Friday, February 8

Do we have rights ?

The best known way of deriving imperatives to respect the rights of others is to ask whether our actions conform to a Kantian criterion of generalisability – What would happen if everyone did this – or reciprocity – Do onto others as you would have done onto you.
The problem with this way of deriving imperatives is that it leaves moral equality unargued for. An assumption of equality is already built into the procedure, so running the procedure does nothing to justify or explain it.
Why should all people be invited to join the negotiations for a social contract, and if all are invited, why on equal terms ? The real world rarely works this way, so why should we for deriving rules use criteria that imply that all be considered equally ?
What feeble gestures towards justification Kant does make come down to this: That humans are endowed with a funny capacity called reason (read: are created in the image of God) and therefore deserve moral equality (read: God loves all his children). Unless you believe the God story, this is very hard to swallow.

To justify the initial assumption of equality one would need nothing less than – a moral theory. By way of that, the only resource left to Western culture in Kant’s time was Christianity. So away our philosopher went to steal some Christian clothes and resell them under his own label. Thin secularisation was his predicament, even if he saw it as the solution to his predicament.
We already know from a previous post that this was no solution at all: The metaphysics of God, whether explicitly appealed to – divine commandments, divine law, divine purpose – or thinly disguised – the bombastic magnificence of Natural Law, Immortal Souls, Human Dignity, Human Persons – are completely useless for the justification of morality.

If we want an answer, not a lullaby, we have to forge ahead to full secularisation.

Let’s listen first to what a classic character of infallibilism, the enlightened egoist, is able to say:
I have an interest in living within a social arrangement that almost everyone finds tolerably fair, because any other is very likely storing up trouble for itself; and emerging favourably out of a violent escalation is a gamble at the best of times. The threat apart, I have a positive interest in seeing others flourish, which they are again most likely to do under a fair arrangement.
However, even the most enlightened egoist’s concern for the flourishing of others has its limits: It is restricted to people who are ever likely to do something for them. This probably means: people they like, or are like them, or both.
Moreover, their willingness to make concessions to fairness is going to be limited by the extent of their fear of an uprising by the oppressed. If there is not much to fear rationally, then no reasons for concessions remain.
What then about those whom we don’t like because they are uncomfortably different ?
Fallibilists alone are able to see themselves as being able to become these others. This gives fallibilists a much more profound interest in other people’s flourishing than non-fallibilists could ever have.
For unless you can see yourself as potentially changing beyond any of your current definitions of life interests will you be unable to see people who live very differently as keeping alive or developing something which you yourself might one day share. With radical learning, on the other hand, there is nothing that could not potentially become relevant.
From the possibility of radical learning – as long as it is acknowledged, however quietly – derives a positive justification of equal chances of development for all (non-destructive) ways of life for which even the most enlightened egoist is never going to be able to give any.
Why then oppose oppression even when the regime seems stable and to one’s own advantage ? Fallibilists recognise that occasions to regret giving justice are rare, whereas there are many ways of coming to regret participation in oppression. If the aim is to construct a life that remains meaningful to the end, then positioning oneself on the side of justice, although potentially very dangerous, may in one sense be safer after all: Justice has a permanence that tends to emerge relatively intact from the vicissitudes of fortune.
Only from a fallibilist perspective are we thus able to give a justification of rights as something other than codifications of might. A tiny voice, barely loud enough for conscience to hear, but real.

