Economic Human Rights (42): Some Facts About Welfare in the U.S.

Welfare – meaning the provision by the government of a minimum level of material wellbeing and social support for all citizens – is a strange thing in the U.S.: it’s not directed mainly at the poor, it’s underfunded, it seems to be compatible with a high poverty rate, and it’s not colorblind – at least not in its effects.

Take a look at the following facts (source):

  • In 2010, nearly half of Americans lived in a household that received direct government benefits. That’s up from 37.7% in 1998.
  • At the same time, government revenues have been declining: adjusted for inflation, federal tax revenue was the same in 2009 as it was 1997, even though the U.S. population grew by 37 million during that period. In 2011, the federal government took in $2.3 trillion in tax revenue, and spent the exact same amount on military, Social Security, Medicare, and Medicaid alone.
  • The share of entitlements like Social Security and Medicare going to the bottom fifth of households (based on income) has fallen from 54% in 1979 to 36% in 2007.
  • The result of all of this: nearly 1 in 6 Americans – and more than 1 in 4 blacks – still live in poverty. The unemployment rate in 2009 was around 10% – for young, uneducated African-American males it was even 48.5%.

None of this should lead to the conclusion that the U.S. welfare system is completely dysfunctional – unemployment insurance, for instance, has rescued millions of Americans from poverty during the last recession. What it should lead to is serious consideration of the possibility and desirability of a completely new system.

More posts in this series are here.

Racism (24): What’s Wrong With Residential Segregation?

Residential segregation can be the outcome of racial animus or racial prejudice, for example when whites decide that they don’t want to live near blacks for no other reason than race. In that case, segregation is a symptom of racism and is evidently wrong. What to do about it is less clear: forcing people to live somewhere is also wrong.

But residential segregation can also result from less prejudiced motives, sometimes even from rational ones: whites may be relatively wealthy and therefore decide that they prefer to live in a nice suburb. Automatically, they end up together with other whites. (Perhaps the wealth disparity has something to do with racism, but not the segregation itself). Yet, even in that case, segregation has harmful consequences and we will have to do something about it.

Residential segregation is harmful in several ways. When relatively wealthy whites move en masse to the suburbs, the relatively poor blacks who stay in the inner cities find themselves in an increasingly impoverished area. Shops will disappear; house prices will fall and will put pressure on people’s assets, etc. The reduced tax base will make it harder for the local government to fund high quality public goods. As a result, the quality of education and other public services will drop, which will start a vicious circle of poverty.

Physical segregation of races will reduce self-esteem and self-confidence among the members of the group that is worse off after segregation. It may also foster racial animus against those who are better off. And, finally, so-called membership poverty will kick in. People will see a reduction in the number of role models, and the remaining role models will by definition be relatively poor and hence not always the ones providing the most beneficial inspiration. Criminal role models also become more prominent, as the simple arithmetical result of the disappearance of the middle class. Furthermore, when people witness high rates of failure among group members, this will also negatively affect their aspirations and effort, which in turn will make a negative economic logic take root: for example, when few group members start businesses, few other members will have the opportunity to work for them or trade with them.

However, residential segregation is not entirely negative for the poor minorities remaining in the inner cities. As house prices in the cities fall, relatively poor blacks are more likely to become homeowners. However, that’s a small silver lining to an enormous black cloud.

By the way, some numbers are here. More on segregation here.

Measuring Human Rights (13): When More Means Less and Vice Versa

Human rights violations can make it difficult to measure human rights violations, and can distort international comparisons of the levels of respect for human rights. Country A, which is generally open and accessible and on average respects basic rights such as speech, movement and press fairly well, may be more in the spotlight of human rights groups than country B which is borderline totalitarian. And not just more in the spotlight: attempts to quantify or measure respect for human rights may in fact yield a score that is worse for A than for B, or at least a score that isn’t much better for A than for B. The reason is of course the openness of A:

  • Human rights groups, researchers and statisticians can move and speak relatively freely in A.
  • The citizens of A aren’t scared shitless by their government and will speak to outsiders.
  • Country A may even have fostered a culture of public discourse, to some extent. Perhaps its citizens are also better educated and better able to analyze political conditions.
  • As Tocqueville has famously argued, the more a society liberates itself from inequalities, the harder it becomes to bear the remaining inequalities. Conversely, people in country B may not know better or may have adapted their ambitions to the rule of oppression. So, citizens of A may have better access to human rights groups to voice their complaints, aren’t afraid to do so, can do so because they are relatively well educated, and will do so because their circumstances seem more outrageous to them even if they really aren’t. Another reason to overestimate rights violations in A and underestimate them in B.
  • The government administration of A may also be more developed, which often means better data on living conditions. And better data allow for better human rights measurement. Data in country B may be secret or non-existent.

I called all this the catch 22 of human rights measurement: in order to measure whether countries respect human rights, you already need respect for human rights. Investigators or monitors must have some freedom to control, to engage in fact finding, to enter countries and move around, to investigate “in situ”, to denounce etc., and victims should have the freedom to speak out and to organize themselves in pressure groups. So we assume what we want to establish. (A side-effect of this is that authoritarian leaders may also be unaware of the extent of suffering among their citizens).

You can see the same problem in the common complaints that countries such as the U.S. and Israel get a raw deal from human rights groups:

[W]hy would the watchdogs neglect authoritarians? We asked both Human Rights Watch and Amnesty, and received similar replies. In some cases, staffers said, access to human rights victims in authoritarian countries was impossible, since the country’s borders were sealed or the repression was too harsh (think North Korea or Uzbekistan). In other instances, neglected countries were simply too small, poor, or unnewsworthy to inspire much media interest. With few journalists urgently demanding information about Niger, it made little sense to invest substantial reporting and advocacy resources there. … The watchdogs can and do seek to stimulate demand for information on the forgotten crises, but this is an expensive and high risk endeavor. (source)

So there may also be a problem with the supply and demand curve in media: human rights groups want to influence public opinion, but can only do so with the help of the media. If the media neglect certain countries or problems because they are deemed “unnewsworthy”, then human rights groups will not have an incentive to monitor those countries or problems. They know that what they will be able to tell will fall on deaf ears anyway. So better focus on the things and the countries which will be easier to channel through the media.

Both the catch 22 problem and the problems caused by media supply and demand can be empirically tested by comparing the intensity of attention given by human rights monitoring organizations to certain countries/problems to the intensity of human rights violations (the latter data are assumed to be available, which is a big assumption, but one could use very general measures such as these). It seems that both effects are present but not much:

[W]e subjected the 1986-2000 Amnesty [International] data to a barrage of statistical tests. (Since Human Rights Watch’s early archival procedures seemed spotty, we did not include their data in our models.) Amnesty’s coverage, we found, was driven by multiple factors, but contrary to the dark rumors swirling through the blogosphere, we discovered no master variable at work. Most importantly, we found that the level of actual violations mattered. Statistically speaking, Amnesty reported more heavily on countries with greater levels of abuse. Size also mattered, but not as expected. Although population didn’t impact reporting much, bigger economies did receive more coverage, either because they carried more weight in global politics and economic affairs, or because their abundant social infrastructure produced more accounts of abuse. Finally, we found that countries already covered by the media also received more Amnesty attention. (source)

More posts in this series are here.

Income Inequality (23): U.S. Public Opinion on Income Inequality

Despite what foreigners usually believe about the U.S., and despite the confused ramblings of a tiny group of anti-“socialist” loudmouths high on tea, U.S. public opinion is actually very egalitarian:

Americans are in broad agreement on the need for a more equal distribution of wealth. … that’s what a forthcoming study by two psychologists, Dan Ariely of Duke University and Michael I. Norton of Harvard Business School, has concluded. First, Ariely and Norton asked thousands of Americans what they thought the nation’s actual wealth distribution looks like: how much is owned by the wealthiest 20 percent of the population, the next-wealthiest 20 percent, and on down. The researchers then asked people what, in an ideal world, they would like the nation’s wealth distribution to be.

Ariely and Norton found that Americans think they live in a far more equal country than they in fact do. On average, those surveyed estimated that the wealthiest 20 percent of Americans own 59 percent of the nation’s wealth; in reality the top quintile owns around 84 percent. The respondents further estimated that the poorest 20 percent own 3.7 percent, when in reality they own 0.1 percent.

And when asked to give their ideal distribution, they described, on average, a nation where the wealth distribution looks not like the U.S. but like Sweden, only more so—the wealthiest quintile would control just 32 percent of the wealth, the poorest just over 10 percent. “People dramatically underestimated the extent of wealth inequality in the U.S.,” says Ariely. “And they wanted it to be even more equal.” (source)

Capital Punishment (26): The Probability of Capital Punishment in the U.S., by Race, Ctd.

Following up from a previous post: there are many things wrong with capital punishment in the U.S. (and with capital punishment as such), but the most obvious thing is the blatant racism of it all. A black person in the U.S. is almost 4 times more likely to be executed. Even if we assume that this higher probability of being executed correctly reflects a higher probability of being involved in crime that comes with capital punishment – and that’s something we shouldn’t assume, because it’s likely that there are injustices involved, e.g. inadequate legal representation and such – that shouldn’t put our minds at ease. We then still have to ask the question: why are blacks more likely to be involved in capital offences? Surely not because of their race. Something happens in society that leads to this unfair outcome.

Some would say that blacks in the U.S. have always been kept in their place, and that violence (including state violence) was and remains the best way to do that.

Here are some more numbers which show that it isn’t just the race of the defendant that matters but also the race of the victim, making it even more convincing that capital punishment is the new Jim Crow:

The probability of being sentenced to death is much greater if a defendant kills a white or Hispanic victim who is married with a clean criminal record and a college degree, as opposed to a black or Asian victim who is single with a prior criminal record and no college degree. … death is more apt to be sought and imposed on behalf of high status victims. Some victims matter more than others. (source, source)

So, capital punishment isn’t just racist, it’s also a means for the wealthy to keep the poor in their place. If that’s true, it’s depressing.

Measuring Poverty (9): Absolute and Relative Poverty Lines

There are many ways you can measure how many people in a country are poor. Quite common is the use of a so-called poverty line. First you decide what you mean by poverty – for instance an income that’s insufficient to buy life’s necessities, or an income that’s less than half the average income etc. Then you calculate your poverty line – for instance the amount of income someone needs in order to buy necessities, or the income that’s half the average income, or the income of the person who has the tenth lowest income if the population was one hundred etc. And then you just select the people who are under this poverty line.

I intentionally chose these examples to make a point about absolute and relative poverty. In the U.S., people mostly use an absolute poverty line, whereas in Europe relative poverty lines are used as well. As is clear from the examples above, an absolute poverty line is a threshold, usually expressed in terms of income that is sufficient for basic needs, that is fixed over time in real terms. In other words, it’s adjusted for inflation only and doesn’t move with economic growth, average income, changes in living standards or needs.

A relative poverty line, on the other hand, varies with income growth or economic growth, usually 1-to-1 since it’s commonly expressed as a fixed percentage of average or median income. (It obviously can have an elasticity of less than 1 since you may want to avoid a disproportionate impact on the poverty line of very high and very volatile incomes. I’ve never heard of an elasticity of more than 1).

Both absolute and relative poverty lines can be criticized. Does an absolute poverty line make sense when we know that expectations change, that basic needs change (in contemporary Western societies, not having a car, a phone or a bank account can lead to poverty), and that the things that you need to fully participate in society are a lot different now than they once were? We know that people’s well-being does not only depend on the avoidance of absolute deprivation but also on comparisons with others. The average standard of living defines people’s expectations and when they are unable to reach the average, they feel excluded, powerless and resentful. Can people who fail to realize their own expectations, who lose their self-esteem, and who feel excluded and marginalized be called “poor”? Probably yes. They are, in a sense, deprived. It all depends which definition of poverty we can agree on.

It seems that people do think about poverty in this relative sense. If you compare the (rarely used) relative poverty line of 50% of median income in the U.S. with the so-called subjective poverty lines that result from regular Gallup polls asking Americans “how much they would need to get along”, you’ll see that the lines correspond quite well.

So if relative poverty corresponds to common sense, it seems to be a good measure. On the other hand, a relative poverty line means moving the goal posts for all eternity. We’ll never vanquish relative poverty since this type of poverty just moves as incomes rise. It’s even the case that relative poverty can increase as absolute poverty decreases, namely when there’s strong economic growth (i.e. strong average income growth) combined with widening income inequality (something we’ve seen for example in the U.S. during the last decades). (Technically, if you use the median earner as the benchmark, relative poverty can disappear if all earners who are below the median earner move towards the median and earn just $1 or so less than the median. But in practice I don’t see that happening).

Capital Punishment (25): Non-Contingent Reasons to Abolish Capital Punishment

Many people would agree that there are what we could call contingent reasons to abolish capital punishment:

  • it’s practiced in such a way that it doesn’t meet basic standards of fairness and non-cruelty:
    • for instance the racial discrepancies in the system in the U.S.
    • the irreversibility in cases of miscarriages of justice
    • and the methods used in Saudi Arabia)
  • and it also doesn’t do what proponents say it’s supposed to do:
    • it fails to deter crime when compared to life imprisonment without possibility of parole – see here and here
    • and it fails to be retributive because in many cases it could be argued that murderers for instance deserve a fate much worse than death – capital punishment is often much less than an eye for an eye; however, few proponents of capital punishment are willing to take that road.

However, is there an argument for abolition that does not depend on contingent facts? Or, in other words, even if the punishment would be administered in a totally fair, correct and non-cruel way, and even if every execution would deter n murders, would we still have reasons to abolish it? To put it in yet another way: is there something inherent in capital punishment, in the very nature of it, that justifies its abolition?

