Beyond the Hand-Wavy Version of the Rule of Law

The rule of law, as opposed to the rule of men, is believed to be the best way to avoid oppression and rights violations, and rightly so. However, the rule of law, in a superficial definition of the concept, can be just as bad as lawless oppression, because a law can allow or even force people to violate rights and to harm people in such a way that they are no longer free. Governments can and often do use laws for the purpose of domination.

So, the rule of law may be no more than a cover for and an expression of the rule of man over man. Many a dictatorship tries to give the impression of respecting the rule of law by functioning according to laws and by using laws to oppress people. In fact, this isn’t completely foreign to democracies either. Think of anti-terrorism legislation and other oppressive laws that often have wide popular support (anti-same-sex marriage laws). Respect for the law is clearly not enough. The rule of law must be something more than that if it’s not to be an empty phrase.

But what should it be then? To start with, the rule of law can’t exist without a separation of powers. That seems to be a prerequisite. Laws need to be enforced against those who abuse power, and for this reason we need a locus within power strong enough to correct power.  But a separation of powers – no matter how well it functions – it’s not enough either. If there is no higher law that protects human rights, then judicial courts can’t invalidate oppressive laws or laws that violate human rights.

There is only one solution to this problem. The rule of law has to be more than a merely formal or procedural concept. Some requirements on the level of the content of the laws that are supposed to rule are necessary. We have to define the words “law” and “rule of law” in a very specific way and enforce respect for this definition by way of judicial verdicts, otherwise the rule of law will be no more than the rule of men disguised as the rule of law.

What should this definition be? Laws must be compatible with human rights – in the sense of neither allowing nor creating rights violations – and they must be equal for all. Certain more formal or procedural rules will indeed be helpful to increase the probability that we end up with laws like that, but they won’t be enough. It’s probably best, although not absolutely necessary, to have laws voted by the people or by representatives of the people (it’s unlikely that the people will accept laws that violate their rights). And laws must be reviewed by independent judges on the basis of the human rights contained in the constitution. A second legislative chamber confirming or, as the case may be, vetoing acts of legislation, may also be helpful. These are procedural rules instituting the separation of powers.

In a democracy, a law is voted by the representatives of the people and the people can always elect other legislators if they believe that their current legislators vote laws that harm their rights. This is not, of course, a solution for the minority. The majority can still vote or approve laws that oppress the minority. That is why a law must also be compatible with human rights as they are included in the constitution. The law, even if it is accepted or voted by the majority of the people, can’t be everything this majority may desire. In order to enforce the conformity between laws and the rights of the constitution, we need a separation of powers. Minorities should be able to use judicial review, and in addition could be given some kind of privileged representation in a second parliamentary chamber.

A system that enforces rules and prohibitions by way of laws, but lacks one or several of the requirements I’ve listed above, will have a hard time respecting the rule of law. The rule of law is not the rule of any law, but the rule of a certain type of law. Any other definition is devoid of meaning.

Human Rights Promotion (17): Human Rights For All? Nobody Has the Slightest Idea How

I’ve noticed this a number of times: human rights defenders’ passionate commitment to the cause isn’t matched by a concomitant knowledge of the best means available to promote the cause. In fact, no one has a f***ing clue and there’s a lot of groping in the dark.

For example, human rights activism frequently takes the legal route: vote laws, enact constitutions, sign treaties and let the courts do their work. That’s quite understandable in theory. If you want to force people, the law is often the right way to go. However, we see that the effect of human rights law on the acts of rights violators is usually very limited, if not counterproductive. This should be obvious when you understand that some of the worst rights violators are tyrannical states which have no interest in the rule of law. Enacting laws when there’s no rule of law is transparently futile (with one caveat: law can create its own culture). Even legislation in countries that do respect the rule of law is often ineffective. Case in point: there is now something called the New Jim Crow in the US right.

There’s also a lot of talk about education. If only we could educate people about human rights then the next generations would be better off. It’s a similar problem: education can only be successful in a wider environment that is stable and well willing. The invocation of appeals to honor (Appiah style) and storytelling (Rorty style) have a whiff of desperation about them. And I guess I don’t have to discuss the effectiveness of the UN Human Rights Council, economic boycotts, sanctions or diplomacy (although it does seem as if sanctions had a small positive effect in Apartheid South Africa).

Given this lack of understanding about the effectiveness of human rights promotion, it’s quite surprising that there is progress at all, and somewhat less surprising that most progress is a surprise. Poverty has sharply declined, but a lot of the decline is despite intentional efforts rather than because of them (development aid doesn’t seem to do the trick according to Easterly). Communism has disappeared, and although there are many who want to take the credit, it’s better to admit that 1989 took all of us by surprise.

So, some of the progress we see is unintentional in the sense that we intend it to happen and yet it happens despite of our intentional actions. That’s good as far as it goes: better to have unintentional progress than no progress at all. But of course it would be even better if our intentional actions were successful and if things happen because of our actions rather than in spite of them, if only because then we would be able to be more intentionally effective in the future.

It would also be better if some of our intentional efforts would stop making things worse: the US wages a war on terror but only seems to make it worse, in at least these two manners: first, the war on terror creates resentment which in turn becomes a breeding ground for future terrorists; and second, it has become increasingly clear that the war on terror leads to rights violations, and not just in the target countries.

And then there’s a type of actions situated between ineffective intentional efforts and counter-effective intentional efforts, namely those actions which are effective but which also carry a heavy cost. Slavery has been abolished in the US, but no one wanted it to be a war that did it. Bombing Serbian civilians in order to protect those in Kosovo is another example. Here we enter the difficult domain of weighing the lives of some against the lives of others.

All of this confirms how clueless we are when it comes to effectively protecting people’s rights. That’s a shame, given the importance of the cause.

More on human rights progress here and here.

What is Democracy? (67): The Form of Government That Offers the Best Protection Against Human Rights Violations

There is a clear correlation between the presence and quality of democratic government in a country and the level of respect for human rights in that country. That may sound obvious but it’s good to have some measured results. This paper for instance offers some clear evidence:

There is a substantial body of research devoted to understanding the relationship between democracy and government human rights performance. Most research centers on physical integrity rights but does not analyze the broader civil liberties encompassed by the category of “empowerment rights.” The dynamics of the relationship between the degree of democracy in a state and protection of empowerment rights might be different and improvements may take longer to emerge. This study examines the effects of democracy and democratic duration on empowerment rights scores, and it also uncovers time thresholds at which different scores are attained. The results show that regime type is more critical to the protection of empowerment rights than it is to physical integrity rights. Even in the earliest years of democracy there is a positive relationship between democracy and empowerment rights, but empowerment rights strengthen as countries gain democratic experience. …

Thus, countries with more institutionalized democratic regimes, as determined by the quality and longevity of democratic experience, are significantly more likely to respect both fundamental human rights and broader classes of civil liberties. … [A]lthough human rights protection is present in early years, it will usually be even greater after countries have had extended experience with democracy. (source)

Here are some interesting data to back this up.

The interesting thing about all this is not that there is a correlation – anyone following the news could have guessed as much. What we should care about are the reasons why there is a correlation. From the studies cited above we can see that the most important causal link is the one going from democracy to respect for human rights. In other words, there is a correlation because democracy causes respect for human rights. Vice versa may also be possible, although the argument is probably weaker. And then there may also be a hidden variable that can partially explain the correlation. For example, it may well be that prosperity and high GDP promote both democracy and human rights.

But then the next question is: how does democracy cause higher levels of respect for human rights? I guess this can happen in several ways:

  • Democracies are more likely to be systems based on the rule of law and the rule of law is necessary for the protection of human rights.
  • Democratic rulers know that they can’t get away with repression. They’ll be voted out if they try, or, worse, they’ll suffer the consequences of the rule of law, imposed on them by other branches of power in a system of checks and balances and separation of powers.
  • Democracies have systems of judicial review which allow courts to void legislation that contradicts basic constitutional rights.
  • Democracies have powerful non-violent mechanisms for dispute settlement, such as well-functioning courts. People don’t need to take the law into their own hands. Internal peace and limitations on violent behavior have beneficial effects on a number of human rights.
  • Democracy is correlated with high levels of prosperity, and prosperity makes it easier to promote respect for human rights. Rights cost money.
  • Democracies need human rights to function adequately (no democracy without free speech, free assembly, free association etc.), so they have an added incentive to respect them.

