Obvious injustice

This paper by N. Coleman on "Philosophy and the 'obvious' wrongness of slavery" has been getting some attention. It's been tweeted and retweeted. Here's the conclusion:

So, 'Why is it "obvious" to us that the institution of slavery is an inexcusable evil?' (2003:166). This is the question once posed by another British philosopher, Stephen R. L. Clark. Given that it is neither obvious that nor obvious why slavery is wrong, I think the answer to Clark's question lies in the pronoun Clark uses: 'to us'. It is reasonable to interpret a false, yet frequently uttered, slogan in light of the social status of the persons uttering the falsehood—in this case, in light of Clark's 'us'. This is reasonable, because at least one function of frequently uttering a falsehood is the maintenance of an existing relation of social power. Who, then, is Clark's 'us'? Given the disproportionate predominance, in the academic discipline of Philosophy, of persons-classed-racialised-and-gendered-as-wealthy-white-men, Clark's 'us' is classed, racialised, and gendered in this very way. What, then, is the social relation of power maintained by the frequent utterance of the falsehood that it is obvious that slavery is wrong? Since the most recent incarnation of legal slavery unjustly put social power in the hands of persons-classed-racialised-and-gendered-as-wealthy-white-men, Parfit's Practice [i.e. treating the injustice of slavery as obvious] permits those persons who are predominant among professional philosophers (a) to place themselves on the right side of contemporary morality, while (b) putting paid to any discussion that might implicate them in the wrongness of slavery. This posturing and policing of philosophical enquiry constitutes racial injustice and oppresses persons who are racialised as black.

I'm not a racist, but I disagree with this. That is, I think it is obvious that slavery is wrong. But it is worth thinking about how we could show that it is.

Here are three approaches we might try:

1. We could analyse what slavery is, taking either the practice itself or the concept of it as the thing to be analyzed. Assuming we managed the task we would then have a set of components or ingredients that make up slavery, and we could, as it were, measure them for wrongness. If an essential feature of slavery violates the rights that belong to a rational being then we might hope to show in this way that slavery is unjust. But is it only rational beings that have rights? And what are rights? What grounds them? These are vexed questions. If, instead of rights, we talk about human dignity or value or sanctity then we face the same kind of questions. As long as we are talking about ethics we will inevitably (if we take this route) hit some kind of bedrock that is inexplicable: God, rights, etc. This need not be regarded as a problem, but it will always be open to our opponents to deny the existence of God, rights, etc., and some of this denial might be sincere.

2. We could try instead to be as concrete as possible, to avoid intellectually unsatisfying and all too easily dismissed references to God or rights or the kingdom of ends or higher forms of happiness or what-have-you, and focus instead on pleasure defined in terms of neurobiology. It might be, and might be demonstrable, that slavery is not conducive to pleasure understood in this way (not only for enslaved people for the population taken as a whole) and perhaps also that it increases pain (also understood biologically). There are reasons why we might not want to turn ethics into a matter of psychology in this way (or abandon ethics and replace it with psychology, if that's a better way of putting it), but it might be possible. It would be interesting to see what came out of it.

3. We could look at, or think about, the way that slavery fits, or fails to fit, with the rest of our lives. Instead of scrutinizing slavery itself we would look at the (human) world as something like a jigsaw puzzle or machine, and at slavery as a piece that might or might not fit into this puzzle. We might think about the various other ways we deal with human beings and about the various other ways we use the methods of slavery: beating, confinement, and so on. Is slavery a good fit with the rest of our lives? Does it cohere? Or is life with slavery incoherent in some significant way?

It is this third approach that seems most promising to me. But it will involve, so to speak, seeing that slavery does not belong in our world. There will be no explanation, because you can always make a piece fit. Doing so will involve violence, of course, but violence to a machine part or jigsaw piece is here just a metaphor for significant disruption of the flow of life, of the way we do things. And that is neither always nor necessarily a bad thing. That a given change is violent, a violation or spoiling of the previous order, rather than a radical improvement, is an aesthetic judgment. Not a simple "ooh" or "aah" response. It is a judgment. But it is an aesthetic, subjective judgment all the same. What is clearly wrong to a connoisseur might not seem wrong at all to someone else, although they could (at least in principle) be brought to see that it is wrong.  