I think there is. Before I tell you, however, I just want to say that it is in a sense futile because the contingent reasons for abolition are so strong that they are enough. I don’t think we can ever find a way to apply capital punishment without discrimination, without the risk of killing innocent people, and without any cruelty (even painless executions involve psychological cruelty, often for years on end). Hence it isn’t really necessary to make the case that even in perfect circumstances – which will never pertain – capital punishment isn’t justifiable.

But I’ll make the case anyway, because it reveals something that is philosophically interesting, even if it’s not practically useful. Imagine the perfect but in my view improbably if not impossible circumstances in which capital punishment is used as a fair, non-cruel and correct way of punishing certain criminals (correct in the sense of avoiding miscarriages of justice) and thereby deterring further crime. The intention of being retributive is almost impossible, even in ideal circumstances, as I have argued above, unless we give up traditional notions of cruelty which few proponents of capital punishment are willing to give up, so we can leave that aside.

So the focus is on deterrence. What does it mean to deter? It means that criminals are used as instruments to advance the collective interest. They are sacrificed for the greater good and a resource for the benefit of others (namely the intended future victims of future murderers). When the state instrumentalizes people in this way, it sends a clear message that this is a normal way of treating people, with possibly disastrous consequences. One of the most important lessons we have learned from Immanuel Kant and others is that we should never use fellow human beings as means to an end. An offender, even the worst possible offender, has a certain value as a human being, a certain dignity if you want, which should be respected and which cannot be canceled in the process of punishment. An offender shouldn’t be a mere tool to send warnings and intimidations to possible future offenders.

Now, you could say: how is this different from life imprisonment without parole? Isn’t that also meant to deter and hence open to the same criticism? No, it isn’t. Life imprisonment is intended to stop the criminal from doing further crime, and hence the criminal isn’t used to deter others. Furthermore, life imprisonment is intended to give the criminal the opportunity to make amends.

What is Democracy? (51): Representatives as Actors and Authors

Sorry for this very long post, but I think this is important. During the discussions about healthcare reform in the U.S., opponents frequently mentioned the unpopularity of the proposed Bill (although now, after the Bill has been accepted and turned into law, it seems that its popularity has gone up). I don’t wish to engage in a discussion about the accuracy of the opinion polls that measure the popularity of healthcare reform (it’s obvious that extremely negative political propaganda has played a role, as well as lack of knowledge about the actual proposals).

What I want to do here is look at the deeper discussion about the problems arising from a representative body voting laws that are unpopular (or seem to be). One of the more eloquent dismissals of unpopular legislation, especially the healthcare legislation, comes from Megan McArdle:

Are we now in a world where there is absolutely no recourse to the tyranny of the majority? Republicans and other opponents of the bill did their job on this; they persuaded the country that they didn’t want this bill. And that mattered basically not at all. If you don’t find that terrifying, let me suggest that you are a Democrat who has not yet contemplated what Republicans might do under similar circumstances. Farewell, Social Security! Au revoir, Medicare! … Oh, wait–suddenly it doesn’t seem quite fair that Republicans could just ignore the will of their constituents that way, does it? … What I hope is that the Democrats take a beating at the ballot box and rethink their contempt for those mouth-breathing illiterates in the electorate. (source)

Apart from the fact that we usually mean something else by “tyranny of the majority” (i.e. majority approved and popular decisions violating the rights of minorities), she and others like her seem to have a valid point, but only at first glance. While I don’t believe that they advocate getting rid of the whole notion of elections and just leave decisions up to opinion polls, they certainly want to give opinion polls much greater weight and turn them into some sort of check on parliamentary majorities (however, it’s not clear how that is supposed to work).

I want to argue against this. It’s true that a democracy is all about electing leaders who are supposed to execute the will of the people by way of laws and policies (if we sidestep the important issue of direct participation). The people don’t vote laws and don’t decide and pursue policies themselves. They decide what can and cannot be viewed as the will of the people, but then they give someone else the power to execute this will in their name and to frame the laws and policies necessary for the execution of this will.

That’s because it’s practically very difficult to allow all people to participate in all decisions. In a representative system, the people can influence the laws and the policies of the government only indirectly. They elect those representatives who they think are likely to vote laws and implement policies in accordance with their wishes, and if, afterwards, the people find out that they elected the wrong representatives, they replace them. The desire to hold on to power, forces the representatives to act in accordance with the wishes of the people.

This means that representatives do not necessarily follow their own personal judgment or their own conscience. The people instruct them and tell them, in a general way perhaps, what kinds of laws or policies to implement, or at least they tell them which values should be promoted by laws and policies. In all their actions, the representatives must never forget whence they came, who elected them and for what reason. They are the servants of the people whom they represent and whose wishes they are supposed to realize with the help of laws and policies. If their own wishes and opinions collide with those of the people, then they should either set them aside or resign from their posts.

In other words, representatives are actors and not authors. The people are the authors and the representatives act out the words of the authors instead of their own words (although of course their own words may coincide with those of the people). This guarantees the congruence of power and society. The political actors speak and act the words owned by those whom they represent (the authors) and, if necessary, leave their own personality behind while doing their work. Their official personality must be the sum of the opinions of the electors who, for this reason, recognize themselves in the representatives. The representatives act with authority (a word related to the word “author”) and are likely to remain in office as long as this recognition lasts and as long as the representatives act in the way they were authorized to do. The difference between rulers and ruled is hereby eliminated, notwithstanding the fact that the representatives and the represented are not the same persons. They are not the same persons but they share the same personality (notice also the etymological origin of the word “person”, namely a mask worn by actors). Not only the election results, but also the laws and the government policies must be the reflection of the will of the people. Representatives do not only have authority on the basis of an election result, but also on the basis of their performance in office.

All that would vindicate the position of McArdle and other opponents of the healthcare bill. However, things are not as simple as this. Representation is more than just a convenient tool for self-government in large communities. It has certain other advantages.

[L]imitation to a small and chosen body of citizens … [is] to serve as the great purifier of both interest and opinion, to guard ‘against the confusion of a multitude'”. Hannah Arendt in On Revolution.

It’s not always easy for a representative to know what the people think, if they think something at all. It often happens that a representative guides, purifies or clarifies the thoughts of the people by presenting his own thoughts in a clear and concise way. At the next election, the people are of course free to express acceptance or rejection of these thoughts and to vote for or against the person defending them.

So it’s clear that the definition of the representative as an actor is a simplification. Representatives should be more than mere errand boys faithfully executing the will of their masters and speaking, not with their own voice, but with the voice of the voters. They are more than robots or parrots doing deeds and saying words that are not their own. Of course, a representative of the people “re-presents” someone, makes someone else present in parliament or in an executive function. He plays a part. He represents something that is pre-existent.

However, this is not always the case. What is represented often arises after and through the act of representation. By presenting his ideas in a clear and convincing way, the representative can convince the people to adopt his ideas. He can also try to add a certain clarity, direction, consistency and unity to the opinions of the voters. In the case of contradicting desires for example, he can establish a certain priority and favor one desire while putting another one temporarily aside. He decides an issue in the name of the undecided electorate torn between two conflicting desires (for example employment and limiting the arms trade) and defends this decision by giving clear arguments to the voters.

At the next election, the voters can always disavow the choices of the representatives, but then at least they are forced to decide what is their point of view, to make up their minds, to focus on one of their conflicting views and to end an internal conflict.

Politics should not always focus on every wish or follow every erratic movement in the opinions of the people. It should also try to guide these wishes by offering and forcing a clear choice. This means that it’s quite all right for a representative to follow his own judgment now and then instead of simply saying what his electors instructed him to say. This kind of independence is of course limited. It cannot be applied to fundamental opinions. For example, a representative chosen on a ticket of anti-racism cannot express racist ideas or execute racist policies while in office.

The simple model of democracy—the people making up their minds beforehand and choosing representatives who will faithfully implement their opinions—is sometimes a simplification of reality. The politician is often the midwife of the truth of society, in the words of Guéhenno, and shapes the will of the people. Politicians necessarily take over characteristics of the people and start to resemble the people, otherwise they cannot represent the people and the people will never support the politicians. However, the opposite is also true. The people often start to resemble the politicians because the politicians clarify the sometimes vague and contradictory opinions of the people.

If the representatives were only allowed to follow the instructions of the electorate, then the affairs of parliament would be no more than an exercise in arithmetic, a sum of opinions. Representatives in parliament could not and should not discuss, deliberate and convince each other. If a representative changes his opinions as a consequence of discussion and argumentation in parliament—and this happens very often, because otherwise discussion and argumentation would be useless—then his opinions are no longer those that won him the election and he no longer represents the people who elected him. If representatives must follow the instructions of the electorate in every case, then parliament cannot be a place where different opinions are juxtaposed and discussed and where people try to come to a common opinion based on argumentation rather than the coincidence of identical opinions.

Parliament is not a congress of ambassadors from different and hostile interests, which interests each must maintain, as an agent and advocate, against other agents and advocates; but Parliament is a deliberative assembly of one nation, with one interest, that of the whole—where not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole. Edmund Burke

More posts in this blog series.

Measuring Poverty (6): The Poverty Line in the U.S.

The poverty rate or poverty line in the U.S. is based on a system pioneered by Mollie Orshansky in 1963. In the 1960s, the average US family spend one third of its income on food. The poverty line was calculated by valuing an “emergency food” budget for a family, and then multiplying that number by 3. (Some more data here).

This results in a specific dollar amount that varies by family size but is the same across the U.S. (the amounts are adjusted for inflation annually). To determine who is poor, actual family income is then compared to these amounts. Obviously, if you’re under, you’re poor.

Amazingly, this system hasn’t changed a lot since the 1960s, yet it suffers from a series of measurement problems, resulting in either an over- or underestimation of the number of families living in poverty. The problems are situated both in the calculation of the poverty rates and in the calculation of the income that is subsequently compared to the rates:

  • Obviously, the system should take regional differences in the cost of living, especially in housing, into account. It doesn’t.
  • As already apparent from the image above, a family today spends relatively less on food and more on housing, health care and child care etc. yet the poverty line is still dollars for emergency food times 3. So the question is: should the system take today’s spending patterns into account? We would have to know which it is: 1) Either the increased spending on non-food items has occurred because people can now afford to spend more on such items. 2) Or the increased spending on non-food items has occurred because these items got disproportionately more expensive (housing for instance) or because there wasn’t really any need to buy those items in the old days. Only if 2) is the case should that have an influence on the poverty line. And I think that to some extent it is the case. Child care for instance has become a necessity. In the 1960s, many mothers didn’t go out and work. Now they do, and therefore they have to pay for child care. Those payments should be deducted from income when measuring disposable income and comparing it to the poverty line. The same is true for cars or phones. Today you can’t really have a job without them so they’re no longer luxuries. A society would show very little ambition if it continued to designate the poor as those who have to wash by hand, read with candlelight, and shit in a hole in the floor. In fact, what I’m advocating here is some kind of relative concept of poverty. I’ll come back to that later. All I can tell you now is that this isn’t without complications either.
  • The current poverty measurement doesn’t take into account disproportionate price rises (it merely adjusts for general inflation) and changing needs. An obvious improvement of the U.S. measurement system would be to adjust for exceptional price evolutions (such as for housing) and also to revisit the definitions of basic needs and luxuries. Hence, a better poverty measurement should subtract from income some work-related expenses, child care expenses, and perhaps also some health expenses to the extent that these have become disproportionately more expensive. But that’s not easy:

There is considerable disagreement on the best way to incorporate medical care in a measure of poverty, even though medical costs have great implications for poverty rates. But costs differ greatly depending upon personal health, preferences, and age, and family costs may be very different from year to year, making it hard to determine what exactly should be counted. Subtracting out-of-pocket costs from income is one imperfect approach, but if someone’s expenses are low because they are denied care, then they would usually be considered worse off, not better off. (source)

  • Another problem: the current poverty rate doesn’t take all welfare benefits into account. Income from cash welfare programs counts, but the value of non-cash benefits such as food stamps, school lunches and public housing doesn’t (because such benefits weren’t very common in the 1960s). Those benefits successfully raise the standard of living for poverty stricken individuals. There’s a bit of circular reasoning going on here, because the poverty rate is used, i.a., to decide who gets benefits, so benefits should not be included. But if you want to know how many people are actually poor, you should consider benefits as well because benefits lift many out of poverty.
  • The poverty measure doesn’t include some forms of interests on savings or property such as housing.
  • The poverty measure doesn’t take taxes into account, largely because they didn’t affect the poor very much in the 1960s. Income is counted before subtracting payroll, income, and other taxes, overstating income for some families. On the other hand, the federal Earned Income Tax Credit isn’t counted either, underestimating income for other families.
  • And there’s also a problem counting the effects of cohabitation and co-residency, overestimating poverty because overestimating expenses.

Because the poverty measurement disregards non-cash benefits and certain tax credits, it fails to serve its purpose. Poverty measurement is done in order to measure progress and to look at the effects of anti-poverty policies. Two of those policies – non-cash benefits and certain tax credits – aren’t counted, even though they reduce poverty. So we have a poverty statistic that can’t measure the impact of anti-poverty policy… That’s like measuring road safety without looking at the number of accidents avoided by government investment in safety. Since the 1970s, the U.S. government implemented a number of policies that increased spending for the poor, but the effects of this spending were invisible in the poverty statistics.

