There Is No Morality, and That’s a Good Thing

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Moral philosophy is an infamous mess. However, this mess, which moral philosophers have inadvertently foisted upon us, may in the end do us a favor: by trying in vain to come up with a coherent and convincing system of morality moral philosophers may have shown that there isn’t in fact something called morality.

But let’s take a few steps back first. Why is moral philosophy a mess? After 2000+ years of trying, not even the brightest minds have produced a morality that’s the least bit convincing. There isn’t even a shred of promise that something convincing is somewhere around some distant corner. For example, your theory might require a bit of rethinking if it states that to act morally you have to

  • Tell an inquiring murderer the whereabouts of your targeted friend
  • Engage in infanticide
  • Prefer a society with billions of people living only a marginally worthwhile life to a small society of very happy people
  • Harvest the organs of a perfectly healthy individual in order to save 5 very ill and possible terminal patients
  • Be as greedy as you can be so as to make tons of money that you can then donate to some hypothetical other people who I suppose shouldn’t follow the rule to be greedy
  • Engage in mutually advantageous exploitation
  • Etc.

However, “rethinking” won’t do the job. Moral philosophy has been “rethinking” for ages, and the only thing to show for it are increasingly exotic and outrageous moral systems that refute one another and that can never and shouldn’t ever be the guide to anyone’s daily actions. You have very imaginative constructs like negative utilitarianism or esoteric consequentialism that have had about as much traction as a spider in a bathtub. Or you have hybrid systems such as rule utilitarianism, threshold deontology or luck egalitarianism that look like desperate attempts to bridge contradicting theories and offer a unified and irrefutable system without the unsavory parts of its components. Qua traction they aren’t any better.

Of course, it’s not because a theory lacks traction that it isn’t correct. Lots of unpopular things are correct. But the general persuasional failure of moral philosophy does indicate a deeper level of failure. Maybe moral philosophy fails because it tries to find a good explanation of something that doesn’t exist. And maybe it makes the same mistake as theories about the Martian canals, Aether or other Phlogistons. (Some ominous parallels perhaps to theories about free will or the Mind).

But if there is no morality, then how do we explain the sense of morality? It’s quite common for people to have a sense of right and wrong, to have a distaste of doing wrong, to oppose wrong when they see it done, to avoid harming others etc. The failure of moral philosophy to come with a good system doesn’t change this fact and doesn’t undo the reality of this moral sense. But if it’s true that there is no morality then this moral sense is an illusion, right? Not necessarily. Moral intuitions such as “do no harm” and “do unto others as you’d have done to you” are not necessarily proof of the existence of something called “morality”. These intuitions are perhaps based on mere self-interest rather than being the result of a moral system. We follow these intuitions in our daily actions not because a system of morality (or a God for that matter) demands this of us, but because doing so furthers our interests.

For example, we have an interest in a prosperous life, but in order to have a prosperous life, we need bakers, butchers, shopkeepers and the like to be able to prosper as well. We need peace, but peace is a public good: if we have it, others have it as well, and the only way to have it for ourselves is to try to give it to others. Reciprocity also explains the intuitions against harming others. If we refrain from harming others we may expect others to reciprocate, for different reasons: those others have no reason to retaliate; they make the same calculation as we do; and there is habit-formation in rule respecting behavior. There is a whole field of game theory that is based on similar assumptions. And the scientific inquiry into human evolution also gives support, as it seems that a lot of morality has an evolutionary basis.

So we end up with “values” that are really self-interested rules which happen, by chance alone, to benefit others. And which, because of these benefits, appear to be morally inspired, altruistic and benevolent. This appearance in turn has produced a whole field of philosophy that, in my mind, mistakes the appearance for the underlying reality.

PS: how do human rights fit into this? If I were famous I would be famous for my interest in and promotion of human rights. Isn’t that a moral stance? Aren’t human rights based on a moral theory? Or aren’t they a moral theory themselves, equivalent to utilitarianism and such? Not in my understanding of human rights. Of course, if you believe that human rights are divine commands or a tool to enforce a consequentialist or deontological morality, then the possible non-existence of morality undercuts the system of human rights. But in my view human rights are tools to promote interests. (I have an older post here explaining my interest-based approach to human rights. And another one here about selfish reasons to respect human rights. A more concrete example is this post about the attractiveness of religious liberty to those who hate it, namely those of us who are most ardently religious. There is also a subset of human rights violations that is relevant in this context, namely boomerang human rights violations).

The absence of a link between human rights and morality also explains

More about human rights and morality here.

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Human Rights and Negative Utilitarianism

nuclear explosion
nuclear explosion

 

Lots of people define human rights – mistakenly as I argue below – in a strictly negative sense: you can’t torture me, you can’t silence me etc. The duty bearers in such a system of human rights have exclusively negative duties: abstain from doing what harms my rights, and omit actions that go against my interests or diminish my dignity. The only positive thing that duty bearers are obliged to do is to protect us against others who fail to abstain or forbear in ways that are required by my rights.

In this view, rights serve to avoid the terrible rather than achieve the best. They put limits on what people can do, rather than allowing them to do things.

Hence the temptation to link human rights to so-called negative utilitarianism. Instead of maximizing overall happiness, pleasure or preference satisfaction as in traditional utilitarianism, negative utilitarianism seeks to minimize pain, harm, suffering and preference negation for all. However, we should avoid linking human rights with negative utilitarianism. While this type of utilitarianism avoids some of the problems of other, more “positive” incarnations of utilitarianism – for example, the problem of accepting the pain of some or inflicting pain on some if that produces a larger quantity of happiness for others – it runs into problems of its own making: e.g. the total destruction of humanity, even if very painful, would no doubt reduce human suffering when this suffering is aggregated over a sufficiently long period of time (very long periods of time when the aggregate suffering is very small). And in any case, negative utilitarianism doesn’t solve other problems inherent in all types of utilitarianism, such as preference adaptation (minimize your suffering or maximize your happiness by being modest and ascetic), objectification and instrumentalization of human beings (kill people that cause some annoyance to others in order to advance the happiness of others or reduce their “suffering”) etc.

Of course, human rights are indeed negative rules of the kind described above. But they’re more than that. They’re not just limits to the depths of evil and inhumanity; they also provide capabilities necessary to reach higher forms of humanity. Free speech rights, for example, counteract censorship and silencing of all kinds, but they also promote the good that comes from liberated discourse and argumentation. (One good being better thinking).

Also from a purely procedural point of view is it wrong to focus only on the negative character of human rights. All rights, even the most “classical” “freedom rights” such as speech, freedom from slavery and torture etc. require both abstention and active assistance. The state not only has to refrain from practicing censorship; it also has to protect its citizens against censorship by other parts of the state or by third parties. And it has to create conditions in which the risk of censorship and of other impediments to speech is minimized. For instance, an educated citizenry is more likely to enjoy its speech rights than one which hasn’t had the benefit of state sponsored education. You need to have things to say in the first place.

This should clear up another misconception in human rights theory, this time about economic human rights. If all rights require both action and forbearance, the supposed distinction between freedom rights and economic rights becomes are lot less clear. More about this here and here.

The Ethics of Human Rights (92): Rights & the Primacy of the Right Over the Good

There’s a longstanding dispute in moral philosophy about the relationship between the right and the good. One can think about ethical matters in two ways: certain actions or types of character are required or recommended

  • either because they achieve some good (defined as a benefit, a valuable goal or an interest)
  • or because they are the right thing to do or the right way to be.

Examples of the good are wellbeing and happiness. An example of the right is promise keeping. What isn’t good may be bad, “suboptimal” or “Pareto inefficient”; and what isn’t right may be wrong or “improper”.

There’s a sense in which the right is obligatory whereas the good is merely desirable. But there may be degrees to this, and an area of overlap. Motivation as well is closer to the right than to the good. One can imagine the good being done without a single person being motivated to do it. In order to do the right thing, however, it’s almost inevitable that one must be motivated to do it. Doing the right thing accidentally or for the wrong reason isn’t a moral act. On the other hand, selfishly increasing your profit and thereby adding to net social wellbeing – through some form of invisible hand or trickle down mechanism – can be morally good.

A focus on the good is more outcome oriented and results in proposals of means deemed necessary in order to achieve valuable goals. A focus of the right is about rules and laws and produces duties and virtues. You can recognize the split between consequentialism and deontology here. This split is present within virtue ethics as well (a goodness virtue would be beneficence, while a rightness virtue would be obedience to the correct rules).

Although the notion of “right” encompasses more than only “rights”, it’s true that rights in general and human rights in particular can be said to be part of the right (other parts are the duty to tell the truth, the duty to show respect etc.). Human rights are not, at first sight, about the good; on the contrary, they trump some considerations of the good. This has been called the primacy of the right. The right constrains the pursuit of the good.

For instance, a utilitarian calculus of the highest good for the highest number of people – whatever the merits of such a calculus in general – should stop being acceptable when it requires a violation of the rights of some. In the classic example: you simply can’t kill one healthy person in order to harvest her organs for the good of 5 terminally ill patients in need of a transplant, even though doing so would achieve the highest good for the highest number of people.

Another way in which rights trump the good: rights are designed in such a way that they create a society in which people are allowed to form and pursue different conceptions of the good life without discrimination or persecution. One can reasonably assume that people have and always will have different conceptions of the good and that they should have the right to freely develop and pursue these conceptions without negative repercussions. Because rights are prior to the good in this sense – they make the creation and pursuit of visions of the good possible – they are also predominant. If the good were to be able to trump the right, we would undermine the good because one conception of the good would then be allowed to override or even destroy other conceptions. That is the inevitable result of allowing rights to be overridden. Only in a world in which we have access to the truth about the good would this be acceptable. But we don’t live in such a world. Hence we need limits on theories of the good (such as the limits on those forms of utilitarianism that allow forced organ transplants; you can come up with more realistic examples yourself).