(This relates, I think, to Sean Wilson's idea of connoisseur judgement, and to Wittgenstein's saying that a musical theme is not just a mix of notes.)         

The ethics of free markets

I've been asked to be on a panel on the ethics of free markets next month, which involves speaking for about ten minutes and then joining in a discussion. It's for a non-philosophical and probably rather conservative audience. Below is what I've got so far. Are there any bloopers, omissions, or excesses I should correct?

The two most obvious ways in which free markets appear to be ethical are in the freedom they embody and the efficiency they provide. Freedom and efficiency are good things. Anyone who wanted to challenge the claim that free markets are ethical would have to argue (1) that these good aspects are outweighed by other bad ones, or (2) that freedom and/or efficiency are not really good in this particular case, or (3) that (a) freedom and (b) efficiency are not really features of free markets after all. These are ideas that anyone interested in the ethics of free markets ought to consider, even if we end up rejecting them ultimately. I’ll address them in turn, in reverse order.

3b. Are free markets efficient, or more efficient than the alternatives? Of course it depends what we mean by ‘efficient’. I’ll take the question to mean: do free markets get people what they want to a greater extent than alternative systems of distribution? If we assume that people know what they want better than anyone else then it does seem likely that allowing them freely to seek what they want and make whatever offer they like for it will maximize their getting what they want at a price that they are OK with. There are some assumptions here that could be questioned: Do people know what is out there? And can they get to it?, for instance. But history suggests that free market economies deliver more successfully than controlled ones.

3a. Are free markets really free? Well, it depends what you mean by ‘free’. Free markets are free in the sense that people’s behaviour in them is constrained only by the law, and I suppose we have to assume relatively liberal laws. One objection, though, might be that liberal laws allow advertising, and advertising makes us want things we wouldn’t want otherwise, or makes us want things more that we would want less otherwise. We are not free, the argument goes, to resist its allure. This is a real issue, it seems to me. Or rather two issues (if not more). One is an empirical question about the effects of advertising. I don’t have the answer to that, but I assume it is at least somewhat effective otherwise companies wouldn’t keep spending so much money on it. The other is an ethical question, which I will pose but not try to answer. Which is more important, the freedom to behave as we desire or freedom from having our desires manipulated by others? I think a case could be made that the way goods are marketed would be limited (no advertising aimed specifically at children, perhaps) in a maximally free market. But that isn’t an argument against free markets as such.

2. Are freedom and efficiency, while undeniably good in general, somehow not good in this particular case? This could be the case if the freedom of free markets had bad consequences, for instance if it was not efficient, but we’ve already addressed that concern. The real issue here, it seems to me, is whether the efficiency of free markets is a good thing. In other words, is it good that people tend to get what they want at prices they are willing to pay? That might sound like a ridiculous question (“Of course it’s good!”), but people don’t always want good things. If everyone simply got what they were given by the government, say, then they might complain about it but they might also get healthier food, more educational or morally improving forms of entertainment, and so on. They might not, of course, but they might. We currently restrict the buying and selling of various drugs, weapons, sexual goods (if ‘goods’ is the right word), etc. Would a completely free market be more ethical? It would be amoral. If we value freedom to buy and sell above all else then allowing anything and everything to be bought and sold would be a moral improvement, because it would maximize that kind of freedom.  But arguably drug addicts are not fully free, and a free market for drugs might be expected to lead to an increase in the number of addicts. We could argue also that freedom might be reduced if just anyone were allowed to buy chemical or nuclear weapons, or tanks, for instance. We might also have doubts about the value of the freedom to be a prostitute. Not to mention questions about the ethics of the freedom to buy and sell people, body parts, embarrassing information, very large sodas, raw cheese, unsafe vehicles, and so on. The question seems to be not so much whether free markets are better than unfree ones but rather, given that there have to be restrictions on the market, what restrictions should we have? (There have to be some restrictions because otherwise we would have a market for slaves, and because the very idea of a market implies or presupposes the rule of law, which implies laws restricting what people can and cannot do.)