This had a perverse effect: certain politicians now found it easy to claim that spending on the poor was ineffective and a waste of money. It’s no coincidence that trickle down economics became so popular in the 1980s. The poverty measurement, rather than helping the government become more effective in its struggle against poverty, has led to policies that reduced benefits. Of course, I’m not saying that poverty reduction is just a matter of government benefits, or that benefits can’t have adverse effects. Read more here.

Fortunately, the US Census Bureau has taking these criticism to heart and has been working on an alternative measure that counts food stamps and other government support as income, while also accounting for child-care costs, geographic difference etc. First results show that the number of poor is higher according to the new measurement system (it adds about 3 million people). For some reason, I think the old system has still some life in it.

Some details of the new measurement:

when you account for the Earned Income Tax Credit the poverty rate goes down by two points. Accounting for SNAP (food stamps) lowers the poverty rate about 1.5 points. … when you account for the rise in Medical Out of Pocket costs, the poverty rate goes up by more than three points. (source)

More posts about problems with poverty measurement are here.

Migration and Human Rights (26): The “Criminal Immigrant” Stereotype, Ctd.

Contrary to right-wing rhetoric and popular belief (examples here and here), there isn’t much of a correlation between Latino immigration in the U.S. and crime rates. There’s an interesting new article about this here confirming my previous claims (to make it even more interesting: it’s from a conservative magazine).

Nearly all of the most heavily Latino cities have low or even extremely low crime rates, and virtually none have rates much above the national average. Eighty percent Latino El Paso has the lowest homicide and robbery rates of any major city in the continental United States. This is not what we would expect to find if Hispanics had crime rates far higher than whites. Individual cities may certainly have anomalously low crime rates for a variety of reasons, but the overall trend of crime rates compared to ethnicity seems unmistakable.

Maybe we should assume that the numbers are bit too rosy because of the tendency of illegal immigrants to underreport crime (although the article tries to correct for underreporting by comparing homicides – almost no underreporting – to overall crime). Also, the likelihood of underreporting by illegal immigrants can be offset by a possibly equal effect of criminal restraint on the part of illegal immigrants: for the same reasons that they underreport crime – fear of contacting the authorities and being identified as illegal immigrants – they stay out of trouble with the police and try to act decently.

However, if we look at it from another side, we see that incarceration data show somewhat higher levels for Hispanics or immigrants (although most Hispanics are American-born, the vast majority still comes from a relatively recent immigrant background):

the age-adjusted Hispanic incarceration rate is somewhat above the white rate—perhaps 15 percent higher on average. (source)

Still, one can’t simply conclude from this that crime is more rampant among Hispanics or immigrants. It’s still possible that instead of higher criminality we simply witness the result of harsher treatment of those sections of the population by the judicial system. Also, incarceration rates are inflated because many immigrants are in jail not because of ordinary crimes, but because of infractions of immigration law; you should exclude the latter if you want to compare Hispanic and white criminality (unless you consider infractions of immigration law as essentially equivalent to ordinary crime, which is not altogether insane; but the point of this post is to examine the claim that there are more ordinary criminals among Hispanic immigrants than among [longtime] citizens).

In addition, you should correct incarceration rates for age and gender: in general, most criminals are young men, and it happens to be the case that most immigrants are also young men. So the likelihood that immigrants end up in prison is – slightly – higher compared to the general population, not because they’re Hispanics but because they are young men. Any other, non-immigration related influx of young men in a certain area – e.g. military demobilization or a huge construction project – would have an effect on crime. (If you don’t correct for this, you’re making a common statistical mistake: see here for other examples of the “omitted variable bias”).

Finally, immigrants are relatively poor and there is a link between poverty and crime. So that can also explain the higher incarceration rate for immigrants. If you link the higher probability of poor people engaging in crime with the fact that poor people have lower quality legal representation, you have a double explanation. So, again, if Hispanics do end up in jail more often, perhaps it’s because they’re relatively poor, not because they are Hispanics and somehow racially prone to crime.

All this is limited to the U.S. People can still make the case that immigration in other countries promotes crime, but that case is made harder by the false claims about the U.S. (At least in France there’s no proof of the share of immigrants in the population having a significant impact on crime rates). These false claims are always based on anecdotes, and you’ll always be able to find criminals with foreign sounding names in order to whip up a frenzy against immigration, thereby satisfying your racist hunger and building a political following of ill-informed voters. Again a clear demonstration of the usefulness of statistical analysis in human rights issues and the danger of anecdotal reasoning.

Bonus paper here. Quote:

We examine whether the improvement in immigrants’ relative incarceration rates over the last three decades is linked to increased deportation, immigrant self-selection, or deterrence. Our evidence suggests that deportation does not drive the results. Rather, the process of migration selects individuals who either have lower criminal propensities or are more responsive to deterrent effects than the average native. Immigrants who were already in the country reduced their relative institutionalization probability over the decades; and the newly arrived immigrants in the 1980s and 1990s seem to be particularly unlikely to be involved in criminal activity.

More on migration.

Income Inequality (20): Social Mobility in Anglo-Saxon Economies

I know that talking about national or international economic models should be avoided because it’s highly simplistic, but I’ll do it anyway because I want to show that people who do sincerely talk about such models make some assumptions about them that are, in my view, incorrect. The Anglo-Saxon economic model, when compared to the mainland European model, is believed to focus more on individual responsibility than on social support. It imposes lower taxes and delivers a less developed social safety net. It’s more “liberal” (in the European sense of the word, meaning less social) and free market oriented. (Anglo-Saxon means English-speaking countries such as the United Kingdom, the United States etc. but there are large differences between the UK and the US, the UK being less “Anglo-Saxon” than the US; and some mainland countries – like some Eastern European countries – are more “Anglo-Saxon” than they are “mainland”. This goes to show that we’re being simplistic; see also here).

The mainland model is often believed to be better at poverty reduction, job security, social services, and income equality. The Anglo-Saxon model on the other hand is said to be more flexible, less state dependent and more competitive (because of lower taxes and less labor regulation) and suffers less unemployment (because of the less generous social safety net; see also here).

For the same reasons, the Anglo-Saxon model is also believed to be less equal and more open to social mobility – social mobility being defined as the difference between the socioeconomic status of parents and the status their children will attain as adults. When the focus is on individual responsibility and when people can keep a larger share of their income after taxes, they are incited to do well, to work hard, to develop their talents, and to innovate. This not only creates a more competitive economy, but also one in which people can be socially mobile and rise in status and wealth. Countries that impose high taxes and offer generous safety nets don’t give the same incentives.

However, we see that the UK and the US aren’t characterized by relatively high levels of social mobility:

A father’s income determines his son’s to a greater extent in Britain than in any other wealthy nation, with half of a high earner’s “economic advantage” being transmitted to their children, a study by the Organisation for Economic Co-operation and Development has found. … In Britain … background determines a person’s success to a far higher degree than in almost any other rich country. “Education is not as important for social mobility in Britain as for other countries. Class, to be honest, is the most likely explanation,” said Romain Duval, head of division in the Paris-based OECD’s economics department. (source)

Something similar is the case for the US.

It appears that the United States has less intergenerational social mobility than many other industrialized countries. (source)

It’s true that the UK and the US (especially the US) are highly inegalitarian, and increasingly so, but high levels of income inequality do not necessarily go hand in hand with high levels of social mobility. In fact,

social mobility between generations tends to be lower in more unequal societies. (source)

So if you care about social mobility – and I think you should because high levels of social mobility indicate equality of opportunity, something no one objects to – then you should care about reducing inequality rather than promoting it through “Anglo-Saxon” tax and welfare systems (to the extent that there is something like it in the real world).

What is Democracy? (48): One Man, One Vote, Ctd.

It is well known that states are overrepresented in the U.S. political system. For example, Wyoming has 0.2% of the U.S. population but has 0.6% of the Electoral College votes for President, and 2% of the U.S. senators; while California has 12% of the population, 10% of the electoral votes, and still only 2% of the senators. To put it another way: Wyoming has 6 electoral votes and 2 senators per million voters, while California has 1.5 electoral votes and 0.06 senators per million voters. … the 21 smallest states have the population of California but 42 Senators compared to California’s two. … We have looked at other countries (Mexico, Canada, Japan, Argentina, Thailand…) and found similar patterns. Andrew Gelman (source)

To some extent, this has been done on purpose, especially in the U.S. When forming the federation, small states had bargaining power and wanted to have an equal vote – equal compared to larger states – in the federal arena in order to protect their interests and to avoid being outvoted by simple population based majorities. This was called the Great Compromise: the Senate became the “State’s House”, and the House of Representatives the “People’s House” (because it has a more proportional type of representation).

Such systems violate the principle of “one man, one vote”, a basic principle of democracy (which is why some prefer to call the U.S. a republic rather than a democracy), not only because it gives some voters more influence than others, but also because, in extreme cases, it can lead to the rule of the minority: a minority can get its proposals translated into legislation or policy, or can at least block proposals for change.

However, these systems aren’t always detrimental to democracy. In some circumstances, arrangements like these are necessary for the peaceful coexistence of different groups in relatively large states. When certain minorities don’t get certain safeguards, democracy and even the state as such may turn out to be difficult to maintain. There is a type of democracy called pacification democracy or consociational democracy (more here). This type of democracy is characterized by the will to eliminate permanent minorities as much as possible and to create mechanisms to guarantee a certain degree of participation for every group. Some of these mechanisms are:

  • A guaranteed number of representatives (e.g. Senators in the case of the U.S.), government ministers, civil servants etc. from each group (disproportional representation).
  • A second parliamentary chamber exclusively for the representation of minorities.
  • Two-thirds majorities or even larger majorities for important decisions, which guarantees that at least most of the groups participate in these decisions.
  • Veto-powers for important decisions. Each group, even a minority group, can block decisions that are contrary to its fundamental interests. In very heterogeneous and divided societies, this creates a de facto consensus-democracy instead of the classical majority-democracy. This may be necessary to avoid the “dictatorship of the majority” and the systematic exclusion of certain minorities. This system always tries to have the consent of all important groups in society, especially for important decisions.
  • A high degree of local self-government (federalism).

All these things violate the principles of “one man, one vote” and simple majority rule, but sometimes this violation is necessary to have a stable and peaceful democracy. I argued elsewhere that democracy is always more than mere majority rule.

Racism (9): Race and Employment

Racism expresses itself in different ways, one of which is discrimination in employment:

In 2004, Jean-François Amadieu, a sociologist at the Sorbonne, sent out 500 CVs replying to ads for sales jobs in the Paris region. The CVs were identical except in one regard: some applicants had north African names, and others traditional French ones. The white male French names received five times as many job offers as the north African ones. When Amadieu repeated the exercise in 2006, the ratio was 20:1. (source)

Such examples of racism in employment policy have an impact on unemployment rates across races. Those are very unequal for different races.

And then the numbers exclude those who are in prison. Given that there are 5 times as many blacks behind bars as whites in the U.S., including them in unemployment statistics would make the gap even wider. (And why shouldn’t we include them? They obviously don’t earn a living and can’t provide for their families).

Of course, this difference between the unemployment rates for blacks and whites isn’t entirely caused by direct discrimination in employment decisions. Other elements play a part:

  • Jobs are often concentrated in white suburbs, difficult to reach for blacks who do not own a car.
  • Blacks often can’t rely on networks of family businesses as much as whites or Latinos.
  • Blacks “have been relegated to precarious, low-wage work … at disproportionate rates” (source), making them more vulnerable to recessions, outsourcing and competition from immigrants.
  • Indirect discrimination: if blacks receive substandard education, are less healthy and more poor, then this will affect their employment prospects.

Capital Punishment (24): The Probability of Capital Punishment in the U.S., by Race

The U.S. population is about 300,000,000. Whites represent about 80%, or roughly 240,000,000. If you check the numbers of executions in the U.S., you’ll see that there were about 1,000 in the period from 1977 to 2005. 584 of those executions were of whites. That’s about 20 executions per year on average, meaning that whites have a chance of 1 in 12,000,000 of being executed.

There are about 40,000,000 African Americans, representing roughly 13 % of the U.S. population. 339 executions in the 1977-2005 period were of African Americans. That’s about 12 a year, meaning that blacks have a chance of 1 in 3,300,000 of being executed.

A black person in the U.S. is therefore almost 4 times more likely to be executed. Even if we assume that this higher probability of being executed correctly reflects a higher probability of being involved in crime that comes with capital punishment – and that’s something we shouldn’t assume, because it’s likely that there are injustices involved, e.g. inadequate legal representation and such – that shouldn’t put our minds at ease. We then still have to ask the question: why are blacks more likely to be involved in capital offences? Surely not because of their race. Something happens in society that leads to this outcome, and it’s likely that there are injustices involved: for example, inadequate education, poverty levels, discrimination etc.

The Causes of Poverty (28): Family Structure

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

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

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

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

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

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

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

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

Limiting Free Speech (37): Incitement to Murder and Death Threats

Should a joke about killing the president be protected by the right to free speech and the First Amendment? Or a poll on Facebook asking if Obama should be assassinated? Or a rap song about “killing a cop”? Or do such things cross a line beyond which the government can intervene, can limit the freedom of speech of those involved, and can punish them for having committed a crime? I would say: it depends.

In US jurisdiction, the Brandenburg v. Ohio case stipulates that abstract advocacy of violence is protected speech under the First Amendment. However, it is equally acceptable, also according to Brandenburg v. Ohio, that speech which incites imminent, illegal conduct – including violence – may itself be made illegal:

The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

So, advocacy of violence can only be prohibited when there is clear incitement of an imminent violent act, as well as the likelihood that this incitement produces or helps to produce such an act.

