August 28, 2009
Over on Liberal England, Jonathan Calder has expressed a certain amount of scepticism about the usefulness of moral rights in contemporary moral discourse. Since the only training I can make a full claim to is philosophical, I thought I’d take his points on.
Most modern discourse about morality resolves around rights. It therefore fails to answer the great moral questions like “How should I live my life?” and “What sort of person should I be?”
Actually, most modern academic philosophical discourse does not focus around rights, but rather around moral language, virtue and metaethics. I assume here that Jonathan is referring to moral discourse as presented in the media. If this is the case, then the second sentence is rather unfair. Moral rights (which I will take to be synonymous with the notion of human rights, as Jonathan appears to use these terms interchangeably) are not intended to answer these questions, but rather to take the role of useful attributions of value within broader ethical systems that do answer those questions. Human rights are pragmatic expressions of moral principles, and are useful inasmuch as they provide a counter to the ways in which humans typically attribute value.
It is, I think, inarguable that we instinctively attribute moral value to those most similar to us more so than those who differ; in the first instance our family, in the second our friends and colleagues, and beyond that our neighbours. However, ethical systems and moral rules only have value if they are universal, and so to provide pragmatic way of expressing this in legal terms we can utilise universally applicable rights to provide a counterbalance to our instinctive moral attributions. It is worthwhile noting at this point that objections to human rights typically come as a consequence of cases wherein it is much more difficult to find common ground with the accused.
If a ascribing a right to someone is to mean anything then there has to be a concomitant duty upon someone else to fulfil it, otherwise this right is worthless. NB This is not the same as the Blairite claim that rights and responsibilities go hand in hand – my rights impose duties upon you, not me.
This is true to a certain extent, but neglects the role of the individual in this matter. If your ethical system is universal and therefore includes moral rights, you have a duty to see that they are fulfiled. This may take the form of voting for a party who will uphold those rights, or it may take the form of carrying out appropriate social work yourself.
The more rights we ascribe to people, the more we tend to make the government mighty. If there is, say, a right to work, who can have the duty to give employment but the state? This process tends to make the individual citizen a spectator in important moral questions.
As I mention above, the state is not the only actor who can guarantee moral rights.
Rights are human artefacts: we make them up. They do not exist in some Platonic universe, independent of humanity. In fact, the concept of a right make sense only in a complex society.
The first sentence is certainly true, and stands in opposition to the rather bizarre notion frequently mentioned by Tories of having ‘rights as a consequence of being a free-born Englishman, not handed down to me by the state’, which assumes that England is some sort of platonic entity capable of assigning rights without recourse to her citizens. However, it is not the case that the concept of rights only make sense in a complex society; a member of a tribe who believes all humans have a right to shelter has a duty to share his hut.
Ultimately, the justification for the rights we do choose to give people is the kind of society those rights produce. If those rights produce a bad society, we change them
While this is certainly true, it is also rather besides the point: rights themselves are a consequence of attributions of value, and so already contain within them the values we wish to see in our society. Calder here is failing to make the distinction between value and practice; a right can be morally correct but badly constructed in legal terms.
The danger of expressing our moral judgement in the language of rights is that it becomes impossible to learn from experience… Note that rights will not merely rule out what some regard as old-fashioned social practices: they will also make it harder to establish new ones.
This is where I fear Calder is again going wrong, like in his first thesis – rights are the pragmatic expression of moral judgements, and not judgements in themselves. The moral judgement in, say, a right to housing is to say that all humans are worthwhile and so deserve to be protected from dangerous extremes of environment. The right to housing is the pragmatic cashing out of this judgement.
Moral rights tend to establish a minimum standard of conduct rather than to enshrine the depth of commitment that we have to one another in strong and loving relationships. So children’s rights may describe an hygenic Home but will find it harder to describe a loving home.
Again, this is true, but rather besides the point. Rights are not intended to be the entirety of an ethical system. I do not know anyone who makes this claim, and it rather appears to be a straw man.
Political philosophies differ over the ends of life and how people should act: in short, they have different views of morality. Liberals should argue for their view of the world and endeavour to win power to implement it, but they should not be scandalised when people with other philosophies do not want to write Liberal conclusions into the rules of the contest.
I’m not convinced that this last point has anything to do with rights whatsoever. There are plenty of political philosophies aside from Liberalism that have their foundations in universally applicable ethical rules. The debate in that case would be a question of which rights are the correct ones to enshrine in law, rather than whether rights themselves are useful.