Finally, 1, what bad aspects might free markets have that could outweigh the goodness of freedom and efficiency? One is that with freedom there are no guarantees. If people are free to hire other people or not then there is no guarantee of a job for everyone. Nor is there any guarantee that what jobs are available will pay a decent wage. Similarly there are no guarantees regarding healthcare, education, housing, and food. It might be better to sacrifice some freedom and efficiency in order to ensure that everyone has what they need to stay alive. It might be better to sacrifice some freedom and efficiency to make sure that everyone has more than this: a realistic chance to live a decent life. Again, I won’t try to say whether it is worth it or not, but we can ask the question, as well as questions about what a decent life is.

Those are concerns about the outcomes of free markets: will everyone end up with what they need, and if they don’t then what should we do? Another kind of question concerns justice or rights. I need a job because I need to eat, roughly speaking (I also need shelter, etc.), and there isn’t any free food. That is, if I want to grow crops to eat then I can’t because the land on which I might grow them has all been taken by other people. The same goes for fruit I might want to pick, deer I might hunt, etc. There isn’t any free land, and we need land to live. Of course people do hunt deer, but only with the permission of the landowners or else on land that the hunters already own. If I want (or need) to hunt and own no land then I am at the mercy of people who already own land. By what right has the land all been taken? It’s very hard to answer that question, unless we simply say that the answer is none. It is debatable whether rights exist as anything but a potentially useful fiction. John Locke argued for strong property rights on the basis of mixing one’s labour with the land one works, but only on condition that one leaves as much and as good for others. And people have not left as much and as good for others. They haven’t left any. I can’t go into much careful argument about property rights here, but claims that property rights are absolute exist on very shaky ground. The most plausible defence of property rights is (in my opinion) on the basis of utility, and utilitarian considerations certainly suggest that some of some people’s property should be taken to help those who need it. To the extent that we redistribute wealth or income our economy is less free. At least in one sense of ‘free’.  The recipients of redistributed goods might be much freer than they would otherwise have been. People who can eat are freer, can do more, than those who starve to death. People who go to college have more options than those who cannot afford to do so. A well fed, educated society might be much more productive than the alternative, leading to greater wealth in general, and hence an overall increase in opportunity and, in another sense of the word, freedom.  And to the extent that redistribution is good, a less free economy (in the sense of freedom for those with goods to do with them as they please) is better than a freer one. To repeat and, hopefully, clarify: freedom from taxes is an instance of one kind of freedom (often called negative) and freedom to do things is another kind (generally called positive). Both are undoubtedly good, but it’s possible that less of the former might lead to more of the latter. If that’s true then negatively free markets (which are usually what people have in mind when they talk about free markets, I think) might not be as ethical as other kinds.

Another objection to free markets is to their market aspect. What’s so great about shopping? Do we fetishize commodities? This brings us back to advertising, but I won’t discuss that again. It also raises questions about culture. Free markets by themselves do not cause commercialism. But excessive banging of the drum for free markets might do so. I have argued that free markets are at least to some extent a good thing. Very roughly speaking, socialism doesn’t work and freedom is intrinsically good. So free markets are good. But markets need restrictions, they need laws. And a society needs taxes. So we cannot have complete freedom. Indeed, as many people have pointed out before, complete freedom means anarchy, and anarchy leads to tyranny by local bullies or foreign powers. The most we can have is the maximum possible freedom, not total freedom. How much that is depends, in part, on what kind of freedom we want. Perhaps the real question then is not whether free markets are ethical but which markets are the most free. 

