Human Rights are Moral Illusions

I wrote previously on the question of whether human rights were to be given to humans insofar as they function as humans, or humans insofar as they actually are human (see here), in particular focusing on the issue of abortion, and I ended on that issue by noting that rights lend themselves to a hierarchical system of rights, where some take precedence over others, thereby leaving the abortion issue unresolved even if humans have the right to life merely by being human.

Illusions: things
are not as they seem.

I claim that human rights do not exist as moral realities, but that they are illusions created by other moral realities. Let me distinguish, however, between moral and legal conceptions of rights: clearly, legal rights exist, since they are existent by the mere fact that the legislation of some country, or international law, recognizes them as existent. Rights are important as legal concepts - just not, I claim, as moral or ethical concepts.

Before I continue, I must define more precisely what I mean by "human rights". I will take the first definition proposed by Jerome Shestack in the Human Rights Quarterly when he says that "Sometimes "right" is used in its strict sense of the right holder being entitled to something with a correlative duty in another."[1] This definition brings out two features that seem to me to be crucial to discussions of human rights: human rights are entitlements and they have correlative duties.

Various attacks on human rights have occurred in philosophy: Jeremy Bentham famously said that human rights were "nonsense upon stilts", Karl Marx rejected them as bourgeois inventions and illusions, and Alasdair MacIntyre argued that "there are no such rights, and belief in them is one with belief in witches and in unicorns." MacIntyre's point was that there have not been successful arguments for the existence of human rights, and I will take him to be correct on this point.

Other groups, notably animal rights activists, object to human rights being human to the detriment of other species - that is, they object on the grounds of speciesism. Whilst these objections are important to consider for defenders of the concept of human rights, it is clear that (in the case of the animal rights activists, at least) they wish to expand the concept of rights to other creatures, such as animals, or some have suggested even that the environment has rights. Hence, they would reject human rights only insofar as they applied exclusively to humans and hence negated the idea of animal rights.

Of the bases for human rights that have been proposed, all are unconvincing: early modern philosophers, such as John Locke, appealed to faulty notions of natural law. John Stuart Mill, from the utilitarian perspective, claimed rights could be founded upon utility, and yet, appeals to utility are too fluid for any recognizable understanding of rights (such as, that they are inalienable). Legal positivist accounts (Thomas Hobbes could, perhaps, fall under this category) claim that rights come from the authority of the state - a claim I can agree with only insofar as it is said that human rights come from the authority of the state legally, which says nothing about how they arise morally without some theory to the effect of "state-makes-right." Related to these are the rights that arise from Marxist conceptions of the state, where individual rights do not exist as unalienable, and are always subject to the changing needs (or whims) of the state - until the Marxist utopian ideal is reached, that is. Rights conceptions which rely on a conception of humankind as individual and autonomous suffer the same criticism as Kantian ethics does, largely because Kant underlies many such theories (I would suggest reading Bernard Williams' masterpiece Ethics and the Limits of Philosophy for such criticisms). I cannot comment on Rawlsian arguments for human rights because I am not sufficiently familiar with his theory (other than in outline). Perhaps Rawls can succeed where others have failed.

To establish the non-existence of moral rights will take more than a paragraph about the failings of other theories to prove them, particularly because not being able to prove something does not mean it is not true. Yet belief in them does not appear to be self-evidently justified - on what basis, other than perhaps the theological one I have not discussed, can homo sapiens be said to have moral entitlements? Suppose that I can now claim that human rights do not exist qua moral rights - what follows? I have labelled human rights as moral illusions, and this they are: supposing they do not exist, we nonetheless perceive them to exist, and my question is, why? What moral reality underlies our misleading perception that human rights exist as moral entities?

I have dismissed the idea that human beings have entitlements as human beings, and here the other part of the definition given by Shestack becomes relevant - do I dismiss also that human beings have correlative duties? No. Herein lies the proposed basis for the moral illusion of human rights: because everyone has duties as human beings, moral structures with the appearance of human rights appear. The appearance of rights is rooted in the reality of duties.

