Self-Defeating Human Rights Policies (6): The Social Effects of Incarceration

[T]he effects of [the] change in the imprisonment rate [in the U.S.] … have been concentrated among those most likely to form fragile families: poor and minority men with little schooling. Imprisonment diminishes the earnings of adult men, compromises their health, reduces familial resources, and contributes to family breakup. It also adds to the deficits of poor children, thus ensuring that the effects of imprisonment on inequality are transferred intergenerationally. … Because having a parent go to prison is now so common for poor, minority children and so negatively affects them, the authors argue that mass imprisonment may increase future racial and class inequality — and may even lead to more crime in the long term, thereby undoing any benefits of the prison boom. U.S. crime policy has thus, in the name of public safety, produced more vulnerable families and reduced the life chances of their children. (source, source)

This is an example of a self-defeating human rights policy: in an attempt to improve the protection of security rights and property rights of a population, a policy of increased incarceration rates has an adverse effect on the rights of the incarcerated, their families and children, and possibly even society at large (as increased inequality resulting from high incarceration rates among society’s most vulnerable groups will perhaps lead to more crime – although we can’t assume that increasing poverty and inequality will automatically provoke those who are impoverished because of incarceration to resort to crime).

Terrorism and Human Rights (28): Torture and the Ticking Bomb

In 1987, a judicial commission of inquiry headed by former [Israeli] Supreme Court Justice Moshe Landau had reported that “moderate physical pressure” [by the Israeli General Security Services G.S.S.] was defensible in cases in which an interrogator “committed an act that was immediately necessary” to save lives from grave harm. Israeli human rights organizations had monitored G.S.S. interrogations and concluded that some eighty-five percent of Palestinians interrogated had been tortured – subjected to methods almost identical to those currently being used in American military detention – and questioned whether such an enormous percentage of detainees were indeed “ticking bombs”. If those being tortured were all “ticking bombs”, why, asked an Israeli human rights organization shortly before the Supreme Court hearing, did interrogators take weekends off? “The lethal bomb ticks away during the week, ceases, miraculously, on the weekend, and begins to tick again when the interrogators return from their day of rest.” (source)

Whatever you think about the persuasiveness of the ticking bomb argument in favor of torture, or even it’s relevance to actual cases of torture, it’s difficult not see the risk of a slippery slope, especially given evidence like this. 

The Causes of Human Rights Violations (19): Ideology

From Reinhold Niebuhr’s Moral Man and Immoral Society:

Since inequalities of privilege are greater than could possibly be defended rationally, the intelligence of privileged groups is usually applied to the task of inventing specious proofs for the theory that universal values spring from, and that general interests are served by, the special privileges which they hold.

That’s the basis of trickle down economics which is a theory about how inequalities ultimately benefit everyone. It’s also the basis of tax schemes such as a flat tax that limit forced redistribution, because the invisible hand will redistribute wealth or make it trickle down automatically.

And, when trickle down is discredited and when it turns out to be difficult to prove that inequality is a universal value, we hear that inequality isn’t as big a problem as it seems, and that this is the land of opportunity where even people who are on the wrong side of inequality can make it through hard work and discipline. Even Obama seems to believe this, as is clear from his inauguration speech. That’s a classic case of the anecdote turned into a “scientific” law. Data show that social mobility isn’t what the American Dream dreamers think it is. Implicit in this story is that existing inequalities are the sole responsibilities of individuals who haven’t made diligent use of the many opportunities this land has generously provided them. Discrimination, injustice, greed and lack of compassion are obscured as causes of inequality.

In reality, inequalities are indeed greater than could possibly be defended rationally, in the words of Niebuhr. The defense based on trickle down economics has failed, as has the defense based on the claim that inequalities are the sole result of individual choices and a lack of response to opportunities (this defense completely rejects effects of discrimination, which seems to be misguided).

However, it’s not because inequalities are greater than they should be that all inequalities are wrong. Some inequalities are unavoidable or even valuable. We do want Einsteins and Picassos. Society should reward merit. We all benefit from the recognition of exceptional individuals. Nietzsche for example rightly protested against the modern habit of cutting everyone down who dares to stick his head up. Equality of outcome is in many respects distasteful. And apart from the valuable inequalities, there are unavoidable inequalities. Some inequalities that are the result of the “lottery of birth” are impossible to correct: some people are born with more talent than others or with talents that are more appreciated in the economic or cultural market; and there will always be people who are born in privileged families.We wouldn’t want to engage in genetic engineering in order to redistribute talent, and neither would we be willing to redistribute children across families (at least not for the purpose of equality of opportunity).

Other aspects of the lottery of birth, however, are more difficult to defend. Why should the good luck of being born in a wealthy family with educated parents guarantee you a better education, better healthcare and better economic prospects? But of course it isn’t just the contingency of your place of birth that determines your opportunities and you future place in society. Some people are pulled down by discrimination or bad luck. We justifiably don’t accept that people’s prospects in life are fully determined by their family, luck or discrimination.

Again, equality of opportunity is different from equality of outcome: most of us don’t think it’s a good idea to strive towards equality of outcome in most spheres of life. We’re quite happy to accept that some people earn less money, have less vacation time, have lower social status and recognition levels and have more uncomfortable, dangerous, or physically draining work etc. What we don’t accept is that those outcomes are predetermined by the family they happen to be born in, by discrimination they suffer or by other instances of bad luck.

The Causes of Wealth Inequality (5): Globalization

Globalization is supposed to have lowered the earnings of less-educated workers by putting them in direct competition with low-wage workers around the world. This competition put pressure on wages through international trade in goods and services; through the relocation or threat of relocation of production facilities to overseas locations; through competition with immigrants in local labor markets; and through other channels. …

U.S. and European workers are told that … our societies can no longer afford a generous welfare state. …

Contrary to the standard framing, which presents globalization as something that no nation can escape or even attempt to shape, we can choose the terms under which we integrate capital, product, and labor markets across countries. Over the last 30 years we have indeed “chosen” a particular form of globalization in the United States – a form that benefits corporations and their owners at the expense of workers and their communities. If we had chosen globalization on different terms, however, economic integration would not have required rising inequality. Another globalization is possible. (source, source)

So globalization, as it has occurred and is occurring, causes higher inequality in the West in two ways:

• The direct competition with overseas workers who can produce at lower wages puts downward pressure on wages in the West, especially for low-skilled workers at the wrong end of inequality.
• Governments in developed countries react to this competition by restricting social safety nets because the taxes necessary for the funding of these safety nets hurts the competitiveness of local businesses, a competitiveness already under pressure from low-cost labor in the developing world. Less generous safety nets obviously also have a negative effect on inequality.

If these effects are real, perhaps they can explain the decline of manufacturing in many developed countries.

However, I’m not sure this pressure on wages is real and significant (I’ll try to find some data), and we also shouldn’t dismiss the benefits for low-wage workers in the West of cheaper products. This particular result of globalization can offset the possible negative wage effects of wage competition.

Also, I’m not sure governments in the West are actively attacking safety nets (here it says they haven’t during the last decades, but it seems that the recent economic crisis has convinced some to start cutting benefits). And finally, we should remember that inequality isn’t just a national problem. The inequality between countries is just as, if not more, important. And globalization has had a beneficial effect on inter-country inequality because it has redistributed wealth from rich countries to poor countries. For example, it’s hard to imagine how China could have had the same success in poverty reduction without globalization. The question is of course whether this redistribution had to come from low skilled workers in the West, rather than from their more wealthy fellow citizens. The fact that it did come, however, was undoubtedly beneficial to the poor in the receiving development countries.