I have a fear that I might sound like a socialist and be ignored for this reason, so let me conclude by addressing that idea head on. I am not advocating socialism. I’m not really advocating anything here so much as I am raising questions. But the suggestion behind these questions is that the kind of system we have now is on roughly the right lines. It is good that we don’t allow the buying and selling of slaves. It is at least reasonable that we don’t allow the unrestricted buying and selling of all drugs, weapons, secrets, and uses of human bodies. It is reasonable that we don’t allow unrestricted advertising. And it is good that we have measures in place to ensure that people aren’t left to die if they slip between the fingers of the invisible hand. Freedom is a great thing. My interest is in how we can have as much of it as possible.

Anscombe's psychology

"Modern Moral Philosophy" refers to psychology twice in its opening lines:

I will begin by stating three theses which I present in this paper. The first is that it is not profitable for us at present to do moral philosophy; that should be laid aside at any rate until we have an adequate philosophy of psychology, in which we are conspicuously lacking. The second is that the concepts of obligation, and duty‑-moral obligation and moral duty, that is to say‑-and of what is morally right and wrong, and of the moral sense of "ought," ought to be jettisoned if this is psychologically possible; because they are survivals, or derivatives from survivals, from an earlier conception of ethics which no longer generally survives, and are only harmful without it. 

I think the second thesis is usually taken to mean that we should jettison the concepts she mentions. But what she actually says is that we should jettison them if this is psychologically possible. It's possible to read her as implying that we ought not to jettison them if we cannot do so. Cannot psychologically, that is. What does that mean? Well, an analysis of 'psychologically' might well belong to the philosophy of psychology, along with analyses of intention and other more familiar concepts in the philosophy of psychology.

Why might this matter? If this is what she means then her thinking seems to be in line with Wittgenstein's on secondary sense. One difference between nonsense and secondary sense is that the latter is psychologically necessary. (Is that right?) (Am I just regurgitating Reshef's ideas here? If so, are they properly digested?) It would also mean that she is usually misread. And, since I have wanted to defend the use of the concept of moral rights but reject the concept of moral obligation, it suggests that I should maybe re-think my position to be sure it's really coherent. If one is justified as either metaphorical or secondary, why can't the other be?

I don't mean that Anscombe is secretly hinting at some big idea about secondary sense. I think she does believe we should get rid of the (non-theistic version of the) notion of moral obligation. But I wonder whether she's making some acknowledgement here of a Wittgensteinian alternative to her view. This alternative would involve using words like 'ought' in a moral sense even though their use in this sense primarily belongs in another context. It would be like calling Tuesday lean or saying that someone calculated in her head. It would not be a metaphorical use of words, because no other words would do. It's this nothing-else-will-do part that makes it psychologically impossible to give up the words in question. Or that's what I'm suggesting.

True, Anscombe says that this use of words is "only harmful" without the primary context, but if giving it up is impossible then perhaps it's the best option available to us.

Moral expertise

Linking to a paper on the moral intuitions of philosophers, Brian Leiter asks whether there are expert moral intuitions and answers "probably not." I agree with what I think he means, that philosophers cannot be relied upon to have better intuitions than other people. In that sense there are no moral experts. But I think there are such experts in two other senses.

There is, I believe, such a thing as wisdom, and this is often concentrated in religious traditions. So I would expect the Dalai Lama and the Pope to have better moral intuitions than people picked at random. Perhaps I'm wrong about that, and perhaps it would be easy to find religious leaders who are bad people. But my point is really just that not everyone is equal when it comes to wisdom, and that this is relevant with regard to mortal intuitions. The wise are likely to have better intuitions than the rest of us. In that sense there are expert moral intuitions.

Possibly related to this is the fear I feel when I find out that courses on ethics are being taught by people with no philosophical training. Philosophers can certainly develop and encourage bad ways of thinking about ethics, but there are at least some pits that they are unlikely to fall into, and that can be hard for others to avoid, e.g. crude forms of relativism and subjectivism. In that sense I think philosophers do have a kind of expertise.