This is the standard view of the relationship between the right/rights and the good. Even most utilitarians accept this now. I’m not arguing that this view is wrong, merely that it’s incomplete. In one important sense, the good comes before the right. We have rights because we have values that need those rights for their realization. Rights are intended to maximize the good. Of course it’s a minimal kind of good that we’re dealing with here. And because it’s minimal it can be universal. Rights promote values such as peace, prosperity, thinking etc., which – discounting for a negligible degree of dissent – are universally acceptable. Disagreements arise about the specific ways in which rights do or don’t promote these values, about the possibility that some other means are better suited for the goal, or about conflicts between goals and between means. The goals themselves are unquestioned, and one can make a good case that human rights are, in general at least, the best means we have to achieve those goals.

It’s very hard to justify human rights without recourse to prior values. Rights aren’t good in themselves. This priority of the good comes to the fore in discussions about the extent of rights or conflicts between rights. Such conflicts need to be decided on the basis of which conflicting right does most good to the values that are served by rights.

Does my point of view imply that there is a harmony or – as Rawls would say – “congruence” of the right and the good? That they are the same thing or part of a coherent whole? I don’t think so. There will still be things that are right but not good, and vice versa.

More posts in this series are here.

The Ethics of Human Rights (84): Aggregation Across Persons

Is aggregation across persons – making a decision that some people should bear losses so that others might gain more – ever permissible?

On the one hand, studies have shown that people faced with trolley problems would often sacrifice one person in order to save several others. Ticking bomb arguments – in which a single terrorist is tortured so that millions can be saved from an impending explosion – can also count on the agreement of large majorities.

On the other hand, an exchange like this one leaves most of us shocked:

Ignatieff: What that comes down to is saying that had the radiant tomorrow actually been created [in the USSR], the loss of fifteen, twenty million people might have been justified?
Hobsbawm: Yes.

The thinking in both cases is plainly utilitarian – that it’s acceptable to trade off the lives of some so that others can benefit. And yet our reactions to the two cases are polar opposites.

What can account for this difference? In the former examples, the good is more obvious, namely the saving of lives. The good that could – perhaps – have come from communist tyranny is rather more vague, more uncertain and less immediate. Trolley problems and the ticking time bomb scenario also present a balance between the good and the harm that supposedly needs to be done in order to achieve the good that is more clearly in favor of the good: it’s typically just one person that has to be sacrificed or tortured, not millions as in the case of communism.

So there’s a clear, immediate and widespread good that is supposed to come from the trolley sacrifice and the ticking time bomb torture (I say “supposed” because the hypotheticals don’t tend to occur in reality), and the harm that needs to be done to achieve the good is limited. This suggests that we favor threshold deontology: things which we normally aren’t supposed to do are allowed when the consequences of doing it are overwhelmingly good (or the consequences of not doing it are overwhelmingly bad). This theory is different from plain Hobsbawmian utilitarianism in the sense that it’s not a simple aggregation of good and bad across persons resulting in a choice for the best balance, no matter how small the margin of the good relative to the bad. A crude utilitarianism such as this does not agree with most people’s moral intuitions. Neither does dogmatic deontologism which imposes rules that have to be respected no matter the consequences.

However, threshold deontology creates its own problems, not the least of which are the determination of the exact threshold level and the Sorites paradox (suppose you have a heap of sand from which you individually remove grains: when is it no longer a heap, assuming that removing a single grain never turns a heap into a non-heap?).

The moral problems described here are relevant to the topic of this blog because the harm or the good that needs to be balanced is often a harm done to or a good done for human rights.

Other posts in this series are here.

Why Do We Need Human Rights? (34): Which Are the Best Anti-Human-Rights Theories?

Those of us who believe human rights are important have an intellectual duty to engage with the best critics of human rights. “Engage” may be too big a word for this blog post, but what I’ll do here is list some of the best anti-rights theories and link to previous posts where I’ve dealt with them in some more detail.

By “best” I obviously don’t mean “convincing”. If I was convinced by any (or all) of these theories I wouldn’t be writing this blog. None of the theories I list here, or any other anti-rights theories for that matter, are even remotely convincing on close inspection. I won’t provide that close inspection in this post. In most cases I’ve done so before, and I’ll therefore take the luxury of linking back to older posts.

Utilitarianism

Utilitarianism comes in many shapes, but the most basic form of the theory is evidently opposed to human rights. Human rights limit the things that can be done to maximize aggregate utility, and the efforts to maximize aggregate utility often – in some forms of utilitarianism – justify harm done to individuals if that harm is necessary for greater gains elsewhere in society.

Of course, there is such a thing as rule utilitarianism which claims that respect for rules (e.g. human rights) usually maximizes utility or is the best proxy for utility in the absence of detailed knowledge about consequences of specific actions. Read more here and here about the link between utilitarianism and human rights.

Cultural relativism

Cultural relativism doesn’t reject human rights as such, but only their universal applicability and desirability. According to this theory, different cultures have developed their own moral codes, adapted to their own identity, circumstances and history, and moral diversity is therefore something valuable that needs to be protected. Efforts to universalize human rights will destroy moral diversity and non-western cultural identities, and are in fact exercises in cultural imperialism and cultural genocide.

Read more here, here and here about cultural relativism and human rights.

Empire

A related criticism views human rights as a tool in outright power imperialism. Human rights talk only serves to justify violent interventions in so-called “rogue states” or other countries that provide a selfish and imperial benefit to the U.S. (but also Europe). The violent interventions in Kosovo/Serbia, Iraq, Afghanistan etc. have all been partially justified by human rights talk but were, according to some, primarily motivated by the strategic interests of the intervening powers. More here.

The economic case against human rights

It’s often argued that economic growth is enhanced by certain policies and actions that imply violations of human rights. The Chinese government in particular is quick to use this argument. And the whole “Asian values” debate – somewhat outdated now – was based on it. Especially developing countries supposedly can’t afford the luxury of human rights. They need discipline and organization in production and consumption, not freedom. Read more here, here and here.

Legal positivism

Legal positivism doesn’t claim that there are no rights, simply that there are no human rights. Rights exist only if they are part of the law. Human rights in the abstract, as something that human beings possess independently of their country’s laws, is simply idle talk. It seems I still have to make the case against legal positivism…

Marxism

According to Marx, human rights are the rights of the egoistic man, separated from his fellow men and from the community. They are the rights of man as an isolated, inward looking, self-centered creature and they are designed to protect the wealthy from the poor. More here, here and here.

More posts in this series are here.

The Ethics of Human Rights (61): Human Rights and Rule Consequentialism

In a previous post, I’ve argued that deontology, when compared to consequentialism, seems to be more amenable to human rights because consequentialism – or at least some forms of it, such as act consequentialism and utilitarianism – tends to focus on the maximization of good consequences (be it welfare, utility or whatever) at the expense of rules, including rules on human rights. Rules, according to consequentialism, are useful only when they maximize the good, and can be put aside when they don’t. Hence they aren’t really rules at all. Conversely, human rights – which really are rules – tell us that we should not do certain things to indviduals, not even if doing those things would maximize overall social utility.

However, in that older post I also pointed to some elements of deontology that are problematic from a human rights perspective. An example: many but not all deontological theories tend towards moral absolutism. Human rights are not absolute rules, for different reasons but mainly because different rights are often incompatible and need to be balanced against each other. This absolutism is a problem that can be overcome by threshold deontology. However, this modified form of deontology creates other problems.

And yet, I forgot to mention the main argument against a marriage of human rights and deontology, namely the fact that human rights are typically justified in a consequentialist manner and that deontological justifications of human rights are extremely unconvincing. When we want to sell human rights to those among us who believe that they are superfluous or perhaps even nefarious we usually cite the good consequences that follow from (or would follow from) respect for human rights. I myself am heavily invested in this effort (see previous posts here).

If you want to justify human rights without reference to their good consequences – if, in other words, you’re looking for a deontological justification – then you’ll have an extremely hard time coming up with something interesting and non-tautological. The claim that humans have human rights simply because of their humanity is true enough (in the sense that humans don’t have to deserve their human rights and don’t have these rights bestowed upon them by their benevolent rulers) but it won’t get you very far persuasion-wise.

Take, for example, the right to free expression. You might argue that free expression is good in itself – whatever the possible consequences (such as epistemological progress) – because humans are essentially expressive beings. However,

Self-expression can take an indefinite number of forms beside speaking, and a deontological right to do whatever we want as a matter of self-expression is ridiculous. The basic reason it is so is because our acts of self-expression can affect others, and often deleteriously. (source)

Consequences are hard to ignore. They tend to creep into all efforts at justification. So, the conclusion of all this seems to be that human require or are a form of rule consequentialism. This is a modification of the original form of consequentialism, also called act consequentialism. Rather than regarding morality as a matter of selecting acts that produce the best overall consequences (good consequences minus bad consequences), rule consequentialism is about selecting rules in terms of the goodness of their consequences. It’s those rules that determine whether acts are morally right or wrong, not the consequences of acts. Of course, the conjecture is that the chosen rules will generally promote acts that produce good consequences. And yet, even if they don’t or won’t in certain cases (or if we think they don’t or won’t), we better stick to the rules anyway because violating them for the purpose of a small benefit can lead to greater long term disadvantage.