The Causes of Wealth Inequality (4): Technology

[T]he diffusion of computers and related technology in the early 1980s steadily increased the demand for skilled workers relative to less-skilled workers, driving up the wages and incomes of more-educated workers and depressing the wages and incomes of less educated workers…

However, the technological explanation removed policy, politics, and power from the discussion of inequality, by attributing rising economic concentration to “technological progress,” a force that could be resisted only at our peril. (source, source)

Indeed, taken in isolation, this explanation obscures more than it reveals. To the extent that it reflects reality – and I think to some extent it does – we’ll still have to ask ourselves why there’s such a wide and growing distance between people with and without skills: why can’t we educate more people so that they can enjoy the wage premium of high-tech labor? Inequality isn’t just the outcome of technology but of choices regarding education, personal ones but also social and political ones.

And there’s another problem with the technological explanation of income inequality. It’s undoubtedly true that higher levels of technology increase demand for higher skilled people, and hence increases their wages (and vice versa for lower skilled people). When you combine this with the disappearance of a high number of jobs at the lower end of the wage sprectrum that are automated and replaced by computers, you end up with a strong push towards more inequality. However, this can’t explain the relatively large increase in income inequality in the U.S. and the U.K. when compared to other countries that are equally technologically advanced.

And neither can it explain why inequality is so top-heavy, in other words why the increase in income is concentrated in a tiny minority of individuals (the top 1% in the U.S.) whose skills aren’t that much different from those just below in the income distribution, if at all. Alex Tabarrok offers an interesting explanation of the fact that income inequality seems to be driven by very high earnings in the very top of the distribution. It also has something to do with technology, but not necessarily with skills:

J.K. Rowling is the first author in the history of the world to earn a billion dollars. … Why? Consider Homer, he told great stories but he could earn no more in a night than say 50 people might pay for an evening’s entertainment. Shakespeare did a little better. The Globe theater could hold 3000 and unlike Homer, Shakespeare didn’t have to be at the theater to earn. … By selling books Tolkien could sell to hundreds of thousands, even millions of buyers in a year … And books were cheaper to produce than actors which meant that Tolkien could earn a greater share of the revenues than did Shakespeare … Rowling has the leverage of the book but also the movie, the video game, and the toy. And globalization, both economic and cultural, means that Rowling’s words, images, and products are translated, transmitted and transported everywhere …

Rowling’s success brings with it inequality. Time is limited and people want to read the same books that their friends are reading so book publishing has a winner-take all component. Thus, greater leverage brings greater inequality. The average writer’s income hasn’t gone up much in the past thirty years but today, for the first time ever, a handful of writers can be multi-millionaires and even billionaires. The top pulls away from the median.

The same forces that have generated greater inequality in writing – the leveraging of intellect, the declining importance of physical labor in the production of value, cultural and economic globalization – are at work throughout the economy. Thus, if you really want to understand inequality today you must first understand Harry Potter.

More on inequality.

The Causes of Wealth Inequality (3): Marital Homogamy and Declining Manufacturing & Unionization

Part of the increase [in inequality during the last decades, particularly in the U.S. and the U.K.] stems from declining manufacturing employment, part from shrinking unionization and fragmenting collective bargaining, part from heightened immigration and other aspects of globalization, and part from technological change. … [A]nother source of the rise in inequality: changes in household size and composition. Due to later marriage and more prevalent divorce, more and more households have just one adult, and hence only one potential earner. At the same time, coupling between people with similar education and thus similar earnings potential (“marital homogamy”) has increased, and the share of highly educated women who are employed continues to rise. The result of these developments is that many countries have more two-adult households with high earnings and more one- or two-adult households with low earnings than used to be the case. Lane Kenworthy (source)

The Causes of Poverty (28): Family Structure

Almost 30 percent of children [in the U.S.] now live in single-parent families, up from 12 percent in 1968. Since poverty rates in single-parent households are roughly five times as high as in two-parent households, this shift has helped keep the poverty rate up; it climbed to 13.2 percent last year. If we had the same fraction of single-parent families today as we had in 1970, the child poverty rate would probably be about 30 percent lower than it is today. Isabel V. Sawhill and Ron Haskins (source, source)

These numbers seem to correspond to intuition. It’s harder for one person to raise children than it is for two. And the risks of ending up in poverty are therefore higher. However, some caution is needed when linking poverty to family structure. Also, perhaps family structure isn’t so much the cause of poverty as its effect. And then there’s the fact that some countries, such as the Nordic European ones, have low marriage rates and high out-of-wedlock birthrates, yet they are much more egalitarian and have lower poverty rates than the U.S. (source). Part of the reason for this is the more generous welfare systems (and higher taxes ) in Nordic countries. Another part is the fact that

in the Nordic countries it’s quite common for committed couples raising children to just not be married. In the US a child whose mother isn’t married is typically growing up without his or her father being present, which isn’t the case in Sweden or Norway. (source)

“Born out of wedlock” doesn’t necessarily imply “single parent”. It’s family structure, and the presence of two parents – not necessarily “biological parents” or parents of a different sex – that helps families and children avoid or escape poverty, not formal or legal marriage status.

Unmarried biological parents in northern Europe are more likely to stay together to raise the kid than married parents in the US. (source)

This quote isn’t intended to imply that unmarried couples are better than married ones. Again, what matters isn’t marriage as such but family structure. And the focus on family structure isn’t intended to imply that all single parents are bad. Even if there’s only one parent, descent into poverty isn’t destiny. It also depends on the parent. Poverty isn’t a mechanical result of a certain family structure, but family structure does count in many cases (a poor single mother, even with the best intentions and efforts, will perhaps do worse than a celebrity divorcee). Having two parents is extremely helpful.

Yet we shouldn’t forget that poverty has many causes and family structure is just one of them, and most likely not the most important one. Hence it’s very well possible that a society with extremely high rates of single parents and births out of wedlock experiences less poverty (including child poverty) than another society where the large majority of children are raised by two biological parents and the large majority of marriages doesn’t break down.

Here‘s a graph indicating that living with only one parent certainly doesn’t condemn children to poverty.

The Causes of Wealth Inequality (2): Positive Feedback

Wealth begets wealth:

I think that perhaps the most important trend of the past thirty years is the increased importance of cognitive skills relative to physical labor. Obviously, this has been going on for more than just the past thirty years, but during the past thirty years we saw an acceleration. This has had a number of consequences:

1. It changed the role of women. Their comparative advantage went from housework to market work.

2. This in turn, as Wolfers and Stevenson have pointed out, changed the nature of marriage. Men and women look for complementarity in consumption rather than in production.

3. This in turn leads to more assortative mating, with achievement-oriented men looking for interesting mates rather than for good maids.

4. This in turn leads to greater inequality across households. It also fosters greater inequality among children. The children of two affluent parents are likely to have much better genetic and environmental endowments than the children of two (likely unmarried) low-income parents.

5. Inequality is exacerbated by globalization and technological change. If your comparative advantage is basic physical labor, you have to compete with machines as well is with workers from the Third World.

The net result is an economy that has improved considerably for people with high cognitive skills, but which has improved only somewhat for people with relatively low cognitive skills. Arnold Kling (source, source)

The Causes of Wealth Inequality (1): Wealth Begets Wealth

People who have wealth have an advantage in gathering the information necessary to increase their wealth; they have networks of other wealth holders who can improve their access to opportunities for wealth acquisition; they have advantages in gaining advanced professional and graduate training that increase their likelihood of assuming high positions in wealth-creating enterprises; and they can afford to include high-risk, high-gain strategies in their investment portfolios. So there is a fairly obvious sense in which wealth begets wealth. Mark Thoma

Obviously, income or wealth inequality isn’t a human rights violation as such, but it does engender some violations. See here.

Migration and Human Rights (21): China’s Demographic Aggression and Provocation of Racism, The Cases of Tibet and Xinjiang

If only Han Chinese inhabit Tibet, what is the meaning of autonomy? Dalai Lama (source)

The recent protests and violence by Uighurs in China’s Xinjiang province are reminiscent of the March 2008 protests in Tibet. Like the Tibetans, the Uighurs believe that they are colonized by Han Chinese who have settled in the Tibetan and Uighur provinces in large numbers, and continue to do so. (92% of Chinese are Han). As a result, the ethnic Turkic Muslim Uighurs now make up less than half of the 20m population in their province, and probably less given the tendency of official Chinese statistics to underestimate internal migration flows. This is compared to 75% in 1949. (In Tibet, the indigenous population is still the majority according to official statistics, but this is likely to change with the new train link to the province).

