easier to question social relationships in a society in which political power can be questioned. Publicly questioning political power in a democracy is a process in which the entire people, rich and poor, are involved. This process legitimizes the act of questioning per se and therefore also the act of questioning injustices in society. Elections and rights are not a force against change. They create infinite possibilities, including the possibility to change economic structures.

Of course, the political and legal elimination of the difference between rich and poor (they all have an equal vote, equal rights and equality before the law) does not automatically result in the elimination of the social difference between rich and poor. However, democracy and human rights can diminish the influence of property and wealth because:

  • They give legal and political means to the poor in order to defend their interests; no other form of government performs better in this field because no other form of government gives the same opportunities to the poor (the opportunity to show injustices, to elect representatives, to lobby governments, to claim rights etc.).
  • They diminish the difference between rich and poor by way of redistribution; they allow for compensating measures to be taken, measures which help to preserve the value of political participation for all (for example redistribution, but also measures such as subsidies for independent TV-channels or for political parties which then become more independent from private wealth and private interests).

If certain divisions are made politically and legally irrelevant (by way of equal rights, equality before the law, equal vote etc.), then this is not necessarily part of a conscious strategy to maintain these divisions in real life. If it were part of such a strategy, it would probably produce the opposite of what is intended. The chances that injustices disappear are much higher in a society in which injustices can be shown and questioned, and only a democracy can be this kind of society. A society which can question itself because it can question the relations of power, is more likely to change. This is shown by the recent history of most western democracies where many injustices have been abolished by way of democracy and human rights. The labor movement, the suffragette movement and feminism would have been impossible without democracy and rights. Workers, women, immigrants etc. have all made successful use of the possibility to claim rights, to elect representatives, to enact legislation etc.

Political influence will probably never be equal for everybody (talent also plays a role, and it is difficult to correct for the effects of talent). But there is more and there is less. Democracy is probably the best we can hope for. On top of that, democracy constantly enhances the equality of influence, even though every victory creates a new problem. The Internet, for example, will empower many people and will enhance political equality, but it will also exclude many other people, namely those without the necessary computer skills or without the infrastructure necessary to use the Internet on an equal basis. It can become a new source of political inequality. We will have to finds ways in which to equalize the access to and the use of the Internet because we want to maintain or increase political equality. In the meanwhile, however, a new kind of inequality should not make us lose sight of the enormous progress for equality which the Internet allowed us to achieve. Many people, who today use the Internet to participate in politics, never participated in the past.

Why Do We Need Human Rights? (5): Property Rights

Private property often does not have a good press. It’s unequal distribution has often been criticized. However, there is a recognized human right to private property (or, more specifically, the right to legal protection of private property and the right to use it freely) and this right is important for different reasons.

First of all, private property is a means to protect of the private space. Without private property, without your own house or your own place in the world, and without your own intimate and personal things, it is obviously more difficult to have a private life. The four walls of your private house protect you against the public.

Without private property, there is no private world (another example of the indivisibility and interdependence of human rights).

Just as there is no light without darkness, there is nothing common to all people and no public space without private property. So private property protects publicity, commonality etc. Independence, self-reliance, autonomy, and therefore, also freedom, are important values, and these values rely heavily on private property.

Private property is also important for the creation and maintenance of relationships. You have your own house and your own place in the world, but not in the world in general. You live in a particular world, in a very concrete social context of friends, enemies, neighbors and other types of relationships. A place in the world is always a place in a particular community, even if you have to transcend this community now and again.

Furthermore, property is an important tool in the creative design of your personality, especially, but not exclusively, when you are an artist.

Finally, it is obvious that without private property there can be no help or generosity. Generosity and the absence of egoism are important for the preservation of a community.

The right to private property, and in particular, the right to your own house, is linked to the freedom to choose a residence, which again is linked to the freedom of movement (again another example of the indivisibility of human rights).