To recapitulate: When we proceed to apply Kantian criteria, all fundamental questions must already have been answered.
Criteria of generalisability or reciprocity – such as the Golden Rule, the generalisability figuring in Kant’s moral writings, or at their most elaborate in John Rawls’ A Theory of Justice – can tell us how to design an arrangement. They cannot tell us why we should design it this way.
These criteria are perhaps best thought of as something like a wind tunnel, design aids for streamlining norms and other institutions. Just as using a wind tunnel assumes that the question of why a fuselage should be aerodynamic has already been answered, Kantian criteria take the moral intention for granted. The only question they address is how, within given specifications, an optimal system can be designed.
The design aids can never tell us why we should apply them; can never tell us why we should care about fairness, the flourishing of others. That is something we are assumed to know already.
Kantianism and the construction of rights solely concern technical questions; they are part of applied philosophy, ethical engineering so to speak. (This is meant descriptively, not to diminish the importance of work in these areas. Most of the meaty issues in philosophy are applied issues that require empirical inputs; the foundational issues that armchair philosophy can handle are very few and far between.)
The main foundational reason for using Kantian rather than other criteria is then this: Because, generally speaking, social arrangements that are based on voluntary consent are preferable to other arrangements, in particular arrangements based on violence. The Kantian design aids can now help us develop an arrangement that has a chance of winning the voluntary consent of the people it concerns because it is perceived to be fair. Kantian design principles make is easy both to construct fair looking arrangements and, once constructed, to explain why people should consider them to be fair.
Voluntary arrangements constructed along Kantian lines minimise the necessity of force. This makes them – all things, risks, and doubts considered – better bets, better exposure minimisers. Generally speaking that is, with proper exceptions and qualifications.
Arrangements based on consent tend to be more resilient, sustainable, easier to police. They also tend to be more pleasant to live in because they build trust among the participants, and make them proud. Finally, consensual arrangements are unlikely to lead us into shameful choices that our grandchildren might come to despise us for.

Where there are people there are laws. When no formal laws, then customs. Outside of Robinson’s island the question is not: Are we going to have a social arrangement among ourselves ? but this one: What sort of social arrangement are we going to have ? From the moment you’re born you find yourself always already bound by all kinds of (implicit) deals.
We are bound to these implicit arrangements by a fiction of voluntary consent. A "consent" that either has been freely given, or that could be reasonably construed as having been given. Voluntariness assumes for instance that whoever is covered by the arrangement had a chance to opt out. (Hold-outs inhabiting a territory aren’t free to reject just any deal. Once reasonable accommodations to their interests have been made, rejection no longer qualifies as legitimate. What constitutes “reasonable” accommodations is of course going to be politically charged.)
There can be no question of an absolute notion of legitimacy. The only real question is this: What is the least bad, least illegitimate social arrangement we are able to build and maintain ?
Legitimacy does, on the whole, track the use of force. For a long list of reasons, the less force needs to be used, the more legitimate the arrangement should be considered to be. (Even though regimes renouncing the use of force favour brainy over brawny people, they offer enough advantages – e.g. the positive externalities of inventions by the brainies - to be attractive also to brawnies.)
Deals would be incomplete without mechanisms of verification and enforcement. Word of honour works in some instances; in others we cannot get by without more muscular rules of enforcement.
Just as we do not have to ask for a right to breathe or to flick away a mosquito do we not have to ask for the right to enforce arrangements that enjoy a satisfactory degree of legitimacy.

Kantian criteria offer solutions only in cases where we can already assume to be talking to people of good will. Where we know that negotiation has a chance, or we want at least try giving an advance of generosity as an opening gambit.
Kantian reasoning only helps in addressing opponents who even if not exactly peaceful in their intentions show at least some willingness to reciprocate and respect at least some limits; Kantian cant is useless in engaging opponents who are committed to total war.
The reason we adopt Kantian restraints that limit our freedom of action towards others is not, in the final instance, that we expect those others to reciprocate. They may, or they may not. No, we adopt restraints as a constitutional framework for governing ourselves, for preventing a slide into committing atrocities we may later come to regret.

Instead of metaphysics we have this: People and the constructions of rights they project. Some of these constructions will prove themselves and turn out – in the long run – to have been wise, some won’t. Societies making (constrained) choices; failing or succeeding with these choices; arguing about them; sometimes coming to agreements about them, sometimes not. That’s all there is to it.
You say that we can’t depend on an agreed definition of “success” (or “wisdom”) ? That definitions of success – e.g. Is going down gloriously better or worse than surviving mildly ? – are controversial is a given. But this is just another question of values, most of which are controversial.
Controversy is natural because values represent strategic responses to complex realities. Only rarely is one response going to be obviously best. While some disagreements about values are illegitimate, a wide space for legitimate disagreement exists.
Does controversy stop us from looking for the best criteria of success each of us can find ? No. Are these criteria going to be perfect ? No. Are they going to be fallible ? Yes. Is any of this a problem ? Only a practical problem, not a philosophical problem. Just the familiar challenge of dealing with pluralism.
The proof of values is in their practical consequences. We can disagree because the prediction of consequences is often uncertain, and because we may evaluate the consequences differently. What we should not disagree about is that for moral strategies, which is what values are, experience is the judge. As little as facts can be value-free can values be fact-free.