It is widely accepted that these migration flows are part of official Chinese government policy. Populating border regions with Han Chinese is believed to lessen separatist tensions and demands for autonomy, and is handy when it comes to expropriating the local resources. The local populations however see this as demographic aggression and an attack on their culture. If their land is taken over, so will their culture, language, traditions and religion. In Xinjiang, evidence of this is the prohibition on headscarves, the languages used in schools etc.

Not surprisingly, these policies of demographic aggression – which the Dalai Lama has called a form of cultural genocide – combined with other authoritarian policies, provoke a reaction, and unfortunately, this reaction often takes the form of anti-Han racism. (Most victims of the recent clashes in Tibet and Xinjiang were Han, although – as usual – the victims of the government’s reaction don’t get mentioned).

What is Democracy? (43): A System Characterized by Free Speech

The principle of the freedom of speech springs from the necessities of the program of self-government. It is not a Law of Nature or of Reason in the abstract. It is a deduction from the basic American agreement that public issues shall be decided by universal suffrage. A. Meiklejohn (source)

Democracy is a power struggle. The participants in this struggle have to be able to express themselves, to present themselves to the electorate, to create a distinct profile for themselves, and to make the electorate familiar with their political program. That’s one reason why democracy needs freedom of expression. The participants in the power struggle also have to be able to organize and associate in a group that is free from government control, because this allows them to gather strength and have a more influential voice. So they need the freedom of association and the separation of state and society. And for the same reasons they have to be able to meet and demonstrate. So they also need the freedom of assembly. If they want to organize, associate and assemble, it’s because they want to convince new people to join them. And they can’t do that without free speech.

Without the guaranteed right of all citizens to meet collectively, to have access to information, to seek to persuade others, as well as to vote, democracy is meaningless. Democratic rights, in other words, are those individual rights which are necessary to secure popular control over the process of collective decision-making on an ongoing basis. David Beetham (source)

The U.S. Supreme Court (SCOTUS) as well has long recognized that the facilitation of self-government is one of the main goals of free speech and the First Amendment. Take, for example, Mills v Alabama:

Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. (source)

Or Brown v Hartlage:

First Amendment [is] the guardian of our democracy. That Amendment embodies our trust in the free exchange of ideas as the means by which the people are to choose between good ideas and bad, and between candidates for political office. (source)

Or Roth v United States:

The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. (source)

There’s also Justice Louis D. Brandeis famous (concurring) opinion in Whitney v California, in which he described the democratic function of freedom of speech. According to Brandeis, every citizen has the right to

endeavor to make his own opinion concerning laws existing or contemplated, prevail. (source)

Brandeis believed, correctly I think, that free speech is necessary for democracy in three ways:

• to inform the people about the workings and policies of the government (a free press being an important part of freedom of speech)
• to inform the government of the the will of the people (an election – or “vote” – being the voice of the people)
• to allow the people to deliberate, to discuss government policy and the merits of representatives.

The Causes of Poverty (21): Absence of Human Rights and Democracy

I’m often asked what is the most serious form of human rights violations in the world today, and my reply is consistent: extreme poverty. Mary Robinson

Sustained poverty reduction requires equitable growth – but it also requires that poor people have political power. And the best way to achieve that in a manner consistent with human development objectives is by building strong and deep forms of democratic governance at all levels of society. That means ensuring that institutions and power are structured and distributed in a way that gives real voice and space to poor people and creates mechanisms through which the powerful – whether political leaders, corporations or other influential actors – can be held accountable for their actions. Mark Malloch Brown

Poverty is a human rights violation, but the fight against poverty requires the use of other human rights and democratic participation. Only the squeaky hinge gets the oil. Poor people need to express themselves; they need to organize and to get represented; they have to be allowed to engage in trade and the economy with full protection of their property rights; they need education and healthcare in order to avoid poverty traps etc.

Terrorism and Human Rights (8): Torture and the Ticking Bomb

If torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb in Times Square, torture should be used – and will be used – to obtain the information. … no one who doubts that this is the case should be in a position of responsibility. Richard Posner

During numerous public appearances since September 11, 2001, I have asked audiences for a show of hands as to how many would support the use of nonlethal torture in a ticking-bomb case. Virtually every hand is raised. Alan Dershowitz

People have come up with many arguments to justify torture, but the most famous one is the “ticking bomb argument“: suppose we capture a terrorist, and we know that he or she knows where the ticking bomb is hidden that will soon kill thousands or millions, or where and how another type of terrorist attack will take place. However, this person will only reveal the information under torture. Are we not allowed to use torture in order to get the information and save numerous lives? Are we not morally forced to torture given the enormous benefits for large numbers of people compared to the limited costs for the tortured individual?

This argument is flawed, because it is based on a number of untenable assumptions:

Assumption 1: A real-life case

This seems to be a thought experiment rather than a real-life dilemma. The example of the captured terrorist with information about a ticking bomb is unlikely to happen in real life. Law enforcement officers or military and intelligence personnel usually do not arrest terrorists or accomplices before the terrorist act takes place (usually they make the arrests afterwards, and sometimes they don’t even manage to do that). We all know that most real cases of torture have absolutely nothing to do with the example given in the ticking bomb argument.

Assumption 2: Knowledge and knowledge about knowledge

But let’s assume that it does happen, and that one is, in exceptional cases, able to arrest someone before the terrorist act takes place. For the ticking bomb argument to be valid, we have to be positively sure that the terrorist or accomplice has the information that is required for us to stop the attack or explosion to take place. How can we be sure about this? And if we’re not sure, can we start torturing this person in order to know that he or she has the information?

The latter would mean that we don’t just torture in order to get life saving information. We torture in order to know whether this person has or doesn’t have such information. It’s obvious that in this case we will torture many people who don’t have information. And if they don’t have information, we may be torturing innocent people, or at least people who, although accomplices, are not justifiable objects of torture since the argument is that torture is justified because it is necessary to obtain life saving information. These people don’t have such information, and hence their torture isn’t justified. Some other justification is required in order to be able to use torture on people who do not obviously and undoubtedly possess life saving information. This seems to fall outside the ticking bomb argument, an argument which is therefore incomplete.

And, by the way, torturing people in order to find out if they have information is the worst kind of torture: since many of them don’t know anything, they will be subject to the longest and deepest forms of torture.

Assumption 3: It works

Again, let’s assume that all of the above is irrelevant, that we do hold someone who has vital information, that we know for certain that he or she has this information, and that we didn’t have to use torture to be certain. These are already a lot of assumptions, but a further assumption of the ticking bomb argument is that torture is a efficient tool to extract reliable information. We all know that it isn’t (see here). People who are tortured say anything in order to make it stop.

And what if torturing the terrorist doesn’t make him or her speak? In that case, the ticking bomb argument also justifies torturing the terrorist’s family and children (a kind of indirect torture aimed at “convincing” the terrorist to give information). If torturing him or her is insufficient, then further options are equally justifiable. The cost-benefit analysis on which the ticking bomb argument is based justifies torturing the family. The guilt or innocence of the family, or of anybody else who is tortured, is irrelevant. What counts is that the cost of torture doesn’t outweigh the good it does, i.e. the number of lives it saves.

But this begs the question: how many lives have to be saved if the cost of torture is to be acceptable? A million? 10.000? 10? … Difficult to tell in borderline cases, but then the answer would be: at least it’s clear when we go into the really big numbers. Torturing even a few dozens of people in order to safe a million is a “no-brainer” (in the words of former Vice-President Cheney). The reality is however, that most terrorist attacks do not kill millions or even thousands.