None of the above is meant to imply the following:

  1. That we can delay the implementation of human rights norms in non-democratic states. Remember the remark at the beginning that the causal link probably goes in two opposite directions and that human rights can promote democratic government. After all, if people are allowed to express themselves, they will express themselves about the workings of their government, and that is the first step towards democracy.
  2. That rights are never violated in democracies or never respected in non-democracies. It’s merely a matter of probability.
  3. That there are no elements other than democracy that promote human rights. Of course there must be. I mentioned prosperity a moment ago. Democracy is not a sufficient condition, although probably a necessary one, at least in the long run, for the full set of human rights and for the equal enjoyment of all rights by all people.
  4. That the beneficial effect of democracy on human rights is equal for all human rights or for all types of democracy. Well-developed and long-lasting democracies do better, as mentioned above, but perhaps also deep democracies, meaning democracies that provide a wide range of opportunities for democratic say.

More about the link between democracy and human rights here, here, here and here. More posts in this series are here.

Human Rights Promotion (9): Most Urgent Human Rights Policies

If you’re a political leader, a church leader or anyone else with the ability and willingness to change some people’s behavior and promote respect for human rights – to some extent that includes all of us – what should be your policy priorities? On which human rights violations should you focus? Ideally, you would like to be told something more specific than “reduce suffering and violence and enhance liberty and equality”. So here’s my attempt at something specific.

I’ll list a few domains that require urgent action. Not all of these domains are equally amenable to action, because there may be strong resistance in some quarters. Nevertheless, I consider all these domains to be equally important. I’ll list them first (and include links to older posts arguing why action is important) and afterwards distinguish between those domains where immediate progress is realistic and where it’s not. Of course, it’s not because progress isn’t realistic that we should remain passive.

  1. Promote free trade. Standard arguments for protectionism sound a lot like the Count complaining that there are beggars at the door. Protectionism may even harm citizens of the protecting country. It certainly harms producers in poorer countries. More here.
  2. Abolish capital punishment and reduce incarceration rates. Capital punishment doesn’t deliver on its promises, and even if it did it wouldn’t be acceptable. “Tough on crime” policies go beyond what is required for public safety and the rights of victims.
  3. One way to reduce incarceration rates is to end the war on drugs. Ending the war on drugs will also reduce racial discrimination because it leads to strong imbalances in incarceration rates by race, impoverishing and even destroying many black families.
  4. Abolish existing laws and practices that lead to discrimination of all types. Some laws, however, may be necessary to combat discrimination.
  5. Guarantee social safety nets through a fair and efficient system of benefits and progressive taxation – perhaps including a basic income guarantee – but also encourage private charity. Design the taxation system in such a way that it reduces income inequality.
  6. Help the poor by way of Conditional Cash Transfers.
  7. Rethink development aid.
  8. Combat malnourishment and hunger and improve the water supply.
  9. Reduce immigration restrictions. The supposed negative consequences of increased immigration are largely fictitious, and the benefits for migrants are huge. Also relax asylum rules for refugees.
  10. Improve education and healthcare.
  11. Enhance the scope of humanitarian intervention in order to avoid Rwanda style atrocities.
  12. Promote democracy, the rule of law, the separation of powers, federalism, and the separation of church and state, and improve those institutions where they already exist. Human rights are typically safer in democracies and obviously require the rule of law.
  13. Declare victory in the war on terror, but continue the capture terrorist and subject them to fair criminal trials. Abandon torture, targeted killings if alternatives are available, and extrajudicial incarceration, and limit invasions of privacy to those strictly necessary to capture terrorists.
  14. Abolish freedom-restricting laws such as those prohibiting assisted suicide and euthanasia. Relax abortion laws where necessary.
  15. Guarantee the freedom of the internet.

Now, which of these actions are realistic in the short term, and which are not? The latter part of the list, namely actions 9 to 15, seems to be the most difficult. Substantial progress is already under way for 1, 2, 4 (take the case of same-sex marriage and the repeal of DADT), 6, 7 and 8. Also, 3 may be heading in the right direction. 5 depends to some extent on the general economic climate.

It’s obviously a long list of often very difficult policies, even when we limit ourselves to those areas where progress is relatively easy. Also, in some countries, progress may be easier in some areas than in others. That’s why this list is still too general and different actors may have to choose a subset.

More on progress in the field of human rights here.

The Causes of Human Rights Violations (44): Corruption

Corruption, or “the misuse of public office for private gain”, is immoral and bad in numerous ways, but it’s not a human rights violation. At least not as such. To my knowledge, human rights law doesn’t contain an explicit right not to suffer the consequences of corruption. However, it is the case that corruption causes various rights violations. For example, it can often be viewed as a form of theft and hence a violation of the right to private property. And in the case of corruption in the justice system, the right to a fair trial is violated.

Moreover, corruption has a negative impact on GDP – mainly because it’s a tax on investment – and hence also on poverty reduction (given the correlation between GDP and poverty reduction). And there is a right not to suffer poverty. Corruption also has an impact on poverty on the level of individuals rather than countries. It’s obvious that individuals – especially those who are poor or near the poverty line – can make better use of the funds that they have to spend on bribes.

Furthermore, corruption eats away at the rule of law. Even in the most corrupt countries, corruption is usually illegal. If illegal activity becomes normal practice, the rule of law is obviously undermined, with possible consequences for judicial protection in general, including protection of human rights. The rule of law is also harmed directly by corruption, namely by corruption inside the judiciary and the police force, and this has an immediate impact on human rights. Even more seriously, corruption is associated with political instability since it tends to reduce citizens’ trust and faith in institutions. It can therefore destroy democracy, and democracy is both a human right and a means to protect human rights in general.

So, if we can agree that corruption is a cause of various human rights violations, then the question is: who is responsible for corruption and hence for the rights violations occurring because of it? I would say that it’s the government officials taking bribes (and possibly the banks safeguarding the proceeds) rather than the private persons or companies paying the bribes, at least in general. The latter would presumably prefer not to pay bribes and often find themselves in situations in which they have no choice.

Now, you could say that some corrupt officials, especially those at the lower levels of government, don’t have a choice either: without the proceeds of corruption they may well end up in poverty. Demanding bribes is then the alternative for a failed economy and a failed state. However, I think it’s fair to claim that they still have, in general, a wider set of options than many of those having to pay bribes. If you’re stopped by the police and they ask you for a bribe, it seems that your options are more constrained than the options of the police asking for the bribe. It seems easier for the police to find additional non-corrupt sources of income than it is for you to escape the demands of the police. Of course, this isn’t the case in all types of corruption. For example, a large multinational company may find it relatively easy to pay a bribe, and may have more options than the official who’s asking the bribe (and it may very well solicit the payment of the bribe in the first place as a way to outsmart competitor companies).

Next question: what to do about it? Everyone agrees that corruption is bad, and many believe that it’s bad for human rights, but almost no one seems to know how to stop it. And it is, indeed, a problem that is as old as history. One thing we could do is spell out the issue of corruption more clearly in terms of human rights. However, human rights claims by the victims of corruption are probably not very effective, since one consequence of corruption is the weakening or destruction of the judicial institutions necessary for the enforcement of human rights. In that sense, linking corruption and human rights may seem futile or at least of limited practical use.

However, human rights claims aren’t just legal claims that depend on functioning and non-corrupt institutions to be enforced. They are also moral claims and they can have some effect as such. They can be used to denounce widespread systems of corruption and thereby help to change a culture and a mentality, especially over the long run. But moral claims will not destroy endemic corruption by themselves. Countries that suffer high degrees of corruption probably need external help in institution building. Also, economic development will probably reduce corruption, given the correlation cited above between low levels of GDP and high levels of corruption. Helping countries to develop will then also help them to fight corruption.

This is an interesting talk about ways to fight corruption (the relevant part starts around the 5th minute):

More on corruption. More posts in this series.

What is Democracy? (52): Predictability or Uncertainty?

Why would this question be even remotely interesting? Well, I can see several reasons. Maybe not in the West but elsewhere in the world democracy is often rejected because it supposedly undermines predictability and hence economic performance. A strong central government that doesn’t have to worry about the next election is said to be more efficient, economically speaking, because it can apply long term planning. Talkative democracies with their frequent elections, rotation in office and often federal structures are simply unable to plan and are forced to pander to the short term interests of a lot of small groups because elections are at stake. Also, people seem to prefer predictability over uncertainty in general, not just because of the economy.

