Political Philosophy
Page 12
Your answer will largely depend on your approach to moral theory and how committed you are (if at all) to the idea of individual rights. The liberal approach, as exemplified in the work of Dworkin and Nussbaum, implies that you should not torture the terrorist. The terrorist, like any other individual, possesses rights which cannot be trumped by the general good of the community as a whole, such as the right not to be tortured. However, this seems like a very demanding principle. It would not matter if, in our example, the bomb would kill five or one hundred or 20 million people. The wrongness of torture is not affected by the number of casualties. It comes from the fact that it violates fundamental rights that all people, including terrorists, have and so it is just as wrong to torture a terrorist in order to save 20 million lives as it is to save a single life.
You may well find this conclusion unpalatable. Of course, you might want to say, there should be a presumption against torture, because it is awful. You might even agree that torture represents a violation of individual rights. However, you might nevertheless envisage a set of circumstances in which it would be morally appropriate to violate the terrorist’s rights. This requires you to weigh the rights of some people against others, and to evaluate the good of respecting the terrorist’s right not to be tortured against the rights of others not to be killed. It also makes the specific consequences of the specific action morally relevant in a way that it is not for the liberal: it makes a difference (morally) whether we are talking about saving one or 20 or 20 million lives. The nature and extent of the good that our actions will bring about needs to be weighed against the bad that would be brought about by our not acting. While presumably no one would argue that torture should be considered anything other than terrible, some may wish to argue that there may nevertheless be circumstances in which we, with heavy heart, are morally required to do whatever is necessary in the interests of the greater good, even if this means violating the rights of one or more individuals. That is, to put it in more formal philosophical language, we may adopt a consequentialist approach to moral reasoning rather than a liberal deontological one (see Chapter 9).
Spotlight: ‘Want to Torture? Get a Warrant’
In 2002 Alan Dershowitz – a highly respected legal theorist, lawyer, and Harvard professor – wrote a very controversial article for the San Francisco Chronicle in which he argued that, under certain circumstances, the state should be legally permitted to torture terror suspects. In the article, entitled ‘Want to Torture? Get a Warrant’, Dershowitz argued that authorities could apply for, and be granted, warrants allowing the use of ‘non-lethal’ torture techniques on suspected terrorists if there were an ‘absolute need to obtain immediate information in order to save lives coupled with probable cause that the suspect had such information and is unwilling to reveal it’. (Alan Dershowitz, ‘Want to Torture? Get a Warrant’, San Francisco Chronicle, 22 January 2002.)
This is an extreme case, and many people think that torture is so morally repulsive that the right not to be tortured should always be a trump. Still, we can imagine less extreme examples. Think of the right to free speech, including the right of the media to speak freely. Imagine that a newspaper journalist learns that the police are planning a dawn raid on the houses of a ring of child pornographers. The journalist plans to publish the story in her newspaper the day before the raid, and thus to exercise her right of free speech. However, if she does so, the child pornographers will read that they are to be arrested the next day, and will immediately destroy any evidence of wrongdoing, or will go on the run so that the police can’t catch them. If this happens, they will not be arrested and will continue to abuse children. If we endorse Dworkin’s rights as trumps, we will have to uphold the journalist’s right to free speech even if that results in the pornographers going free. This result, we could say, is an unacceptable prioritization of the individual against the overwhelming interest of the community.
Case study: Civil liberties
The issue of individual rights vs. community safety has become much more central to public political discourse in the past decade. Following 9/11 and the 7/7 terrorist bombings in London, the USA and Britain introduced anti-terror legislation which dramatically strengthened the powers of the police to search and detain suspected terrorists. The USA introduced the Patriot Act which made it legal, among other things, to record the private phone calls of suspected terrorists and Britain introduced a raft of controversial measures including greater police powers to stop and search people and to detain suspected terrorists for long periods of time without charge. Furthermore, in Britain and the USA the police were authorized to make greater use of CCTV cameras and other forms of surveillance in the interests of defending society against the perceived terrorist threat.
Many human rights organizations including Amnesty International and Liberty have pointed out that the anti-terror legislation introduced in Britain and the USA represents a straightforward erosion of individual rights: it places further constraints on what people can and cannot do; it strengthens the powers of the police relative to individuals; it makes it possible (in Britain, at least) for the police to detain suspects for extended periods of time without charge, and it violates citizens’ right to privacy by allowing the state to monitor, and video, our everyday lives. The controversy is not whether these and other measures lead to a weakening of our individual rights, then, but whether or not it is defensible to weaken our individual rights in the name of some other good like national security.