Following the link Leiter provided led me to this paper on human rights, which looks misguided in a way that I think most philosophers would avoid. The abstract, in part, reads:

A striking feature of contemporary human rights scholarship is the extent to which it has turned its back on the idea that human rights can grounded in a theory of human nature. Philosophers, social scientists, and political and legal theorists thus frequently assert that the classical Enlightenment project of supplying a naturalistic foundation for human rights is dead. The main purpose of this contribution to a new book of essays on human rights is to rebut this pervasive skepticism. Drawing on recent work in the cognitive science of moral judgment, I defend one of the critical premises of ancient philosophy, Enlightenment Rationalism and the modern human rights movement alike: that human beings are moral and political animals, who are endowed with a moral faculty or sense of justice. The chapter thereby seeks to offer a new perspective on an old and venerable argument about the naturalistic foundation of human rights.

This new perspective begins from the observation that whether human beings possess a common moral faculty is not primarily a philosophical, political, or theological question, but an empirical question that belongs in principle in the cognitive and brain sciences, broadly construed. The confident assertions of skeptics such as Michael Ignatieff, Richard Rorty, Gilbert Ryle, Alasdair MacIntyre, Sigmund Freud, Ruth Benedict, Richard Posner, Robert Bork, and many other writers notwithstanding, one cannot therefore simply decide the matter from the armchair. On the contrary, probative evidence and sound scientific argument must be brought to bear. [...]

... classical accounts typically rest on the claim that an innate moral faculty and with it principles of justice, fairness, empathy, and solidarity are written into the very frame of human nature. These themes were particularly influential during the Enlightenment, when the modern human rights movement first emerged. It is precisely this set of ideas that modern cognitive science, liberated from the crippling methodological restrictions of positivism, behaviorism, historicism, and other discredited theoretical frameworks, has recently begun to explicate and to a substantial extent verify. This new trend in the science of human nature, I suggest, has potentially profound implications for the theory and practice of universal human rights.    

One mistake that might be here (I'd have to read the whole paper to tell) is that of thinking that a common faculty of moral judgment would give human beings a special moral status. But surely having the ability to discern moral value is not the same thing as having moral value itself. So if human beings have rights it can't (simply and straightforwardly) be because we have a moral faculty.

Another apparent mistake is the idea that anything about ethics, anything normative, would follow from a discovery about human brains, such as a discovery that they have an innate sense of fairness. From "human beings have an innate tendency to x" it does not follow that x is good. What we naturally consider fair or just might not be fair or just. Mill points this out, I think, in Utilitarianism. Familiarity with that kind of insight is the kind of expertise that moral philosophers have, and that others often appear to lack.

This point might seem to be the same as the point in the paragraph before it, but it's not. Even if we have the ability to tell what really is just I don't think it follows immediately that we have any moral value ourselves. The ability to tell what is right is a good thing, of course, so we might have value just as possessors of this ability. But this value might not be very great, for instance if we never use our ability for good, or if telling what is right and what is wrong is supremely easy for every being, so that beings that have the ability to do so are nothing special. Perhaps more to the point, from the fact that a being can tell what is just it does not follow that one must not, say, beat or enslave that being.

Well, that's probably enough for a critique of a paper that I haven't read. The key mistake I think is here:

whether human beings possess a common moral faculty is not primarily a philosophical, political, or theological question, but an empirical question that belongs in principle in the cognitive and brain sciences, broadly construed

The empirical question is whether human beings possess a "moral faculty," i.e. something that scientists call a moral faculty.  Whether they possess a moral faculty (i.e. whether this faculty, if it exists, actually identifies what is right) is a question for ethicists, i.e. moral philosophers, i.e. philosophers. These philosophers might well include scientists. Indeed, they include everyone who thinks about what is right and what is wrong. But doing that is not "an empirical question that belongs in principle in the cognitive and brain sciences, broadly construed." 


The author of the article wants to bring together work in several disciplines, "including experimental philosophy, developmental and social psychology, cognitive neuroscience, primatology, anthropology, comparative criminal law, and other fields." Good reason to be suspicious of experimental philosophy is given by Lars Hertzberg here. 