Rule consequentialism avoids some of the pitfalls of act consequentialism and simple utilitarianism, such as the tendency to dump rules when a small benefit can be produced by dumping them (e.g. torturing one to save two others from torture); the calculation problem (consequences are hard to assess and compare, especially when the time frame isn’t limited, and it shouldn’t be); the information problem (consequences are difficult to predict, especially for people who lack knowledge of a certain area or who are in a hurry); etc.

I won’t claim that rule consequentialism is without problems (there’s an overview of criticisms here), but compared to act consequentialism, utilitarianism and deontology it sure looks promising from a human rights perspective,

Note that I’m revising here my older opinion on rule consequentialism as I have expressed it in this post.

More posts in this series here.

The Ethics of Human Rights (59): Human Rights and Theories of Justice

First of all, my apologies for the ridiculous length of this post, but I wanted to offer a systematic overview of some of the most common theories of justice and to try to figure out which one is best from a human rights perspective. Given the variety of theories of justice this can’t be anything but long.

You could say that this is all wrong and that it’s better to argue the other way around: first establish which theory of justice is best and then see if and to what extent it leaves room for or requires human rights. And indeed, you would have some good reasons for this approach: human rights are

  • very specific instructions without an obvious moral justification
  • more like a list than a coherent theory, with clear contradictions between the items on the list
  • contested with regard to their applicability (some rights may or may not be absolute, basic, universal etc.).

A theory of justice, on the other hand, is

  • general, abstract, coherent and internally justified (at least down to a basic level at which morality can’t be justified by even more deep moral values)
  • clear about its scope
  • and uncontroversially applicable, ideally at least.

However, the latter point just begs the question. Actual as opposed to ideal theories of justice are much more controversial than human rights. There are many of them, and they are more incompatible with each other than the different elements of the system of human rights. So, the more fruitful approach is to start with the system of human rights and see which theory of justice it requires – or which theory is most amenable to it. If we find such a theory, its compatibility with human rights will speak for it, whereas theories of justice that are on important points at loggerheads with human rights are prima facie less attractive.

Theories of Justice

OK, so let me start with a very brief and admittedly superficial ad crude description of some common theories of justice:

  1. Theories of justice can stress the importance of the consequences of actions: just actions are those that produce or maximize good consequences and avoid or minimize bad consequences. These are called consequentialist theories.
  2. Other theories claim that acting in a just way requires respect for rules. Those are deontological systems of justice.
  3. And then there are theories that stress people’s virtues: people act in a just way if they act virtuously.
  4. Of course, mixed theories are also common.

These four groups contain a variety of subgroups.

(1) Consequentialist theories differ about the type of goodness that is to be maximized or produced.

(1.1) Hedonist theories say we must maximize pleasure and minimize pain (or, alternatively, happiness and misery respectively).

(1.2) Welfare theories argue for preference satisfaction claiming that people’s preferences can’t always be framed in hedonistic terms.

(1.3) Qualitative theories select a list of admirable or strong preferences (as in John Stuart Mill’s utilitarianism), or “an objective list of goods” that have to be maximized. Instead of treating all forms of good or all types of preferences as equally valuable and equally deserving of maximization (as in 1.1. or 1.2.), qualitative consequentialism selects some goods as more valuable than others and more deserving of maximization: better to be Socrates dissatisfied than a fool satisfied in the words of Mill, because Socrates may have achieved a high level of good in some non-happiness related dimension. Hedonist or welfare theories (1.1. and 1.2) would agree with Bentham: quantity of pleasure being equal, push-pin is as good as poetry.

(1.4) Other theories want to maximize opportunities, or yet another version of the good (power, resources, beauty, freedom, advantage, capabilities etc.), or a combination of goods.

(1.5) Negative consequentialism focuses not on promoting some type of good consequences (as in types 1.1 to 1.4) but rather on minimizing bad consequences. Of course, the maximization of good consequences also involves the minimization of bad consequences, but negative consequentialism sees negative consequences as the priority. One major difference between positive and negative consequentialism is the agent’s responsibility: positive consequentialism demands that we bring about good states of affairs, whereas negative consequentialism may only require that we avoid bad ones. Negative consequentialism can be subdivided according to the type of badness that is to be minimized, and so we would get negative forms of 1.1 to 1.4.

Consequentialist theories differ not only about the type of goodness that is to be maximized (or badness that is to be minimized), but also about the proper level at which to maximize (or minimize).

(1.6) Ethical egoism claims that only the consequences for the individual matter. It prescribes actions that may be beneficial, detrimental, or neutral to the good of others as long as they maximize the good of those individuals  performing them. Ethical egoism – as well as the other types of consequentialism cited below – may be hedonistic (1.1) but may also consider other types of good (1.2, 1.3 or 1.4 above).

(1.7) Ethical altruism requires that individuals sacrifice their own good for the good of others and may even claim that this is the only way to achieve the best overall consequences.

(1.8) Classical utilitarianism claims that we should only be concerned about the aggregate good: if certain persons suffer a reduction of some chosen good, then this can be acceptable if another group of persons gains more in the chosen good (or even in some unrelated good: if killing one can cure millions of chronic headaches, then this harm may be justified if it is outweighed by the good of curing many headaches). Some forms of ethical egoism (1.6) argue that egoism promotes the general or aggregate welfare of a society and that there is therefore no difference between the goals of 1.6 and 1.8, merely in the methods used to achieve those goals: there may be an individual hand guiding self-interested people toward the common or aggregate good, or individuals in general know best how to please themselves and no central effort at maximization is necessary.

(1.9) Distributional consequentialism is opposed to classical utilitarianism because it is concerned about the distributional aspects of the maximization of some goods and about the impact of maximization efforts on individuals. This concern may be expressed in different ways:

(1.9.1) For instance, the aggregate good isn’t all that counts and imposing a high cost on some individuals in order to produce a small benefit for a large number of other individuals means imposing an injustice on the former. Hence, rather than focusing solely on the aggregate good one should take into account the actual consequences for individuals of this aggregate good.

(1.9.2) One may also have to look at other ways of differentiating between costs and benefits imposed on individuals. For example, perhaps we should abandon the aggregate good altogether and maximize the good for the worst off (which can sometimes imply that the aggregate good or at least the good of the best off may have to be brought down). Call this approach prioritarian.

(1.9.3) Other types of distributional consequentialism are egalitarian rather than prioritarian (as in 1.9.2): every individual has an equal right to have his or her good maximized up to a point that is equal to the level of everyone else (and again, the good here may be different things: resources, opportunities, preference satisfaction etc.).

(1.10) Desert based consequentialism incorporates concerns about people’s choices: if those choices pull them below some level of good, then justice may not require that we help them, even if doing so would maximize the aggregate good, would help the worst off or would guarantee equality. If, on the other hand, their misfortune is purely a matter of chance or bad luck, then justice may give them a right to assistance, even if helping them would bring down the aggregate good and even if they aren’t the worst off.

(2) Deontological theories state that moral and just behavior requires following certain rules. Justice is respect for rules even if the good consequences of disrespect are better than the good consequences of respect. Acts themselves are inherently good or evil, regardless of their consequences.

(2.1) Divine command theory is one form of deontology: an action is right and just if God has decreed that it is right. The rightness or justice of an action depends on that action being performed because it is a divine duty, not because of any good consequences arising from that action. The rightness or justice of an action holds even when the consequences are bad. God knows what he’s doing.

(2.2) Motivational deontology claims that an action is right if its motivation is good. Kant for instance has famously argued that it’s not the consequences of actions that make them right or wrong but the motives of the person who carries out the action. He begins with an argument that the highest good must be both good in itself, and good without qualification. He then claims that those things that are usually thought to be good, such as intelligence and pleasure, are neither intrinsically good nor good without qualification. Pleasure is not good without qualification, because people can take pleasure in other people’s suffering. He therefore concludes that there is only one thing that is truly good: nothing can be called good without qualification except a good will. A good will is the will to do good, it’s a self-imposed choice or intention, based on the moral law discovered by reason, to do what is right simply because it is right, not because of the consequences or because God tells us so or because we feel we are under a duty to do so. We are under a duty, but it’s a reasoned and self-imposed duty, not one backed up by the threat of force or damnation. Good consequences can arise by chance or even as a result of bad will, and so they can’t by themselves be called morally good. They are only morally good if they are also the result of good will. And yet, this result need not be a good consequence.

(2.3) Anti-instrumentalist deontology claims that there is one basic moral rule which we should never violate, and that when this rule does not apply common sense consequentialism applies. The rule in question is the one against the use of other people. Larry Alexander has illustrated this with three well-known moral dilemmas: “Trolley”, “Fat Man” and “Surgeon”. In “Trolley”, people usually deem it acceptable to turn a switch which diverts a runaway trolley away from a track where 5 people are standing and towards a track where one person will get hit by the trolley and will die. In “Fat Man”, there’s no switch but you can save 5 people by throwing a fat man in front of the runaway trolley, thereby stopping it in its tracks. In “Surgeon”, a doctor kills one person and uses his organs in order to save 5 other lives. Both “Fat Man” and “Surgeon” are commonly rejected, and the reason, according to Alexander, is that people are being used to save others, whereas in “Trolley” no one is used – turning the switch would do what is needed to be done even if there’s no one on the fatal track. The organ donor and the fat man are used, and this use is what makes the cases immoral. So, as long as there is no use of other people, consequentialist reasoning applies, as in “Trolley”. Another, similar case is the “German Airplane”.

There are of course numerous other types of deontology, but these three will suffice to make my point.