Let’s just bracket the question whether or not uncertainty is in general a bad thing, and whether or not we want to limit it (uncertainty is and always will be a fact of life so limiting it is all we could do if we decide that that is what we want). Those are not questions I’m particularly interested in since the answers can reasonably go both ways (planning can be good or bad, certainty can be comforting or stifling etc.). I’ll focus on the relationship between democracy and uncertainty. Is it true, as some authoritarians claim, that democracy promotes uncertainty? Yes, for some reasons, and no, for others.

There are indeed some forces that compel democratic politicians to favor the short term. Elections need to be won, and voters naturally value short term benefits more than long term benefits, even if these long term benefits are much larger (this is called time preference). They have some good reasons for this: maybe they think that they won’t be around in the long term (or that the probability of being around decreases when the time horizon is further in the future), or maybe they don’t believe in the long term: since life is unpredictable, especially in the long term, it’s better to count on short term benefits, even if they are small in comparison, than on large but unlikely long term benefits. If that is how voters think, then they will favor politicians who focus on the short term. Democracy therefore exacerbates life’s inherent unpredictability.

Also, voters are correct in thinking that politicians have more power over the short term than over the long term, which is another reason to favor politicians who promise short term benefits. This “short-termism” may be misguided for other reasons – especially when the short term benefits are detrimental to long term benefits (e.g. driving SUVs) – but it’s indeed to some extent a fact of life in a democracy, and one which, by definition, produces uncertainty because it makes long term planning very difficult if not impossible.

It’s also true that some non-democracies have proven themselves to be better long term planners, although most non-democracies have been short term kleptocracies that ruined their national economies. Dictatorships have also shown that long term planning doesn’t need to be benevolent: the long term planning they engaged in mostly focused on the long term survival of the ruling class, not the long term benefits of the people or of business. Predictability then means eliminating opposition and dissent. And even if prosperity is the motivation, the result is often the destruction of freedom.

Another reason why democracies are particularly unpredictable is the game of action and reaction. In a democracy, the majority has to take into account reactions of the minority and reactions of a future majority. (Democratic minorities have some power, e.g. their rights cannot be violated by the will of the majority). When people react to what you’re doing, you can never be certain that the actual consequences of your actions correspond to the imagined ones. A carpenter working in isolation can be quite sure that the table he’s making will look a lot like the one he imagined. A democratic politician will most often see things happening quite differently from the way he or she expected them to happen. The plurality of a democracy means that many different kinds of reactions can interfere with actions. As a result, there’s unpredictability. Goals will not be achieved exactly the way they were intended, or will not even be achieved at all.

A democracy does not try to suppress or eliminate reactions and contradictions. It tries to ritualize them, soften them and take the violence out of them, but it needs them. It needs conflicts, opposition, criticism, plurality, rotation etc. Democracy is a game of action and reaction that is institutionalized and accepted as an inevitable fact of life in a community with different people and different goals. It cannot exist without events initiated by some and reacted upon by others. Hence democrats embrace uncertainty and unpredictability, however unpopular this may be. They don’t accept that there is necessarily a purpose, a clear plan unfolding in history, an evolution toward a certain goal, a plan or a process that can be known in advance and implemented in a predictable way. They are weary of planning because they don’t believe that planners can have the necessary knowledge to plan and because of the tyrannical nature of planning: planning has to result in the exclusion of reaction.

However, let’s not exaggerate. Non-democracies can also be quite unpredictable, and beside the fact that short-termism isn’t an exclusively democratic vice there are other things that disprove the claim that democracy is especially bad for certainty and predictability. Democracies are rule based, and much more so than dictatorships. They favor the rule of law, which means that public policy is much less impacted by changing individuals. Governments can only do what the laws allow them to do, and their actions are therefore much more predictable. You could say: so what, they can always change the laws. True, but only within the confines of a constitution which is incredibly hard to alter. Judges in a democracy have the power of judicial review and can undo acts of legislation that violate the fundamental rules of a democracy.

This “hard-coding” of the constitution shows that a democracy, like any form of government, wants to be certain of its survival. In that sense, it needs predictability, but not predictability of policy. A democracy tries to eliminate only anti-democratic reaction and opposition, not opposition to policy. An entrenched constitution is one way it does this; asking people to promise respect for it is another way. Promises produce some certainty, a certainty and predictability based on freedom. Promises imply freedom, because a promise is only valid if it is voluntary. This kind of certainty is therefore radically different from certainty produced by the elimination of reaction. In a tyranny, everybody is certain – to some extent – that the regime will survive because nobody can or dares to react, or because indoctrination and propaganda have conditioned people in such a way that they do not even contemplate reaction. In a democracy, there is relative certainty because enough people keep their promise to respect the regime, and because there are institutions enforcing respect for the basic rules. Those promises are the rationale behind the so-called “pledge of allegiance“.

Of course, this does not mean that everything in a democracy is free and voluntary. There has to be some coercion because some people will not make or keep the necessary promises. There will be coercion, not of promises, but of reactions. Promises cannot be coerced. Anti-democratic reaction is the only type of reaction that is eliminated in a democracy. Every other kind of reaction is cultivated.

An anti-democratic reaction is somewhat of a contradiction in terms. It is because of democracy that reaction is possible: democracy softens and hence promotes reaction. If reaction becomes an activity without risk, as is the case in a democracy, then reaction blossoms. Reacting against democracy is not only ungrateful, it is self-destructive.

But apart from this predictability of the institutions necessary for unpredictable political life, it is clear that the focus of democracy is on conflict, contradictions, opposition, reactions, unpredictability and uncertainty. Freedom does not always go hand in hand with control, although on an individual level this may be the rule. An individual is free if he controls his life. But a society is not free if people try to control consequences and the future. Unpredictability does not mean that people are not free to choose their future. They are just not certain that the future will be the one they have chosen.

The freedom to react disappears when politicians want to be certain of their goals. They want to be like a lone craftsman who makes a product without much interference from other people and other goals. Society is in need of a blueprint and a makeover. Reality has to be made in order to conform to the plan or the model. It is no longer the uncertain and unpredictable result of human action and reaction but the product of a plan and of the concerted efforts to realize it. Freedom is replaced by the execution of a plan and of the orders of those who best know the plan and the means to realize it. (Arendt was one of the first to make this argument).

Politics becomes a goal producer, and is no longer the platform on which different goals can be shown, can interact and can fight peacefully for supremacy. People become a means for the realization of the plan, instruments or material for the creation of society. And if they are resistant material they are forced into line, or perhaps they are even “waste”. In any case, the application of force to the materials is necessary in order to shape them. If you want to create society, you have no other means but people. People will have to be transformed. Their thinking has to be conditioned by way of education, propaganda, indoctrination, punishment, forced labor or genetic manipulation. Perhaps even selective abortion, euthanasia or simply extermination. Some materials do not allow transformation or improvement.

However, it is far from certain that the elimination of reaction is possible. It may be counterproductive and create more reaction than initially anticipated. Plurality is probably unavoidable, and therefore uncertainty as well.

More on the future here and here. More on democracy here.

What is Freedom? (1): Three Kinds of Freedom

People usually talk about two kinds of freedom, negative and positive freedom. This common framing of the discussion about freedom is a result of the pervasive influence of Isaiah Berlin. However, this influence can be inhibiting in the sense that it can discourage other ways of thinking about freedom. Let me propose one other way.

We can, for instance, argue that there are not two but three kinds of freedom. Take the case of a business man being unfaithful to his wife. He tells her he’s going on a business trip but he’s meeting his lover instead. On his way to her, he’s not hindered in any way on his trip. There are no impediments or obstacles to overcome. His wife doesn’t try to stop him since she’s not aware of the affair. He takes the plane to see his lover and the airline cooperates in an unusually efficient way, security checks are cleared without any problems etc.

So the business man is free in the first sense of the word: freedom from external impediments. Let’s call this FREEDOM 1. It’s, in the tradition of Berlin, a negative kind of freedom.

However, the business man, while on his trip, is torn by guilt. Part of him tells him to stop and go back home. He knows that’s the best thing to do. But another part of him is driven by sexual desire and passion. The rational part wants him to be free of sexual desires because it knows that they may destroy everything that is dear to him.