Geuss on magic

In a comment below Tommi Uschanov helpfully quotes Raymond Geuss thus:

The point about magic is that the particular nature of the formulae used and the names of the spirits invoked ('rights', 'the will of God', nature) matter less than that those on the receiving end believe in the reliable efficacy of whatever is invoked.

That passage comes immediately after this:

A 'human right' is an inherently vacuous conception, and to speak of 'human rights' is a kind of puffery or white magic. Perhaps if we repeat claims about natural rights long enough and loudly enough, and pass enough resolutions, people will stop doing various horrible things to each other. Indeed, perhaps they may, but perhaps not. The point about magic...

Three things strike me about this:

1) "Indeed, perhaps they may...", so such resolutions are not necessarily pointless after all, just not guaranteed to work, unless Geuss is only kidding and does not really believe that there is any chance these resolutions will make any difference,
2) it surely depends who is making the resolutions (not every body is powerless to shape the world, through force or other means, to its will), and
3) who precisely is "on the receiving end"?

To understand Geuss here I think it helps to look at a passage on pp. 137-138, in which he talks about the connection between (legal) rights, law, and sanctions. People only have rights enshrined in law, and this law is only meaningful if it is enforced. So rights without sanctions for their violation are worthless, and perhaps not even real:

In principle one could imagine a formal procedure that imposed merely intangible sanctions. The religious court which saw itself as the final and definitive arbiter of salvation might simply declare someone a 'vessel of iniquity' or a 'child of abomination', irrevocably condemned to perpetual spiritual blindness and perdition. It might then be thought unnecessary to proceed any further. Why bother excluding the condemned from social participation in the church, religious ritual, etc.? In fact the presence of the spiritually stigmatised might be thought to have a salutary effect on those who are still potentially saved. Although there was no visible and tangible force to this sanction, it might work as a sanction if all those involved firmly held the appropriate religious beliefs. It would not work as a sanction on people who did not believe. Magic is said by some anthropologists to be like this: it works very well in a society in which virtually everyone believes in it, but will not work either for or on those who do not. Cases like this, then, are not counterinstances to the claim that for us to speak of a legal system there must be some clear and specific notion of sanctions. Failing such a system of sanctions, there is nothing but a set of diffuse individual and collective moral feelings.

One thing to say about this is that, if it's true that talk of rights is a kind of magic that only works if people believe in it, then why would anyone try to burst the bubble? Why try to undermine white magic? Secondly, if "rights" without sanctions have no more reality than do moral feelings, is this really a problem? If "everyone has the right to vote" just means "everyone should be allowed to vote" is it therefore untrue? Or unimportant?

My sense is that Geuss opposes rights talk partly because he sees it as being akin to religion. I agree with him that it has some such similarity, and not only in the sense that everything is like everything else. There is, I think, an important connection between religious language and metaphor or the use of words in a secondary sense. And that is what is involved in the kind of rights talk that I support.

He also seems to oppose it because, despite his reference to white magic, he seems to have at best mixed feelings about what is, or can be, done with rights talk. For instance, see this passage on p. 145:

If we have enough strength we can make others care about our moral beliefs, but if the doctrine of 'natural rights' means no more than that we are powerful enough to make people careful not to do things of which we disapprove, then it seems no more than a theoretically obfuscating name for a well-known and not necessarily particularly edifying fact of power politics.    

Again, talk of rights seems to be, for Geuss, either a mere expression of moral beliefs or a declaration relating to enforcement. The idea that they do reflect moral beliefs, but especially important ones, or that they ought to, but might not, be enforced seems to be ignored. He doesn't ignore these ideas all the time, but when it comes to the crunch he seems to leave them out. And this seems to be for the sake of avoiding theoretical obfuscation, i.e. in order to be clear. But simplification is not the same thing as clarity.