In the specific case of death threats, the Supreme Court case is Watts v. United States (1969). There it says that only true threats aren’t constitutionally protected; mere hyperbole, humor or offensive methods of stating political opposition are protected. What is a “true threat? According to Virginia v. Black (2003),

a statement can’t be a punishable threat unless it’s made “with the intent of placing the victim in fear of bodily harm or death.” Thus, following Black, a statement is a punishable threat only if a reasonable listener would understand it as a threat of attack and the speaker intended that the listener get that impression. (source)

Personally, I wouldn’t place too much weight on the second clause in that last sentence (after the “and”). I think it’s sufficient that the listener gets the impression of a threat and that the threat produces reasonable fear, even when the person stating the threat didn’t really mean it and was just joking (hence no real “intent”). So a joke about a bomb while on an airplane shouldn’t be protected, while a joke on the radio about killing the president should be protected, because the president or anyone else would probably not take it very seriously. The context of the threat is important. Even when there is clear intent and therefore not just a joke, but no likelihood of the threat being carried out, I would also propose to protect freedom of expression. The main focus is on the reaction of the reasonable recipient and the risk to which he or she is exposed (this focus contains a subjective and a factual element: perception/reaction and factual risk).

Lies, Damned Lies, and Statistics (12): Generalization

An example from Greg Mankiw’s blog:

Should we [the U.S.] envy European healthcare? Gary Becker says the answer is no:

“A recent excellent unpublished study by Samuel Preston and Jessica Ho of the University of Pennsylvania compare mortality rates for breast and prostate cancer. These are two of the most common and deadly forms of cancer – in the United States prostate cancer is the second leading cause of male cancer deaths, and breast cancer is the leading cause of female cancer deaths. These forms of cancer also appear to be less sensitive to known attributes of diet and other kinds of non-medical behavior than are lung cancer and many other cancers. [Health effects of diet and behavior should be excluded when comparing the quality of healthcare across countries. FS]

These authors show that the fraction of men receiving a PSA test, which is a test developed about 25 years ago to detect the presence of prostate cancer, is far higher in the US than in Sweden, France, and other countries that are usually said to have better health delivery systems. Similarly, the fraction of women receiving a mammogram, a test developed about 30 years ago to detect breast cancer, is also much higher in the US. The US also more aggressively treats both these (and other) cancers with surgery, radiation, and chemotherapy than do other countries.

Preston and Hu show that this more aggressive detection and treatment were apparently effective in producing a better bottom line since death rates from breast and prostate cancer declined during the past 20 [years] by much more in the US than in 15 comparison countries of Europe and Japan.” (source)

Even if all this is true, how on earth can you assume that a healthcare system is better because it is more successful in treating two (2!) diseases?

Another example: the website of the National Alert Registry for sexual offenders used to post a few “quick facts”. One of them said:

“The chance that your child will become a victim of a sexual offender is 1 in 3 for girls… Source: The National Center for Victims of Crime“.

Someone took the trouble of actually checking this source, and found that it said:

Twenty-nine percent [i.e. approx. 1 in 3] of female rape victims in America were younger than eleven when they were raped.

One in three rape victims is a young girl, but you can’t generalize from that by saying that one in three young girls will be the victim of rape. Perhaps they will be, but you can’t know that from these data. Like you can’t conclude from the way the U.S. deals with two diseases that it “shouldn’t envy European healthcare”. Perhaps it shouldn’t, but more general data on life expectancy says it should.

These are two examples of induction or inductive reasoning, sometimes called inductive logic, a reasoning which formulates laws based on limited observations of recurring phenomenal patterns. Induction is employed, for example, in using specific propositions such as:

This door is made of wood.

to infer general propositions such as:

All doors are made of wood. (source)

More posts in this series.

Income Inequality (18): No Such Thing – Good Thing – Necessary Evil – Gone Thing?

Attitudes towards income inequality in the U.S. differ widely.

  • There are those who deny that there is any, or better that there is enough to be worried about (see here for an example, or here).
  • Others say that it’s a good thing, and that there should be more of it. People are very different in their talents and work ethic, and rewarding the highly productive and creative ones for their efforts – which is only “fair” – automatically results in income inequality, because the unproductive and uncreative will not be rewarded, or less generously.
  • And then there are those who believe income inequality is a necessary evil. They don’t particularly like huge differences in rewards for activities which are, after all, often hardly comparable in any quantitive sense (is it so much more worthwhile to invest your efforts and creativity in the development of the iPhone than in the education of your children?). But they do believe that financial rewards stimulate productivity, and that higher rewards stimulate more. And increased productivity ultimately benefits us all, even those who are worse off and on the wrong side of the income inequality. (This is a version of “trickle down” economics).
  • Still others think that income inequality isn’t a problem any longer, given the effect of the recession on high earners.

Note: these 4 views aren’t necessarily incompatible. One and the same person can, as I see it, hold at least 3 of them at the same time. (E.g. you can believe that there isn’t much inequality, that what is left will soon be gone, and that you hope it will be back one day).

I think only the third view has some relation to the truth. Regarding the first view:

The basic conclusion of this data, that the nation [the U.S.] suffers from extreme and growing income inequality, is essentially irrefutable. Bruce Judson (source)

Regarding the second view: I object to it not because I don’t want to reward people or because I think justice has nothing to do with merit. On the contrary. I object to it because it assumes that different people and different activities can be placed on a single scale of merit and reward. It’s impossible to compare activities and say that one deserves a $10.000 per year reward (i.e. income) and another activity, compared to this first, is 10 times more deserving and hence deserves a $100.000 per year reward. Merit isn’t just a financial or quantitative thing, and hence it cannot – at least not exclusively – justify income inequality. Moreover, the income inequality that we see in the real world has little or nothing to do with merit. Most people aren’t paid according to any definition of merit. In the best case, they are paid because of their talents, which isn’t anything anyone deserves. In all other cases – and in the large majority of cases – people’s pay or income is determined by factors such as luck, family, networks, playing on the stock exchange etc., and none of these things are even marginally related to merit. In a society that rewards people for their creativity and productivity, you expect to see high levels of social mobility, and that’s precisely what you don’t see in the U.S.

Regarding the third view, I do believe that it is essentially correct, but it obfuscates many of the problems caused by income inequality. Hence, even if economic efficiency doesn’t justify efforts to limit income inequality, other things do.

The fourth view would seem to make sense intuitively. A lot of the income of the very wealthy comes from the stock markets, and the recession has pushed these markets down.

Professor Saez concludes that “the most likely outcome is that income concentration will fall in 2008 and 2009.” But, he follows this conclusion by stating that in the absence of significant policy actions such declines will be temporary: “Based on the US historical record, falls in income concentration due to recessions are temporary unless drastic policy changes, such as financial regulation or significantly more progressive taxation, are implemented and prevent income concentration from bouncing back. Such policy changes took place after the Great Depression during the New Deal and permanently reduced income concentration till the 1970s. In contrast, recent downturns, such as the 2001 recession, lead to only very temporary drops in income concentration.” Bruce Judson (source)

Moreover, the poor are also suffering as a result of the recession, not in the same absolute measures as the rich, but that is because they have less to lose in the first place. However, what they do lose as a result of the recession is for them relatively more important.

Recent data show that income inequality hasn’t actually decreased in 2008. Maybe in 2009… The recession only got started late in 2008.

Limiting Free Speech (35): Publishing Lists of Pedophiles on the Internet, Ctd.

A follow-up from this previous post on the same subject. We should of course do our utmost to protect people, and especially children, from sexual predators. In the U.S., and to a lesser degree elsewhere, “utmost” means publishing so-called “registries” of sex offenders on the internet. These registries contain the names, addresses and offenses of people convicted for sex crimes. The purpose of the registries is to inform people about the whereabouts of convicted sex offenders and allow them to take measures to protect their children. (A few examples of registries are here, here and here; some of those are government sites, others are not).

By definition, since the purpose is protection, these registries should contain only information on people who are likely to offend again, and to offend in a way that is dangerous to children (and possibly adults). People who have been convicted in the past but are not deemed to be possible repeat offenders, or people convicted for sex crimes that are not dangerous (flashers for example) shouldn’t be included, but regularly are.

These registries are an exercise of free speech. The question here is: should they be allowed, or are they doing more harm than good? In other words: should this case of freedom of speech be restricted in order to protect other rights? (we’ve seen before how human rights can be limited when they come into conflict with other human rights). Which other rights could possibly be harmed by this exercise of free speech? One could say the right to privacy of the offenders (it’s not because you’re a convicted criminal that you automatically lose your right t privacy). But that’s not obvious. Someone’s address and criminal record aren’t private information. So registries of sex offenders aren’t, by definition, violations of the right to privacy. Hence, the right to free speech of publishers of such registries can’t be limited because of the right to privacy of the offenders.

But there are other reasons why the rights of those publishers can be limited. Registries can (and did) lead to

  • harassment of offenders, violent attacks and even murder
  • ostracism, including their family members and children (some registries even have button to print a mugshot that can be posted on the offenders’ doors)
  • violations of their right to freely choose a residence: they are either chased away, or legally prohibited from living near certain places (schools, playgrounds…); sometimes these prohibitions are so restrictive that people are forced to be homeless (in Miami, exclusion zones have created a camp of homeless offenders under a bridge)
  • violations of the right to work: people whose names are in registries are often fired from their jobs or have difficulties finding a job.

These are obviously rights violations that are serious enough to at least make us consider whether the right to free speech of the publishers of registries should be maintained.

And even the right to privacy can become a problem. As noted, addresses and criminal records aren’t private. However, many registries contain a lot of “noise” – people who do not pose any threat (some U.S. states requires registration of people who have visited prostitutes, who have had consensual sex as teenagers etc.). Not only does this label harmless people as “predators”, with often devastating consequences for them. Another result of this noise is that the registries become useless. As a consequence, those who defend the registries ask for more information to be included so that they can judge which “predator” is a real one:

I agree that a man who exposes himself to a woman may not pose the same danger as a convicted child-molester or rapist. All represent a threat, however, so the solution is thus not less information but more detailed information. Give me the facts about the offence and let me decide the level of risk to me and my family. As the parent of two young children I would like to know who my neighbour is going to be before I buy that new home. Adrian Kendall

Taken to its logical extreme, such a view will defend putting everything “bad” about everyone in a super-register. Perhaps registries could be used on a need-to-know basis only.

Economic Human Rights (29): Unemployment Benefits in the U.S. and Elsewhere

Strange as it may seem to some, unemployment benefits are a human right, and rightly so in my opinion. Poverty makes rights impossible, and unemployment benefits save many from poverty, especially during a recession in which unemployment isn’t just a phase between two jobs. Read for instance art. 22, 23 and 25 of the Universal Declaration:

Article 22: Everyone, as a member of society, has the right to social security.

Article 23: Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

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

Three times! They must have meant it.

Compared to many other industrialized countries, the U.S. usually adopts a very critical attitude towards social and economic rights in general, and hence also to the right to unemployment benefits. Which is apparent from its relatively stingy system.

At just under $300, the average weekly benefit is less than half the average private-sector wage. Mississippi’s maximum benefit of $230 is not much more than the federal poverty threshold of $200 for an individual. (source)

And it’s not just the total amounts of the benefits:

Compared with the systems in other industrialised countries, the American unemployment-insurance (UI) scheme pays lower benefits for less time and to a smaller share of the unemployed. … States often require beneficiaries to have worked or earned an amount that disqualifies many part-time and low-wage workers. They also disqualify people seeking only part-time work – even though many people now work part-time for family reasons. Benefits typically last for only six months, more than enough time to find a new job in normal times but not in recessions. (source)

This isn’t only a human rights issue. Especially in a recession it can mean making things worse. When people lose their jobs, you don’t want them to lose a large part of their purchasing power since economic recessions are made worse by falling consumer spending.

However, making the system of unemployment benefits more generous would almost certainly require higher taxes. And although the U.S. is a low-tax country (compared to other industrialized countries) that seems pretty utopian right now (given the already hysterical fears about the fiscal consequences of the healthcare proposals).

The Failure of “Trickle Down Economics”

Trickle Down Economics, also called Reaganomics (due to its association with the policies of Reagan and Thatcher) or supply-side economics, is the theory according to which policies destined to alleviate poverty and redistribute wealth are unnecessary and even counterproductive. The rich should be allowed to become even more wealthy, by imposing very low tax rates on high incomes (or a flat tax for example) rather than using the tax system to redistribute wealth. The result will be that their wealth will “trickle down” towards those who are less well off.

When government policies favor the wealthy — for example, via tax cuts for upper-income classes — the increase in wealth flows down to those with lower incomes. That’s because the rich are more likely to spend the additional income, creating more economic activity, which in turn generates jobs and eventually, better paychecks for the less well-off. Michael S. Derby (source)

All boats rise on a rising tide. Redistribution is counterproductive because it will take away the incentives to do well, and hence also take away the possibility of wealth creation and subsequent automatic wealth distribution through “trickling down”. All this is reminiscent of laissez-faire and the invisible hand theory.