George W. Bush and Tony Blair, among others, argued that while the constraint of individual rights was regrettable, it was nevertheless a necessary price to pay to ensure public safety from terrorists. Handing the police greater powers to question and detain citizens, and allowing the police to record our actions on film, made us safer, they argued, and as such, it was the morally right thing to do. It placed justifiable constraints on individual rights in the interests of the wider, public good. As with the ticking time bomb scenario, your own position on this question will depend on how committed you are to the inviolability of individual rights and whether you think that it is ever justifiable to trade rights off against other goods.
RIGHTS-BASED MORALITIES IGNORE CITIZENS’ COMMUNITY SPIRIT
Rights formally attribute entitlements and duties to individuals, implying that people are not naturally inclined to assist each other. Rights-based moralities thus imply that there will be conflict between individuals, rather than mutual co-operation. Some critics thus argue that rights might encourage individuals to do only what is absolutely required of them. People will jealously guard their rights and insist that others perform their duties. Rather than treating each other with compassion and generosity, rights as trumps encourage people to insist on their entitlements and perform only those kindnesses which are absolutely required as duties.
Some political philosophers and political scientists suggest that one only need look at contemporary US society to see the problems associated with a preoccupation with individual rights. Robert Putnam argues that there has been a decline in ‘social capital’ in America and elsewhere: a decline in the social and communal bonds which stop liberal societies becoming merely a collection of abstract individuals (Putnam 2000). The rise of the free market reinforces the idea that people are individuals who possess rights, rather than citizens who co-operate for collective ends.
These changes, along with other cultural, economic and legal shifts toward an individualist, rights-based moral and legal culture, have had a number of profound consequences for liberal democratic societies. First, they have created an explosion in litigation, in which public life is characterized by conflicts between rights-bearing individuals played out in courtrooms, adjudicated by judges who do their best to interpret the implications of the liberal rights-based constitution. And, secondly, they have encouraged an expansion of the realm of rights into areas in which many believe to be inappropriate. The more comfortable we become with invoking our individual rights
as a way of getting what we want, the more we do so. Consequently, while citizens of liberal democratic states used to think of themselves as having rights to things like free speech and religion, now an increasing number think they have ‘rights’ to do things like use the Internet or to keep pets.
Communitarian critics of liberalism like Michael Sandel, Alasdair MacIntyre and Charles Taylor (discussed in detail in Chapter 13) see these problems as consequences of the rise of liberal individualism and rights-based morality. Our moral ties with our fellow citizens wane and we try to replace them with liberal rights, which are not suited to do the job. What we end up with, therefore, is a decline in community and the moral ideas that we drew from it. Consequently, they argue, we need to rescue modern morality and politics from liberal individualism by reclaiming the idea of community, and emphasizing the common bonds which all members of a particular community share (and which can therefore provide the basis for a common morality based on a particular conception of the good life) rather than those things (like individual rights) which emphasize the distinctiveness of each and every individual, and put them in competition with one another.
Liberals reject this claim, arguing that a focus on community may lead to injustice and oppression of minorities and, furthermore, that just because a constitution stipulates that all people hold rights, it nevertheless does not mean that everyone need always invoke them (e.g. Tomasi 1991).
Conclusion
Some of the most enduring social and political reforms of the past century have been in the name of rights. The suffragettes and, later, the activists of the women’s movement who campaigned for political equality for women in Britain and the USA, the civil rights activists who campaigned for equality for black people, and the NGOs, organizations and individuals who have worked, often in frightening and difficult circumstances, to establish equal rights around the world, have all fought to realize a political and moral vision in which all people are considered free and equal, and no one suffers exploitation or oppression on account of their race or religion or sex or anything else.
But, as we have seen in this chapter and will continue to see throughout this book, rights are complicated and sometimes problematic. Rights establish conflicts: between the individual and the community, or between different rights, or between states which respect rights and those which do not. Rights must be traded off against one another: How important is the right to free speech compared to the right not to be libelled, for example, or the right to practise one’s religion compared to the right not to be subjected to unfair religious traditions? What aspects of our lives are appropriately understood as within the realm of rights, and which fall outside it? And on what exactly are rights based? – If in our basic humanity, then what is it about being human which leads to rights? If in legal statutes, then how can rights be used to criticize unfair laws?
Once we get beyond idealistic generalities, we soon realize that the appeal to rights raises as many questions as it answers. This is not to say that we should reject rights, for a framework of rights is the cornerstone of liberal democracy. However, it is to say that our commitment to rights needs to be evaluated in the context of other fundamental principles, and that the consequences of a thoroughgoing commitment to rights are perhaps unclear and, often, problematic.