The term 'right' has two clear, but distinct senses. These are, first, the 'objective' sense (that is 'right' which we think ought to be the case or ought to be done), and, second, the subjective sense (I have a right if I have a claim backed up by an effective mechanism of implementation). It does not contribute to clarity of understanding to run these two senses together in the way that is characteristic of the discourse of human rights. (p. 146)

This is surely just the complaint of someone who refuses to join in that discourse. The whole point of it is to blend these senses, to strengthen a certain class of moral claims by adopting a metaphor based on the law. It is a metaphor that Geuss in a sense understands perfectly. His objection to it seems to be based on the fact that it is a metaphor, and therefore theoretically obfuscatory, and the possible harm that this metaphor might do. But only the latter objection has any force, it seems to me, and then only if it shown that the effects are more bad than good. And this, I think, remains to be shown.

Geuss on legal rights

Turns out I should have read the pages in Geuss's book in numerical order if I wanted to follow his argument. Who knew? (It also turns out that I have been mispronouncing his name in my head: it's German not French, hence not zhuice (fruity drink meets Greek god) but goyce (non-Jew meets Irish novelist). Evidence here.)

Before the part of History and Illusion in Politics headed "Human rights" is a part called "Legal rights," which I found very helpful for understanding his later claims about talk of human rights being vacuous, and so on. Here are some of the main points. Geuss sees the modern notion of (subjective) rights, i.e., entitlements or things I can claim as mine, as stemming from Roman law, especially concerning property, by way of the feudal period. Property is linked with jurisdiction in feudal societies, where the lord of the manor might have police powers, for instance, and when we say that we own our own bodies this supports the idea that we have jurisdictional powers over ourselves, and hence moral claims (see p. 132):

The story of the growth of rights-discourse and the story of liberalism are two conceptually and historically diverse stories that touch each other tangentially at various points, until in the immediate aftermath of the Second World War a particular conjunction of the two establishes itself as the ideology of NATO and the United Nations and from that position begins gradually to infiltrate the rest of the world.  (pp. 132-133)

The idea that we own our bodies is objectionable, but I don't think it's essential to the idea of human rights. Maybe it's tied up with the origins of this idea, but those origins are obscure. In footnote 34 on p. 132, Geuss describes the history of the concept as "infinitely complex." And no strand in this complex web need be regarded as essential, I hope/think/insist.

The original and primary sense of a subjective right, then, is legal. And legal rights are meaningless if not reliably enforced. Hence the need for some mechanism of enforcement. "Failing such a system of sanctions, there is nothing but a set of diffuse individual and collective moral feelings" (p. 138).

I think this is where Geuss turns against rights-talk (wrongly, in my opinion). Moral rights are supposed to be rights, and therefore like legal rights, but they aren't supposed to be legal rights, and they don't even have the enforcement mechanism necessary to make legal rights (actual rights, we might want to say) meaningful. So moral rights are not really rights at all. They are merely moral. This is a little bit like Anscombe's objection to the moral use of 'ought,' etc., so I might be expected to be sympathetic (since I'm sympathetic to Anscombe on this). But what I think Anscombe does is to identify a possible kind of confusion, and one which I think really does exist in moral philosophy. Geuss seems to think not only that talk about moral rights might be, and perhaps sometimes or often is, incoherent, but that it (almost) necessarily is so. He is somewhat cautious in his claims, but not, perhaps, quite cautious enough.

One way to object to Anscombe is to suggest that some or all of the uses of words such as 'ought' and 'obligation' to which she objects might be uses in what Wittgenstein calls a secondary sense. (See here for how to make this kind of objection.) Wittgenstein's idea is very similar to Davidson's ideas about metaphors (see here for more on this, especially the comments by Daniel Lindquist), and since moral rights are supposed to be rights in a metaphorical sense, it seems natural to want to understand them in this kind of Wittgensteinian-Davidsonian way. Anscombe does not explore the secondary sense avenue at least partly, I suspect, because she sees so much (i.e., all) modern moral philosophy as being bad. A meaningful metaphor used to do bad things is no better than a piece of nonsense used to do bad things, so why explore the possibility that the apparent nonsense is in fact a metaphor, even if this possibility has occurred to you? I think there's something similar in Bentham's "nonsense on stilts" rant/analysis: he is as much concerned about the danger of the rights talk he is taking apart as he is about its coherence. And Geuss (at least sometimes) stops short of  saying that rights talk makes no sense, and instead tries to argue that it is harmful or dangerous. Given his reference to NATO and the use of alleged human rights abuses to justify starting wars it's not hard to imagine why.