For instance, take the right to life: if everybody has the duty to respect the lives of others, then it at least seems, in general cases, as if everyone has a corresponding right to life. Or the right to freedom of speech: if everyone has a duty to allow others to think freely and speak freely, the illusion of a right to freedom of speech is born. The view that human rights are the fount of duties (to grant the entitlements and respect the liberties) is actually backwards: it is duties that becomes the fount of human rights.

This view will be, I think, acceptable to various groups: the animal rights activists may have to give up their name, but now have a much more solid foundation to claim the respect for animals that they seek. Environmental activists can now speak of environmental rights as shorthand for the duties which humans have towards the environment.

There does seem to be one glaring problem with my thesis: my adoption of a utilitarian framework may lead one to think that it must be conceptually difficult to speak of duties, since duties more naturally arise in deontological accounts of ethics. This is only superficially true, as it is clear that the duty to maximise utility is inherent in utilitarian theories. I will discuss how more specific sorts of duties arise out of this general duty, and so render this account of duties-to-rights intelligible at another time.

One particular case I will address was the one left unresolved when I discussed whether human rights were to be granted by function or by nature, that of prenatal children: I argued that they had the right to life, and yet, this did not lead conclusively to the position that abortion is always wrong, only that it is generally wrong (that is, unless exceptional circumstances warrant the setting aside of the right to life). I cited Naomi Wolf as someone who appears to hold this view.

Now I have proposed that rights come from duties, and now it seems clearer that I can make a firm moral judgement: from the fact that it is always our duty to consider our own good as interchangeable with that of others (a duty that arises from broad utilitarian considerations as well as Catholic edicts such as "love your neighbour as yourself"), and if it is the case that humans are loci of incredible value, then we have a duty towards humans. Again, the considerations of by function vs. by nature that I described previously in "Intrinsic Human Rights - by function or by nature?" now kick into play, as it becomes clear that humans are valuable as humans, not as beings who function as humans. Therefore, the killing of prenatal children is morally wrong not as a breach of rights, but as a failure to comply with one's moral duties. This serves as my response to the "violinist analogy"[2] of Judith Jarvis Thomson, because on this view one does have the duty towards the violinist.

Once again I raise the issue as one I have acknowledged: where do these duties come from, particularly on my own utilitarian framework? I will turn to this issue, one I claim to be easily dealt with, on another occasion.

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[1] Shestack, J., “The Philosophic Foundations of Human Rights”, Human Rights Quarterly 20 (1998) 201-234

[2] Thomson, J.J., “A Defence of Abortion”, Philosophy and Public Affairs, 1 (1971): 47-66

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Notes:

1. It is clear that I must square all of what I have been saying in light of my theological understanding of humanity. For instance, is it not the case that the right to life is something inherent in all humans by virtue of their being bearers of the Imago Dei? I have set aside theological considerations, and, as with the note above, I will address the issue of understanding how these two (or three) points of view match up in another piece. 

2. What about natural law bases for human rights? I recognize that it has been the natural law which has historically given rise to the language of rights. I will address these concerns later on. This is a very important area however, because not only is natural law intrinsically secular (and so it can be easily brought into the public sphere), but since rights have their genesis historically in natural law theories, human rights as concepts are unlikely to be properly understood outside their context.

3. Since I have been reading a lot of academic papers recently, I feel the need to apologize for not researching for this blog-post. Although it may sound snobbish to say so, I do have a decent background in the idea of human rights, and so I have relied upon that to get a feeling for how the field stands today. I make no firm assertion that what I say is original or not rejected for some good reasons that are unknown to me.

Intrinsic Human Rights – by function or by nature?

Pervading a lot of popular level discussions of morality and social justice there is talk of “human rights”, often modified by adjectives such as “innate”, “intrinsic”, “inherent” or “unalienable.” The idea seems to be that, by virtue of being human, we are entitled to various things – for instance, education, free speech, life, private property, etc. When the issue comes to the right to life of the unborn, however, a different tactic seems to be taken quite frequently.