Mere survival clearly does not confer moral legitimacy on an arrangement. The last competitor standing might be the most despicable. Nasty guys sometimes do finish first. The victors will always flatter themselves on their destiny; we don’t have to encourage them.
The winners in history, if they care at all about other people’s opinions, will always want to make it appear that they won for better reasons than dumb luck or outlandish nastiness. They will want to claim that there was fairness to the process out of which they emerged victorious. This gives us an handle on them today, for asking them to allow for a process that is structured for fairness.
One last reason why success cannot be an absolute criterion of value: Success is transitory. No regime is true or inevitable; all eventually fall.

There was never a time before Babel, a world without pluralism is as unimaginable as the state of the world before the beginning of time. For fallibilists, all politics therefore starts with the legitimacy of pluralism. For infallibilists, by contrast, pluralism is only apparent, hence illegitimate and resolvable into truths everybody ought to be able to agree on. At the core of the infallibilist view stands the fantasy of basing politics on substantive truths (In its most recent mutation, the fantasy of basing politics on discursive agreements). Denying the profundity of pluralism predictably causes the oppression of non-conformers. The siren song of resolving the cacophony into unity has led to disaster, every time.
Even the most brutal regime could only suppress the reality of pluralism. The irresolvability of pluralism implies that we cannot base our political and social institutions on agreements about substantive claims. Agreements emerge so rarely and patchily that they would not give us enough to work with. While it is laudable to invest in seeking agreements, most of the time people will walk away from the conversation unconvinced. The normal outcome of dialogue is for disagreements to persist. Occasionally a disagreement may be resolved, but new ones arise all the time, leaving the stock of disagreements roughly constant. We cannot let ordinary coexistence rely on extraordinary events – on dialogue changing minds and creating agreement. The act of convincing by entirely loving means, only by unmanipulative presentation and example, is little short of miraculous, and thus unsuited for the daily administration of public life. With discursive agreement out of reach, the best we can hope for is to find a political settlement that allows us to agree to disagree, yet still live side by side in peace. Being a political rather than a discursive agreement, it enshrines only very few and thin truths.

Wherever you live, there is the actually existing social contract. And then there are imaginative anticipations of a better contract – proposals for reform or plots for revolution – that you and I and everyone's uncle can come up with and try to have implemented. And beyond that there is nothing worth talking about, no ideal Platonic society up in the heavens. The rest is just rhetoric, and bad rhetoric at that. Pumping up the volume without ever adding to the substance of the argument for (or against) change.
Moral constructions – e.g. the rights and corresponding duties allotted under a fair arrangement – are all ultimately pragmatic; some are pragmatic in a higher sense, and called principles. (Principles function in analogy to constitutions which are harder to override than ordinary laws.) Scratch me as much a you like, you will not find a frightened idealist under the suave pragmatist exterior. I am a pragmatist all the way down, a pragmatist even about my pragmatism. There is no reason to be afraid when all that there is to be discovered is reality, something that needs facing anyway.