Reagan’s trickle down policies in the U.S. can still be felt today:

According to the Tax Policy Center, the top marginal tax rate in the U.S. stood at 70% when Reagan was elected in 1980, falling steadily to 28% by 1989, before it began to rise modestly. The top marginal rate now stands at 35% against a peak of 94% in 1945. (source)

These tax cuts were implemented with the support of the Democrats in the House, which explains why they have been upheld all these years. The result of this was, unsurprisingly, a higher concentration of wealth in fewer hands:

In the period since the economic crisis of the early 1970s, US GDP has grown strongly, and the incomes and wealth of the richest Americans has grown spectacularly. By contrast, the gains to households in the middle of the income distribution have been much more modest. Between 1973 … and 2007, median household income rose from $44 000 to just over $50 000, an annual rate of increase of 0.4 per cent. … For those at the bottom of the income distribution, there have been no gains at all. … incomes accruing to the poorest 10 per cent of Americans have actually fallen over the last 30 years. John Quigging (source)

This is already part of the refutation of the doctrine. Obviously not all boats have risen on the same tide. But if you don’t believe this, there’s a paper here and a blogpost here arguing against the doctrine in a more intelligent way. Maybe “spreading the wealth around” a bit and imposing some tougher taxes on the rich isn’t such a bad idea after all. I mean, the “tricklers” have had decades to prove their point, and failed; maybe now it’s time for the “spreaders” to have a go.

Limiting Free Speech (32): Hate Speech in Canada

In Canadian law and jurisprudence, the definition of hate speech as a form of speech that falls outside the protection of the right to free speech, is quite different from the definition in the U.S. And quite different as well from what I personally think is correct. I believe Canada is on the wrong track in this respect, and should move closer to the U.S. view.

In the U.S., the two main Supreme Court cases defining the rules concerning hate speech, are Brandenburg v Ohio and R.A.V. v St Paul. Hate speech in the U.S. can only be punished when it is likely to incite imminent lawless action. This is consistent with my personal view that human rights can be limited solely for the protection of other rights or the rights or others.

In Canada, however, it’s not the likelihood of actual harm than can turn speech into prohibited hate speech. The expression of hatred, irrespective of the possible consequences of this expression, is considered a crime. The content itself is the crime, not where it may lead. Canadian law and jurisprudence (see here for instance) assume that hate speech in itself, independent from its consequences, inflicts harm on a plural and tolerant society. The objective of Canadian hate speech laws is not only the prevention of harm to individuals and their rights, but also the protection of the kind of society Canada wants to be.

Obviously, Canadian society deserves protection, as does tolerance in general. But it’s quite another thing to claim that this protection requires content-based hate speech laws. I don’t think content as such should ever be the sole test of whether to protect speech or not. The (possible) consequences for the rights of others should be the main criterion, together with intent.

Limiting Free Speech (31): Speech That Incites, and Teaches the Methods of, Illegal Activity

This is a follow-up from two previous posts on the same subject (here and here).

In Brandenburg v. Ohio, the Supreme Court held that abstract advocacy of lawlessness and violence is protected speech under the First Amendment. Even in a society based on laws, people should be free to express disagreement with the law and call on others to break the law (inflammatory speech).

I think that’s generally acceptable and fair. If someone believes that smoking dope shouldn’t be a crime, and carefully describes to his or her readers how to cultivate and use the drug, then he or she should be permitted to do so. The crime is drug use, not the description of or incitement to use drugs. The same is true for a more extreme example, such as the infamous book called “The Hit Man Manual” (see the Rice v. Paladin Enterprises case). Also, we don’t want to ban chemistry books because someone may use them to build a bomb.

However, it is equally acceptable, also according to Brandenburg v. Ohio, that speech which incites imminent, illegal conduct may itself be made illegal:

The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Brandenburg v. Ohio

If speech intends to produce illegal actions, and if, as a result of this speech, the illegal actions are imminent and likely, then there is a reason to limit freedom of speech. In the words of Justice Black (who was, by the way, something of a first amendment absolutist):

It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the contention now.

When speech acts contribute substantively to criminal acts, the speech acts are considered to be “aiding and abetting”.  The fact that “aiding and abetting” of an illegal act may be carried out through speech is no bar to its illegality. (source)

The justifications for free speech that apply to speakers do not reach communications that are simply means to get a crime successfully committed. K. Greenawalt in “Speech, Crime, and the Uses of Language”

Aiding and abetting a crime can be criminal in itself, even if it takes the form of the spoken or written word. The First Amendment doesn’t provide immunity from prosecution because someone uses speech or the printed word in encouraging and counseling others in the commission of a crime.

Volokh has given the following example:

A Virginia woman has been arrested for blogging about the members of a local drug task force. The charge is harassment of a police officer. She apparently posted on the blog one officer’s home address, as well as photos of all members of the task force, and a photo of one officer getting into his unmarked car in front of his home….

Photographing, writing about, and criticizing police officers, even by name, should of course be legal. But it’s a tougher call when the officers in question work undercover. Naming them, posting their photos, posting their addresses, are all pretty clearly efforts to intimidate them, and it isn’t difficult to see how doing so not only makes it more difficult for them to do their jobs, but may well endanger their lives….

When may speech be restricted because it provides others with information that may help them commit crimes? Here, the information may help people kill police officers, or at least conceal their crimes from police officers (once the undercover officers’ covers are blown). (source)

However, this doesn’t mean that all inflammatory speech or every publication and distribution of instructions on how to act illegally, can be suppressed and made illegal. The “Brandenbrug test” has to be successful first, which means that there has to be more than mere intent. There has to be incitement of an imminent lawless act, as well as the likelihood that this incitement produces or helps to produce such an act.

Income Inequality (13): Social Mobility in the U.S. and Britain

America and Britain … have the highest intergenerational correlations between the social status of fathers and sons; the lowest are found in egalitarian Norway and Denmark. Things are even worse for ethnic minorities; a black American born in the bottom quintile of the population (by income) has a 42% chance of staying there as an adult, compared with 17% for a white person. The Economist (source)

If equality of opportunity is important – and I think it is – then it’s unacceptable that people’s income is to a large extent determined by the income of their parents or by their race. Equality of opportunity means that individuals who grow up in poor families can use their talent and effort to become wealthy, and that individuals who have wealthy parents end up with relatively meager incomes because of their lack of talent and/or effort.

Now, a lack of social mobility isn’t such a big problem in very egalitarian societies with high average incomes, because (almost) everyone already has a decent and more or less equal income, something which cancels out or softens the injustice of seeing your income level determined by that of your parents. But, of course, Britain and the U.S. are not egalitarian. On the contrary, among developed countries they are among the least egalitarian with income inequality far beyond the average.

So, what to do about it? If we do nothing, then we may as well say out loud that we are a society based on injustice, a society in which one’s fate is determined by the lottery of birth, by the good luck or bad luck of being born into a certain  family. Maybe a “death tax” could help.

Income Inequality (11): Why Should We Care?

It’s a fact that many rich countries – rich in terms of total GDP – have a substantially unequal distribution of income; or, to put it in other words, these countries accept that there is huge inequality of wealth between people. It’s also a fact that, in many countries and particularly the U.S., these inequalities in income or wealth have become wider over the last decades.

What’s the problem, you may ask. Well, according to me this inequality poses some problems. But these problems are of relative importance. More important to me is the problem of absolute poverty. Absolute poverty is a lack of certain resources that are necessary to meet certain basic needs. This is not a problem of inequality. People may live in a very unequal society and at the wrong end of inequality, but they may nevertheless have no problem whatsoever meeting their basic needs.

More important as well, in some aspects at least, are the problems posed by other types of inequality. Gender inequality in some countries may be much more of a problem than income inequality (although these different types of inequality are probably connected).

Nevertheless, income inequality engenders some important problems. One is self-esteem. People suffering from relative poverty – i.e. finding themselves on the wrong end of an unequal income distribution – may suffer psychologically and emotionally. It’s also likely that their relative disadvantage isn’t very fair. In other words, it’s probably not solely based on questions of merit and desert. We don’t live in a world of equality of opportunity and level starting conditions. There’s also a correlation between relative and absolute poverty, so we may have to worry about relative poverty as a cause of absolute poverty.

Income inequality can also cause a problem for democracy. The rich can use their financial means to pervert the democratic procedures and to distort the equal influence on which democracy is based. Another way in which income inequality may pervert democracy is its divisiveness. It polarizes societies and it can antagonize regions within countries. None of this is helpful for the adequate functioning of democracy.

More on income inequality here and here.

Limiting Free Speech (20): Flag Burning and Flag Desecration

Flag burning (or other types of desecration of national flags) is a form of speech. It may not be a very refined or profound expression of opinions or ideas, but it is an expression nevertheless. Flag burning expresses disgust and hatred for a certain country or a country’s government and policies. It’s typically a very emotional form of speech, devoid of rational argument and reduced to simplistic slogans, and most often used in a setting of mass protest.

Given that it is a form of speech, it should, a priori, enjoy the protection of the right to free speech. However, in certain exceptional circumstances there’s a rationale for prohibiting it. It is a form of hate speech, and the rules governing limitations of hate speech apply here as well. In a nutshell: hate speech can be prohibited when it incites violence.

Now, it’s not impossible to imagine cases where flag burning can incite violence (burning the flag of Israel in front of a surrounded Jewish enclave when a pogrom is imminent, for example), but I guess that most cases of flag burning are much less harmful. So a general law forbidding flag burning doesn’t seem justifiable. There have been several attempts in the U.S. Congress to vote for an Amendment to the U.S. Constitution to allow a ban on flag burning:

On June 27, 2006, the most recent attempt to pass a ban on flag burning was rejected by the Senate in a close vote of 66 in favor, 34 opposed, one vote short of the two-thirds majority needed to send the amendment to be voted on by the states. (source)

Much of this is of course political posturing of politicians trying to be the most patriotic. Given the rarity of flag burning in the U.S., it’s also a typical example of a solution in search of a problem.

Those who would burn the flag destroy the symbol of freedom, but amending the Constitution would destroy part of freedom itself. Richard Savage (source)

The fact that patriotic people are offended by flag burning isn’t a sufficient reason to ban it. (I’ve argued here against a right not to be offended).

Limiting Free Speech (16): Fighting Words

Fighting words are written or spoken words expressed to incite violence. This is related to the topic of hate speech, but it isn’t quite the same thing. Hate speech isn’t necessarily intended to incite violence (just simple hate in some cases).

In Chaplinsky v. New Hampshire (in 1942), the U.S. Supreme Court decided that “fighting words”, words that tend to incite an immediate breach of the peace, are among the

well-defined and narrowly limited classes of speech [which] the prevention and punishment of have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

Speech that merely causes anger, offense, insult or outrage does not amount to fighting words. Fighting words must present an actual threat of immediate violence or must “reasonably incite the average person to retaliate.”

It’s not true that certain words inevitably provoke violent reactions by individuals. Rather, one should take into account the context in which the words were uttered, not merely the content of the words themselves.

Given the rules for limiting free speech described in this post, the case of fighting words is rather simple. Inciting violence leads to violations of individual rights to security and bodily integrity, and in many cases these rights should take precedence over the right to free speech. It seems difficult to accept that hurting someone is a lesser evil than limiting someone’s right to speak and threaten.

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

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

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

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

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

Assumption 1: A real-life case

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

Assumption 2: Knowledge and knowledge about knowledge

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

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

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

Assumption 3: It works

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

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

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

Assumption 4: No alternative

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

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

Assumption 5: Exceptional

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

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

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

Assumption 6: The Greater Good

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

What motivates the ticking bomb argument?

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

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

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

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

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

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

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

Limiting Free Speech (12): Obscenity

The words “obscenity” (from the Latin obscenus meaning “foul, repulsive, detestable”), “salaciousness” or “salacity”, are legal terms describing acts or cases of speech that are prohibited because they offend a society’s prevalent sexual morality. As such, these prohibitions are limitations of the freedom of speech and often include censorship of obscene material, punishment for obscene acts or distribution of obscene material etc. The question is whether such prohibitions are legitimate in light of the importance of the right to free speech.

What is or is not obscene differs from society to society, from individual to individual, and from time to time. What used to be considered obscene may today be banal. This makes it difficult to establish what is and is not obscene, and this difficulty has consequences for those wishing to make rules prohibiting obscenity.

Justice Potter Stewart of the Supreme Court of the United States famously stated:

I shall not today attempt further to define the kinds of material I understand to be embraced but I know it when I see it.

The Supreme Court does use a somewhat more precise rule, called the “Miller test“, to establish if something is obscene and hence doesn’t merit protection under the First Amendment:

  • whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest,
  • whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
  • whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Most forms of obscenity aren’t speech: walking naked in a shopping mall, for instance, or performing sex acts in public toilets, aren’t acts intended to transfer information or opinions. Hence they cannot be protected by the right to free speech (whether or not these acts need to be protected at all, and how, is not the topic of this post).

Obscenity can, with some credibility, claim protection under freedom of speech when it is in the form of printed material (including publication on the internet), because then it is a form of speech. In many cases, obscenity in such a form can be equated to pornography (although not all pornography is obscene and not all obscenity is pornographic). In many jurisdictions, this kind of obscenity is also traditionally considered as a justified limit on freedom of speech. But is it really justified?

In a previous post in this series, I discussed pornography and the possibility to limit the freedom of speech of pornographers. I concluded that this possibility exists in certain cases, namely those cases of pornography that cause harm. For instance, child pornography, pornography in which violence or force is used against the participants in the pornographic material, pornography that is associated with human trafficking etc.

The rule should indeed be: does it harm anyone? Whether it appeals to the “prurient interest”, or whether it lacks “some artistic interest”, is essentially irrelevant. Does it cause harm in the sense of rights violations? Of course, this kind of harm isn’t always easy to establish. It is in the case of child pornography. But many feminists make a convincing case that pornography, even pornography depicting consenting adults and consumed by consenting adults, dehumanizes women, solidifies mentalities in which women are second class citizens, and glorifies violence against women.