 

One move is to de-humanize the unborn child – “it is a clump of cells” – and hence to make out that it is not a human child. This tactic seems to be largely an emotional appeal, because all humans are clumps of cells. Certainly, adult humans are very complicated clumps of cells, but unless one wishes to invoke the idea of an immaterial soul (an idea which would complicate the issue even more), then the distinction between an unborn child and a newborn child must be made on grounds other than material constituency.

More sophisticated versions of the “clump of cells” argument turn on the much more real distinction between the clump of cells which is an adult human, and the clump of cells which is an embryo. Here, the right to life of the prenatal child is objected to on the grounds that the child is not functionally a human being.

Our intuition about who has a right to life, even for those who think that prenatal children are excluded from the category, is veritably pushed to difficult limits by assigning human rights (and consequently, the right to life) to only those who are functionally human. The difficulty is this: whatever attributes are said to be the ones that define a functional human, there can be found some post-natal human that lacks it and who we would still want to consider "fully human".

For some, particularly the consistent consequentialists, this is not a problem. Some people argue that yes, human rights must be given to people who are functionally human, and then go on to propose criteria for such a state: perhaps capacity for abstract thinking, or some loosely defined form of self-awareness. For pro-abortion activists, such definitions may seem appealing, and yet, they tend to leave the line in an unacceptable place - abstract thinking comes years after birth, and when self-awareness comes depends on the definition, but it is clear that such a definition would not discriminate between the mere location of the child (ie, inside or outside the mother's womb).

It seems clear that functional definitions of humanity will point to attributes that are not necessarily developed until definitively post-natal infancy, leaving as legitimate killing the immediately post-natal child, that is to say, infanticide. Still, such a view does not end at that side of life - it calls into question many elderly people, who by the end of their lives also lack various attributes common to adult humans. Put bluntly, there are elderly people who could very easily be denied their functional humanity, and so lose the right to live; perhaps it would be thought of as legitimate, even if sad, to kill our society's elderly. Maybe arguments could be made about the resources they would take up if they were not killed, or their diminished quality of life made grounds for their death.

Without attempting to be overly-precise, I suggest that human rights can either be had on the basis of the human nature of a being or the human function of  being, that is to say, based on what the being is or what the being does/can do. Since most people are not willing to strip elderly people or newborn children of their human right to life, it must follow that most people are compelled to grant the right to life on the basis of nature, that is, on the basis of the humanity of the subject.

This has important ramifications for the abortion debate, because if this is the case, then prenatal humans have human rights. This does not, in fact, settle the issue of abortion outright, because the language of rights is too malleable - for instance, some argue that one can have rights to do wrong, or that there is a hierarchy of rights such that, in some cases (war is suggested example), rights that seem fundamental (like the right to life) can be rejected for the sake of some other right. In short, the very concept of a right does not lead logically to its unalienable character, at least not without some more argumentation. This hierarchical view of rights seems to be the one given by a leading feminist in the third wave feminist movement, Naomi Wolf:

"War is legal: it is sometimes even necessary. Letting the dying die in peace is often legal and sometimes even necessary. Abortion should be legal; it is sometimes even necessary. Sometimes the mother must be able to decide that the fetus, in its full humanity, must die. But it is never right or necessary to minimize the value of the lives involved or the sacrifice incurred in letting them go. Only if we uphold abortion rights within a matrix of individual conscience, atonement and responsibility can we both correct the logical and ethical absurdity in our position and consolidate the support of the center." ("Our Bodies, Our Souls", October 16th, 1995, The New Republic)

Various people have rebutted Wolf by asserting the more fundamental nature of the right to life - it is, after all, a requirement of most other rights, since almost any other conceivable right assumes that the person is alive. That line of thought may be fruitful, and yet, I wish to suggest an alternative: that rights are misleading and incorrect concepts in the realm of ethics, that they should be relegated to the realms of legal and political philosophy and that instead, ethics should use another conceptual framework which sheds more light on these issues. Whilst what I have proposed in terms of rights seems to still be valid under the current legal framework, the new framework which I will propose will give the ethical dimension more clarity. 