Assumption 4: No alternative

Again, let’s accept all the above assumptions, for the sake of argument. One of the supposedly strong points of the ticking bomb argument is the lack of an alternative to torture. There seems to be nothing else one can do. But there is something wrong with the timing in the argument:

On the one hand, to represent some type of ticking bomb scenario, the timing of attack must be far enough in the future that there is a realistic chance of doing something to stop it. On the other hand, if it is so far off in the future that the loss of life can be prevented in some other way (evacuation, for instance) then the supposed “need” for torture simply disappears. (source)

Assumption 5: Exceptional

Given the urgency in the example of the ticking bomb, and given the fact that terrorists are often trained to withstand torture, a free society would have to

maintain a professional class of torturers, and to equip them with continuously-updated torture techniques and equipment. Grave dangers to democracy and to individual freedoms would be posed by an institutionalized professional “torture squad”. (source)

Torture corrupts people, and it is not farfetched to assume that a “torture squad” would infect an entire society. The squad members themselves will not remain well-intentioned, and the mere existence of such a squad corrupts morality in a society. This shows that torture in the ticking bomb argument starts as an exception but tends toward institutionalization.

Assumption 6: The Greater Good

It’s not obvious that the rights of one person can be sacrificed for the benefit and rights of others. Once you start this kind of trade off, you will quickly find yourself in a world in which it is allowed to “break some eggs if you want to make an omelet”. Terrorists also assume that they fight for a greater good and that they are allowed to sacrifice some in order to save others. Torture then puts the tortures on the same level as the terrorist.

What motivates the ticking bomb argument?

It’s not difficult to see some of the underlying motives of those using the argument. It seems to me that the dramatic force and moral clarity and simplicity of the example, even if it is very unrealistic and far removed from the much murkier and complex cases that confront us in reality, can be used by those who are in favor of torture in order to open the door and make some cracks in what is still, for many, a moral absolute (similar to the prohibition of slavery and genocide).

The United Nations Convention Against Torture, which took on the force of federal law in the U.S. when it was ratified by the Senate in 1994, specifies that

No exceptional circumstances, whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

The ticking bomb argument is intended to show that an absolute ban on torture is unwise and ultimately detrimental to the survival of a free society. Opponents of torture are labeled moral absolutists, unwilling to confront the darker sides of reality and isolated from the tough problems that people in the field have to deal with. By making it impossible to “deal” with these tough problems, absolutists endanger the nation.

Once the absolute is broken, and some forms of torture are allowed in some circumstances – and even necessary if we want to protect freedom – then those who fight for democracy and for the right of people to express their opposition to torture, are able to do their jobs and make their hands dirty.

The torturer becomes the patriot; those defending the moral values of a nation are ivory tower intellectuals unaware of the realities of life and de facto allies of the terrorists. It’s not the example of the ticking bomb that is simplistic; it’s the moral absolutism that obscures that complex choices of real-life anti-terrorism.

The obvious objection to breaking the absolute is of course the slippery slope. I mentioned above that the ticking bomb argument would allow torturing many more people than just the captured terrorist holding vital information.

The Ethics of Human Rights (13): Justice and Merit According to Aristotle and Rawls

No one deserves his greater natural capacity nor merits a more favorable starting place in society. … The natural distribution of talents is neither just nor unjust; nor is it unjust that men are born into society at some particular position. These are simply natural facts. What is just and unjust is the way that institutions deal with these facts. John Rawls

The natural and social lottery – the good or bad fortune of being born in a wealthy or poor country or social class, with or without certain talents and biological/genetic assets or liabilities – has nothing to do with justice. Justice is what people and society decide to do about these inequalities of fortune.

Obviously, Rawls and many others – including myself – believe that doing nothing about them and simply leaving them as they are, is unjust. And we believe that the reason for doing something is merit or desert. None of us deserves or merits the genes we have, the fact that we are born in a certain place or group, and the opportunities that we receive from these facts and our genes.

Merit is central to the concept of justice, at least since the time of Aristotle. I think Aristotle gave the example of a teacher and his or her pupils. Would it be just for the teacher to give all pupils an equal score, regardless of the merits of each? He says no, because justice isn’t simply about equality. Justice is giving each what he or she deserves. The best pupil would have a sense of injustice if he or she would receive the same grades as all the rest, while the worst student would not necessarily have a sense of justice.

So justice means, in part at least, that people should get what they deserve (hence the derivative use of the word “justice” in the sphere of the judiciary). Matters over which people have no control, such as the place or environment where they are born or the genes that they carry, determine their quality of life, their prospects in life, their opportunities and capabilities and their stock of resources (material and other). It follows that the distribution of prospects and capabilities is to a large extent beyond the control of individuals (not completely because we can do a lot to develop and change these prospects and capabilities), and therefore also beyond merit or desert. As Rawls puts it, we don’t deserve our starting place in society.

If merit is to play a part in the determination of whether a situation is just or unjust, we have to correct for the unequal and undeserved distribution of talents, genes and prospects linked to the places where we are born and the families in which we are born. Justice therefore requires that we help the less fortunate, those who are unfortunate to have been born in the wrong country or class, with the wrong genes or in the wrong family. Contrary to what libertarians want us to believe, justice is not merely a matter of avoiding to harm people and to make them worse off. It is also about helping them to be better off. And more specifically, helping them to be better off than they are as a result of the lottery of nature and birth.

Those who win from this lottery are under moral pressure to give to others who, through no fault of their own, have fared less well. It is in this context that economic human rights for instance have to be understood. These rights impose on the rich the duty to part with some of their riches and hand them over to the poor.

The Ethics of Human Rights (8): Mutually Advantageous Exploitation

exploitation: utilization of another person or group for selfish purposes. American Heritage Dictionary

To exploit someone means to take unfair advantage of that person. Usually, we define “unfair advantage” as somehow resulting in harm or coercion for the person who is taken advantage of. If A takes unfair advantage of B, we assume that B is harmed in some way, is forced to deliver the advantage, or is otherwise involuntary involved.

For example: A rapes B. The advantage gained by A is sex. This advantage is gained unfairly by A because the rape harms and coerces B. Otherwise it would not be rape. Rape is therefore charaterized as sexual exploitation.

However, it is possible to speak about exploitation and the taking of unfair advantage by A if A takes an action that benefits B. We can call this mutually advantageous exploitation, or mutually beneficial exploitation. A benefits, obviously, but B as well. B gains an advantage and is better off had the action not taken place, yet still is exploited.

Here’s an example to make this counter-intuitive statement more acceptable. Take the case where A and B have unequal bargaining power. A sells bread in an isolated village where the people don’t have the means to produce their own bread. A overcharges for the bread because B and friends don’t have the strength to find another seller or to wait. The sale of bread makes B etc. better off, because without bread they would be worse off. Yet A takes unfair advantage of the buyers’ condition. A exploits but doesn’t cause harm. However, A does coerce B. The transaction isn’t completely voluntary. B doesn’t have a choice.

It seems that the old maxim, volenti non fit iniuria – no injustice can be done to the willing – is still valid. Injustice implies coercion. But the other maxim, that injustice implies harm, can sometimes be wrong, unless the simple act of coercion by itself means harm.

A similar and politically more salient example would be if A were a transnational company offering to buy cacao from local cacao producers (B).

The Ethics of Human Rights (6): Human Rights and Maslow’s Hierarchy of Needs

Classic economic theory, based as it is on an inadequate theory of human motivation, could be revolutionized by accepting the reality of higher human needs, including the impulse to self actualization and the love for the highest values. Abraham Maslow

Economic theory is or was dominated by the assumption of the homo economicus, the human being as a rational, perfectly informed and self-interested actor who desires nothing but wealth and profit. It is certainly one of the achievements of Maslow that today we are all conscious of the variety and complexity of human motivation and human needs.

A human need is something that is essential to survive and to survive in a decent, happy and fulfilling manner. Maslow’s hierarchy of needs is often represented as a pyramid, with the lowest or most fundamental needs at the bottom. He distinguished 5 types of needs:

1. Physiological needs such as food, water and sleep
2. Safety needs such as security of the body, health and property
3. Social needs such as friendship, family, belonging and identity
4. Esteem needs such as recognition, self-esteem, confidence, justice and respect
5. Growth or self-actualization needs such as creativity, problem solving, art, beauty, personal fulfilment and freedom.