However, depicting violence is not necessarily the same thing as incitement of violence. The latter causes harm, the former not necessarily (otherwise we would have to ban all detective stories).

What is Democracy? (37): One Man, One Vote

Or better, one person, one vote. It’s not until relatively recently that women and minorities have been given the vote, even in the most advanced democracies in the world.

In most modern democracies, most adults have a vote. Few large groups (felons, children and immigrants excepted) are excluded from voting, and no one has more votes than anyone else. (In the early days of many democracies, some people had a larger number of votes; this was called plural voting).

However, it’s not because all people have one vote, that all votes have the same weight and that all people have an equal weight in the aggregate outcome of the vote. They only have in democracies that use proportional representation. PR results in a political spectrum in parliament that roughly coincides with the spectrum of the voters. No part of the electorate is over- or under-represented.

Democracies which do not use PR often use district systems (e.g. the U.S. and the U.K.). This is also called the “first-past-the-post” system – whoever has most votes in a district (not necessarily the majority of votes) gets the seat in parliament reserved for this district and becomes the only representative for the district (“winner takes all”). In some cases, this electoral system gives power to a relative majority and therefore, not necessarily an absolute majority. A party that has a few more votes than all other parties in a majority of districts, will have a majority of seats in parliament, but perhaps a minority of the votes. As this example indicates, a district system can result in the rule of a minority. An important minority or maybe, even a majority may not be represented at all. Political equality and majority rule, the basic values of a democracy, are affected. There is no longer a perfect match between the views of the people and the views present in parliament.

In such a system, the one-man-one-vote principle can be further harmed If the districts are not equal in proportion in terms of population. If both a small group of people and a large group of people have one representative, then we can hardly claim to have political equality, regardless of the possible problems created by the winner-takes-all rule. In some countries, rich minorities have often been given small districts, which favored them politically and offered them a very large and disproportional share of the seats in parliament. This is called gerrymandering.

For these and other reasons, the type of democracy instituted in the U.S. deviates, in part, from the principle of one-man-one-vote (a reason for some to call it a republic rather than a democracy, although the difference between these two concepts is spurious, see here). Whereas each member of the House of Representatives represents more or less the same number of voters (even though the system is based on voting districts), the Senate seats are not allocated according to population. Each state, large and small, gets two seats. Wyoming, with barely half a million citizens, has exactly the same political influence in the Senate as California (37m citizens). If you view U.S. states as large districts, you could say that the U.S. Senate has institutionalized the bias that gerrymandering can create in district systems.

This wouldn’t be so bad if the U.S. Senate, the Second Chamber in the U.S. parliament, didn’t have so much political power. Its powers, defined in the Constitution, include

  • consenting to treaties as a precondition to their ratification
  • approval of both chambers is necessary for the passage of legislation.

Even a minority of Senators can block legislation. The filibuster is a tactic used to defeat bills and motions by prolonging debate indefinitely. As it takes 60 votes out of a total of 100 Senators to stop a filibuster, a minority can block everything if it wants. So again, a further restriction of the democratic principle of one-man-one-vote. The Economist has calculated that if the least populous states ganged together, senators representing 11% of the population could thwart the will of the remaining 89%. Speaking of tyranny of the majority … The filibuster has often been used for very conservative and ill-intended purposes such as the preservation of Jim Crow laws and wasteful farm subsidies.

It can of course be used for more positive purposes as well. It can slow down over-anxious House representatives and hence improve the quality of legislation. The division of the legislative power into two parts, an Upper House and a Lower House or a House of Representatives and a Senate, is typical of a democracy and makes it possible to correct mistakes made in one House. One House can slow down or stop another House when some decisions are too risky or are taken without the necessary reflection or discussions. This system

doubles the security to the people by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient. James Madison in the Federalist Papers.

If we expect two houses or chambers to control and correct each other, then the participants of both must be selected in different ways. But it seems that this can still be done with a higher degree of respect for the principle of one-man-one-vote.

The reasoning behind this deviation from the one-man-one-vote system in the U.S. was to ensure equal representation of each state in the Senate, so that populous states can’t take measures that harm the fundamental interests of small states and therefore can’t violate the federalist philosophy of the U.S. It was supposed to be a counterweight against the “people’s house” (the House of Representatives) that would be sensitive to public opinion. Trust in public opinion has never been very high (which I argue is a self-fulfilling prophecy). But rather than protect the U.S. from the tyranny of public opinion, one has delivered it to the tyranny of the minority. Hardly democratic at all.

What is Democracy? (34): A Civic Responsibility

In most democracy, voting is a right and not a legal duty. Hence, political participation is less than 100%, sometimes a lot less. Some people vote, and vote only in some elections. The number of people who vote is called voter turnout. Voter turnout is the percentage of eligible voters who cast a ballot in an election. In U.S. Presidential elections, for example, turnout is usually between 50 and 60%, with slightly more in the 2008 election which saw many first-time African-American voters vote for Obama.

However, even if voting is not a legal duty in most democracies, it is generally considered to be a moral duty and a civic responsibility. A high voter turnout is generally considered desirable for many different reasons, and most democracies spend a lot of energy on “get the vote out” efforts. One reason for these efforts is the fact that low turnouts lead to unequal representation among various parts of the population. Policies will reflect this and will be to the benefit of those who vote. This can result in discrimination.

High turnout is generally seen as evidence of the legitimacy of the system and low turnout as a symptom of disenchantment, indifference and ultimately of the demise of the system. Of course, a single vote doesn’t make a lot of difference – except in very close races – and hence it’s normal that people feel indifferent. An individual, when faced with a monolithic monster of a state, threatening and distant at the same time, feels insignificant, like a grain of sand on the beach. Powerlessness becomes a fact of life and people retreat from democratic politics. A single voice is not noticed in the noise of millions and is reduced to insignificance. The state does not react to individual claims as quickly as it is supposed to, if it reacts at all. The bottom line is that individuals or small groups cannot hurt the state. Their votes are less than pinpricks. The only elements in society able to influence the centralized state are large, national and centralized pressure groups or political parties that are just as distant from the citizens as the state and equally insensitive to individuals’ claims.

But there is a solution. Federalism and decentralization encourage participation and counteract alienation and a feeling of distance between the citizens and the state.

Apathy and indifference are also the consequence of the impossibility in many democracies to vote for issues. When people are allowed to take decisions on issues, they will be more eager to debate the issues and to inform themselves on the pros and cons of possible solutions. Relying exclusively on representation creates apathy because people can only vote on persons. Take a look here for the reasons why representation creates indifference.

Other ways to promote civic responsibility are better education, a well functioning civil society in which free associations can mobilize citizens, modern information technologies such as the Internet etc.

Greg Mankiw has a different take on the problem of voter turnout:

Voting is a civic responsibility, they tell us, because democracy works best when everyone participates. … But relying on your fellow citizens to make the right choice … can be perfectly rational. If you really don’t know enough to cast an intelligent vote, you should be eager to let your more informed neighbors make the decision.

Eligible voters who are less informed about the candidates than their fellow citizens choose to stay at home, knowing the outcome will be more reliable without their participation. By not voting, they are doing themselves and everyone else a favor. If the ill-informed were all induced to vote, they would merely add random noise to the outcome.

What’s the evidence that this theory is right, that nonvoters are less informed than voters? Studies of voter turnout have found that education is the single best predictor of who votes: The highly educated turn out more often than less educated. A classic argument for why democracies need widespread public education is that education makes people better voters.

Granted. But rather than encouraging the less educated to stay home, as Mankiw seems to do, we should perhaps try to give them a better education.

Limiting Free Speech (8): The Fairness Doctrine, Limiting or Improving Speech?

The Fairness Doctrine was a policy of the U.S. Federal Communications Commission (FCC) – currently no longer applicable – that required television stations to deal with issues in a fair and balanced way, and to present contrasting viewpoints and give them all some air time (but not necessarily equal air time). The U.S. Supreme Court has upheld the constitutionality of the Fairness Doctrine.

Self-censorship

The FCC, when headed by Reagan appointees, abolished the policy because

the intrusion by government into the content of programming occasioned by the enforcement of [the Fairness Doctrine] restricts the journalistic freedom of broadcasters

and hence “chills speech” and violates the First Amendment. In order to avoid to go out and find contrasting viewpoints on every story, some journalists will supposedly refrain from covering some stories. Hence you have a de facto, not de jure, limit on free speech resulting from self-censorship.

What scarcity?

Another reason given for abolishing the doctrine was that the “scarcity argument” is no longer valid. In the old days, when the number of media outlets was limited, the public couldn’t go elsewhere to find other viewpoints, and the Fairness Doctrine could be justified. Today, however, with the internet, blogosphere, cable and satellite television, this is no longer the case. If anything, there’s too much punditry.

Public support

There’s some truth in all of this, but still I think there are good reasons for reinstating the Fairness Doctrine.

  • First of all, the claim that it limits free speech is somewhat awkward. How can a rule that multiplies the number of views and arguments that are represented in the media, be called a limit on the freedom of speech? If journalists will not cover a topic in order to avoid having to go and find opposing views, than this is either because there are no opposing views (if there are, they will quickly assert themselves) or because the journalists are lazy. After all, why do we have Google?
  • Secondly, there’s public support for the Fairness Doctrine. A recent poll by Scott Rasmussen asked whether the government should require all radio and television stations to offer equal amounts of liberal and conservative political commentary. 47 percent said “yes”, 39 percent were opposed.
  • Thirdly, the scarcity argument is still valid, albeit in another way. Sophisticated audiences, tech savvy, with knowledge of where to find information and enough spare time to do so, will not benefit from a reinstated Fairness Doctrine. They will make sure that they get their balanced information from different sources if one source isn’t balanced. But other people will benefit, in particular those who rely on one or a few media-outlets for their information. Some of these people may be burdened by low levels of education and poverty, and hence are especially vulnerable to the effects of one-sided reporting.
  • And finally, it is common knowledge that the quality of public debate and information in the U.S. is not what it could be. What we hear and see on television, radio and the internet is often no more than shrill partisan shouting. The issues are oversimplified, nuances get lost, sound bites rule, and much of the time the really important issues are pushed back by sensational trivia or personal attacks. A requirement to air opposing views would temper this and would improve the quality of political debate.

Democracy rests on opinions: opinions of candidates on policies, opinions of the people on candidates and policies, opinions on proposed policies and on executed policies. It’s therefore of the utmost importance that these opinions have some kind of value and aren’t knee-jerk impulses, prejudices, intuitions based on personal attacks, etc. Only well-considered opinions are good opinions and well-considered opinions are those that are tested in discussion and that survive as many counter-arguments as possible (see here).

Clearly, the media have a responsibility in this respect and have to present the struggle between arguments. They shouldn’t just be the mouthpiece of one side of the argument. They are indeed the “fourth estate” and are necessary for the functioning of a democracy.

We shouldn’t forget that opinions are not readily available. They are the result of thinking, studying, deliberation and discussion. If we want the people to have opinions, and preferably well-considered opinions, then we have to create frameworks for debate. We shouldn’t allow democratic elections – or even opinion polls and referenda – to be a simple system for tapping opinions that aren’t based on debate, or that often don’t even exist as opinions when they have to be tapped.

The Ethics of Human Rights (10): Universality of Rights Through Dialogue

It’s true that most if not all human rights can be found, implicitly or explicitly, in all cultures and religions of the world. However, there’s also cruelty everywhere and universal respect for human rights requires more than simply looking for similarities and making the sum. Unity, consensus and universality will only be the result of hard-fought influence and difficult and prolingued processes of persuasion, not of the simple detection and addition of things that are equal and that exist, as such, independently of each other.

Persuasion, however, implies dialogue, intercultural dialogue for example. One culture or religion can discuss with others and try to convince others that something which is considers to be important is in fact important.This dialogue doesn’t have to be unconditional (dixit Obama) but too many conditions make it impossible. And progress can only be achieved through dialogue.

This kind of intercultural dialogue can engender universality or can at least bring universality somewhat closer, but then it has to be a dialogue between equals. Nobody is persuaded when one of the parties to the dialogue believes himself to be superior, speaks without listening, and considers the other to be “evil” (e.g. part of an “axis of evil” dixit Bush) and a legitimate target of a bombing campaign (dixit McCain).

It also has to be a dialogue where there is at least a possibility that one convinces the other – in both directions. A “dialogue de sourds” – a dialogue of the deaf – cannot create consensus. We must be open to the possibility that those whom we abhor may have something interesting to tell us. And anyway, we have to listen if we want to understand them, and to see why they act the way they act. Only then can we have a chance of changing them.

This means that extreme cultural relativism is not an option. Cultures have to be allowed to influence each other, to open themselves and to mix with each other. Sealing off cultures and keeping them out of each other’s way because of the protection of identities, makes a dialogue impossible. Being persuaded means changing certain elements of one’s identity.

The need to convince one another implies that no one should believe themselves to be in possession of the truth, and of the only correct and just system. It implies self-criticism, and also a certain degree of tolerance, freedom of expression etc. It seems as though the conclusion is implicit in the premises. The attempt to universalize human rights through intercultural dialogue already requires human rights. You cannot hold a dialogue with someone who is intolerant or who is not allowed to speak his or her mind.

A dialogue in this case is not a negotiation. There can be no negotiation on human rights. It is “take it or leave it”, even if one can accept a partial adoption of human rights for strategic reasons (the theory of basic human rights or rights minimalism). Something is not as good as everything, but it is better than nothing.