Why I am a Utilitarian and a Catholic

For a blogpost titled for what I am, it might be odd to start with what I am not. I am not an ethicist. The only reason I know anything about ethics is that ethics deals with how one ought to act, and I, like everyone else, have to act in some way or another. I would like to think that I have as much ethical expertise as business professionals have mathematical expertise: not that much, but enough to do their jobs. Some sort of ethical knowledge is necessary for humans, which are generally moral agents, and therefore I must be acquainted with ethical precepts to do “my job.” But I am not an ethicist.

I have often said that utilitarianism is the only potential candidate for a secular theory of ethics, a position I have held for many years, even when I was an atheist, even when I was willing to act in

Henry Sidgwick, often held
to be the greatest utilitarian.

accordance with my utilitarian values. Utilitarianism is, I think, the first and only truly empiricist theory of ethics, and I would defend it thus: I perceive self-evidently that pleasure is better than pain, indeed, that pleasure is good (hence pleasurable) and pain is bad. I infer that pleasure is better than pain for all sentient beings. I draw the conclusion, then, that what is right is that there be more pleasure and less pain, and finally, that an action is right when it maximises pleasure and minimises pain.

This reasoning solves what I will refer to as the “value problem” (how to jump from a set of empirical data to a value) by empiricist means: I know pleasure is valuable because I experience pleasure as good. It has a positive phenomenal quality. I should note that pleasure is being used in a pseudo-technical sense, because I do not necessarily mean simple pleasures (like eating a good piece of chocolate) but holistic pleasure (which might include reading a good book, or beating a personal best in the pool, or discovering some new fact about the universe). The reverse is true for justifying that pain is bad. This seems to be a solution to the value problem, and if one supposes that other beings are also capable of experiencing pleasure and pain, then I think an objective moral duty follows: ceteris paribus, one must increase pleasure and decrease pain.¹

When I became a Christian, and more importantly, when I became (of all stripes of Christian) a Catholic, I had to re-evaluate my position. Nonetheless, the argument that I have proposed for utilitarianism does not become unsound (supposing it was sound in the first place) simply because of the large set of other justified beliefs I now had.² None of these other beliefs negate the truth of the empirical premise (that pleasure has positive phenomenal qualities, and pain has bad) or the assumption that other sentient creatures are capable of experiencing pain and pleasure. Still, the Church believes in moral rights and wrongs that do not make sense on a utilitarian framework – in most of those cases, the Church is closer to our natural moral intuitions than utilitarian theory is. How was I to make sense of this?

Since I am not an ethicist, and because utilitarian theory and Christian ethics accord on plenty of points, it took me a while to even bother to try and solve this problem. I told everyone that I was a virtue ethicist, although I half meant that I held to the virtue of maximising the good, which is a very utilitarian way of thinking about virtue ethics.

The solution I propose to harmonise both positions seems to me to be remarkably simple, and maybe somebody came up with it before me, even though I did not take it consciously from anywhere else. Because I study mathematics, and because utilitarianism lends itself naturally to discussions of moral calculus, this solution might sound overly mathematical and complicated, but the principle is very simple: experience shows that pleasure is an intrinsic good. What being a Catholic adds is consideration of other intrinsic goods. Being Catholic does not so much negate the previous solution to the value problem that utilitarianism offers, it expands it, and in many cases, it may well overshadow the value given to pleasure.

Take the almost canonical example to illustrate the non-intuitive aspects of utilitarianism, the fat man on the bridge who could be pushed over to stop a train and save the lives of a group of five people working on the train rail tracks: utilitarian theory says that pushing over this “innocent” bystander is the morally obligatory act – not only justifiable, but morally obligatory. It is a simple calculation, ignoring for a moment variables such as capacity of happiness of each person: killing one saves five. Easy as that. I would have nodded my head at this morally non-intuitive result, all the more happy to be accepting the logical conclusion of an argument without reference to how I feel about it.