So the business man isn’t free in this second sense of the word: freedom from internal impediments. He’s not free, not because of the presence of outside control, but because of the absence of self-control. Let’s call this FREEDOM 2. It’s also, obviously, a negative form of freedom in the sense that it requires the absence of internal impediments to a preferred action. (Berlin would not call this a negative freedom, but this post isn’t about Berlin, so let’s skip that).

We can also define this freedom 2 by way of the concept of “second-order desires” (following Harry Frankfurt). You are free if you can exercise self-control or self-mastery, and you can if you are able to act on your second-order desires. In our example, the businessman is free to have sex with his lover – no one forces him to have sex with her or to not have sex with her (this is freedom 1) – but he’s not free in the sense that he succeeds in acting on his second-order desire to remain faithful to his wife.

Freedom 1 is essentially a political concept, and receives most attention in political discourse. It’s the basis of concepts such a limited government, rule of law etc. Freedom 2 is usually part of discussions about psychology, personal morality and some forms of religion (such as Buddhism, which teaches that we should rid ourselves from desires). It also features in criminal justice (to what extent is a person criminally responsible for his or her acts, and to what extent is that person driven by passions, desires etc.). For this reason, freedom 2 can be likened or perhaps even equated to the concept of free will.

Freedom 2, although not political, can be reinterpreted in a political sense. Personal self-control and self-government – with the rational part of the individual taking control over the irrational and self-destructive part – can be seen as the starting point of a certain form of political freedom. Self-government is then translated from an individual notion into a collective one. If an individual wants to exercise self-government, he or she may also want to do that together with others. A society takes the model of individual self-control and uses it to exercise collective control over common matters.

Let’s call this FREEDOM 3: you’re free if, as a member of a community, you participate equally in the government of common affairs. This freedom is autonomy and democracy. One could call it a negative freedom as well, in the sense that a community, in order to govern itself, should be free from the rule of external forces (a dictator, a ruling class etc.). But even when those external forces are absent a community still needs to act together in order to govern itself. In that way, freedom 3 is not similar to freedom 2, and therefore it makes much more sense to call it a positive freedom: not merely a freedom from something, but a freedom to control a common destiny, a freedom to make your own rules and laws. (You could argue that freedom 2 is also positive in this sense, but it is much more negative than freedom 3 in other ways. And anyway I want to go beyond the positive-negative distinction here, so let’s drop that).

Freedom 3 is autonomy and democracy because it allows a community to take control of its common life. The problem with freedom 3, as already argued by Berlin, is that it can easily spill over in paternalism and become unfreedom. Rather than a collective acting together in a democratic spirit in order to govern their common affairs, we have a split in the collective: some use the split inside an individual between the rational part that tries to govern the irrational part and achieve freedom in this way (i.e. freedom 2), as a metaphor justifying a social distinction between more and less rational individuals. The former know best what is in the rational interest of the latter, and start to force the latter to act “rationally”, whatever that means (e.g. avoid adultery or compulsive gambling, live according to the communist worldview etc.). By forcing the irrational to act rationally, the paternalists make the irrational free, just like an individual who forces her irrational part to act rationally thereby makes herself free (freedom 2).

Coercively forcing an adulterer to mend his ways makes him free because mending his ways is presumed to be what he really wants (his second-order desire). So people are coerced for their own good, a good that they themselves are perhaps too blind to see.

This criticism was forcefully described by Berlin, and it remains very useful. However, I don’t think it necessarily discredits freedom 3. On the contrary, paternalism is a deviation from freedom 3, not its logical conclusion. Freedom 3 can avoid the pitfall of paternalism as long as it focuses on the mode of formation of desires rather than on their content. (See John Christman for a more elaborate version of this argument).

Freedom 3 remains important, like the other two types.

  • Freedom 1 is important because people want to be able to do what they want with a minimum of external impediments.
  • Freedom 2 is important because people often want to be able to decide rationally what they want, rather than instinctively. And rationally here means a thinking and reasonable assessment of the available options, which in turn means that you’re not forced into an option by your passions (or by your government, tradition, family etc. in which case we’re back in freedom 1).
  • And freedom 3 is important because people want to be autonomous and want to shape their common life. They don’t want their common lives dominated by a ruler or a ruling class.

If all three types of freedom are important, then none of them is sufficient by itself. Freedom 1 leaves the individual at the mercy of internal impediments and assumes – incorrectly – that the prior fixation of the individual’s volition is unproblematic. Freedom 2 shows that it is problematic. But it’s not only problematic because of the possible effect of passions; see here and here for some other reasons why the fixation of volition requires more than simply the absence of overbearing passions.

People do not simply want unimpeded action. They also want to reflect on what it is that they want. Freedom 1 is also insufficient for another reason. External impediments are often defined in a very limited way: to some who adopt freedom 1, only impediments intentionally produced by fellow human beings count, which means that unintentional impediments such as economic forces or non-human or natural impediments such as a handicap do not make people unfree (they merely make them “unable” to do something). That seems to me very restrictive. What difference does it make that my freedom of movement is impeded by an authoritarian government rather than by my poverty or disability?

Freedom 1 is insufficient because it can’t produce freedom 2, but also because it can’t produce freedom 3. It can’t be, by itself, the basis of democratic government. It’s perfectly compatible with some forms of limited dictatorship, on the condition that this dictatorship is relatively non-interfering. However, one could argue that a democracy – freedom 3 – is the best way to protect freedom 1 since a democracy protects human rights, and human rights limit external impediments.

Freedom 1 is insufficient, but so is freedom 2. Freedom 2 – the absence of internal impediments – can’t possibly produce freedom 1. On the contrary, it’s often a reaction to the absence of freedom 1. When faced with numerous external impediments, it can be reasonable to retreat into yourself and cut back your desires (like a Buddhist). The other option, going against the external impediments that block your desires, can be very costly, especially when the impediments are caused by your dictatorial government.

Freedom 3 as well is insufficient, even though it promotes freedom 1. After all, it doesn’t necessarily promote freedom 1, especially not for democratic minorities. And it’s completely unable to promote freedom 2.

Why Do We Need Human Rights? (18): The Economic Case Against Human Rights

Some more comments following two previous posts on the topic (see <a href="http://here and here).

Do human rights promote or depress economic growth and prosperity? (I’ll focus on non-political rights for the moment because political rights – i.e. democracy – have very specific effects on the economy). The economic case against human rights could go something like this. Economic growth would be enhanced by different policies and actions that imply violations of human rights. E.g.

  • Killing criminals instead of incarcerating them would make substantial resources available for more productive investments.
  • The same is true for the resource that go into running legal and criminal judiciary systems that correspond to human rights requirements (e.g. high burden of proof, appeals systems, legal representation etc.).
  • Human rights, and specifically those regulating the judiciary, make it more likely that suspects who have indeed committed a crime are set free, which imposes an economic cost on society.
  • Killing the poor, the sick and the elderly rather than helping them would likewise liberate resources for more productive use.
  • Less extremely, assisting the poor, the sick and the elderly means creating a large government and a heavy tax and regulatory burden. These are detrimental to entrepreneurship and business because they are disincentives for wealth creators. When wealth creators are burdened, prosperity suffers.
  • Social and economic human rights such as a right to strike, to a decent wage, limited working hours etc. undermine productivity and hence prosperity.
  • Etc.

Let’s assume, for the sake of argument, that all these effects are real and not compensated by

  • positive economic effects of respect for human rights
  • other, negative economic effects of violations of human rights, or
  • long term disadvantages following the possible short term advantages of rights violations (the fear, distrust and uncertainty resulting from some if not all of the claimed economic advantages of the rights violations that I just cited would likely harm long term prosperity).

Then you still don’t have a watertight case against human rights because people may still be willing to pay the economic price for respect for human rights. They may prefer to have their rights respected even if that has economic costs.

But, of course, that assumption doesn’t hold. The possible economic benefits of rights violations are easily offset by their costs and by the benefits of respect for human rights. Ultimately, the question of the effect of respect for human rights on the economy is an empirically verifiable hypothesis: we have data on economic performance, and – to some extent – on rights performance. It’s just a matter of linking the two. There’s an interesting paper here trying to do just that. The conclusion:

Our results show that high degrees of human rights are conducive to economic growth and welfare in a significant manner.