The assumption of the hierarchy is that the lower needs have to be met first, and are preconditions for the realization of the higher needs, although a temporary insufficiency in the lower levels will not undo the aspirations of the higher levels. For example, a surgeon who normally has no problem satisfying his or her physiological or safety needs, and instead focuses on recognition, may be forced to concentrate temporally on his or her health without sacrificing the overriding importance of recognition.

Conversely, someone who normally has problems satisfying lower level needs, will not find the resources necessary to focus on higher level needs.

Criticism of Maslow’s hierarchy of needs

The hierarchy is not strict or linear. Higher needs can sometimes become so strong that they override the lower needs: the need for recognition for example can overcome the need to survive (we’ll call this “courage”). And people do not always automatically move from one, satisfied need to a higher one. It’s not because someone’s physiological and safety needs are satisfied that he or she necessarily strives towards recognition or self-development. The latter needs are very weak for some people, just as they can be overriding for others.

Also, how do we determine that a particular need is “higher” than another? Doesn’t this imply subjective judgment? Why would hedonism for example be inferior to self-development? I agree it is, but that’s just my subjective preference. I have no way of proving to a hedonist that he or she is wrong.

Some needs can also become too important, at the expense of other needs. In the American culture for example one can observe that recognition (“fame”) is given way too much attention, and to a certain extent the physiological and safety needs are reduced to a matter of individual responsibility. In Islam, there is an exaggerated focus on respect and honor, and’a0too little attention’a0is given to’a0self-development and freedom.

Maslow’s hierarchy of needs and human rights

This indicates that a strict, universal hierarchy among human needs does not exist. But while it is certainly impossible to offer a fixed hierarchy or even classification of ever-changing needs in an ever-changing society, the model of Maslow offers some advantages. Especially its relationship to the issue of human rights is interesting.

First of all, one could claim that all human rights violations are caused by conflicts between human needs, between one type of need for one person and the same need for another person (e.g. food or safety), or between different types of needs for different persons (e.g. the needs of justice and the needs related to the safety of property).

This is not completely correct because many rights violations have other causes: outright evil, unintended consequences of actions, structural or institutional causes, self-inflicted causes etc. But it remains useful to see rights violations in the light of needs. However, one shouldn’t expect too many useful results from this approach. How to quantify which needs are causing which violations or conflicts? Or to quantify which needs would be met when respecting a particular human right?

Secondly, there is a hierarchy in the system of human rights that can be linked to Maslow’s hierarchy of needs. There are different types of human rights, and one can claim that respect for some types of rights is a precondition for respect for other types. In this post I outlined the argument that social and economic human rights, which are rights that give people the opportunity to fulfill their physiological and safety needs, are necessary prerequisites for the exercise of freedom rights, which are rights that are more focused on people’s social, esteem and growth needs (and some safety needs as well such as bodily integrity, property and life).

However, things are not as simple as that. Here I argued that freedom rights and even political rights can help to meet physiological and safety needs. Furthermore, it is far fetched to describe some of the purposes of some human rights as “needs”: is equality or justice a need? Or is it rather a “value”, something that is important in our lives but not quite a “need”?

The Causes of Human Rights Violations (10): Prejudice According to Allport’s Scale

People who are aware of, and ashamed of, their prejudices are well on the road to eliminating them. Gordon Allport

Gordon Allport, a psychologist, created Allport’s Scale in 1954. It’s a measure of the manifestation of prejudice in a society. The scale contains 5 stages of prejudice, ranked by the increasing harm they produce.

Stage 1: antilocution

Antilocution (“speaking against”) means making jokes about another group,’a0but also’a0the expression of hateful opinions. In the former case it’s also called derogatory speech, and in the latter case it’s called hate speech. Both cases can be examples of prejudice, prejudice in the sense of an opinion reflecting negative stereotypes and negative images based on preconceived judgments rather than facts.

Antilocution is often believed to be harmless (“sticks and stones will break your bones but names will never hurt you”), but it can harm the self-esteem of the people of the targeted group, and it can clear the way for more harmful forms of prejudice. The line between violent words and violent acts is often very thin. The self-image of a group can be hurt, which can sometimes become a self-fulfilling prophecy.

Stage 2: avoidance

People in a group are actively avoided by members of another group. Harm is done through isolation and by preparing the way for more harmful acts. Xenophobia, or the fear of foreigners or strangers or of that which is foreign or strange, results in exclusion.

Stage 3: discrimination

A group is discriminated against by denying them equal access to opportunities, goods and services. Discrimination is intended to harm a group by preventing it from achieving goals, getting education or jobs, etc.

Stage 3b (added later): subtle aggression

This is an assumption of hierarchy, particularly hierarchy of power, an assumption that somebody has less knowledge because of their age, gender or race or other characteristics and that these people can be excluded in some way.

Stage 4: physical attack

This has become known as hate crime. Groups are the victim of vandalism, the burning of property or violent attacks on someone’s physical integrity such as lynchings, pogroms etc.

Stage 5: extermination

The extermination of a group through genocide, ethnic cleansing etc.

Human Rights and International Law (9): Impunity

I deeply hope that the horrors humanity has suffered during the 20th century will serve us as a painful lesson, and that the creation of the International Criminal Court will help us to prevent those atrocities from being repeated in the future. Statement made by Luis Moreno-Ocampo on the occasion of his election as first Prosecutor of the International Criminal Court by the Assembly of States Parties in New York on 22 April 2003.

Many gross violations of rights such as genocides, state oppression, torture etc. are committed by the political class of a country, and in particular by the political leaders. And if they don’t personally dirty their hands, they organize, order, facilitate and protect the executors. They view rights violations as a necessary element in the exercise of power.

For many reasons, legal and practical, these leaders often enjoy impunity, meaning literally “without punishment”. The “Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity” describes impunity in this way:

The impossibility, de jure or de facto, of bringing the perpetrators of violations to account ’96 whether in criminal, civil, administrative or disciplinary proceedings ’96 since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims. (source)

Reasons for impunity

Here are some of these reasons for impunity:

1. Self-Preservation

A first reason for impunity is the fact that the perpetrators are in power and have subjected the justice system and the judiciary to their command. They have, in other words, destroyed the division of powers or failed to institutionalize it. Because they are so powerful, most of them die in the saddle and only have to fear a Higher Judge.

But some do not and end their reign (or see it ended) during their lifetime. But even then they manage to protect themselves. If they still have enough influence to stay in the country, they can either negotiate immunity or amnesty (take the case of Pinochet), or they have enough friends in high places to dispense with such formalities (take Deng Xiaoping, the butcher of Tienanmen).

2. The solidarity of tyrants

If their exit from power is somewhat acrimonious, they may have to flee to another country where a friendly dictator will do everything to avoid a precedent of justice and will harbor the criminal until the end of his days (take Karadzic). How beautiful solidarity can be.

3. The law

Sometimes the national justice system can’t help, and at other times the international solidarity of tyrants hinders an otherwise able and willing justice system. Also the law can come to the rescue. State functionaries (sometimes even former functionaries) claim to enjoy legal immunity in national or even international law for acts carried out while in office. Individual perpetrators hide behind their states. Heads of state or leading functionaries are said to represent their states and all their actions are “acts of state”, and therefore the state is responsible for these acts.

Lower ranking officials are not responsible either, because they can hide behind the “Befehl ist Befehl” principle. They cannot be punished because they follow orders from people who themselves are not responsible either.