Spotlight: The European Convention on Human Rights
The UK incorporated the European Convention on Human Rights into British law in 1998. It protects rights such as the right to life, the prohibition of torture, the right to freedom of expression and the right to respect for private and family life.
Key ideas
Communitarianism: Discussed in detail in Chapter 13. Broadly speaking, the view, exemplified in the work of thinkers like Michael Sandel and Alasdair MacIntyre, that the liberal emphasis on rights is philosophically mistaken and politically dangerous.
Rights as trumps: A definition of rights, defended by Ronald Dworkin, whereby rights are understood to ‘trump’ other moral and political considerations.
Tyranny of the majority: Initially explained in the work of Tocqueville, but later taken up by Mill and other liberals. The idea that individuals can have their interests or opinions unjustly overridden by majorities. Represents a key concern for liberals and a principal justification for the establishment of civil rights to act as protections against the will of the majority.
Dig deeper
Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1978).
Ronald Dworkin, ‘Rights as Trumps’, in Jeremy Waldron (ed.), Theories of Rights (Oxford: Oxford University Press, 1984).
Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985).
Joel Feinberg, Rights, Justice, and the Bounds of Liberty (Princeton, NJ: Princeton University Press, 1980).
Alasdair MacIntyre, After Virtue: A Study in Moral Theory (London: Duckworth, 1981).
Martha C. Nussbaum, Sex and Social Justice (Oxford: Oxford University Press, 1999).
Robert Putnam, Bowling Alone: The Collapse and Revival of American Community (New York: Simon & Schuster, 2000).
Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986).
Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994).
John Tomasi, ‘Individual Rights and Community Virtues’, Ethics 101 (1991), pp. 521–36).
Fact-check
1 Who argues that rights are trumps?
A Gerald Dworkin
B Andrea Dworkin
C Ronald Dworkin
D John Tomasi
2 What does it mean to say that rights are trumps?
A Rights are more important than anything else
B Rights are more important than the interests of the community
C Rights are more important than justice
D All of the above
3 Why might the ticking time bomb scenario challenge the idea that rights are trumps?
A Because it suggests that terrorists do not value rights
B Because it suggests that we should sometimes condone rights-violations
C Because it suggests that there is no right not to be tortured
D Because it suggests that torture is good
4 Why is liberalism sometimes described as a rights-based morality?
A Because it focuses on the individual
B Because it is associated with the historical struggle for individual and civil rights
C Because it rejects community-based conceptions of justice such as utilitarianism and communitarianism
D All of the above
5 What is ‘social capital’, according to Robert Putnam?
A The sense of community existing in a society
B The amount of money in a society
C The main city in a society
D The rights that are recognized in a society
6 Why might rights-based moralities undermine the value of community?
A Because they prioritize the individual
B Because they encourage people to focus on their self-interest
C Because they assume conflict rather than co-operation
D All of the above
7 How could liberals respond to the challenge of Question 6?
A By pointing out that individuals can voluntarily choose not to use their rights
B By arguing that individuals should be subordinate to the community
C By arguing that rights are unimportant
D All of the above
8 Which of the following might conflict with the right to free speech?
A The right to privacy
B The interests of the community
C A right not to experience hate speech
D All of the above
9 Which of the following is most likely to be a rights-based morality?
A Liberalism
B Communitarianism
C Utilitarianism
D Totalitarianism
10 Which of the f
ollowing is least likely to be a rights-based morality?
A Liberalism
B Feminism
C Utilitarianism
D Anarchism
8
Political obligation
There are many reasons why we might obey the law. We might do it out of fear of punishment, for example, or habit. But why should we obey the law? What normative reasons are there for obeying the state and the laws that it passes? This is the question of political obligation: why are we obligated to obey the law, to obey our political rulers? Neither fear nor habit, though they may explain our obedience in practice, are sufficient to entail an obligation to obey.
In this chapter, we discuss three arguments that have been offered as answers to this conundrum: consent, fair play and natural duties. For each, we consider how well they meet the three requirements of obligating everyone, even if they do not like the law, while preserving freedom and equality.
A successful theory of political obligation
A law is a coercive rule, enacted by a government and enforced by a state, that applies to everyone in the relevant territory. A theory of political obligation is a theory of how and why laws can be legitimate. To be successful, a theory of political obligation must explain three things:
1 It must explain why everyone in a given territory is obligated to obey. Without universal obligation the law would be unworkable. Laws of taxation, traffic and property only work if everyone has to obey them; if there is only partial obligation then the benefits that the laws are designed to protect will be undermined or destroyed.