And an inter-cultural dialogue is even less a conversation, in which one culture needs to convince other cultures, as if some cultures need more convincing than other cultures. Persuasion is a two-way street and at least, as much an intra-cultural affair as an inter-cultural one.

Terrorism and Human Rights (6): The War on Terror

The War on Terror, started by the U.S. government as a response to the September 11, 2001 terror attacks and later joined by other governments, has had and continues to have grave consequences for the human rights of their citizens and of citizens of other countries. This is a high price for an uncertain gain.

However, before I list these consequences, I would like to make it clear that I believe, as any rational human being, that terrorism is evil, that it has to be destroyed and that democracies have a right to defend themselves against violent, anti-democratic fanatics.

I also believe that democratic governments should be especially vigilant because the freedoms that they are elected to protect, offer opportunities for those who hate freedom, opportunities that do not exist in other political systems. Potential terrorists find it relatively easy to enter a democracy and operate in it. A democracy is a very vulnerable form of government because of the freedom it gives to everyone, even those who don’t mean well.

The freedoms of a democracy can be and are abused, but this, it seems, has frightened democratic governments to such an extent that they have decided to limit these freedoms up to the point that they are in danger of abandoning their values, and hence doing the work of the terrorists for them. It can be acceptable to limit certain rights for the protection of other rights, but the right to security has taken on an absolute priority, at the expense of all other rights. There is no reasonable balance anymore. Some have called the war on terror a “war on freedom” (source).

1. Civil liberties

Governments try to defend their countries against terrorist attacks by limiting civil liberties in their territories.

  • The right to privacy has been limited: CCTV has become ubiquitous, DNA databases have been created, eavesdropping and wiretapping have been legalized etc.
  • “No-fly-lists” have come into force, limiting the freedom of movement of even those who have written critically of the government or attended peace-protests.
  • Hate speech laws have been voted to silence jihadist hate preachers, silencing others at the same time.
  • “Racial profiling” by the police has turned innocent people into possible suspects, often inverting the burden of proof.
  • Habeas corpus has been limited, periods of detention without charge extended, sometimes indefinitely (for “enemy combatants”).

However, in spite of all this, the constraints on a government’s actions within its territory are sometimes still considered to be inhibiting:

  • “Extraordinary rendition” has been covertly practiced, allowing suspects to be tortured outside of the territory by professional torturers in other countries.
  • Extra-territorial prisons have been created, in Guantanamo, but probably elsewhere as well, where suspects can be tortured or held indefinitely and where the Geneva Conventions supposedly don’t apply.

2. Mentalities

The war on terror has also changed people’s minds and attitudes.

  • The media have started to censor themselves. Solidarity with the government at war and the commander-in-chief, or the fear of being perceived as unpatriotic, appeasers, “useful idiots” or even open allies of the enemy has turned them into uncritical supporters of the war.
  • Citizens have turned on Islam and Muslims. Xenophobia and more specifically islamophobia have undermined the ideals of tolerance and multiculturalism, and have in certain cases even led to hate crimes against Muslims.
  • A “culture of fear” has been created by the terrorist but also nurtured by irresponsible western politicians. This fear has damaged democracy. Not only have the media relinquished their traditional role as watchdogs. Politicians as well, and especially incumbents, have abused the fear of terrorism to harness support. Alert levels seem to go up just before elections.

3. Preemptive war

The US government has elaborated and implemented the strategy of preemptive war, a war

waged in an attempt to repel or defeat a perceived inevitable offensive or invasion, or to gain a strategic advantage in an impending (allegedly unavoidable) war. (source)

The Iraq war was deemed a preemptive war because Iraq was allegedly about to attack the US with weapons of mass destruction, or supply these weapons to terrorists. Whatever the merits of the case against Iraq – and with the passing of time these seem to become weaker and weaker – the war has been framed, correctly or not, as a necessary stage in the ongoing war on terror. It has, however, resulted in massive numbers of casualties on both sides. The human rights violations caused by the war stand in no relation to the violations caused by terrorism or the violations that could have been caused by Saddam.

In any case, you can’t solve the problem of terrorism by violent means only. Terrorism has causes, and there will be terrorism as long as these causes exist. (Mind you, I don’t want to excuse or justify terrorism).

4. Counter-productive

It is now widely believed, even in US government circles, that the war on terror is counter-productive. Especially the wars in Iraq and Afghanistan, the torture in Abu Ghraib and the detentions in Guantanamo have produced a backlash and have increased rather than reduced the terror threat. The 2007 National Intelligence Estimate issued the following among its “key judgments”:

The Iraq conflict has become the “cause celebre” for jihadists, breeding a deep resentment of US involvement in the Muslim world and cultivating supporters for the global jihadist movement. (source)

The war on terror has created and exacerbated resentment, hatred of the West and anti-americanism. And with anti-americanism often comes hatred of democracy and freedom and Islamic radicalization. Apart from the removal of the Taliban in Afghanistan, there is no evidence that any of the strategies in the war on terror has done any good (source).

5. Misnomer

There is something fishy about the concept of a “war on terrorism”. This “war” is in fact no such thing. It is in essence crime prevention and law enforcement. There is no well-defined enemy. Anyone can at any time become an enemy. For this reason, there is no conceivable end to the war. And if you claim to wage a war on terrorism, you might as well claim to wage a war on carpet bombing. Both are tactics or strategies, not something you wage war against.

If you insist on calling anti-terrorist actions a war, then you give too much credit to the riffraff you’re opposing. Rather than deranged criminals they can call themselves soldiers. And soldiers defend something. You legitimize them. You turn a crime into a two-sided struggle in which each side defends its positions. This in turn leads to the view that the war on terror is a war of the West against the rest, bringing back images of colonialism, imperialism and the crusades, again legitimizing the terrorists, helping to consolidate their often internally opposed forces, and making them honorable in the eyes of ordinary citizens outside of the West.

I can understand that the concept of a “war on terrorism” is useful for the executives in the West, because an executive that is at war has more powers, less oversight, more popular support and less criticism, but it’s a meaningless and dangerous concept. Let’s give it up.

Limiting Free Speech (5): Pornography

First of all, whatever we think of pornography, we should admit that it is a kind of speech, just as cross-burning, flag-burning, hate speech etc., and hence it is at least possible that it falls under the protection of the right to free speech. The U.S. Supreme Court has at different occasions decided that pornography should be protected under the First Amendment:

There are two types of pornography that receive no First Amendment protection ’97 obscenity and child pornography. The First Amendment generally protects pornography that does not fall into one of these two categories. (source)

Other jurisdictions have also protected pornography.

Violence IN pornography

The quote above already indicates that an overall protection of pornography widely defined is not acceptable and that certain limits on the freedom of speech of pornographers are possible. According to the rules set forth in the introductory post of this series a right can be limited if it violates other rights or the rights or others. This is obviously the case of any child pornography or pornography in which violence or force is used against the participants, such as certain kinds of extreme sadomasochistic porn.

Another reason why there can be force and violence in pornography is human trafficking. Many girls are forced to participate in porn movies because they are victims of human trafficking. They are modern slaves in the sex industry.

Violence BECAUSE OF pornography

There is still some discussion in the scientific community as to whether pornography, and especially hardcore and violent pornography, promotes sexual violence in society. This is not easy to establish because the interactions of mass media and human behavior are complex. If pornography promotes sexual violence, we have another justification for limiting its distribution.

The weight of evidence is accumulating that intensive exposure to soft-core pornography desensitises men’s attitude to rape, increases sexual callousness and shifts their preferences towards hard-core pornography. Similarly, the evidence is now strong that exposure to violent pornography increases men’s acceptance of rape myths and of violence against women. It also increases men’s tendencies to be aggressive towards women and is correlated with the reported incidence of rape. Many sex offenders claim they used pornography to stimulate themselves before committing their crimes. (source)

In Australia, the federal government has tended to relax its controls on pornography since 1970. Different states have, however, implemented these changes to varying extents and, as a result, have unwittingly conducted an interesting experiment on the effect of pornography. Queensland, the most conservative state, has maintained the strictest controls on pornography and has a comparatively low rate of rape reports. By contrast, South Australia, the most liberal state in relation to pornography, has seen escalating reports of rape since the early 1970s:

Businesses spend billions of dollars on advertising, in the belief that media can and do have an effect on human behaviour. We support and encourage the arts, in the belief that novels, films and such have the capacity to uplift and enhance human society; in other words, that the arts have a capacity to influence people. Yet we are expected to believe that the increasing tide of pornography does not affect attitudes to women. (source)

The image of women in pornography

One reason why porn can cause violence in society is the image of women that is created through pornography. In some porn, rape is explicitly legitimized, but in all kinds of porn women are depicted as constantly and immediately available for sex. We can assume that long term consumption of porn from an early age onwards, creates the opinion that it is not necessary for men to establish whether a female partner consents to having sex since porn tells them that such consent is automatic. In real life, of course, this is not the case and hence there will be rape.

Porn also objectifies women. It turns women into objects of sexual desire and sexual use. Objectification of women is of course not limited to pornography. Advertising also regularly uses women as means or tools or objects. The objectification of women means dehumanization. And there are more things you can do to a non-human than to a human. Objectification therefore can promote violence against women. To the extent that is does, we have another justification for restrictions on pornography.

Moreover, pornography shapes and reinforces a male-dominant view of sexuality and of gender relations. It’s not far-fetched to claim that pornography contributes to gender discrimination, machismo, sexism, paternalism etc.

All this is the case not only for violent porn but for porn in general and could therefore justify restrictions on non-violent porn.

Different kinds of restrictions

There are different kinds of pornography, different circumstances in which it is distributed, and different people respond differently to pornography. So restrictions on pornography may differ according to circumstances. People with a history of sexual violence are more obvious targets of a ban on the use of hardcore and violent porn than other people. Young people, for the reasons given above, may have more restrictions, including non-violent porn. Pornography in a library is not the same thing as pornography on the streets…

Soft porn or “artistic porn” should be treated differently. An all-out ban on all kinds of pornography would be just as unwise as an all-out protection. Many classic works of art would have to be forbidden if no pornography were allowed. We have to admit that porn can be art and art can be pornographic.

Religion and Human Rights (7): What is Religious Liberty?

Religious liberty or the freedom of religion and belief is a human right. It is the right to be protected against coercion in matters of religion, to be free to practice and profess a religion of your choice, in private as well as in public, to change your religion, or to practice no religion at all.

Legal rules on religious freedom

Article 18 of the Universal Declaration of Human Rights states:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

This right is closely linked to the right to free expression and the right to free association.

The First Amendment of the U.S. Constitution states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It protects the freedom of religion in the US. It’s made up of two parts. The Establishment Clause prohibits the government from passing laws that will establish an official religion or preferring one religion over another. The courts have interpreted the establishment clause to accomplish the separation of church and state and have held that the clause extends to the executive and judicial branches as well.

The Free Exercise Clause prohibits the government from interfering with a person’s practice of his or her religion.

Importance of religious freedom

Religious liberty is an important value because it protects religious diversity and plurality and hence counteracts religious persecution and coercion. It makes a monopoly of one religion impossible – except when culture and demography are such that there is a de facto monopoly which is not contested – and it guarantees the coexistence of different and publicly competing beliefs. In this way, it also guarantees publicity, debate and diversity in general. If there is publicity, debate and diversity on the level of religion, then why not on other levels? On top of that, religious liberty guarantees tolerance: if people can be tolerant – or are forced to be tolerant – in the field of religion, then they will probably be tolerant in other fields as well.

This shows that religious liberty can be of interest to non-religious persons, not only because it protects them from the imposition of a religious belief, but also because it allows them to live in a world of tolerance, publicity ad diversity. Religious liberty is therefore an integral part of a democratic society and a system of human rights.

Problems with religious freedom

However, there is a downside to the concept of religious liberty. Anyone can call their personal insanity a religion in order to try to get government protection. There is no easy answer to the question of what is or is not a religion in the proper sense of the word, but it is obvious that any belief or practice which is part of a religion or claimed to be part of a religion, and which provokes violations of human rights, should not be protected under the right to freedom of religion. Every human right is limited and has to be balanced with other rights.

Freedom of religion is no exception. In particular, the right to absence of discrimination, although closely connected to religious liberty (one should not be treated badly as a consequence of one’s religion), can be a problem if everything can be labeled a religion and if every imaginable theological ideology can enjoy an absolute level of protection granted by the freedom of religion. The equal rights of women should be balanced with the right to practice a religion which provokes discrimination of women. Limiting one right for the sake of another is a normal practice in the field of human rights. This is even more evident in the case of terrorism based on religion.

Separation of state and religion

Religious liberty implies that the state (but not only the state) should not interfere with the religion of its citizens, should not favor or discriminate a particular religion or religions, and should not attach benefits or penalties to any religious affiliation or lack thereof. Religious liberty therefore limits the power of the state and creates a difference between state and society by granting some measure of religious independence to society.

However, religious liberty not only means that the state should avoid interfering in religious matters. It also means that the state should be absolutely neutral as regards religion. There has to be a separation between state and religion (but not necessarily between politics and religion) in the sense that there can be no official state religion. The state should not link itself to a particular religion but should stand above the plurality of different religions. One and the same person cannot be both head of state and head of a church (or an important functionary of a church).