The stories about Kantian designs that I have been telling are in no way remarkable – they were just a rearranged string of commonplaces –, except perhaps that they have taken a route which would not be open to theorists like Kant who want morality to retreat into other-worldliness.
We should make a habit of answering all moral questions without question-begging references to metaphysical abstractions. How, for example, should we answer this question: Why is the use of force, and in particular the most egregious use of force – killing – wrong ?
Why killing is wrong, or what is almost the same: Why our laws should defend a right to life, in no particular order: Because people are fierce animals, and likely to fight back when expecting to be attacked. Because killing is irreversible. When you go off to war for a cause you believe to be just and later come to doubt the cause then you can’t bring back the dead. Because abstaining from killing in the implementation is an insurance policy for any utopian project. Aim high, but implement safely. Because getting killed often hurts before the pain ends. Because the intended victim is usually a member of an organisation for collective self-defence. Because if you do not feel any reluctance or compassion in a killing situation you are emotionally disturbed. Because people only very rarely want to be killed. Because becoming used to killing could change you into a worse person. Because killing almost always hurts loved ones of the person killed. Because killing one man can invite a feud and spiral of revenge killings. Because each person is a unique creative resource. Because the human being you killed might have become to your friend. Enough reasons ?
None of these reasons is perfect. For each and every one we can construct exceptions where the reason does not apply. Together, however, these reasons form a tissue that is able to bear some weight. Not every weight, but considerable weight.
The chain of Why-questions – Why A ? Because B. Why B? Because C … – has to come to an end somewhere. It cannot and does not come to a “foundation”, however. It will just peter out.
Killing is wrong because it can cause hurt. Why is hurting wrong ? Because people don’t want to be hurt (outside of special situations – e.g. battlefield surgery or consensual sadomasochism or …) It will likely create hostility against you. Why is it right for people not to like pain ? Because pain being pain, it is unpleasant. Why should we prefer pleasant over unpleasant experiences ? Because it comes naturally to us. Why should we go along with what comes naturally to us ? Because it fairly reliably points to our best interest. Why should I pursue my best interest ? Because you might just want to.
Why specifically should I avoid pain ? Because beings made of flesh are right to be concerned about organic malfunctions usually indicated by pain. Why are they right to be concerned ? Because the malfunctions could permanently impair your health and ultimately kill you. Why is it better to be alive than dead ? Because life isn’t so bad. Moreover, by staying alive to this day, you have revealed a preference for it. Why can’t I change my mind ? You could, but are you absolutely sure that nothing keeps you here ?
So people do not want to be hurt. Why should I respect their wish ? Because understanding and regularly respecting the wishes of others is the basis for cooperation and intimacy. Why bother with cooperation ? Because there are often gains to be had from cooperation, but if you don’t find the gains attractive, you can try going it alone on the hostile route, and see where that gets you. Why do I need close relationships ? Because many people find that being close to others enriches their lives, and supports personal growth. Enough platitudes ?

There is a wide overlap between the reasons of individuals for not killing, and the reasons of a collective to enforce its prohibition against killing. In a few atypical cases, the two strands of justifications separate. There are conceivable scenarios where it becomes almost impossible to deny, no matter how broadly or subtly one looks at it, that killing would maximise the killer’s self-interest. In such a case the collective still has an obvious interest in defending the prohibition to protect its member and maintain order, whereas the individual’s reasons not to kill falter. The collective routinely responds by threatening to sue for breach of social contract, and since even the most selfish agent could willingly have entered into a mutual compact against killing, the legitimacy of the compact is not in doubt. As a consequence, rogue agents cannot normally hope for any sympathy or allies breaking to their side when the provisions of the compact are enforced. Either the agent will be deterred, or sanctioned without a second thought when caught. When legitimacy is less clear – and almost all other cases are less clear than murder – the call for punishing the agent can divide or even break the collective.
Now in some unusual cases no contract may be in force, not even the minimal contract that arises spontaneously from any meeting between two people of good will. Although the default setting against which any first meeting instinctively gets measured is a mutual compact, the parties may, for example, have gotten off to bad start, and gone on to a history of hostilities. Or the agent may have been declared an outlaw, or have voluntarily withdrawn from compacts. In such cases both sides may believe mutual obligations to have lapsed.
What the lapsing of obligations regularly means is not that all obligations are abolished, but that the previous bundle of obligations is replaced by a different, reduced set. If killing is no longer off-limits, chemical weapons, say, still may be. Just as it is virtually impossible not to communicate is it very hard not come to an understanding about terms of engagement with the people one is dealing with. Silent signalling can lead to an understanding far ahead of formal negotiations. It is unclear whether a condition without any mutuality at all can occur. (The final days of the Warsaw ghetto may have come close.) What is clear is that such a state of total emergency would be very disturbing.
Under normal, stable conditions duty is a shorthand for investing in the continuation of an existing compact (or paying back debts owed under it). In destabilised conditions, agents may for various reasons continue to act as if a compact existed, e.g. in order not to poison a future reconciliation.
Absent a binding compact, the agent’s decision to abstain from breaking its provisions becomes not a duty owed, but an act of self-denial. While we may hope for sacrifice, we should not expect it. For if we expected our enemies to be behave like saints, they would probably not be our enemies.
Restraints that are maintained without a contractual basis are not in the first instance directed towards others but about being able to live with oneself, not becoming a horror to ourselves.
Unless mediation can re-establish a contract, unless a peace settlement is brought about, and the situation regularised at the last minute, the absence of recognised compacts means that we are in a more or less serious state of war, with more or fewer restraints still applicable. It then comes down to a show of force, or rather the parties’ assessment of each other’s strength. Whoever needs to give in, gives in. Whoever fights, fights. Whoever prevails, prevails.
As extraordinary as eruptions of lawlessness may seem, they are only business as usual. Hobbes, an apologist for the power grab that made the modern state, was too optimistic. Even when pacified by degrees, the war of all against all continues to this day. It flatters the self-image of rulers, but the Leviathan is not a benevolently detached, Godlike figure who floats above the primitive passions of the population. The creation of the state did not actually end the war, it only changed its complexion. The state is the continuation of interests warring by other means, through legislation, the bureaucracy, and a hundred other channels. The existence of the state only gave the warring factions a more powerful weapon to vie for and turn against each other. Rather like God, no sooner was Leviathan created, was he captured and dragged down to earth, pressed into partisan service. Leviathan became a big player whom the other players must try to control, or be controlled. Leviathan developed a free will and after a greedy appetite also every other of seven deadly sins. In short, Leviathan fell, and became human.
Constitutional government does not abolish the state of nature. It only manages it somewhat better, allowing for lives that are less nasty, less brutal, and much longer.
Kantian compacts are not about wishing away the human jungle; they are means of shaping it. Non-violence assisted by mutual compacts remains the conservative treatment for conflict. Letting living beings live and grow is not an infallible policy, but still the natural default policy. Risk-minimal overall, it is the normal fallibilist preference.