(3) A virtue theory focuses not on rules or acts, and neither on the consequences of rules or acts. It tries to ascertain what respect for a rule or engagement in a certain act says about one’s character. For example, virtue ethicists may claim that consequences in themselves have no ethical content unless they have been produced by a virtue such as benevolence. Ditto for rules: if good rules are followed that is not in itself a sign of morality or justice; the rule follower must follow the rule because of his or her moral character. A better world will result from the improvement of our characters, our virtues and our personal excellence.

In a sense, virtue ethics isn’t opposed to deontology or consequentialism but frames itself as a prerequisite. Instead of focusing on rules, actions or consequences, we should develop morally desirable virtues for their own sake, and then, when the time comes to act morally – either to follow a moral rule or to do what brings the best consequences – those virtues will help direct and complete our actions.

This theory of justice is similar to motivational deontology of the Kantian kind (2.2), but different nonetheless. Kantian good will depends not on personal virtues or excellence, but on reason and the use of reason to discover the moral law. Here’s an example that will illustrate the difference. Suppose you’re visiting a friend who’s in hospital. You may do so because you’ve discovered, through reason, the moral law that tells you to be nice to friends, and because your good will tells you to respect this law and do what is your moral duty. Or you may do so because of the good consequences that will result from doing so: he’s happy when you visit, or he’ll visit you next time you’re in hospital; and even if you’ll never be in hospital it’s good for both of you to remain friends – not visiting him is incompatible with you remaining friends. All these justifications seem to miss something, namely the virtue of caring for friends, of being good to friends etc.

(4) Some mixed theories:

(4.1) Robert Nozick, for example, argues for a theory that is mostly consequentialist, but incorporates a certain set of minimal inviolable rules called “side-constraints” which restrict the sort of actions agents are permitted to do.

(4.2) Rule consequentialism claims that following certain rules in general produces the best consequences, given the calculation and information problems inherent in the assessment of consequences (especially long term consequences). We can’t ask people to calculate the consequences every time they want to do something. We just settle for the second best: experience has shown that some rules generally produce good results, and we stick to those rules even if in some cases it will turn out afterwards that perhaps we shouldn’t have. Rule consequentialism is a modification of act consequentialism (or act utilitarianism).

(4.2.1) Esoteric consequentialism is often a form of rule consequentialism because it claims that the “common man” should follow rules given his inability to judge consequences and that a caste of philosopher kings able to assess consequences should frame the rules for the common man in such a way that the chosen set of rules produces the best possible consequences compared to other possible sets of rules (not compared to all possible consequences; ideally, given high average intelligence and the absence of calculation and information problems, simple non-rule based consequentialism would perhaps produce an even better world). Sidgwick is famous for his esoteric consequentialism.

(4.3) Threshold deontology wants to avoid the conclusion that it’s justified to kill someone if doing so allows us to cure millions of chronic headaches (a conclusion often accepted by 1.8). It states that, although in general rules (such as “do not kill”) have to be respected even if better (aggregate) results would obtain by violating them, these rules can and must be violated if the level of bad consequences resulting from rule observance passes some catastrophic level (“do kill one if you thereby can save thousands of other lives”).

Human Rights

Now that we have this typology of theories of justice, let’s examine their usefulness from the point of view of human rights.

(1) Consequentialism

Although one can take a consequentialist approach to human rights and see them as something to be maximized – perhaps with a priority for those whose rights are least respected – consequentialism in general doesn’t really fit with the main concerns of human rights. These rights are constraints upon what we can morally do to other people, and these constraints are so strong that it’s difficult to imagine that one can sacrifice the rights of some in order to maximize the rights of others, let alone sacrifice rights in order to maximize some other good such as pleasure or welfare. This doesn’t mean that rights can never be sacrificed – when rights come into conflict a choice has to be made, and that usually is a consequentialist choice: which sacrifice does the least harm to different people’s rights? (E.g. the journalist attempting to divulge private, career ending but politically and legally irrelevant information about a politician). But that’s an unfortunate and probably inevitable shortcoming in the system of human rights, not it’s central logic. It would have been much better were there no such conflicts.

Obviously, among the different types of consequentialism, qualitative consequentialism (1.3) is more attractive than hedonistic consequentialism (1.1), because we want to make a difference between harm done to those interests that are protected by human rights and harm done to someone’s interest in pleasure and happiness. Furthermore, human rights are more focused on turning us into a dissatisfied Socrates than on producing a multitude satisfied fools, although ideally we would want a multitude of satisfied Socrateses. The reason for this focus is that a fool doesn’t necessarily need freedom of speech, political rights etc.

The same is true for welfare consequentialism (1.2): people can have preferences for rights violations and we don’t want to maximize those. We also don’t want to treat expensive preferences with the same respect as inexpensive ones because human rights attach more importance to poverty alleviation than to luxury maximization. On the other hand, qualitative theories (1.3) can be paternalistic and paternalism can be an affront to liberty and hence indirectly also to human rights.

Of all types of consequentialism, negative consequentialism (1.5) is perhaps the most amenable to human rights. Human rights protection should start with the attempt to avoid engaging in rights violations. But even if this attempt is universally successful, that won’t result in perfect respect for human rights. People need the resources and capabilities to make use of their rights, and giving them those resources and capabilities requires more than the avoidance of harm. Type 1.4 tries to deliver those resources and capabilities.

Ethical egoism (1.6) is very unattractive from the point of view of human rights, although I don’t deny that selfish and self-interested actions can promote respect for human rights. However, they only do so accidentally, and the good they do is easily swamped by the bad. The opposite, ethical altruism (1.7), looks more attractive, but really is not: usually, there is no need to sacrifice one’s own rights in order to defend the rights of others. And when it is necessary, it is also pointless: rights are inherently relational – we want rights together, we want to practice religion together, to talk and express ourselves together, to govern ourselves together etc.

The focus of classical utilitarianism (1.8) on aggregate welfare is obviously detrimental to the rights of many. People have rights, even if the outcome of those rights is suboptimal on an aggregate level and even if more overall utility could be achieved when some rights are violated in some cases. Distributional consequentialism (1.9) avoids this problem and is therefore more amenable to human rights. Desert based consequentialism (1.10), on the other hand, turns back the clock: people have rights whether or not they deserve them. That doesn’t rule out limitations of rights following deserved punishment for wrongdoing. However, when the rights of convicted criminals are limited, the reason is not that they deserve this limitation. The reason is the defense of other people’s rights.

(2) Deontology

Compared to utilitarianism, deontology seems to be a theory that is much more amenable and receptive to human rights. Deontology, after all, focuses not on the consequences of actions but on the duties we have; and one man’s rights are another man’s duties. However, the moral absolutism inherent in many types of deontology is a difficulty from the point of view of human rights. It seems to rule out the inevitable balancing between conflicting human rights. That is why threshold deontology (4.3) is better, and yet that theory isn’t without problems either, notably the arbitrariness of the thresholds, the problems posed by cases just above or below the threshold, and the fact that even with thresholds some duties and rules will still be strong enough to produce, in some cases, violations of human rights.

Divine command theory (2.1) is to be rejected since it doesn’t provide space for religious freedom. Motivational deontology (2.2) is attractive precisely because of its focus on motivation: real respect for human rights can’t come from the threat of law; it has to come from within. However, the inner moral law, the motivating element, can also make us too rigid: it forces us to accept catastrophic consequences and makes it impossible to solve conflicts between rights – unless we see the moral law as overcoming value pluralism, which I think is illusory.

Anti-instrumentalist deontology (2.3) is the best form of deontology from the point of view of human rights. Think for instance of the anti-instrumentalization argument against capital punishment.

(3) Virtue theories

These are attractive for the same reason as motivational deontology: respect for human rights ultimately depends on people’s mentalities, attitudes and virtues. However, these theories are completely useless when we have to decide what to do with conflicts between rights, catastrophic consequences etc.

(4) Mixed systems

What can we say about the mixed systems? Nozick’s side constraints look promising, but they are notoriously unhelpful when rights require positive action and assistance rather than mere forbearance. And they often do, as stated above. Rule consequentialism looks inherently unstable, and a bit like a desperate attempt to combine what can’t be combined. Esoteric consequentialism reeks of authoritarianism.

Related posts are here, here and here.

The Ethics of Human Rights (54): Torture, Consequentialism and Tainted Goods

Those who defend torture normally do so on consequentialist grounds. They posit cases such as the “ticking time bomb” in which the harm done by torture is insignificant compared to the good it does. The consequences of torture are clearly beneficial, overall: OK, it does some harm to an individual terrorist who has hidden the bomb but at the same time it saves thousands or millions of lives. When so many lives are at stake, a utilitarian calculus will clearly show that the good that will follow from torture outweighs the good that will follow from the refusal to torture.

Usually, we see a kind of threshold consequentialism rather than a pure consequentialism at work in such arguments: if torture can produce one more unit of “utility” (wellbeing, life, etc.) than the refusal to torture, most consequentialists wouldn’t allow torture. The good consequences of torture must far outweigh rather than marginally outweigh the harm it clearly does. Hence the hypotheticals in examples such as the ticking bomb, in which it’s posited that very many lives are at stake. We are allowed to supersede the deontological rule that one shouldn’t torture only beyond a certain threshold of harmful consequences that would result from sticking to the rule. As someone has said, lost lives hurt a lot more than bent principles. Strict moral absolutism, whatever the possible consequences, can indeed land you in all sorts of problems.

However, let’s look a bit closer at this seemingly convincing argument. We can overlook some of the possible difficulties and still conclude that the argument is unsatisfactory. Let’s not dwell on the likelihood that in real cases, the numbers of possible terrorist victims is rather small, while the number of people who have to be tortured is probably higher than one: you may need to torture some people before you find the one who has the necessary information about the location of the bomb; then you may need to torture his friends and family because he’s trained to resist torture and because he knows that if he resists for a short time, the bomb will go off. So let’s forget that the utilitarian calculus will most likely be less unequivocal than assumed in the argument above: we’ll never or only very rarely have cases in which torture produces a very small harm and at the same time a very large benefit. The harm and benefit will be much closer to each other.