The right to private property is, just as most of the other human rights, a limited right. There can and should be redistribution of private property from the rich to the poor, if other human rights of the poor suffer as a consequence of insufficient private property (for example, the economic rights of the poor). Taxation and expropriation, however, should be used carefully, in view of the numerous important functions of private property. The more property a state acquires, the weaker the citizen becomes. Weaker not only compared to the state, but also compared to fellow citizens. His fellow citizens will find themselves in a position whereby they can control and intervene in his weakened private space.

You also own your own body. Your body is part of your private property. It is something that is yours; it is the thing par excellence that is your own. It is not common to several people and it cannot be given away. It cannot even be shared or communicated. It is the most private thing there is. Owning your body means that you are the master of it. Other people have no say in the use of your body; they should not use it, hurt it or force you to use it in a certain way. This underpins the security rights such as the right to life, the right to bodily integrity, and the prohibition of torture and slavery. It also implies the right to self-determination, and therefore, the right to die. You carry prime responsibility over your own body and life.

The property of your body can justify private property of material goods. The power of your body and your labor is incorporated in the goods you produce. By working on an object, you mix your labor with the object. If someone wants to take this object away from you, he also takes away your labour, which means that he takes away the power of your body. He therefore uses your body, which is incompatible with your right to possess your own body. See John Locke for a more elaborate exposition of this argument. If man owns his body, he also owns the power of his body and the objects in which this power is incorporated, to the extent that he has not stolen the objects. This can also be used as an argument in favor of some form of communism.

The right not to be a slave is the negative version of the right to possess your own body. Those who commit slavery (but also those who steal) act as if the bodies of other people are their property, a property that can be bought and sold. Considering other people as your property diminishes the value and dignity of these other people. Other people should not be considered as a means.

Economic Human Rights (4): Taxation

What if different kinds of equality contradict each other? For example equality before the law on the one hand (laws must be equal for everybody and should not discriminate) and material equality as promoted by economic rights on the other hand.

Material equality is often promoted by way of taxation based on legislation. The purpose of taxation is the redistribution of property. The problem is that redistribution only benefits one group of people and harms the interests of the rest of the population. Taxation laws do not seem to be equal for everybody and do not have the same result for everybody. It seems as if they discriminate against certain people. A wealthy person can claim that laws must be the same for everybody and that a law which forces one person to give and allows another to receive is illegitimate. A law against murder does not, at the same time, force one person to abstain from murder and allow another person to murder. So why should a law on taxation be allowed to discriminate?

First of all, there is no reason to believe that the principle of equality before the law is an absolute principle. It must be possible to make trade-offs between principles. If one principle – for example equality before the law – does serious harm to another principle – for example material equality – then it may be acceptable to sacrifice or limit one principle for the sake of another. Sometimes, one has to make a choice and one has to establish priorities. This goes both ways. Too much attention to material equality can be counteracted by way of the principle of equality before the law.

However, it may not be necessary to limit the principle of equality before the law. Taxation laws do not discriminate, at least when we define discrimination as giving something to one person and denying it to another without good reason. Economic rights indeed give something to one person and not to another. Even more so, they take away something from one person in order to give it to another. However, the former person is not denied the thing that is given to the latter. He or she has and continues to have the same thing as the one given to the latter. The consequences of taxes are equal for everybody because they make sure that everybody has the same minimum of material means. Taxation laws do not cause discrimination or inequality. On the contrary, they are designed to eliminate discrimination and inequality, not only at the level of material well-being but also at the level of political influence, because material inequality causes political inequality.

We have discrimination when a law only benefits one group of persons and when there is no good reason why other persons should not benefit. It is clear that there is no good reason why wealthy people should benefit from taxation laws in the same way as poor people, except of course when they themselves become poor. Everybody can be in a position in which he or she needs taxation laws.

The right to free speech does not benefit everybody in an equal way either. Some people gain more from this right than other people. A colored person suffering from discrimination needs this right more than a white, middle-class person without political worries. However, there is no reason to claim that this right contradicts the principle of equality before the law.