As little as a wind tunnel aims to simulate realistic road conditions does the scenario of a state of nature set out to reproduce social reality. We base our designs on a contract struck under highly idealised conditions because we want our arrangements to be transparent and therefore our rules to be relatively simple. Such simplifications are legitimate as long as they are deliberate. By tilting the balance further in the direction of empirical adequacy we would lose in ease of monitoring what we gain in accommodating variability.
Apart from making the rules as simple as possible and applying them consistently, still the most reliable way of ensuring that an arrangement will be perceived to be fair is to try and make it fair.
All political ideologies promise fairness. They differ on the form of equality their concept of fairness involves – equal justice done to people’s essential nature, just rewards for equal merit, equality of property, equality of opportunity, etc. They also differ in what they consider workable. Since what is workable has always been, and will always be, subject to debate and experiment, fairness is not something that could be decided in philosophical theory alone. Fairness is intensely political, so political in fact that we could classify political ideologies according to the way in which they define fairness, that is propose to achieve both equality and workability.
The trouble with a number of assumptions on which the economists have built their entire discipline – assumptions which imply that the language of social justice is meaningless – is that people are never going to believe them. Their ideologically convenient scruples about talking justice are doomed to remain a game of academic insiders. Ordinary people everywhere will go on talking, meaningfully, about how justice might be served by seizing funds from the rich to support the poor, whether economists show themselves interested or not. Because of this ingrained and entirely reasonable habit, any economic system preserving a more than moderately unequal distribution of incomes is going to have a problem explaining its fairness. The greater the inequality, the greater the problem.
The problem need not be insurmountable. Under certain conditions – for example when opportunities are ample, civil liberties secure, wealth creation is fast, corruption low, participation possible – even the less well-off can sometimes be persuaded of the fairness of a highly unequal distribution.
People do not have a metaphysical right to, say, their property; nor does society, ie other people. It all depends on how many material and non-material advantages the rich can convince the non-rich to let them get away with. In these negotiations of a fair arrangement we have everyone’s (ethical) interest in minimising exposure to appeal to.
Systems of rights only have legitimacy if they manage to convince the least advantaged of their fairness. If the system does not manage to convince for an extended time then the disadvantaged are, as always, thrown back on the vagaries of collective revolutionary action.

Fair arrangements are about negotiating with equals. What about “negotiating” with the weak and powerless ? What, finally, about human rights ?
Abiding by a canon of human rights is a way of insuring oneself against ever regretting one’s political projects. A political project that is implemented while respecting human rights can still do damage, but is unlikely to do catastrophic damage. We have built memorials for our collective shame of slavery, the holocaust, the Gulag. One day a memorial of shame might be built on Tiananmen Square, or at Guantanamo. Respecting human rights is a way of ensuring that we will not have to build any more such memorials in the future.

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