The difference being a Catholic changes is not to devalue pleasure (or utility, or happiness, etc.) but to value human life. Perhaps it might be objected “but that was the problem, one life for the sake of five”, except that sort of calculation only works for finite values on human life. Suppose human life were to be valued infinitely. Then the moral calculus makes no sense, the set of allowable transfinite calculations does not include operations like subtraction to yield a useful quantity for moral calculus.³

Were this a proper article, I would be obliged to discuss and work out how theoretical calculations could be computed in light of these difficulties. However, my purpose is more conservative: to explain both my utilitarianism, duly modified to incorporate newly found truths, with an ethical system that seems opposed to it. Unless unassailable difficulties arise which I cannot foresee, I will remain comfortable in this position as an orthodox Catholic who accepts the basic utilitarian argument.

1 I am aware that pleasure and pain are related, but not mere opposites, and so the moral calculus may need some more thought and refinement, that is, decreasing pain and increasing pleasure may, in some rare cases, pull in different directions, and in such cases the principle is inconclusive. I am also aware that situations where some pain leads to greater pleasure are not entirely clear on this basic principle. Ask me, if you want to know about my solutions to these problems.

2 One thing that did change is that, as beings who will have an eternal future, the moral calculation would have to include the afterlife. But that is readily understood in terms of utilitarian theory, and it still leaves (indeed, probably exasperates) the question of why some things were wrong in an of themselves.

3 If I were talking about a ratio, then I might be able to do the calculation, using l'Hôpital's rule, which some high school students and all first year mathematicians learn about. But that would complicate the otherwise simple point.

Concerning Retaliation (Matthew 5:38-42)

“You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ But I say to you, Do not resist one who is evil. But if any one strikes you on the right cheek, turn to him the other also; and if any one would sue you and take your coat, let him have your cloak as well; and if any one forces you to go one mile, go with him two miles." (vv. 38-41)

Once again, Jesus deepens the national law of Israel, the Mosaic law, to be the fullness of the moral law. What is the most reasonable way of setting up punishments for actions? Well, the punishment should fit the crime, for one. This principle of punishment, known as the law of talion, can seem harsh today, and Gandhi is often invoked as saying "an eye for an eye makes the whole world blind."

I think this misses the cultural context of the law of talion (sometimes referred to as lex talionis due probably to the large tradition of Latin in Christianity), which was actually asserting the equality of persons in justice. Surrounding legal codes had different punishments for different people of different classes, and the biblical text now says "no, all people have equal intrinsic worth regardless of class, gender, race, etc...so we must punish them all equally for their transgressions."

Still think it is not reflective of the highest standard of morality? Good, because it is not. It is simply the manner in which Israel would administer justice. Jesus gives the definitive moral way to act in situations where the law of talion might apply: "do not resist one who is evil." The context makes clear that it does not mean "tolerate evil" - but that one should not seek revenge for evil done to oneself. Indeed, if the wrongdoing is done to oneself alone, then meekness and compliance is the right response. What an utterly stupefying message! Still, is this not the basis for forgiveness? When we forgive, we do not simply accept the wrong we have received, but we relinquish the right to retaliate. In some sense, we take upon ourselves the punishment that the other deserves.

There is more to this than simply "forgive", as the last bit indicates:

"Give to him who begs from you, and do not refuse him who would borrow from you." (v. 42) 

The other part of the principle that Jesus is expressing here seems to be that we should give what we have when it is demanded of us: when we are hit, we give the opportunity to hit more. When we have our coat stolen, we give also our cape. When we are demanded to walk a mile, we walk two. And now finally, when we are asked to give money, we give.

It is clear that no legal system can be founded on such principles of radical forgiveness and self-giving, since the world would dissolve into chaos. Nonetheless, we who would be followers of Jesus must abide not by the law of the land, but by the law of morality. Therefore, we are asked to forgive and to give whenever it concerns us.