Through which channels is this effect supposed to operate? There are a few candidates:

  • Physical security is a necessary precondition for the productive use of one’s resources and property.
  • Property rights and the rule of law – both are human rights – are necessary for the effective operation of free markets, and free markets promote growth. Neither the rule of law nor property rights are safe in authoritarian regimes: why would a government that imposes physical harm respect property rights?
  • Countries don’t attract Foreign Direct Investments (FDI) when they have a poor human rights record, rampant insecurity, ineffective rule of law and protection of property rights, poor labor conditions and the worker unrest that it implies etc. Stability, predictability, peace and calm lead to investment. Investment in rights abusing countries can also harm companies domestically when consumers revolt against the foreign conduct of their national companies.
  • Education is a human right, and investments – especially FDI – usually follow the trail of education. Education is typically considered growth enhancing.

The discussion should separate between growth and levels of prosperity. There is an obvious correlation between respect for rights and levels of prosperity: the most prosperous countries in the world are also those where respect for rights has achieved a higher level. The case that growth rather than level of prosperity is also correlated with respect for human rights seems a lot harder to make, given the high growth levels of countries such as China. The argument could be that respect for rights promotes but is not a necessary condition for growth. Or it could be that authoritarian countries with high growth rates would have had still higher rates had they respected rights to a higher degree. Such a counterfactual is of course very hard to measure.

So, it’s not just that richer countries can start to afford human rights (to some extent that’s true, because rights cost money); it’s also the case that respect for human rights leads to higher wealth. There’s a two-way causation at work here.

What Are Human Rights? (22): Part of the Rule of Law

The claim here is not the trivial one that human rights depend on the rule of law because they can’t be enforced without it. The more interesting question is the opposite one: whether there can be a rule of law without human rights. Or, in other words, is the rule of law a necessary but not a sufficient condition for human rights?

At first sight, the answer to both questions would be “yes”. Indeed, the law can be anything, and as long as it “rules” in some way – i.e. as long as the laws are consistently enforced and not superseded by frivolous and arbitrary commands of men – one could claim that there is some sort of “rule of law”, even if the laws in question violate human rights. Civilizations had the rule of law long before the concept of human rights even existed (the Roman Empire may be an example).

Joseph Raz has famously claimed that

the law may, for example, institute slavery without violating the rule of law. (source)

Nazi Germany was also very much a law based society. (See here for example). Indeed, it can be plausibly claimed that strong and authoritarian states are better able to impose rules. That would lead to an incompatibility between human rights and the rule of law.

The fact that many if not most dictatorships make a mockery of the rule of law and of the law itself, and govern in a totally arbitrary way based on the whims of a few men rather than laws and rules, doesn’t exclude the possibility that some dictatorships respect the rule of law, and that the rule of law can indeed be the rule of very bad law, viewed from the perspective of human rights. A prima facie conclusion has to be that dictatorships can respect the rule of law and that regimes based on human rights can inhibit the rule of law: privacy protection, rules on the determination of criminal guilt etc. can make the rule of law more difficult. Authoritarian regimes can easily lift the veil of privacy in order to check for violations of the law, and are not at risk of freeing guilty people because of the presumption of innocence and the burden of proof.

The rule of law, viewed in this manner, is a purely formal concept devoid of substance: as long as the laws “rule”, we have a rule of law, no matter what the substance of those laws may be. Laws are then viewed solely as rules that guide conduct, but the direction in which they guide is immaterial. The rule of law, according to this view, should not be confused with the rule of the right law. The rule of law as a concept deals not with the content of the laws but with the way in which they are enforced and formulated.

That last word is important: the rule of law should logically be more than a system of governance in which rules are imposed by force. Imposing rules by way of force can in itself not be viewed as a system of the rule of law. It would be far-fetched to claim, for example, that a government using force to impose completely arbitrary rules that change every day respects the rule of law. The rules in question have to be formulated in a certain way; there have to be rules of legislation in order to have a rule of law.

These rules usually include the following:

  • Laws should not be imposed retroactively: the rule of law implies respect for the laws, and citizens can’t be expected to respect laws if they are imposed retroactively.
  • Laws should be made public, for the same reason.
  • Laws should be relatively permanent, clear and intelligible, again for the same reason.
  • Laws should strive to be general rules applicable to everyone, rather than commands directed at certain persons or groups; the reason for this rule of legislation is the differentiation between rule of law and rule of man.
  • Laws should not contradict each other, again for reasons of respect.

These rules of legislation differentiate laws and the rule of law from an arbitrary set of rules imposed by force. The rules of legislation are formal and don’t, at first, impose content on the specific laws generated by these rules. However, once you take a closer look at these rules of legislation, it becomes increasingly difficult to maintain that the rule of law is a contentless concept that allows the law to be virtually anything, even abject oppression. Some of the values inherent in the rules of legislation are also inherent in human rights: publicity and equality for example.

The rules of legislation also create another link to human rights: they assume free will. If rules can’t be secret or can’t be applied retroactively it’s because we want to give people the choice to change their behavior so that it complies with the law. Secret and retroactive laws are impossible according to the rules of legislation, and hence also according to the rule of law, because they are an affront to freedom. (See the work of Lon L. Fuller for a more detailed version of this argument).

Hence, freedom is an important part of the rule of law, just like publicity and equality. So it would be strange to claim that a regime respects the rule of law if its laws violate people’s freedom, equality and public activity (such as speech). That would have to be a diminished kind of rule of law. Maybe the regime in question does respect the rules of legislation and does more than impose any arbitrary set of rules by way of force. But if it does so, it sets in motion a dynamic that will ultimately lead to freedom, equality and publicity because it uses these values in its legislation (although not in its laws). Violations of human rights are initially consistent with the rule of law – correctly understood as more than any arbitrary set of rules imposed by force – but not over time, since the dynamic of the rules of legislation uses values that are likely to infuse the laws themselves rather than merely the rules of legislation. And these values will direct the laws towards human rights since they are the same as the values inherent in human rights.

For example, if you have a law that imposes slavery, this law may initially have been created with respect for the rules of legislation (for instance, it may be a public law that doesn’t criminalize behavior that took place before the publication of the law). But since these rules imply the equality and freedom of all citizens, the law in question will ultimately come to be seen as inconsistent with the system of legislation. Over time, the rule of law will become the rule of the right law.

Why Do Countries Become/Remain Democracies? Or Don’t? (12): Arab Democracy, an Oxymoron?

When people look for reasons why countries haven’t made the transition from authoritarian government to democracy, they often mention economic development or culture, or both. And culture usually means religion more specifically. And religion usually means Islam. Now it’s true that if you look at the largest Muslim region, the Arab world (roughly North Africa plus the Arab Peninsula), you won’t find a single democracy. You can check the most common democracy indexes, Freedom House and Polity IV. That’s an anomaly: no other large region in the world is similarly devoid of democratic governance.

The question is of course: why? In our post-9/11 world the obvious answer is Islam, which is believed to be a religion that is particularly incompatible with democratic principles such as separation of state and church, pluralism, rule of law, human rights etc. Some even say that there will never be democracies in the Arab world as long as Islam remains an important force.

However, sometimes the obvious answer is also the wrong one. Some Muslim countries outside the Arab world have reasonably well developed democratic systems of government (Albania, Indonesia, Malaysia, Senegal, Turkey etc.) and are doing much better than some non-Muslim dictatorships out there.

But then, if it’s not religion, what is the reason for the absence of democracy in the Arab world? In an interesting new paper, Larry Diamond has a look at some possible reasons. He focuses on the so-called resource-curse and the correlated lack of accountability (accountability only emerges in countries that have to tax their people), but I think he’s wrong there. Lack of economic development could be a cause, but he rightly dismisses it. If you compare economic development in Arab and non-Arab countries, you see that per capita GDP of Kuwait is on the same level as Norway, Bahrain compares to France, and Saudi Arabia is on a par with South Korea. Conversely, you’ll be able to find non-Arab democracies that are much less developed than the average Arab country.

A more promising explanation of enduring Arab authoritarianism is FOTA: fear of the alternative. moderate opposition groups in Arab countries tend to accept their authoritarian governments. Their dislike of “modern pharaohs” is topped by their dislike of radical Islamist groups that could profit from free elections. Rather than the principle “one person, one vote, one time” followed by theocracy, they settle for the relatively mild yoke of secular Arab dictatorship. Something similar happened before in Latin America, when the feared alternative was communist rule.