Let’s also not dwell on the fact that the greater good thinking of the argument puts the torturer on the same footing as the terrorist. The latter also assumes that he fights for a greater good and that the harm he does is small compared to the benefits this harm will produce. The similarity between torturer and terrorist is all the more striking if the torturer has convinced himself that it’s necessary to torture the innocent (when the terrorist himself doesn’t speak fast enough). Putting ourselves on the same level as terrorists means giving up our identity to save ourselves, which really is pointless. If that is correct then we have to remodel the utilitarian calculus: the harm done by self-destruction is probably greater than the suffering caused by exceptional terrorists attacks. So even the utilitarianism of the greater good doesn’t justify torture.

But let’s assume that none of this speaks against the standard consequentialist justification of torture and that we manage to use torture in a way that saves many many lives, that doesn’t impose a high cost, and that doesn’t put us on the same level as the terrorists. So we can save ourselves, our identity and the lives of many of our fellow citizens. Still, the “good” that we achieve through torture is tainted by the methods necessary to achieve it. The notion, inherent in the consequentialist justification of torture, that certain goods can be attainted by problematic means, is itself problematic. We can save ourselves, but once we are saved we believe that our success has been tainted by the immoral methods used to achieve it. We may not be willing to enjoy this success and the goods we have if they have been secured by way of torture.

Jeremy Waldron has interesting things to say about tainted goods. Read this for example.

What Are Human Rights? (31): Instrumental and Not Fundamental Moral Principles

It may come as a surprise to regular readers of this blog, but human rights are not fundamental moral principles. That doesn’t mean they are unimportant. On the contrary. There’s a difference between important and fundamental. I wouldn’t be writing this blog if I believed that human rights are unimportant, but nothing written here is incompatible with the claim that they are not fundamental. The place of human rights in morality is at the level of subordinate principles: they are instruments for achieving or realizing other values; values such as peace, wellbeing, prosperity, freedom, equality etc.

The reason why this is the case, is made clear by the lack of meaning and usefulness of the contrary argument. Suppose that human rights are fundamental moral principles. We would then have to adopt some kind of rights deontology or rights utilitarianism:

  • In rights deontology, rights are to be respected in all or most instances (deontology is a type of morality that judges an action based on the action’s adherence to a rule).
  • In rights utilitarianism, the goal is to maximize overall rights protection (utilitarianism is a type of morality that judges an action based on the action’s good consequences).

Both rights deontology and rights utilitarianism demand that rights are protected, not because rights serve some other value, but because rights are the fundamental moral values. Now, this is both meaningless and unhelpful.

  • It’s meaningless because in everyday conversation and thinking, we don’t view rights in this way. I have never seen anyone making a convincing case that people need freedom of speech because freedom of speech is a fundamental value. The common argument is rather that we need that right because it allows us to realize some other values (political freedom, rationality, truth etc.). The claim that a violation of our right to free speech is wrong does not express a fundamental or axiomatic moral principle. It’s the result of complex arguments about the importance of other values and about the ways in which this right protects those other values. (The latter point obviously depends on non-philosophical and empirical claims as well). The opposite claim, that protecting rights has value even if no other value is advanced, has a distinct emptiness about it.
  • Placing rights at the basis of morality is also unhelpful in the sense that it doesn’t tell us what to do in difficult moral cases. In general, we should of course consider human rights as strong rules that we should respect, and we should also arrange our society in such a way that rights protection is maximized. But what should we do when different rights are in conflict with each other and are mutually incompatible? That happens quite often, and neither rights deontology nor rights utilitarianism are of any help when it does. You can only resolve a conflict between rights when there are certain more fundamental values at stake. When two conflicting rights are understood as instrumental values serving the realization of other, more fundamental values, then we can try to ascertain which one of the conflicting rights does a better job. For example, when a tabloid journalist hacks a politician’s cell phone in order to dig up some lurid details about his or her sex life, then one can argue that the politician’s right to privacy should prevail over the journalist’s right to free speech, given the fact that the right to privacy is in this case protecting more important values than the right to free speech. Privacy, intimacy etc. are more important than sensationalism or voyeurism.

Does all this mean that human rights can and should be ignored or violated if doing so maximizes the values that they normally protect? Yes. Rights are not absolute. However, because it’s generally not the case that ignoring or violating human rights maximizes the values that they normally protect, and because rights normally do a very good job protecting those values, it is best not to cast them aside every time a modest or marginal improvement in fundamental values can perhaps be achieved by doing so. Otherwise we would demote rights and decrease their importance in the general culture. And that would be detrimental to our fundamental values in the long run. Hence, it’s probably not a good idea to argue the case that human rights are instrumental rather than fundamental. If the general public is convinced that they are fundamental, then that is beneficial for our really fundamental values. Hence, maybe you shouldn’t have read this post.

Hence, there is a consequentialism inherent in rights, but it’s not a consequentialism of rights – we should arrange society in such a way that certain values are promoted, not that rights are promoted. Yet, arranging society in such a way that rights are promoted is a good proxy for a society in which values are promoted.

The Ethics of Human Rights (50): Human Rights and Deontological Ethics

Compared to utilitarianism (see this previous post), deontological ethics – or deontology/deontologism for short – seems to be a moral theory that is much more amenable and receptive to human rights. Deontology, after all, focuses not on the consequences of actions but on the duties (“deon”) we have; and one man’s rights are another man’s duties. Deontology does not accept that good consequences override our duties; for example, we have a duty not to torture, even if torturing would yield certain beneficial consequences. The right thing to do is more important than increasing the good in society. And the right thing to do is to act according to a moral duty translated into a moral norm. So the right thing to do is typically encapsulated in rules, as is the case for human rights.

However, the choice of moral theory for a human right activist isn’t as clear-cut as that. Deontology, and especially those forms of deontology that look a lot like moral absolutism – and that’s a big temptation for deontology in general – have been accused of accepting catastrophic outcomes for the sake of respect for rules and duties. The infamous Kantian rule not to lie to a murderer asking about the whereabouts of his intended victim comes to mind. And we’re not just talking about philosophers’ mind games. The oath taken by German soldiers to be loyal to Hitler was a case of an uncontroversial deontological rule – keep your promises – that has arguably cost millions of lives. The power of duties and rules often borders on the absolute.

Of course, deontology doesn’t have to be moral absolutism. It’s not because there are rules and duties that we must always respect them. So-called threshold deontology allows for rules to be overridden once a certain level of bad consequences is reached. Beyond the threshold, deontology is replaced by consequentialism. Granted, the threshold of exception must be high, otherwise it would be futile to speak about rules and duties at all.

Such a deontological theory is not absolutist, and it is more in line with human rights. The system of human rights isn’t absolutist either. Rights can be limited, for example when different rights clash with each other. There are very few if any absolute human rights, i.e. rights which can never be violated. (The right to life is a possible candidate).

However, threshold deontological theories are not without problems either. First, even if we use thresholds, some duties and rules will still be strong enough to produce, in some cases, violations of human rights. And second, there’s the problem of the exact level of the threshold. It has to be high, but how high? Take the case of torture: threshold deontology would argue that torturing a “ticking time bomb terrorist” is an acceptable deviation from deontological rules and duties if the consequentialist gains are high enough, for example when this torture will allow us to save a large number of lives. But what is a large number? 100? 1000? And won’t we create perverse effects? (E.g. having a torturer put some more lives at stake as a means to legitimize his torture?). Deontology seems to collapse into consequentialism if it adopts a system of thresholds, because reducing the threshold value by 1 unit (one life in this case) never seems to invalidate the choice of suspending rules or duties. And yet, after a certain number of reductions by 1 unit, there’s no rule or duty left.

More posts in this series are here.

The Ethics of Human Rights (43): Human Rights and Utilitarianism

You often hear the claim that human rights and utilitarianism don’t mix. And indeed, at first sight they are rival and incompatible moral theories that have radically different prescriptions about what we should do in order to do good.

Utilitarianism tells us to do what maximizes “utility” (in whichever way “utility” is understood: pleasure, happiness, wellbeing etc.). We should, in other words, try to act in such a way that our actions produce as many good consequences as possible, and that the aggregate of those good consequences outweighs – in terms of “utility” – the aggregate result of whatever different combinations of actions are possible. We should try to maximize utility regardless of whether rights are respected or violated while doing so. The good is prior to and independent of the right or duty. Something is a right or a duty only when it contributes to overall utility, and only when it does so to a higher extent than violating that right or duty.

Conversely, human rights tell us that we can never do certain things, not even if doing those things would maximize overall social utility (happiness, pleasure etc.). Some human rights theories provide exceptions to this rule and don’t use the qualifier “never”. For example, in a situation of extreme danger for the whole of society, these rights theories provide the possibility that some rights are temporarily suspended. However, they typically provide a very high threshold, otherwise it would become difficult to speak about “rights” and the theory would collapse into utilitarianism (if rights can be suspended regularly, they are no longer rights).

For example, even if it were the case that capital punishment has an important deterrent effect, it would not be permissible. Executing people for crimes as a means to diminish the occurrence of future crimes is just not something one can do to people. It instrumentalizes people in an unacceptable way according to most rights theories. The right to life is just too important and a deterrent effect doesn’t lift us above a threshold of suspension of rights.