Only by transcending these principles of immunity and command can individuals be punished for violations of human rights and can human rights be protected (punishing states is very difficult and is not fair because it is a kind of collective punishment.) This has been the main achievement of the Nuremberg Tribunal. The Nuremberg tribunal was the first tribunal to judge the crimes of political leaders and to refuse to grant them immunity for war crimes and gross violations of human rights such as the holocaust. The charter of the fledgling International Criminal Court (ICC) also rules out defenses based on immunity:

Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person. (source)

Charles Taylor of Liberia was indicted in 2003 while still in power, and is now in the dock in The Hague. Milosevic went before him and others will follow. But they have to be extradited. Political leaders will not extradite themselves, and after they leave office they will continue to enjoy some protection at home. Taylor was arrested because he first agreed to accept exile in Nigeria.

Moreover, countries have to sign up to the ICC treaty. Zimbabwe for example has not signed up, so Mugabe will not have his day in court, unless there is a referral to the court by the Security Council. Sudanese President Omar al-Bashir is now indicted on charges of genocide, crimes against humanity and war crimes over the slaughter in Darfur, but will probably remain comfortably in his seat.

Some claim that the possibility of being handed over to the ICC after the end of their reign, forces tyrants to cling to power and use ever more violent means to do so. But then you could as well grant amnesty to all hostage takers out of fear that they would otherwise do more harm to their hostages.

4. Institutional problems

The impunity of ordinary civil servants or members of the police is often the consequence of under-developed state institutions. Judiciaries that are malfunctioning or corrupt, policemen who are underpaid or have a lack of training etc.

Impunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations. (source)

Data

The Committee to Protect Journalists has an impunity index in which countries are ranked according to the number of murder of journalists that are unresolved. More statistics are here.

The Ethics of Human Rights (3): Civil Disobedience

An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law. Dr. Martin Luther King, Jr.

Civil disobedience is non-violent and public disrespect for a law which one considers to be unjust, accompanied by a willing acceptance of the consequences of this disrespect. The purpose of civil disobedience is to highlight the injustice of a law and hence to work for the abolishment of the law. The assumption is that actions which highlight an injustice can contribute to its abolition, which is an reasonable assumption at least in a democracy. In a democracy, there should be other procedures to abolish injustices, such as representation, free speech, freedom of assembly and association etc., but no democracy is perfect and therefore a more extreme measure such as civil disobedience may be necessary. The American Civil Rights Movement, which operated in a manifestly imperfect democracy, was an example.

However, civil disobedience is a dangerous thing. Laws are important, because without laws and judges and police forces to protect them, human rights are just moral claims, unenforceable and at the mercy of those who are stronger and more powerful.

So you have to be careful when allowing yourself to defy the law. Civil disobedience is not the same thing as the freedom of conscience. You do have the absolute legal right to believe what you want and what your conscience forces you to believe. But it is another thing to be able to act according to your conscience and to break the law because of your conscience; or not to act because of your conscience, as is often the case with conscientious objectors. If you state that everything, even a breach of the law, is allowed as long as it conforms to your conscience, then you go down a very dangerous path.

The freedom of conscience is something different from the right to do or not to do something because of objections based on conscience. You may be forced to do something that goes against your conscience while retaining your freedom of conscience and your beliefs about wrong and right. You can even force yourself to act against your conscience, perhaps because of a sense of duty or because of respect for the rule of law. You only lose your freedom of conscience when you are forced to believe something, which can only happen in extreme circumstances.

Conscience as the ability to know wrong from right is a kind of self-legislation. But because this is fallible (in German they say, “das Gewissen ist kein Wissen”, conscience is not knowledge), and more fallible than common legislation (more fallible because you are alone – two people know more than one – and because you miss the opportunity to learn from discussion and arguments), it should not determine actions when it is incompatible with the laws that are valid in a well-functioning democracy. Only if the external law, as opposed to the internal law, is clearly dysfunctional or unjust as in the quote above, can there be a reason to appeal to your conscience and engage in civil disobedience.

However, civil disobedience is an individual choice, and can it be allowed that individuals decide for themselves whether a system of law is “clearly dysfunctional”? It is dangerous at least, which is why civil disobedience should be an emergency measure only. The risk of anarchy can sometimes convince us to accept a supposedly dysfunctional law or judge, even if our conscience tells us to rebel. Civil disobedience should only be tried when everything else has failed.

Human Rights and International Law (8): Real and Normative Universality of Human Rights

No doubt the commitment of many countries to human rights is less than authentic and whole-hearted. Yet, the fact of the commitment, that it is enshrined in a constitution, and that it is confirmed in an international instrument are not to be dismissed lightly. Even hypocrisy may sometimes deserve one cheer for it confirms the value of the idea, and limits the scope and blatancy of violations. Louis Henkin

Even though human rights are violated virtually everywhere, the principle that they should be defended is asserted virtually everywhere. Virtually no one actually rejects the principle of defending human rights. Susan Mendus

The Vienna Declaration of 1993, accepted by almost all states of the world (more than 170), affirms that the universal nature of human rights is “beyond question” and that these rights are “the birthright of all human beings”. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights – the two major treaties for the protection of human rights – have been signed by more than 140 countries (one of them is China). All of these countries have undertaken the legal obligation to respect human rights (including political and economic rights). The universality of human rights is a fact in positive law.

However, all we have is normative universality. Everybody or almost everybody agrees on the norm, but there is as yet, no actual universal application of the norm. Theory is one thing, but reality often struggles behind. Promises are not kept, declarations of good intent are outright lies and treaties are violated. Furthermore, it is very difficult to enforce treaties. There is no global police force or executive power and there is the principle of national sovereignty and non-interference in internal affairs.

However, theoretical or normative consensus is not useless. It means that evil is not almighty. Evil has to lie and cheat. Hypocrisy is always a compliment to virtue. There can be no hypocrisy, if virtue does not have at least some influence. Even though a declaration or a commitment often does not change reality immediately and substantially, it can be referred to when yet another dissident is put behind bars. If a state violates a treaty, it will have some difficulty explaining why it has done so, why its actions contradict its words, why the situation supposedly warrants exceptional measures deviating from a self-imposed rule, and why these “exceptional” measures are a part of everyday life for many citizens.

What is Democracy? (26): Democracy or Experts?

The proper judge of the expert is not another expert, but the user: The warrior and not the blacksmith for the sword, the horseman and not the saddler for the saddle. And evidently, for all public (common) affairs, the user, and thus the best judge, is the polis. Cornelius Castoriadis

The best method of choice is to choose experts by their success. The best experts to choose are the ones whose bridges have not fallen down. In this the more views about what is actually happening, or has happened, the better. Dictators or oligarchies are more insulated from what is going on than the people at large. To find out whether the people have actually been fed, the best people to consult are the people themselves. Ross Harrison

A frequently heard argument against democracy is that the job of governing requires expert knowledge. The government is better left in the hands of experts. The “populace” has other things to do than investing in the knowledge necessary for governing. I’ve mentioned this argument in my post on Plato.

Now, let’s leave aside for a moment the obvious objection against this argument – that many acts of government have nothing to do with knowledge but are rather a matter of judgment, values, personality, character, conviction, courage etc. All things in which no one is an “expert”.

Let us grant that certain parts of the act of governing are better left to experts with the appropriate knowledge, for example the management of the road and bridge infrastructure as in the quote above. But even though the people sometimes need individuals with expert knowledge in places of government, it is up to the people to choose and judge the experts and the result of the experts’ work, because this kind of judgment requires as much information on what is happening as possible.

It is wrong to say that you always need an expert to judge an expert. The role of experts must always be integrated in and subject to a democratic system. Experts should only play a supporting role. They use their knowledge and truth to assist the people, often at the level of means and not at the level of goals.

First, there has to be a decision on whether or not to build a bridge and only then can the experts come into play. The decision to build a bridge is not only based on facts, mathematics, if-then calculations etc. Values and interest play an important part (for example, ecological values). It is up to the people to decide on their goals, and when values come into play there often is no knowledge available to do this. They decide if they need a bridge and they determine which values will be served by having a bridge and which other values can possibly be harmed by the bridge. These value-questions will rarely be the consequence of knowledge and truth. They cannot, therefore, be left to experts.