Without this kind of neutrality, certain religions as well as atheists and agnostics will be worse off compared to the adherents of the official religion, if they are allowed to exist at all. Religious liberty means religious equality and the equal treatment of all religions. This equal treatment is impossible if there is some kind of link between the state and a particular religion. If adherence to one religion brings more advantages than adherence to another – and this can be the case when the former is an official state religion or is in any way favored by the state – then there is no real religious liberty. The choice for one religion rather than another will not be a free choice. Even if non-official religions are not actively persecuted or discriminated against, they are worse off when there is no separation between the state and religion because they have less means to influence the public as the official state religion. They are not as free as the official religion.

Another reason why religious liberty implies the separation between state and religion is the need for an impartial judge to mediate between different religions. If different religions are allowed to exist together, we need a non-religious law which regulates their coexistence. It is very unlikely that people adhering to one religion will accept laws which are inspired by another religion. The fact that a religiously neutral state with its religiously neutral laws allows many different religions to exist and to coexist, makes it acceptable to many people. A state which only allows one religion or favors one religion, will only be accepted by the adherents of that particular religion.

The historical fact that religious communities tend to become more and more intertwined within the borders of states, will enhance the attractiveness of this kind of state. A democracy is by definition such a neutral state, because a democracy respects human rights. Once you respect human rights, you also respect religious liberty, and religious liberty leads to religious neutrality on the part of the state.

Just as the state is kept out of religion, religion is kept out of the state. The claims of religion are restricted. A particular religion cannot claim to be the religion of the country in order to take possession of the state or the law and thereby achieve more power than other religions and impose itself on individuals. The state, for its part, is not allowed to prohibit, persecute, discriminate or impose a religion, and it should also avoid using a religion as a means to enhance its authority, as a kind of transcendent confirmation. If you stand close to something glorious, you may hope that something of the glory shines on you as well. You may even hope to become godly, which, historically, has been an enormous advantage to states in pre-modern times. The representative of God on earth is godly as well, and he who is godly is eternal and escapes contestation, which is of course anti-democratic. It is equally unacceptable for a state to use certain religious texts to justify or enforce authoritarian measures.

Separating state and religion may cause some problems. It will for example make it more difficult to universalize human rights. Many cultures, for example Muslim cultures, see this separation not as an advantage but as a problem because religion – unified religion, not the freedom of religion – is still very important in their societies and is considered to be the foundation of politics.

However, state neutrality in religious matters does not imply that democratic politics is necessarily a-religious or atheistic. A democracy executes the will of the people and not the will of God, but if the people believe that their will equals the will of God, then this does not pose a problem as long as the religious rights of the minority are respected and as long as the religion of the majority does not acquire unjustified privileges and does not become the official state religion.

Separation of politics and religion?

This already indicates that the separation of state and religion is not identical to the separation of politics and religion. Religion does not have to remain silent when it comes to politics. It can be a source of inspiration for politicians and it can enhance ethical consciousness and behavior. Therefore, it should not be excluded from politics. It is important to make the distinction between politics and the state. The fact that freedom of religion and the separation of state and religion do not imply the separation of religion and politics can make it easier to impose religious liberty and state neutrality. Religious people obviously and justifiably fear the separation of religion and politics.

The religious neutrality of the state does not necessarily lead to a religious neutrality of politics. A religion is not allowed to infiltrate the institutions of the state, otherwise it would acquire more power than other religions and therefore destroy religious liberty (a choice for a religion is not free if one religion has more power of persuasion than another). But a religion is allowed to try to convince a majority, at least as long as it respects human rights and the liberty of other religions.

Discrimination (1)

Discrimination, in its non-political and non-legal sense, simply means the recognition of differences. In the political and legal sense, it means unjustifiable differences in treatment between groups of people, most often the unjustifiable denial of the equal enjoyment of human rights.

Groups of people are discriminated because they have certain group-specific attributes that set them apart from the rest of society and that warrant, in the eyes of the people who are discriminating, less favorable treatment. One can make the following distinctions:

  • Discrimination can come in different degrees, affecting large or small numbers of people to a large or small extent: from government policy to an unspoken mentality of a small part of the population, and everything in between (such as states not acting to counter discrimination, very active and outspoken discrimination in some parts of the community, entrenched cultural practices such as the caste system etc.).
  • It can be exercised in different ways. People may be discriminated on the grounds of their race, gender etc. They can be discriminated in relatively harmless ways (denial of a promotion because of a likely pregnancy for example) or very brutal ways (slavery, denying of equal education etc.). They can also be discriminated in many different fields of life: education, employment, justice, health care etc.

Some people have the misfortune of finding themselves in a state which has an overt and active policy of discrimination, and in different discriminated groups at the same time (black lesbians in Apartheid South-Africa for example). As a result, they may also be discriminated in different fields of life at the same time (employment, family law, education etc.).

There are many types of discrimination, and the concept of discrimination is often linked to others such as racism, agism, sexism, xenophobia, intolerance, religious fundamentalism, genocide, ethnic cleansing etc. Whereas all these phenomena undoubtedly have a dose of discrimination, they are not the necessary result of discrimination. Discrimination can be much more limited.

One can distinguish between types of discrimination according to the groups that are discriminated, and the ways in which these groups are discriminated.

Groups:

  • racial discrimination
  • gender discrimination
  • discrimination based on one’s sexual orientation
  • discrimination based on one’s language, culture or national origin
  • discrimination based on one’s religion or one’s status within a religion
  • discrimination based on one’s political convictions
  • age discrimination
  • health discrimination (e.g. discrimination of HIV patients, disabled persons or obese persons)
  • etc. (when it comes to cruelty, man’s imagination has no limits I’m afraid)

Ways:

  • economic discrimination (e.g. persistent differences in poverty levels between groups)
  • employment discrimination (e.g. discrimination in career opportunities, pay, “Berufsverbot” etc.)
  • housing discrimination
  • family law discrimination (e.g. the inability of homosexuals to marry or to adopt)
  • education discrimination, different levels or quality of education for different groups
  • discrimination of the access to public service or elected positions
  • judicial discrimination, discrimination in the justice system
  • health discrimination, different levels or quality of healthcare for different groups
  • cultural practices such as honor killings, female genital mutilation,…
  • legal discrimination such as Jim Crow or segregation
  • etc.

Causes of discrimination:

  • racism, sexism etc.
  • a history of discrimination, creating a burden on future generations
  • immigration
  • xenophobia
  • recession or economic scarcity
  • education
  • cultural practices (e.g. the caste system)
  • religious doctrine
  • legislation (e.g. the Jim Crow laws or other types of legally enforced discrimination)
  • etc.

Article 2 of the Universal Declaration prohibits discrimination:

“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

Although poverty has many causes, discrimination is undoubtedly one of them. Large differences in wealth between groups (for example racial groups) may indicate the existence of discrimination.

Statistics on the differences between races in incarceration or execution rates may indicate the existence of discrimination in the justice system, although these differences may have other causes besides discrimination, e.g. differences in poverty rates (see above), differences in levels of education etc. Of course, the latter differences may be caused by discrimination so that discrimination is indirectly the cause of the differences in the application of justice. Here again are some data on the situation in the US, showing that blacks, although they make up only 12% of the population, account for more than 1 in 3 of the prison population and of the executions. 5% of black men are in jail, compared to less than 1% of white men.

 

 

Blacks are also about twice as likely as whites to be a victim of a crime.

Human Rights and International Law (3): Humanitarian Intervention

This post focuses on one type of humanitarian intervention only, namely so-called armed humanitarian intervention (although I’ll drop the “armed” for easier reading). Humanitarian intervention is an armed intervention in one state by another state or states with the objective of ending gross violations of human rights, such as genocide or ethnic cleansing.

Whereas the moral case for such an intervention is very strong, it remains controversial because of the fact that violence is used and that the national sovereignty of the “receiving” state is violated. One could easily justify the breach of sovereignty since the fate of the victims is obviously more important than sovereignty. Furthermore, this breach is inherently temporary because neither annexation nor interference with territorial integrity is at stake. But the use of violence is more difficult to justify.

It seems that humanitarian intervention is only justified when certain conditions are met:

1. Legitimate authority

The states that act cannot unilaterally decide that intervention is necessary. There must be some kind of general conviction that the situation is serious and that some kind of forceful intervention is warranted. A Security Council resolution can be the authority.

If there is a general conviction that action is necessary but there is no explicit Security Council approval of intervention – because of the veto or because of other reasons – then we have to be careful. If states can unilaterally decide to intervene, even against world opinion, then we have international chaos. Everybody takes the law in his own hands, and states will quickly find human rights excuses to intervene wherever they want. Some legitimate authority must have expressed something close to a world opinion regarding the necessity of intervention. Individual actors cannot decide autonomously. An approval of the General Assembly may indicate that there is consensus, but a Security Council resolution is better because this will guarantee that the intervention will not cause superpower conflicts.

2. Collaboration

As an elaboration of the previous point, one must demand that the intervening states be as numerous as possible in order to avoid accusations of self-interest, partiality and power politics. Collaboration also increases the chance of success (see condition 4.)

3. Right intention or appropriate goal

The main goal of the intervention must be the protection of human rights. The accusations that often accompany US-led interventions are generally unhelpful, except of course when they are true.

4. Probability of success

There must be a real chance that the intervention can be successful.

5. Last resort

Other and more peaceful means must have been tried first, although the urgency of the matter can make immediate military action acceptable.

6. Proportionality

The intervention must be proportional to the evil it is meant to destroy. Not enough intervention can cause more harm than before without a real chance of solving the initial problem. Too much intervention will also cause more harm than before. The costs must not outweigh the benefits. We must prevent more harm than we cause, although one must be careful when making utilitarian calculations. Violence always results in rights violations. Hence the rights violations one is willing to accept as a consequence of violent intervention cannot outweigh the violations that originally caused the intervention. How many rights violations can one cause when fighting rights violations? Theoretically, one cannot sacrifice certain people’s rights – for example, the rights of innocent civilian victims of air bombardments – for the sake of other people’s rights – for example, the victims of the dictatorship that is the target of the bombardments. However, most of us believe that in extreme circumstances, it is acceptable to sacrifice some rights or the rights of some in order to protect many more rights or the rights of many more. This means that violence is only acceptable in extreme cases, namely when the rights of many or many rights are violated.

7. Ius in bello

The laws of warfare must be respected.

8. Peace

If there is a threat to international peace, then the intervention will have a stronger claim to legality. But this is not a necessary condition.

Terrorism and Human Rights (4): Habeas Corpus

Habeas Corpus, literally (from Latin) “(We command) that you have the body”. This is an important legal tool to defend oneself against arbitrary or unlawful arrest. Habeas Corpus is a legal action undertaken to seek relief from arbitrary or unlawful arrest, either by the person arrested him or herself, or by a representative. The court should then issue a writ (a writ is a formal written order issued by a court) ordering the custodian, i.e. the person or institution imprisoning a person, to bring this person to the court so that the court can determine whether the custodian has lawful authority to hold the person. If not, the person should be released from custody.

Any prisoner, in a well functioning judicial system, may petition the courts or individual judges for a writ of Habeas Corpus. (A petition is a request to an authority, more specifically in this case it is a legal pleading that initiates a case to be heard before a court. The purpose of a pleading is a correction or repair of some form of injustice, e.g. arbitrary arrest).

Habeas Corpus does not determine guilt or innocence, merely whether the person is legally imprisoned or not. It can also be a writ against a private individual detaining another, for example in slavery.

It has historically been and still remains today an important tool for safeguarding of individual freedom against arbitrary state action. Currently, the U.S. is trying to set very strict limits to the writ, limits previously unheard of in democratic societies. The current U.S. administration believes restrictions on Habeas Corpus are necessary in the war on terrorism.

Article 9 of the Universal Declaration of Human Rights states that “No one shall be subjected to arbitrary arrest, detention or exile”. One can therefore claim that the writ is an important means to make this right real.

What is Democracy? (19): Democracy is Peace

The democratic peace theory, stating that democracies do not wage war among themselves, is one of the main arguments in favor of the international promotion of democratic governance. It has been around since Immanuel Kant who, in his essay Perpetual Peace, postulated that constitutional republics, or what we now would call democracies, was one of the necessary conditions for a perpetual peace. Recently, this theory has been abused by the US government in order to justify a war against a non-democracy – Iraq – in order to bring lasting peace to the world, but this abuse has not diminished the strength of the argument.

Democracies do not wage war among themselves mainly for the following reasons:

  • Democracies are able to make and keep international agreements and to create mechanisms which make it possible to solve international conflicts in a peaceful way. Publicity, as we find it in a democracy, tends to enhance respect for agreements because it makes it harder to cover up violations of agreements. A mentality of respect for the law, which is typical of a democracy because the rule of law is typical of a democracy, promotes respect for international agreements.
  • Democracies are able to avoid civil strife because they have judicial systems for solving conflicts between persons or between groups. Civil strife often spills over to other countries and can cause international conflicts (international violence is often the consequence of internal violence). Therefore, avoiding civil strife means avoiding international conflicts. Tolerance, respect, religious freedom and non-discrimination, as guaranteed by human rights and democracy, also protect civil peace and therefore international peace.
  • Democracy promotes peace because it provides mechanisms for the peaceful transition from one ruler to another. There is no need for a violent succession struggle which can have international consequences. Opposition movements do not have to resort to extreme tactics in order to prove their point or to take over power. Leaders do not need to engage in dangerous international adventures in order to increase their legitimacy etc.
  • Governments which treat their own people with tolerance and respect tend to treat their neighbors in the same way.
  • Governments which cannot force people to do something against their will, will find it much harder to go to war. The people most often do not want to go to war, because it is they who suffer in the first place. To some extent, a tyranny does not need the agreement of the people to start or continue a war.