People have rights, even if the outcome of those rights is suboptimal and more overall utility could be achieved when some rights are violated in some cases. Only when the utility of violating rights is very high do some rights theories allow those violations. These rights theories are threshold theories that allow utilitarian or consequentialist considerations to “kick in” when a certain threshold is reached. For example, they allow torture if a very large number of lives is at stake, even though generally and under non-marginal conditions people have a strong right not to be tortured.

That already shows that human rights and utilitarianism-consequentialism aren’t necessarily incompatible. Of course, some rights theories claim that they are. Those are the non-threshold theories, which are more extreme rights or duty theories that allow no exceptions. An example is Kant’s infamous argument about not lying to a murderer inquiring about the whereabouts of his intended victim – “fiat justitia et pereat mundus“.

Compared to utilitarianism, human rights theories – both strong and threshold theories – have the advantage that they are able to protect strong interests of minorities and individuals against the weight of aggregated and possibly weak interests of large majorities. It’s intuitively appealing to have a theory that protects individual rights against aggregate social utility. Utilitarianism – in its crudest forms – has often been accused of not taking the differences between people seriously and of not caring about individual suffering as long as the total advances.

We don’t even have to look at extreme threshold cases to see that many human rights theories have consequentialist or utilitarian features. Obviously, there is no human rights theory that holds rights hostage to case-by-case utility accounting or that claims that all human rights have optimal consequences all of the time. And yet, most human rights theories claim that human rights are necessary because they generally produce good consequences and promote certain important values. Maybe not happiness, but peace, prosperity etc. (See here). For example, there’s a strong argument that free expression promotes knowledge and that religious liberty promotes communal peace.

Claiming that respecting human rights is generally optimal from a utilitarian perspective doesn’t mean that it’s always optimal. You could argue that even if it’s not always optimal to respect human rights we still should do so, because we’re unable to distinguish between cases in which it is or is not optimal to respect human rights (perhaps because our predictive powers aren’t good enough to judge the suboptimal consequences of rights), or because violating rights once will diminish their authority and will ultimately destroy them, making it impossible to reap the generally positive benefits of rights.

More posts in this series are here.

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

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

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

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

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

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

The Ethics of Human Rights (42): What’s the Best Approach to Distributive Justice?

What is distributive justice?

Distributive justice is a set of normative principles designed to guide the allocation of the benefits and burdens of economic activity. These benefits and burdens can be material goods and services, income, welfare or something else. Whatever they are, a theory of distributive justice will claim that they should be distributed or allocated to people according to some morally justified and morally just set of rules.

The assumption is that all government activity in some way affects the distribution of those benefits and burdens, whatever we do or believe, and that it’s important to guarantee that this distribution is done in a just way. So a theory of justice will propose rules for taking some benefits and burdens from people and giving them to others in a way that corresponds to ideals of justice.

Different types of distributive justice

Unfortunately, there isn’t one commonly accepted theory of justice. Different people have proposed different theories that describe different ideal methods of distributing different types of benefits and burdens. Some theories propose a more or less equal distribution of income; other theories focus on a more general understanding of benefits and talk about “welfare”. And some theories do not accept equal distributions and focus on desert. Etc. There are even some schools of thought that deny the justice of any sort of redistribution and argue that justice is about respecting property rights (libertarianism for instance). However, I’ll focus in this post on those who think that some kind of distributive justice is an important concern (which doesn’t imply that I believe that libertarianism is completely wrong about everything).

Let’s look at some of the more common theories and try to assess – superficially, I admit – what their respective merits are.

Strict egalitarianism

This theory of justice claims that all people should have the same level of material goods.

  • Advantages. This does seem to correspond to the basic moral rule that all people are owed equal respect.
  • Disadvantages. Different people have different needs, and so they need different and different amounts of goods. There’s also the problem of economic efficiency: strict equality removes incentives for economic productivity. Hence, it may result in overall wellbeing at a rather low level, making things worse for everyone. Conversely, everyone, even the worst off, can be made better off if goods/income/whatever are not distributed equally.

The Difference Principle

That last point was probably the origin of the so-called Difference Principle. This principle is part of John Rawls’ theory of justice. It does not demand strict equality as long as unequal distributions make the least advantaged in society better off than they would have been under strict equality. More precisely formulated: inequalities are to be to the greatest benefit of the least advantaged members of society. This principle is also called the maximin rule: an unequal distribution can be just when it maximizes the benefit to those who have the most minuscule allocation.

The justification of this principle is that higher incomes for more productive members of society provide those people with an incentive to be productive. And if they are productive, they produce more wealth, which can be used to benefit the least advantaged.

(Similar ideas can be found in sufficientarianism and prioritarianism).

  • Advantages. Contrary to egalitarianism, the focus is on the absolute wellbeing of the least advantaged, rather than their relative wellbeing, i.e. their (un)equal position. Hence, we avoid the egalitarian destruction of incentives and the resulting risk of leveling down.
  • Disadvantages. People’s relative positions are to some extent morally important. See this older post for a list of reasons why this is the case. Rawls does have a partial response to that concern because he argues that the inequalities permitted by the difference principle should be consistent with another rule of justice, namely the equality of rights and liberties. For example, high income inequality may make it impossible for people at the wrong end of this inequality to participate in democracy, to have their views represented and to get elected. Hence, Rawls argues for some corrections of inequality when inequality of resources negatively affects equal liberty. However, other disadvantages of inequality receive less attention. Another disadvantage of the Difference Principle is that it ignores desert.

Desert-based principles

It’s plausible to claim that a just distribution of goods should give people what they deserve, at least partially. We intuitively believe that at least some of the inequalities in life are deserved. People who work hard or contribute a lot to society deserve a higher level of wealth/income/welfare etc., even if such inequalities do not improve the position of the least advantaged. The hard working should not be forced to subsidize the lazy. They don’t deserve to be forced in this way, and the lazy don’t deserve to benefit in this way. (Many desert-based theories of justice are based on Locke’s theory of property).

Desert-based theories of justice claim that distributive systems are just insofar as they distribute benefits and burdens according to desert, at least partially. (This goes back to Aristotle).

  • Advantages. Desert is a strong moral intuition and it is therefore important to incorporate it in a theory of distributive justice. Theories that fail to do so will always seem unjust.
  • Disadvantages. We can make mistakes when deciding that some or other activity is deserving or meritorious. Distributions based on such mistakes will only be just by chance. But even when we don’t make these mistakes, it’s hard to measure and compare desert (is art more meritorious than science?). In addition, we can fail to identify real desert. Apparent desert may in fact be based on undeserved endowments. And that’s where luck egalitarianism comes in. (More problems with desert are described here).

Luck egalitarianism

Luck egalitarianism can be viewed as a desert-based type of justice. It proposes to redistribute the benefits and burdens that people don’t deserve and that result from bad luck, for example the bad luck of being born poor, in a poor country, without talents etc. Bad luck in the initial distribution of natural or social endowments should not affect one’s life prospects or distributions of income/wealth/etc. People don’t deserve those endowments and hence don’t deserve the distributions that result from it. These distributions therefore need to be corrected and equalized. After having equalized people’s starting positions in life, we have to let people free to decide what to do with their lives. Those decisions are their responsibility and hence they deserve the outcomes of their decisions. After corrections for endowments, people who work deserve the benefits of their work, and people who are lazy or careless deserve the results of their laziness or carelessness.

  • Advantages. Luck egalitarianism avoids the pitfalls of both crude desert-based justice and strict egalitarianism.
  • Disadvantages. There may be cases in which people who bring bad luck or suffering on themselves still have a claim to assistance. Also, luck egalitarianism produces some bad incentives and can be seen as demeaning (go here for more detail).

International distributive justice, or cosmopolitan justice

A small detail in the theory of luck egalitarianism has far-reaching consequences. Among other things, people don’t deserve the places in which they are born. And yet, those places can determine whether you are rich or poor, free or persecuted etc. To some extent, poverty and persecution are just bad luck, the bad luck of being born in the wrong country. Residency and citizenship are as morally arbitrary as race, gender, natural endowments etc. No theory of justice that takes the equality of human beings serious can ignore the unequal distributions caused by the place of birth, and has to correct these distributions. Arbitrary facts about places of birth, border, residency or citizenship – just like genetic defects, race, gender etc. – cannot be allowed to determine people’s lives. Limiting the principles of justice to citizens or residents is unacceptable.

That means that redistribution should be international and not just between citizens of a particular country. Of course, it’s plausible that people have more responsibilities to those closer to them: parents have more responsibilities towards their children than towards the rest of humanity; friends should help each other etc. Closeness is morally relevant because it means more power: the closer you are to someone, the easier it is to help. But equal dignity and equal respect for all human beings is also morally relevant, and closeness therefore doesn’t mean that people who are far away and who are unknown to you and unrelated to you can’t legitimately demand assistance.

Preference to people close to you – and those people can perhaps include fellow nationals rather than just family and friends – shouldn’t be the only or overriding concern. We want to avoid chauvinism, parochialism and egoism. The metaphor of the family can turn nationalism into something very nasty. And anyway, the salience of closeness has been substantially reduced by technology: nowadays, it’s easy to send money abroad for example.

Still, in some plausible conception of international justice there can be room for some form of differentiation of duties towards fellow citizens and foreigners. International or cosmopolitan justice is therefore possibly coherent with the Difference Principle: international inequalities are acceptable if they improve the position of those who are globally worst off (although Rawls himself did not believe this because he correctly pointed to the absence of global institutions, and institutions are crucial to his theory).