In politics, values are more important than truth or knowledge. I do not think that there can ever be a certain answer to the question whether a particular bridge ought to be built or not, whether dishonest asylum seekers ought to be expelled or not, whether education has to continue until the age of 18 or not, etc. This kind of decision will be based on discussion, debate and arguments, not on truth. Once there is a decision on these questions, we can leave the technical aspects to the experts: how do we expel dishonest asylum seekers, which techniques do we use, what is the planning etc. It may be possible to find elements of truth and knowledge at this level, in which case we may need experts. But it can happen that these techniques again give rise to value questions (for example, the use of stock cars for the expulsion of dishonest asylum seekers).

What Are Human Rights? (16): Limited Rights That Need to be Balanced Against Each Other

Genuine tragedies in the world are not conflicts between right and wrong. They are conflicts between two rights. Georg Wilhelm Friedrich Hegel

Some rights can cause violations of other rights or of the rights of others, which is why rights have to be balanced against each other.

In specific instances of rights that come into conflict ’97 for example the right to free speech and the right to privacy ’97 a judgment has to be made about the priority of one right or the other. The decision can be made by a judge, but also by the legislator. There can be laws that limit one right for the sake of another. The phrasing of human rights articles in constitutions and treaties often provides the possibility of such legal limits.

These limits are an almost daily occurrence, even in a perfect system. The system of human rights is not a coherent and harmonious whole.

Libel or expressions of racial hatred, for instance, are often illegal, and with good reason. Expressions of hatred are not only insulting (people should be able to live with insults); they can also lead to discrimination or even physical harm. It is a thin line between aggressive words and aggressive actions.

The problem of course is how to decide between rights. On what grounds do we give priority to one right or the other? Only if we have a rule for this can we distinguish between legitimate and illegitimate limits on rights, or better between limits and violations. Part of the rule could be that some rights are clearly absolute. It seems unacceptable to kill someone, even if doing so would allow us to protect some other right of some other person. Limits on the right to life will then never be legitimate and this right should always have priority and can in turn limit other rights.

However, this rule leaves most problems of conflicts between rights unsolved because most rights are not absolute. One cannot always avoid moral, philosophical and hence contestable reasoning when taking a decision between rights. Some subjective judgment on the harm we would inflict when limiting one right or the other might help. In the case of a journalist who divulges intimate details about the private life of an actor, what would be the harm inflicted on the journalist when we limit his or her right to free speech? Probably less then the harm he or she inflicts when limiting the right to privacy of the actor.

Again, a judgment may not always be as easy as in this example. Deciding between rights remains a difficult matter and one that is better left to professional judges.

Why Do We Need Human Rights? (8): The Harm Principle and the Freedom to Damn Yourself

The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right… The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign. John Stuart Mill

This is the so-called “harm principle“, for which Mill has become famous. In other words, people have the right to “damn themselves”, as long as they don’t hurt others in the process. If being an alcoholic or drug addict is part of a person’s vision of the good life, and if it doesn’t make him beat his wife or children, steal from others etc., then no government should intervene.

Obviously, this is limited to people who act rationally and are sane. Who, in other words, know the consequences of their actions, and then primarily the consequences for themselves. In some cases it must be possible to ignore someone’s desires for the sake of his or her own well-being. Some people have to be coerced for their own good because they fail to understand and to pursue their good or their interest autonomously. I’m thinking of children for example. No one would sincerely believe that we would hurt their freedom if we allowed them to engage in unsafe sex or to abandon their studies. They cannot assess the consequences of their actions and the harm they inflict on themselves.

In general, however, we should allow people to decide for themselves, to determine their own way of life and their own interests, as long as their choices don’t impact other people. We should do so even if we believe that the people in question have chosen a wrong, inferior or offensive way of life and harm themselves as a consequence of the way in which they understand their interests.

We can, of course, advise people and try to convince them, but we should be very careful if we want to impose a way of life on people, no matter how reasonable and beneficial this way of life seems to us. What is best for me is not necessarily best for everybody. Most people value the possibility to decide for themselves. It is much more dangerous to enact laws that only deal with people’s own lives than it is to enact laws that deal with social relations.

Even if the state can encourage or force people to pursue the most valuable ways of life, it cannot get people to pursue them for the right reasons. Someone who changes their lifestyle in order to avoid state punishment, or to gain state subsidies, is not guided by an understanding of the genuine value of the new activity. … We can coerce someone into going to church but we will not make her life better that way. It will not work, even if the coerced person is mistaken in her belief that praying to God is a waste of time, because a valuable life has to be led from the inside. A perfectionist policy is self-defeating. It may succeed in getting people to pursue valuable activities, but is does so under conditions in which the activities cease to have value for the individuals involved. If I do not see the point of an activity, then I will gain nothing from it. Hence paternalism creates the very sort of pointless activity that it was designed to prevent. We have to lead our life from the inside, in accordance with our beliefs about what gives value to life. Will Kymlicka

That is why we can only propose the “good way of life” (if we have an idea of what it is) and argue for it (and we need democracy and human rights to do that). Except in very exceptional cases, we should not impose this way of life and we should accept other ways of life, not because these ways of life are better, but because they are other people’s autonomous choices. The good way of life should be led from the inside. It should be a choice, a conviction, not something that is imposed from the outside. If your life is not your choice, it can never be good.

The Causes of Poverty (7): Shame

The poor man’s conscience is clear; yet, he is ashamed … He feels himself out of the sight of others, groping in the dark. Mankind takes no notice of him. He rambles and wanders unheeded. In the midst of a crowd, at church, in the market … He is in as much obscurity as he would be in a garret or a cellar. He is not disapproved, censured, or reproached; he is only not seen … To be wholly overlooked, and to know it, are intolerable. John Adams

Poverty is not only an economic problem. It creates shame for those who suffer from it. For example, a study of a food emergency program in Kinshasa, Congo, found that it failed in part because people didn’t come forward to claim the food. They were ashamed. Coming forward would have meant admitting failure, failure as self-sustaining beings and as care-takers for their children. They don’t see the external causes of their poverty, such as war, government policies, climate change etc.

Migration and Human Rights (3): Refugees

A refugee is an involuntary migrant or a “push-migrant”. It’s the situation in the home country – usually war, famine or persecution or a combination – which forces or pushes him or her to migrate abroad, usually to one of the neighboring countries. The refugee is different from other types of migrants, such as the people who feel the “pull” of economic opportunity which, voluntarily or involuntarily (in the case of extreme poverty), drives them abroad.

Refugees who flee war, famine or oppression but do not leave their home country are called internally displaced persons.

Countries have an obligation to accept refugee on their territory. Article 14 of the Universal Declaration on Human Rights states that

1. Everyone has the right to seek and to enjoy in other countries asylum from persecution. 2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

However, this obligation is often rejected by countries. Countries often subject

“refugees to arbitrary arrest, detention, denial of social and economic rights and closed borders. In the worst cases, the most fundamental principle of refugee protection, non-refoulement, is violated, and refugees are forcibly returned to countries where they face persecution.” Human Rights Watch (http://hrw.org/doc/?t=refugees&document_limit=0,2)

The states that create the refugee problem also have obligations. Article 13 of the Universal Declaration on Human Rights states that

Everyone has the right to leave any country, including his own, and to return to his country.

Therefore, countries have an obligation to create or restore the circumstances which make it possible for people to return home. It’s up to these countries, with the assistance of the international community, to address the root causes that force people to flee.

 

 

Religion and Human Rights (5): Separation of Church and State

The separation of church and state is not always what it seems to be. Religion does not have to remain silent when it comes to politics. It can be a source of inspiration for politicians and it can enhance ethical consciousness and behavior. Therefore, it should not be excluded from politics. It is important to make the distinction between politics and the state. The separation of state and religion is a very important principle.
Freedom of religion requires it because without such a separation the choice of a religion will not be a free one (a state which is linked to a religion can force a religion on people or can force people to abandon a religion).