Another explanation for the lack of Arab democracy is the large proportion of GDP spent on the security apparatus, and the relative efficiency of Arab security forces. This is probably linked to the support these countries receive from the West, which is another reason for their longevity. And finally, the Arab-Israeli conflict is a very convenient diversion: it allows public frustration to discharge outwards, without internal consequences.

As you can see, none of these causes condemn Arab countries to dictatorship. Compared to religion, these are things that can be changed quite easily, if the will is there. The FOTA is self-fulfilling: it’s likely that radical Islamist movements are encouraged by authoritarian rule, as much as they are restrained by it. So better give it up. And the West could use its leverage, resulting from decades of support, to push for reforms.

What is Democracy? (50): The I-Did-It-My-Way Syndrome

In discussions about the promotion of democracy in those parts of the world where it hasn’t been (firmly) established yet, the skeptical side of the argument usually advances either or both of the following positions:

  • Democracy is a political form typical of the West and undesirable or impossible elsewhere.
  • Democracy is a political concept which is defined in different ways according to the culture in which it is applied. When promoting democratic government in certain places, we are in fact promoting standard Western democracy when we should in fact be promoting something quite different.

The first position often includes references to cultural or religious preconditions for democracy which are claimed to be absent in certain countries (notably Muslim countries, which supposedly have a hard time accepting the separation of state and religion, the rule of law, gender equality and other elements of democracy). Or it includes arguments about economic preconditions which are absent (democracy being OK for the wealthy West, but not for countries which have other, more urgent economic concerns). And, finally, the size of countries, or their ethnic mix, is said to make democracy very difficult to achieve, or to make it an element which can undermine national harmony and stability. Democracy is viewed as something which reinforces communal or tribal antagonism because the different political parties tend to be formed along ethnic or tribal dividing lines. As a consequence, these parties see it as their role to defend the communal interest and nothing else, and once they are in power they tend to do so by discriminating against other communities. In such countries, democracy degenerates into an ethnic census.

The second position doesn’t reject the possibility or desirability of democracy in certain countries, but claims that the western definition of democracy can’t and shouldn’t be imposed outside of the West without taking into account the local, cultural, historical and social circumstances. There should be different models of democracy for different parts of the world. The western model is not a panacea and is not adapted to all circumstances.

Needless to say that this second position tends to collapse into the first one: if democracy is a very open concept that can include very different procedures, rules and institutions, then it can also exclude elements of democracy which we normally see as essential parts of democracy. An “African democracy” or “Asian democracy” or whatever, may turn out to be not very democratic. Indeed, such concepts are often mere smokescreens used by dictators weary of rejecting democracy altogether.

However, there is some element of truth in both positions. Democracy is undoubtedly tied to certain preconditions, and is impossible without those. And, in certain specific circumstances, such as a war or a national emergency, democracy – or full democracy – may be – temporarily – undesirable. Moreover, countries have to be able to follow their own path and to organize their societies according to their own views and traditions, and not according to those of the West. The Western model isn’t by definition the only desirable one, or the best one. It is not up to the West to decide what is and what is not politically acceptable in countries with entirely different traditions. Democracy can take different forms. Even among Western countries, there are vast differences between the types of democracy that are applied.

It’s wrong to copy the specifically Western view of democracy “à la lettre” in the rest of the world. Within certain limits, we have to take local and cultural aspects into consideration and we have to be flexible where we can. But there are limits. A democracy can’t be just anything. Otherwise we would be defending nihilism. If some elements are missing – such as freedom of speech, association and assembly, regular, fair and free elections, the rule of law etc. – then we can hardly speak of democracy.

Separation of Powers and Human Rights

The theory of the separation of powers traditionally differentiates between three branches of power:

  • the legislative power (parliament)
  • the executive (the government, the administration and the police)
  • and the judiciary.

Separation of powers means independence of powers with regard to each other. The three powers are separated and divided organizations of the state. No power can assume the competence or functions of another power or can interfere with another power’s business. A few examples:

  • The executive should not vote laws (the so-called “government by decree”).
  • The legislative power should not appoint or dismiss the government or the head of the executive (this should be a prerogative of the people).
  • The judiciary should be able to work without political interference from the legislative power or from the executive, and should be able to judge cases in an independent and impartial way. The judge should not be an instrument of politics or a “political worker” who executes the decisions of the executive, as was the case in Soviet Russia for example. He is subject only to the law, and the law, contrary to an order by Comrade Stalin for example, cannot be used to influence verdicts because it is general and neutral.
  • Judges should not interfere in legislation or politics (they enter the stage when the work of politics is already accomplished; they apply the law as it is voted by the legislative).

However, this is not the end of the story. Independence does not mean that a power can do as it likes without accountability. The independence is limited because one power can control, correct, rebuke, limit or stop another power if there is an abuse of power or a violation of rights.

Some interference is necessary. Separation does not mean isolation. Powers are separated precisely because then they can check each other. If all power is concentrated in the same person or institution, then this power cannot be checked. There is no higher power than the state and hence the state must control, limit and correct itself (the “international community” is still very weak). If power has to limit itself, then it has to be divided into different parts. There must be powers and counter-powers, checks and balances. Every power moderates the other powers because every power holds the reins to force the other powers in a certain direction. A citizen must be able to go to one power in order to claim redress or compensation for violations of rights by other powers. Power protects against power and power can contradict and correct power.

Violations of human rights by one part of the state must be corrected by another part, otherwise human rights remain words without reality. Judges can control the laws of the legislature and the actions of the executive. If they find that these laws or actions are incompatible with the human rights included in the Constitution or in an international treaty, then the judges can declare these laws to be invalid or these actions to be unlawful, even if these laws and actions are supported by a democratic majority (which is normally the case in a democracy).

The power of the legislative, the executive and the majority is limited. The judiciary makes sure that both the legislative power and the executive act according to the highest law of the land, which is, after all, also an expression of the will of the majority (at least in an ideal democracy, because an ideal democracy allows the citizens to vote on the Constitution and on international treaties). Human rights and the Constitution can be used against the legislator in order to counteract the tyranny of the majority (also known as democratic oppression). When judges do this, they engage in what is called “judicial review“. The legislator can be wrong and laws can be oppressive. The law is more than just the will of the legislator. A valid law has to conform to certain requirements at the level of content, independently of the will of the legislator. A law cannot be anything, otherwise the rule of law would be a meaningless concept.

I mentioned a moment ago that the judiciary should not interfere with politics or legislation. However, is judicial review of legislation not a part of legislation? Controlling and invalidating laws, overruling the legislative power by way of a veto-right, creating a certain coherence in legislation, making sure that ordinary laws conform to the higher law (the Constitution), is this not legislation? And is it not legislation enacted by a non-elected minority which imposes its will on the majority of the people as it is represented in the legislative power, and which takes its decisions outside of the public debate? Should not an ideal democracy reject judicial review? In other words: is it not impossible for an ideal democracy to protect the rights and freedoms of the minority?

These questions are based on a false hypothesis. When a judge controls the conformity of an ordinary law and a higher law, he does not engage in legislation. He or she only makes sure that the higher law is strictly applied and respected. And as the higher law is the supreme expression of the will of the people – in an ideal democracy, the people can vote the Constitution – a judge only makes sure that the will of the people is strictly executed. There is nothing undemocratic about this and it has nothing to do with legislation. A judge who is confronted with a law which contradicts the Constitution cannot apply this law because otherwise he or she would be acting in an unlawful manner. The higher law has priority over the lower law. A lower law has to conform to the higher law, otherwise it is invalid and non-existing, “null and void”. A judge can declare the illegality of a law and can destroy a law without engaging in legislation.

The judge remains subject to the law and is not above the law or above the legislator when he or she invalidates a law. The judge remains subject to the higher law. Judicial review does not imply that the judiciary is more important or more powerful than the legislative power or than the will of the people. It only implies that the higher law is more important than the lower law and the higher legislator is superior to the lower legislator. Judicial review does not imply an exaggerated or a predominant political or legislative role for the judiciary compared to the role of the legislative power, at least as long as we consider the framing of a Constitution to be part of the legislative power. A judge can never decide on fundamental social problems or political conflicts. He or she can only apply the law, first the higher law and then the lower law.