  • Advantages. International (or cosmopolitan) justice points to the ultimate consequences of liberal egalitarianism. If women, racial or religious minorities and people burdened with bad luck should be treated equally, why not foreigners? Borders are indeed just as arbitrary from a moral point of view as gender, race or talent and they can’t, therefore, determine distributions. International justice assumes all the consequences of the theory of human equality and makes the theory of justice more coherent compared to theories that focus on domestic distribution only.
  • Disadvantages. International justice can burden the citizens of wealthy countries with extreme and unbearable responsibilities. After all, we want a coherent system of justice that treats people equally regardless of their place of birth. So it’s not just that rich countries have to prevent starvation and genocide abroad. That seems to be difficult enough already, but international justice makes things even more difficult because it gives people abroad the same benefits and burdens as citizens. That can imply, for example, completely open borders or far-reaching redistribution leading to substantially reduced welfare levels in rich countries. Another problem is more practical: it’s not clear how international redistribution should take place. In the case of national distribution there is a state taking care of it. Not so on the global level.

Distributive justice across generations

The same reasons that argue against the moral salience of closeness in space argue against the moral salience of closeness in time. The fact that some people will be born after our death isn’t a good reason to impose burdens on them. Hence, our distributive principles should take into account the interests of future generations. It wouldn’t be just to design a system of distributive justice that takes care of the least advantaged among us, that removes the influence of bad luck suffered by the living, that preserves a place for desert, that is insensitive to borders, and that at the same harms the interests of future generations (for example because it fails to provide a good system for the management of natural resources). More here on transgenerational justice.

  • Advantages. Like international justice, transgenerational justice points to the ultimate consequences of liberal egalitarianism. If women, racial or religious minorities, people burdened with bad luck and foreigners should be treated equally, why not future generations? Time is indeed just as arbitrary from a moral point of view as borders, gender, race or talent and can’t, therefore, determine distributions.
  • Disadvantages. Again, like in the case of international justice, we run the risk of imposing enormous burdens on the present generations. Moreover, there’s the so-called repugnant conclusion: if we multiply the number of future people – which is potentially a very large number of people – then we run the risk of drowning the interests of present generations. A small benefit for a very large number of future people will then justify a very heavy burden on the limited number of people currently alive. However, this doesn’t mean that we should neglect the interests of future people.

Welfare-based principles

Theories of justice can also focus on welfare. According to welfare-based theories of distributive justice, the only value of goods, resources, desert-claims, equal freedom and even equality is their positive effect on welfare. Distributive principles should then be designed so that they enhance welfare. Welfare maximization is the only criterion to decide distributive rules.

Utilitarianism is the main welfare-based theory of justice. “Utility” can be understood as more or less identical to “welfare”. It can be defined as pleasure, preference satisfaction, happiness etc. According to utilitarianism, distributing benefits and burdens means distributing them in such a way that we maximize overall utility (i.e. overall preference satisfaction, happiness etc.). We have to choose the pattern of distribution that maximizes the sum of all satisfied preferences, of all instances of happiness etc. (unsatisfied preferences or unhappiness count as negatives, and some “higher” or more intense preferences may be weighted higher, depending on the type of utilitarianism we are talking about).

  • Advantages. Utilitarianism’s main advantage is its compatibility with freedom: it doesn’t prefer particular types of preferences, pleasure, happiness etc., and it therefore allows people to realize their own visions of the good life.
  • Disadvantages. What about evil preferences, such as hate and racism? If those kinds of preferences are widespread and the individual targets of those preferences are a minority, then the latter will suffer because overall wellbeing will be increased by allowing the realization of evil preferences. Also, it’s not because it’s rational for an individual to sacrifice some present preferences for a larger future gain, that it’s moral for a society to sacrifice individuals for the gain of the whole, as utilitarianism often requires. That is why some utilitarians have added rights or rules to their equations: preferences can only be satisfied when they don’t violate the rights of others.

Feminist approaches

Feminism has convincingly argued that the traditional theories of justice described above tend to ignore how distributive principles affect the fate of women, especially given the fact that women still have primary responsibility for child-rearing. Distributions within the family are usually not discussed in theories of justice. Therefore, these theories can be criticized as paternalistic or at least unwittingly supportive of paternalism. Many theories of justice include specific rules about the protection of the private sphere as an area that is off-limits for the government and hence for distributive efforts. So theories of justice have made themselves powerless to address gender inequality.

Conclusion: What’s the best approach to distributive justice?

So, after all this and if you’re still with me, what do we take away? Strict equality and simple utilitarianism seem the least appealing. And any coherent approach has to include rules that apply both nationally and globally, has to be gender sensitive and has to reserve some attention to desert. Intergenerational concerns are also hard to avoid if we want to maintain coherence, although perhaps we could limit the impact of the demands of future generations by claiming that actual suffering is more urgent than possible suffering.

This brings back the concern of the burden justice imposes on people. If we want to take the best of all the previously described approaches to distributive justice, we necessarily end up with a “thick” conception of justice, imposing a heavy burden. We have to take into account all people currently living, not just our fellow citizens, as well as people not yet born. And we have to give special attention to gender. But at the same time we don’t want to have a theory of justice that’s so burdensome that people will say: thank you but no thanks. It’s fine to have a coherent theory of justice but if this coherence leads to impossible demands on people or demands they are not (yet) willing to accept, then the practical use of that theory is nil.

One possible reaction to this concern about the burden of justice is the adoption of a prioritarian approach, and more specifically a global gender sensitive prioritarianism with a time preference: the worst off should get the most attention. For example, poor women currently living in a patriarchal society should be the first beneficiaries of redistribution. The disadvantage of this is that it will force us to abandon, temporarily, a lot of people we don’t want to abandon, for example welfare beneficiaries in rich countries. Or we could bite the bullet and say with Peter Singer that the burden is what it is and we should carry it. Morality may be more demanding than we had initially thought. Rather than adapting morality in order to diminish its burden, we just accept the burden.

More posts in this series are here.

The Ethics of Human Rights (38): Should People Be Equal or Should They Have Enough?

There are people who believe income inequality is a major problem – and I’m one of them – and there are others who say that the real problem isn’t a relational one but rather one of absolute means. Harry Frankfurt for example argues that it’s not important whether a person has less than another regardless of how much either of them has. What is important is whether people have enough of what they need for a decent human life.

Sufficientarianism

This so-called sufficientarian approach – as opposed to the egalitarian one – is supposedly not comparative or relational but humanitarian. It focuses on the alleviation of absolute suffering and deprivation instead of relative inequalities. Rather than diminishing the distance between the worst off and the best off, it wants to improve the situation of the worst off. The latter goal can be the result of the former, but doesn’t have to be. Or it can promote the former but doesn’t have to. For example, imagine a society where incomes are highly unequal but where none of the people at the wrong side of this inequality are below a threshold value of wellbeing (the threshold determines the difference between suffering and non-suffering). So, according to the sufficientarian approach, there’s no need to diminish inequality in such a society. There’s no need to do anything, in fact. Conversely, you can have a society – not so imaginary perhaps – with low levels of inequality but almost all of the people live below the threshold. Tinkering with inequality will not do much good in that society. What you have to do is raise the living standard of almost all the population.

Income inequality for sufficientarians is relevant only to the extent that the wealth of those who are better off is a useful means to alleviate the suffering of the worst off. Diminishing inequality isn’t a goal in itself, and inequality doesn’t do any harm in itself.

It’s an appealing view, and I have been tempted by it myself. Even if you believe, as I do, that inequality can be harmful no matter what the income levels of the worst off are (harmful to democracy for instance) and that more equal societies almost always do better, you may still agree that the most urgent priority is the suffering of those who are worst off. Income inequality should then only be tackled afterwards. Anyway, tackling that first priority is a good step on the way to more equality; helping the worst off will reduce inequality almost automatically I would believe.

However, appealing though it may be, is sufficientarianism really all that much different from egalitarianism? As soon as you talk about the “worst off”, you have already engaged in comparative and relational analysis, by necessity. Another problem with sufficientarianism is the setting of the threshold: that is bound to be somewhat arbitrary. Of two people in very similar situations only one will receive help. You may say that cut offs are always inevitable, and perhaps that’s true, but sufficientarianism makes them painfully obvious to those concerned. People just above the threshold are told that they don’t matter, even if their neighbors who are just below matter a great deal. And finally, basic needs change over time, hence also the meaning of “suffering”. Will sufficientarians keep the threshold fixed, or allow it to rise over time? In the latter case, the difference between their approach and that of egalitarians is again rather small.

Prioritarianism

Some of these problems are sidestepped by a similar view called prioritarianism, made famous by Temkin and Parfit: benefiting people is more important the worse off they are. No need for a threshold here. When having to choose between two policies, you always take the one that is best for the worst off, whatever their level of well-being.

Benefits to the worse off matter more than benefits to the relatively better off. A benefit has greater moral value the worse the situation of the individual to whom it accrues. If we have some benefit to distribute, and this benefit has a value of x (no matter how we define “value”), it’s better to give this to the worst off than to anyone else. Strict utilitarianism, as opposed to prioritarianism, doesn’t care about who gets the benefit of x, because who gets it doesn’t change overall well-being. However, utilitarianism does take into account the possibility of the diminishing marginal utility of something: lots of money for a rich person isn’t as useful as the same amount of money for a poor person. But when comparing two people who would benefit just as much from such an amount of money, utilitarianism – as opposed to prioritarianism – doesn’t care who gets it; either person, the better off or the worse off, can get it. Prioritarianism doesn’t merely say that the worse off person should get it, but also says – contrary again to utilitarianism – that we should benefit the worse off even if that means diminishing total well-being; e.g. we can harm the interests of the better off if that means improving the well-being of the worse off:

Imagine choosing between two outcomes: In outcome 1, Jim’s well-being level is 110 (blissful); Pam’s is -73 (hellish); overall well-being is 37. In outcome 2, Jim’s well-being level is 23; Pam’s well-being level is 13; overall well-being is 36. Prioritarians would say that outcome 2 is better or more desirable than outcome 1 despite being lower than outcome 1 in terms of overall well-being. Bringing Pam up by 86 is weightier than bringing Jim down by 87. If we could move from a society described by outcome 1 to one described by outcome 2, we ought to. (source)

So prioritarianism avoids some of the counterintuitive implications of strict utilitarianism. And it also avoids the equally counterintuitive implications of strict egalitarianism. The latter may demand bringing everyone down to the level of the worst off while benefiting no one. Prioritarianism on the contrary does not propose a move toward more equality if that doesn’t benefit the worse off. And finally, it avoids some of the practical problems of sufficientarianism, while maintaining the appeal of the sufficientarian focus on the absolute deprivation of the worst off.