But this separation does not imply the separation of religion and politics. This distinction between politics and the state can make it easier to universalize the principle of the separation of church and state. Religious people obviously and justifiably fear the separation of religion and politics.

What Are Human Rights? (9): Horizontal Rights

It was once said that the moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; and those who are in the shadows of life, the sick, the needy and the handicapped. Hubert H. Humphrey

I completely agree with this quote, but what seems to be forgotten is that human rights not only depend on the state. Citizens have a duty to respect each other’s rights, and can do much to hurt or protect these rights. Here’s a post on the subject in relation to economic rights.

True, in many cases citizens do not have enough power to do so, and human rights then depend on judicial and political institutions that in turn depend on the protection of the state. This shows that human rights are more than just protective tools directed against the power of the state. They are part of the state. “That to secure these rights, governments are instituted among men” says the Declaration of Independence of 1776.

Of course, protection against the state is an important function of human rights, and should not be neglected. Many violations of human rights are caused by state actions. Power corrupts, and that is why we need rights to limit power. However, without power, rights are useless. Human rights limit the actions of the state, determine what a state is not allowed to do or should refrain from doing, and define those areas where the state is not allowed to interfere. But human rights also, and positively, determine what the state should do. They demand positive action and interference from the state.

For example: the state should not only avoid torturing its citizens, it should also actively protect and help those citizens who are tortured, either by fellow citizens or by some part of the state.

What Are Human Rights? (7): Universal Rights

I believe we should try to move away from the vocabulary and attitudes which shape the stereotyping of developed and developing country approaches to human rights issues. We are collective custodians of universal human rights standards, and any sense that we fall into camps of accuser and accused is absolutely corrosive of our joint purposes. The reality is that no group of countries has any grounds for complacency about its own human rights performance and no group of countries does itself justice by automatically slipping into the victim mode. Mary Robinson

The claim that the acceptance of human rights means the introduction of the culture of the West, can only be true if human rights are part of the essence of western culture and totally alien to other cultures. But this is obviously wrong. All cultures have values and principles that reflect the values embedded in human rights. And the West probably suffers just as many rights violations as any other culture. It has, for some centuries now, been struggling against certain of its own cultural practices which, from a rights point of view, are or were unacceptable.

If human rights policy is not the introduction of the culture of the West, then it cannot be criticised for being an expression of a belief in cultural supremacy and universality, at least not in principle. Some westerners may believe that human rights promotion is part of the promotion of western culture, the development of the underdeveloped, and the replacement of barbaric cultures with a superior one. But they are wrong. Only individual violators or certain kinds of practices may be barbaric, inferior or underdeveloped, and these violators and practices can be found everywhere, in every culture. A culture as such is never inferior and the equality between culture is something which human rights promoters must and do accept, first of all because violations occur in more or less equal measure in all cultures, and secondly because rights require equal tolerance and respect for diversity.

What Are Human Rights? (6): Universal Rights

All human beings, whatever their cultural or historical background, suffer when they are intimidated, imprisoned or tortured . . . We must, therefore, insist on a global consensus, not only on the need to respect human rights worldwide, but also on the definition of these rights . . . for it is the inherent nature of all human beings to yearn for freedom, equality and dignity, and they have an equal right to achieve that. Dalai Lama

Some people do not believe in the universal validity of human rights and democracy. They say that human rights and democracy are not meant for them, or are not meant for somebody else. They forget, however, that one cannot question, challenge or refute human rights and democracy for the simple reason that the act of questioning, challenging or refuting implies respect for human rights and democracy. Something that is unquestionable and irrefutable is by definition universal. Defending human rights and democracy is not the same thing as expressing an opinion, a western opinion, for example, which other cultures, states or groups can call into question. Human rights and democracy are necessary conditions for the appearance of different opinions and for debate between opinions. Hence they cannot be reduced to opinions that are not different from other opinions, or to an element in a struggle that they help to institute. They are above the level of opinion and questioning.

Nobody can question human rights or democracy without at least implicitly accepting them.

What Are Human Rights? (4): Not Given Rights

A right is not what someone gives you; it’s what no one can take from you. Ramsey Clark

Although the state plays an important part in enforcing rights, these rights are not given by the state. They exist prior to the state and hence are not a gift, a reward, or a favor granted by the state to its citizens, possibly in exchange for something else, for example obedience or the entry into a certain social class. Rights are not part of a contractual relationship.

The states of the Soviet block were notorious for this kind of reasoning. They considered rights to be a favor given by the state to exemplary citizens, to citizens who had proven to be particularly useful in the advance of communism. These citizens did not have rights but privileges, and rights were not the primary or sole objective of the state. Communist states also viewed rights in a purely functional way. Exercising human rights was only possible if this was of any use to the progress of communism. Consequently, it was impossible to enforce human rights. The state decided when and where they could be enjoyed, and when and where it could violate them.

Human rights, however, are unconditional. People have human rights because they are human beings. No other conditions are necessary.

The Causes of Human Rights Violations (3): Absence of Peace

If man does find the solution for world peace it will be the most revolutionary reversal of his record we have ever known. George C. Marshall

Peace or the absence of war and violent struggle is, of course, another important prerequisite for democracy and human rights. Human rights and the principles of democracy are heavily violated in times of war and this is even necessary. And although many human rights violations committed in the course of a war are not necessary, it is impossible to insist that all human rights and democratic principles be fully applied in a war situation. A war, because of the urgency it creates, makes it very difficult to respect certain democratic habits, such as the consultation of large parts of the population, the thorough examination of all alternatives etc. A strong, individual leadership seems better adapted to the urgencies of war. On top of that, the war effort and the war industry require a unity of vision and a high level of cooperation without dissent. Dissent can harm the struggle for survival. It weakens the effectiveness of common actions and it can be exploited by the enemy. In a state of war, society and politics take over many of the undemocratic habits of the military, such as unity of command, discipline, strong leadership, the absence of criticism, uniformity instead of diversity and so on. Needless to say that a war also means human rights violations. The war industry as well can harm human rights, for example the rights concerning free choice of labor, good working conditions etc.

A right to peace would, therefore, be very useful. Here I argue that democracy and human rights do a lot to create and maintain the peace they need for their own functioning.

What Are Human Rights? (2): Rights Before and Above the Law

You are a human being. You have rights inherent in that reality. You have dignity and worth that exists prior to law. Lyn Beth Neylon

Rights do indeed exist before and above the law. However, the role of natural rights in moral claims, important as it is, is not enough. Only the state, by way of the constitution, the laws, the judges and the police can effectively guarantee human rights and can enforce them with a good chance of success (something which cannot always be said of moral claims; power is often more successful than persuasion). We can enforce and therefore enjoy our natural rights only because the state creates and protects legal rights and gives everybody a legal personality – a legal person is an entity subject to the law and holding legal rights and duties enforceable by a judge – on top of everybody’s natural personality (the latter is the basis of the common values used as a justification of human rights).

The state gives a tangible reality to our rights because it translates our natural rights into legal rights which can be enforced by an executive and a judicial power.

What is Democracy? (2): More Than Majority Rule

If Rosa Parks had taken a poll before she sat down in the bus in Montgomery, she’d still be standing. Mary Frances Berry

Democracy isn’t perfect. The majority can very well be harmful to the human rights of some. That is why human rights can trump the right of the majority to have its will respected. Democracy is more than just a system of majority rule. After all, a tyranny can also have the support of a majority, but that’s not enough to call it a democracy. Human rights are an integral part of an ideal democracy, not only because of the rights of the minorities, but also because without human rights, a majority cannot establish its will (speech, assembly, association etc.) and cannot check if its representatives respectfully implement its will.

More on the tyranny of the majority.

What Are Human Rights? (1): Not Given Rights

The Framers of the Bill of Rights did not purport to “create” rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be preexisting. Justice William J. Brennan

Which means that governments can’t take rights away. They can violate them, but this makes our rights all the more real. It’s when our rights are respected that they become unreal. They retreat to the background and aren’t noticed anymore.