Human rights possess a threefold significance: they are themselves standards of behavior; they constitute criteria for assessing the lawfulness of other rules (since they override all other norms, which are null and void in case of conflict); [and] they embody “instructions and guidelines” … for the creation and development of other rules. Antonio Cassese.

Individuals whose rights are violated can coerce the state – even though most of the time it is the other way around – but only on the condition that there is a separation of powers and that one power can be used against another.

However, this means that judges should not be predominantly in favor of one political party or one political philosophy, because otherwise they will review the laws from one and the same political perspective. If the judiciary is predominantly conservative, for example, then it will treat liberal laws in a very critical way and it will tend to systematically invalidate these laws because of their conservative interpretation of the Constitution.

Judicial control of the constitutionality of laws and government actions is only one example of a power limiting another. Here are some other examples:

  • A judicial verdict applies the law and is therefore dependent on the law. A judge cannot decide what is contrary to the law, which means that the legislator de facto limits the actions of the judiciary.
  • The executive is accountable to and is controlled by the legislative power. It has to give account of the way in which it has applied the laws. However, the legislative power cannot dismiss the government as a consequence of this control, at least as long as the government is directly elected, which is the case in an ideal democracy.
  • A president often has a veto-right and can block certain laws voted by the legislative power. This is acceptable on the condition that the president is directly elected.

The Causes of Human Rights Violations (8): Lack of Good Governance

Bad governance is a cause of underdevelopment, poverty, war and human rights violations. Major donors and international financial institutions are increasingly basing their aid and loans on the condition that the recipient countries reform their systems so that these conform to the requirements of good governance.

Good governance means a good way to take and implement government decisions (corporate governance is the way to take and implement decisions in a company, but that’s another topic). When judging whether governance is good or bad one has to look at:

  • the way decisions are taken and implemented
  • the structures and rules that govern the decision making and implementing process
  • the people involved
  • the decisions themselves
  • the outcome and consequences of the decisions.

The focus is both on what is done and on the way it is done.

Criteria for judging governance

The criteria used to judge governance are the following (some are partially overlapping):

  1. Is the government accountable or is there no way to criticize it, to replace it or to correct it?
  2. Is the process of decision-making and implementation transparent or is it hidden from public criticism? Is information freely and directly accessible to those who will be affected by decisions?
  3. Is the process of decision-making and implementation responsive to the needs of the citizens or does it follow other needs (such as business needs, international requirements, selfish needs’85) and ignores or misrepresents the needs of the people?
  4. Is the process of decision-making and implementation inclusive, just and fair? Are the needs of the most vulnerable taken into account? Do all the members of society feel that they have an equal stake in it, or do some feel excluded, left out, treated unfairly or discriminated?
  5. Is the process of decision-making and implementation effective and efficient? Does it produce the results that meet the needs of society or results that are demanded by an elite? Does it deliver rapid service or are the procedures slow and cumbersome? Does it make the best use of resources or is it wasteful and time consuming? Does it make use of natural resources in a sustainable way and a way that protects the environment?
  6. Does the process of decision-making and implementation follow the rule of law or is it arbitrary? Are decisions based on enforceable rules that apply equally to all? Are these rules enforced by an independent judiciary and an impartial and incorruptible police force?
  7. Is the process of decision-making and implementation participatory or is it exclusive? Does it respect equality and non-discrimination? Is the participation ad hoc or organized and structured?
  8. Is the process of decision-making and implementation oriented towards consensus, towards mediation of and compromise between different interests, or is it divisive?

The concept of good governance is therefore not limited to the government, but to the whole of society, including the effects of government on society and the input of society in government.

The criteria to judge governance are universal, but it is important to take into account local circumstances, historical “baggage” (like previous regimes, colonialism etc.), a country’s position in the international system etc.

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.

Why Do We Need Human Rights? (7): From Democracy to Prosperity

In a previous post I commented on the beneficial influence of prosperity on democracy – democracy being one human right among many. Here are some reasons why democracy is good for prosperity. The squeaky hinge gets the oil. Only in a democratic society in which human rights are protected, can an economic injustice be exposed and can claims for its abolition be heard and implemented. People can use human rights to call on the government or the international community to fulfill its duties and to implement certain economic measures. Most governments, including democratic governments, act only when they are put under pressure. The freedom of expression, the freedom of assembly and association (associations such as pressure groups, labor unions or political parties) and the right to choose your own representatives are instruments in the hands of the economically disadvantaged. They can use their rights and the democratic procedures to influence economic and social policy. Poverty must have a voice.

It is true that without a minimum degree of prosperity, human rights and democracy lose a lot of their value. If you have to struggle to survive, then you do not have the time to form an opinion, let alone express it. “Primum vivere, deinde philosophari”; first you make sure you live, and only then can you philosophize. However, life is more than just living. In a situation of poverty, it is indeed difficult to use rights and democracy, but without rights and democracy it is much more difficult to fight poverty.

If there are no free flows of information, no accountable government that needs to justify its actions in order to be re-elected, and no free press, then you are likely to have more corruption, more embezzlement of public funds and more people who acquire an unfair advantage from the proceeds of natural resources and other sources of prosperity. The rule of law and the openness of government, which are typical of democracy, limit not only corruption but also the ineffective management or outright squandering of natural or other resources by untouchable governments.

Economic development is supported by free flows of information and freedom of movement, both typical of democracies. A free press encourages the economy because it allows entrepreneurs to make informed decisions.

Democracy also guarantees the rule of law, which means legal security and predictability. The number of investments – foreign and local – will grow when investors are certain that their contracts are guaranteed by the law and enforceable by a judge, when oppression does not cause violent revolt and when investors are relatively certain that their property will not be stolen without punishment or will not be nationalized by some new revolutionary government.

The rule of law creates a limited state and a society that is relatively free and independent of the state. This means that economic activity is also relatively independent. A certain limit on state interference in the economy is traditionally considered as beneficial for economic development. In a free civil society, everybody can be economically active. In many authoritarian states, only a handful of privileged persons can be economically active, and these persons are not always the ones most suitable for this kind of activity (for example: large landowners, members of the official “nomenclatura” etc.). A free civil society, guaranteed by the rule of law, which in turn is guaranteed by democracy (although not only by democracy), allows everybody to be creative, to cooperate and to exchange on a relatively level playing field. This increases the chances that the best man is in the best place, which in turn encourages economic development. Furthermore, by pumping in as many people as possible in the economy and by letting them move and communicate freely, the economically most efficient and profitable transactions can take place.

What is Democracy? (11): Rule of Law

There is a link between the rule of law and democracy, similar to but without the same tenacity as the link between human rights and democracy. A democracy is by definition a system that respects the rule of law. The democratic election procedures and the human rights necessary for the functioning of democracy are written into enforceable laws that are the sovereign rulers and that govern everybody in the same and equal way.

A democracy respects human rights and therefore, also respects the rule of law, because the rule of law is a part of human rights (some human rights specifically install the rule of law).

However, a state that respects the rule of law does not have to be a democracy. The laws that rule do not have to be democratic laws, do not have to be framed by the people, and do not have to conform to human rights. In order to have a rule of law, it is sufficient that the law rules and that there is a separation of powers, which guarantees and enforces respect for the law. The content and the origin of the laws are irrelevant for the rule of law, but not for democracy and human rights.

A state that respects the rule of law does not have to be a democracy, but the rule of law has the best chances of survival in a democracy. When the people frame the laws, it is more likely that the people will respect the laws, and the laws rule when they are respected. You do not make a law if you plan to break it afterwards. There is no comparison between a law that you impose on yourself and a law that someone else imposes on you. Furthermore, the rules regarding the correct way of handling a court procedure, as they are expressed in certain human rights, make it more likely that the law is enforced in a just and acceptable manner, which also contributes to the rule of law. A system that respects human rights – e.g. a democracy – is therefore more likely to contribute to the rule of law.

A democracy without the rule of law is a farce. Elections alone are not enough. Elections can be manipulated and can be used as a ploy of a leader seeking legitimacy. They can be falsified or they can be held and neglected afterwards. Elections can only be fair within the rule of law. Only the rule of law can enforce respect for election rules and election results. Furthermore, without the rule of law, human rights are not enforceable, and without human rights, there is no proper democracy.