The Ethics of Human Rights (26): The Repugnant Conclusion and Human Rights

The Repugnant Conclusion is a moral dilemma for utilitarian and consequentialist moral theories. The dilemma was first presented by Derek Parfit in his 1984 book Reasons and Persons. The “repugnancy” in question refers to the consequence of a thought experiment. Imagine a society with a large amount of total utility resulting from a very large number of people all living at near-zero levels of utility. In other words, these people have no more than a marginally worthwhile life – Parfit calls it a life of muzak and potatoes but we can of course define “marginally worthwhile” differently if we want. And yet, because they are so numerous, the total utility of this society is very large.

Utilitarian and consequentialist theories must rank this society higher than other more desirable societies with higher average utility but lower total utility resulting from lower population levels. They must because they state that the best society is the one in which there is the greatest total quantity of utility, and utility is defined as whatever makes life worth living. The muzak and potato people have a life worth living – just barely – and if they are numerous enough they will constitute the best society because the sum of their individual utilities will be higher than any other total utility in any other society.

There is always a muzak and potatoes society that has a higher total quantity of utility or welfare than any other possible society: just add more marginally worthwhile lives and you produce a society that outperforms any other in terms of total welfare. That such a society should be preferable is repugnant. The people in that society have lives only barely worth living and yet it’s a superior society compared to one with fewer people all living a better life. The emphasis on “total” welfare or “total” utility means that any loss in the quality of the lives in a population can be compensated by a sufficiently large gain in the quantity of the population. (Note that the lives added are marginally worthwhile. These lives are worth living. We’re not adding lives of continuous pain for example. That would diminish total utility and that isn’t the purpose of this thought experiment.)

The question here isn’t whether such a society is practically possible or likely, but whether we should indeed prefer it, as utilitarianism posits (implicitly). It doesn’t seem intuitively correct to prefer a society of people living a life that’s barely worthwhile over other highly attractive alternatives, just because the former has a very large population.

To some extent, the thought experiment is convincing because we do believe that every human being is valuable (has some value), however low this value may be (remember we’re not talking about lives that aren’t worth living because of continuous pain for instance). Therefore we do tend to believe that addition of new lives does increase total utility (“we” meaning even the non-utilitarians among us, and that probably includes myself). It would be equally repugnant to try to avoid the repugnant conclusion by claiming that after a certain number of additions the lives added don’t bring any more value.

Given the unacceptability of not counting the lives after a certain number of additions, there’s another possible way of avoiding the repugnant conclusion, namely invoking non-utility values such as justice, dignity, desert etc. But according to Tyler Cowen, non-utility values can always be overwhelmed by total utility:

It might be the case, for instance, that the less populated society has significantly greater amounts of justice, aesthetic beauty, or dignity. If this is true, the Repugnant Conclusion alternative simply needs to make up for this deficiency by having more people to increase its utility total. (source)

Any moral theory must weigh conflicting ends, such as utility and justice. There’s no escape. You don’t have a moral theory if you can’t do that. The non-utility value(s) must receive some “value” or importance. And the same for utility – even non-utilitarians can’t say that utility has no value whatsoever because then you would say that a marginally worthwhile life of muzak and potatoes has no value (and that’s intuitively wrong because then you would be allowed to end such a life). Hence you need to compare the total value of the less populated society with high non-utility values to the total value of the more populated society with very low average utility. Just add more people to the latter and it will always be a better society. And this will always be repugnant.

However, I do think non-utility values show us a way out of the repugnant conclusion. The first thing we can say is that without emphasis on non-utility values there won’t be a way out. If utility is all that counts, if in other words you’re a pure utilitarian then you are a value absolutist, just like a libertarian, a socialist, a hedonist etc. One value, in this case utility, trumps all others. Necessarily you’ll end up accepting the repugnant conclusion.

If, on the other hand, you accept value pluralism, then you reject hierarchical or lexically ordered value system in which one value trumps all others. And then you probably also don’t believe that large losses in one value can be balanced by equally large gains in another value, as happens in the repugnant conclusion. That seems to me to be the error in the Cowen quote above: the muzak and potatoes society can simply compensate for the deficiencies on non-utility values by adding more marginally worthwhile lives. I believe – contra Cowen – that invoking non-utility values can help us to avoid the repugnant conclusion, but not if these non-utility values are simply accorded a certain value (possibly a very high value) and then compared to the value of utility. If we only do that, utility can always overwhelm the other values by just adding more persons, and gains in utility can always compensate losses in other values.

My point here is that there are certain other values for which no losses can be accepted or tolerated, not even with near-infinity gains in utility. That is why these other values – such as freedom, dignity, equality and justice – are protected by human rights, and human rights are unconditional and untradeable. No matter how many people with barely worthwhile lives we add to a society, this will not compensate for violations of human rights. Nothing ever will. You can call that value absolutism if you want, but it’s the absolutism of plurality.

Capital Punishment (22): Deterrence

Many crimes, especially violent crimes and property crimes, are human rights violations. The fact that theft, assault, violent attack and murder are crimes in most if not all national legal systems, indicates a high degree of normative consensus on the importance of a subset of human rights, namely the right to life, the right to property and the right to physical security.

Moreover, there’s also a high degree of consensus across different national legal systems as to the best way to react to these rights violations and to stop them from happening in the future: isolate the perpetrators in prisons. We believe that this will prevent crime in three ways:

  • It stops the criminal from re-offending during the period of his/her isolation.
  • It stops the criminal from re-offending after the period of his/her isolation.
  • It stops other people from following his/her example.

The last two bullet points are what’s called “deterrence”. We tend to believe that this deterrence effect correlates with the severity of the punishment. More years in prison means more deterrence. More brutal punishments – such as capital punishment – means even more deterrence. The belief in this correlation between degree of deterrence and degree of punishment rests on the “rational actor hypothesis”: people will take only those actions that produce more benefits than costs. If the punishment for a certain type of crime imposes a much lower cost on the potential criminal than the benefits the result from the crime – for instance a few weeks in prison for a theft worth several millions of dollars – and if the chances of being caught are reasonably low, than a “rational actor” is likely to become a criminal. Deterrence is therefore a function not only of the severity of the punishment but also of the probably of getting caught.

There are three problems with deterrence understood like this.

Irrationality

Many people don’t fit the rational actor description. They don’t make cost-benefit analyses before engaging in actions, especially not when crime is concerned (and certainly not in cases of certain types of crimes, such as “crime passionnel”).

Reductio ad absurdum

There’s an element of “reductio ad absurdum” in deterrence: if you want to deter certain types of crimes, especially crimes with very high potential benefits, you have to impose very high costs. Hence you may find that your logic leads you into acceptance of very brutal punishments: e.g. very painful, prolonged and public types of capital punishment, the killing of the family and friends of criminals etc. The danger with all cost-benefit logic in human affairs – and with utilitarian philosophies in general – is that you wind up accepting the sacrifice of some for the larger benefit of society as a whole. Rawls called this the failure to take distinctions between persons seriously. Utilitarianism means

extending to society the principle of choice for one man, and then, to make this extension work, conflating all persons into one through the imaginative acts of the impartial sympathetic spectator. Utilitarianism does not take seriously the distinction between persons. John Rawls (source)

It seems that if you want to defend deterrence, you have to stop at some point and accept that there are limits to it. There are certain things you just can’t do to people, and no amount of deterrence or other benefits can justify doing these things.

Doesn’t work, unless…

It’s not beyond doubt that deterrence works, probably in part because of the first point. There’s solid evidence to the contrary in the case of capital punishment (see here). But also for crime in general and prison sentences there’s doubt:

Although long sentences are now common and the incarceration rate is five times what it was during most of the 20th century, the crime rate is still two and a half times the average of 1950-62. … most criminals are not the dispassionate rational actors who populate standard economic models. They are more like impulsive children, blinded by the temptation of immediate reward and largely untroubled by the possibility of delayed or uncertain punishment. (source)

Detention only seems to work when the odds of apprehension and punishment are very high.

The evidence suggests that when hardened criminals are reasonably sure that they will be caught and punished swiftly, even mild sanctions deter them. But not even the prospect of severe punishment is effective if offenders think they can get away with their crimes. (source)

This would seem to undermine the argument for capital punishment. Of the two elements that are believed to cause the deterrent effect, only the odds of getting caught seem to matter, not the severity of the punishment. Hence, capital punishment is useless. What counts is the odds of getting caught, not what happens when you’re caught. In general, people take costs that are relatively modest but immediate and certain much more seriously than higher costs that may or may not happen in the longterm.

Experimenters have found, for example, that even long-term alcoholics become much less likely to drink when they are required to receive a mild electric shock before drinking. Many of these same people were not deterred by their drinking’s devastating, but delayed, consequences for their careers and marriages. (source)