My own view on this matter is given above; that inasmuch as rights are useful legal tools for providing a counter to man’s instinct to value his fellows over those he regards as different, they are proper objects of discussion. But to dismiss them on the grounds that they are not a complete ethical system is to miss the point of them entirely.
August 14, 2009
It is doubtless the case that the recent law passed by the Afghani parliament will cause more cries of, “Why the devil are our boys being killed on behalf of a bunch of barbarians?” Make no mistake, this law is truly barbaric – anyone who really entertains the suggestion that putting one sex in such a position of power over the other can be excused as a matter of culture has no regard for any humanity beyond their own kind.
However, it also represents the classic liberal dilemma – a democratically elected government rejecting liberal norms to reflect the wishes of its constituents. While it is clear that the Afghani President, Hamid Karzai, is making this move to shore up his support amongst the Shia population of Afghanistan and counting on the West being too concerned with the Taliban to allow him to get away with it, it’s been claimed that it runs counter to the Afghani constitution itself.
Except it doesn’t. Article 131 states , “Courts shall apply Shia school of law in cases dealing with personal matters involving the followers of Shia Sect in accordance with the provisions of law.” This new law only applies to the Shias, and while the constitution does provide for equal treatment of women before the law, I would anticipate that any effort to seek judicial review (which is currently not possible in Afghanistan in any case) would founder on this matter. The Afghani constitution also requires that any law does not conflict with the rules of Islam, and a very specific law targetting a specific type of Islam would probably fall under this purview.
So, what the Afghani Government has done is most likely legal, if repellent. How should the West respond? Does this mean we should withdraw our forces and let the barbarians fight it out amongst themselves? This latter position has been advocated by other Lib Dems. I suspect that the main impetus towards it thus far, apart from the illiberal nature of the Afghani Government, is that the war has been incompetently prosecuted by Labour – a summary of which is in my response to the Payne article. We can’t do anything about Labour’s mishandling the military for now, so let’s consider other options a future government might take.
1) Withdrawal, and abandoning the Afghanis to their fate. This will result in human rights abuses and most likely a long civil war in which many people will die. It’s also a war I’m not convinced Kabul would win – although the Afghani army has improved, it’s no match for the tribal forces without the West’s help.
2) Continuing our current strategy of shoring up Karzai’s government while attempting to defeat the Taliban. As has been pointed out, this may take upwards of 40 years, and given the weakness of the current constitution and its attached judiciary, may not in the end produce a liberal state regardless.
3) (As you may have guessed, we’re coming up to my preferred option in my capacity as a Swivelly Chair General) Identify the flaws in the current Afghan state and use our forces in the country to supplement them.
What do I mean by that? Well, I’ve previously touched on the idea that the state is not the be-all and end-all of service provision, or indeed the only foci of power within a country. We need to get away from the idea of identifying a nation with the apparatus of its state, and consider it more as its collective of people.
In this case, part of the problem with the Karzai government is that its judiciary is notoriously weak and corrupt, and that the legal system tends to take an age to reach a decision. This has been part of the reason for the success of the Taliban, who are much more efficient at providing justice to the citizens in areas under their control – Afghanis have been known to go to Taliban representatives to settle disputes in Government-held areas, rather than to the courts.
My suggestion is that we stop protecting the Afghani Government and leave it to its own devices. If it is effective at representing the will of its people, it will withstand the Taliban thanks to the popular support being an effective representative will engender. However, I’m not suggesting we leave Afghanistan. I’m rather suggesting that we divert our military resources to protecting the infrastructure and institutions that will comprise the foundations of a liberal state – the schools, the roads, the power & water supply.
We provide military courts in areas in which Afghani Government justice is inadequate, and guarantee the rights of all children, male and female, to attend school and live within a legal system that recognises these rights. We do not require children to attend school, but we step in when they are denied the choice or intimidated into not doing so. We do not require Afghanis to use our courts, but we step in when they are denied the choice or intimidated into not doing so. We will stop the Taliban burning down schools, but we will not prevent families from sending their children to madrassas. Our aim will be to prevent the removal of those choices by the Taliban, not to enforce them on the Afghans. We will have achieved victory when every child in Afghanistan has not only the right to attend school, but the freedom to do so. We will have achieved victory when every Afghani woman has the freedom to exercise equal rights to every Afghani man. We will not require these rights, we will merely enforce them when they are taken away.
In essence, we will create a parallel legal system within Afghanistan. We will give the Afghanis the option of a liberal state, and leave it up to them to choose. After all, if we believe that liberalism is the way ahead, surely we must believe that others will believe it too.
We can’t do this everywhere, but the current situation in Afghanistan is down to our intervention, and is therefore our responsibility.