Of course, a democracy requires more than legal protection of the rules and rights which are necessary for the creation and the expression of the will of the people. Once power is granted on the basis of the expression of the will of the people, it is the job of those in power to implement the will of the people. The way in which this will can be implemented, in other words the exercise of power, is also regulated by laws, otherwise, there would be no rule of law. It is not because power comes from the people that this power is always beneficial. It needs to be limited by the principles of the rule of law and by human rights, just as any other kind of power.

The rule of law requires the separation of powers. Courts must be able to protect the laws against bad behavior by other parts of the state. They must also protect the law against the law. Legislation may be designed to violate other laws, for example the fundamental human rights enshrined in the constitution. The courts must be able to stop such legislation. When power is divided, one power can correct the other.

Why Do We Need Human Rights? (3): Physical Security

Those human rights that protect a person’s security, bodily integrity and life, and that prohibit physical assault, dismemberment, torture, cruel punishment etc., acknowledge deep-rooted needs such as the wish to survive and to avoid pain.

Now, if it is reasonable to presume that some or even all people will not always be able to avoid violence and that it is preferable to avoid having other people revenging violence, then it is also reasonable to create an impartial institution that is above the people and that is strong enough to counter violence. This institution is the state. In many cases, the only way to eliminate or avoid violence is to threaten and punish the perpetrators. In order to be able to threaten and punish, you must be stronger. Citizens are seldom stronger than other citizens because even the strongest have to sleep. Only a state can be strong enough to counter or avoid violence by way of punishments. It can act as a third party which restricts the conflicting parties. It is above the parties, both because of its impartiality and because of its superior power. This superior power makes it able to enforce a decision on the conflict. Its impartiality means that it is not involved in the conflict and that it has a clear and impartial view of the problem and the possible solutions. The state uses the “security-rights” to control conflicts.

The state controls or limits conflicts and protects the life and body of its citizens in different ways, by punishing violence, but also by using systems and institutions that formalize, ritualize and soften conflicts, for example court proceedings or the democratic power game (the discussions in parliament and the ritualized changing of leaders in a peaceful way make it possible to avoid revolutions and other violent reactions of opposition movements). Security, peace and the protection of life are the first mission of the state and especially of the judicial power and the police, because this mission, once fulfilled, makes all other human activities possible.

Of course, the state has other missions as well. Some of them, such as public life, justice and freedom, are even more important, albeit perhaps less urgent. Urgency, however, is a debatable matter. One could say that public life, freedom or justice should come first because they promote peace and security. Furthermore, it often happens that missions that are more important than peace and security – because they correspond more to human life (after all, animals also want peace and security) – are overshadowed by peace and security (as for example in the theories of Hobbes and Kissinger). This is of course reprehensible, and self-destructive. Too much attention to peace and security can endanger peace and security.

People whose economic rights or whose right to free expression are violated because the rulers think that these rights are less important than peace and security, or that they should be sacrificed for the sake of peace and security, will revolt, and revolt automatically creates insecurity.

The problem is that human rights should do more than just regulate the peaceful coexistence of people with conflicting ideas. They should also regulate public interaction (e.g. culture, art, education, science). For this reason, we should avoid concentrating too much on security. Human rights protect security, not for the sake of security but for the sake of our public life, which of course needs security. However, security alone is not enough, and neither are those human rights that explicitly protect security. Human rights in general and the state acting as guardian of human rights do more than just guarantee peaceful and secure coexistence.

Concentrating too much on security also leads to a narrow view of the nature of citizenship. Citizens are more than people who try to achieve contradictory private interests, who come into conflict with one another, who cause violence and then require a state and rights in order to regain their security. They also create relationships and groups, they try to convince each other, they debate, they express themselves and they try to find a common interest. The state makes sure they can do so, both by limiting violence and by creating the structures in which debate and common actions are possible (structures such as elections, parliaments, court procedures, human rights etc.).

Why Do Countries Become/Remain Democracies? Or Don’t? (1): The Free Market

The relation between economic freedom and political freedom is that initial growth in either political freedom or economic freedom tends to promote the other. Milton Friedman in The Wall Street Journal, February 12th, 1997.

This post examines the links between the free market and democracy, especially the causal links. I believe that an increase in the level of one causes an increase in the level of the other. This may be helpful information for those who want to promote democracy around the world without the resort to violence.

I’m sure Karl Marx would have appreciated the irony of finding one of his favorite concepts at the beginning of a post defending the free market: dialectics. There is, in fact, a dialectical relationship between democracy and the free market. They may often contradict each other: the uneven distribution of wealth which one can often find in a free market system tends to falsify democratic political processes because wealth means influence; and democratic decisions often impose restrictions on a free market. However, democracy and the free market often also encourage each other.

Let us first take a look at the way in which a free market can promote democracy. A free market loosens the control of authoritarian states over their societies. If states give up control over the economy, then perhaps they will also give up control in other fields. If a state does not control all economic means, then people will have more freedom to oppose the state because the state cannot as easily take away their jobs or put them out of their houses. A planned and regulated economy usually means a planned and regulated society

A free market also promotes democracy because it requires:

The rule of law

In itself, a free market does not guarantee the rule of law but, in a certain way, it does help to promote it. Private companies like predictability. They want their investments to be protected by the law, they want a state that protects their goods and their personnel, and they want to be able to use the judiciary to enforce their contracts. Companies moreover like to have an international rule of law. They want the same rules applied everywhere. For example, if labor regulations are not the same everywhere, then companies in certain countries have an unfair competitive advantage, because they have to pay their workers less, they have to invest less in safety etc. “[T]he rule of law enforced by an independent judiciary is a condition for modern market economic relations . . . ‘Markets need laws’ claimed a businessman . . . criticizing the pervasive inefficiency and corruption of the judiciary” * . Because the free market requires the rule of law, and because the rule of law is best protected by democracy (this is an empirical fact **), one can conclude that the free market will strive towards democracy.

A limited state and a free society

Both the free market and a democracy require a limited state and a free society. Only a free society can serve as a base for the democratic control and criticism of government, and an unlimited state is the main characteristic of tyranny. The free market promotes a limited state and a free space for society because it limits state regulation and intervention in the economy. The free market is the freedom to produce, to buy and to sell and this kind of freedom promotes freedom in general.

Transparency and free flows of information

Businessmen need free flows of information in order to be able to make the best economic decisions. Hence, a free market promotes democracy, the most transparent form of government and the form of government most dependent on free flows of information.

Means of communication and transportation

A free market economy promotes the development of the means of communication and transportation. It is difficult to image a democracy without means of communication and mobility. Furthermore, increased communication and mobility weaken the power of habit and tradition, which in turn can weaken the grip of traditional authoritarian structures and forms of power.

Social mobility

Traditional authoritarian social structures, and social structures in general, are less stable in a free market, and subject to the free choice of individuals.

International trade

The free international circulation of goods can promote the free circulation of ideas. Inter-cultural communication between people who can trade freely with one another can promote democracy because it can allow people to question their habits, customs and traditional power structures. After all, you start to realize that things can be different when you see that they actually are different elsewhere in the world. In cultures that cannot trade freely and therefore do not communicate much with the outside world, most habits are considered to be self-evident and are accepted without questions. Undemocratic habits are then difficult to change. If we eliminate international trade barriers, then we can open up traditionally closed societies.

A democracy also tends to adopt a free market system. A democracy is a limited state because it necessarily (or ideally) adopts the rule of law and hence creates a space for free economic activity, exchange and competition between a variety of groups and persons. A democracy also – ideally – respects human rights and many human rights, such as the right to private property, promote the free market. It is difficult to imagine a free country, a democracy which guarantees all civil liberties, but does not allow the freedom to produce, to buy and to sell goods and services. However, a democracy may find it necessary to limit the free market, or correct for some of its injustices. It may want to redistribute some of the wealth created by the free market to those of us who cannot use their freedom to become economically successful.

There have been numerous studies measuring the degree of political freedom (or democracy) and measuring economic freedom. If you combine these measurements you can see the correlation.

* F. Panizza, in Beetham, D. (ed.), 1995, Politics and Human Rights, Blackwell, Oxford, p. 179.
** There are also many theoretical reasons to defend the link between democracy and the rule of law.