More Geuss

Geuss discusses four objections to the doctrine of natural rights (pp. 140-146 of History and Illusion in Politics). The first is that natural rights have traditionally been thought of as negative. He dismisses this objection pretty quickly (in one paragraph), doesn't name anyone who makes it, and I don't really see why he even brings it up. The second is that rights are entitlements, and this (or rather "a political philosophy based on the assignment of entitlements to people" p. 141) might be thought to encourage passivity. He points out that even if rights are thought of as entitlements they could include entitlements to act (not be passive) in various ways. This too gets a paragraph. The third criticism gets two paragraphs, and is that rights are too individualistic. Geuss points out that groups might be thought to have rights, although he sees this idea as having little psychological appeal. (Presumably he throws in "psychological" to make it clear that he sees the whole idea as having no real appeal at all, only, at best, an illusory one.)

It is the fourth criticism that, he says, "is lethal to the whole idea of a natural or human right" (p. 146). So what is it? I'm not sure, but I'll do my best to make it out. It "is directed at the nature of a 'natural right'." (p. 143) Geuss says that he has "strongly suggested" (he doesn't say where and I don't know, but then I haven't read the whole book, so that's likely to be my fault) that it is "essential to the existence of a set of 'rights' that there be some specifiable and more or less effective mechanism for enforcing them" (p. 143). Presumably this suggestion is based on some kind of conceptual analysis, but Adam Smith's idea of moral rights as rights in a metaphorical sense, and J. S. Mill's idea of rights as "essentials of well-being," suggest a different conception of rights than the one Geuss seems to have in mind. So I don't accept his suggestion.

On p. 144 he writes:

     Either there is or there is not a mechanism for enforcing human rights. If there is not, it would seem that calling them 'rights' simply means that we think it would (morally) be a good idea if they were enforced, although, of course, they are not.  

He doesn't say why it would seem that this is the case. I don't see why someone couldn't think that something was essential for living a good human life, or flourishing, and yet not want to see force used to ensure that everyone gets this something. Perhaps the violence necessary for enforcement would be worse than the violation of the right. But I don't mean to exaggerate my disagreement with Geuss here.

He then discusses the possibility that declarations of rights might somehow become enforced, and says:

The question is not whether this is possible or whether it would be a good thing, but whether such a development is the invention of a new set of positive 'rights' in a new international legal system or the emergence into visibility of a set of natural human rights that already existed. (p. 145)

He sees the point of appeal to natural or human rights as being undone if we admit they are "something we made to exist" (p. 145). They are, after all, supposed to be "something we discovered which served as the grounds for judging actual legal rights" (p. 145). This does not fit the idea of moral rights as the imperfect cousin of legal rights, but it does fit one kind of idea of human rights. So let's stick with that conception of rights for now. What could provide such grounds? "The only thing that can serve that purpose seems to be the flickering light of our variable moral beliefs" (p. 145 still). Huh?

Consider some examples: the right to freedom of speech, the right to equal opportunity regardless of race or gender, the right to freedom of religion. To say that such rights exist, according to Geuss, is to say that it would be morally good if the law were used to protect such freedoms and opportunities. Did we make this moral goodness exist? I don't think so. Did we discover it to exist? Perhaps not literally, but yes, I think we did. (Or we realized that it existed, or came to accept its existence, or something like that.) Sometimes our moral beliefs vary because we come to appreciate something more or better than we had before. Why not call this discovery? What else should we call our having come to regard the sexes and races as being morally equal, as requiring (as a matter of right) equal treatment and opportunity? Flickering? Waffling? I don't buy it.

In the end Geuss seems to think that belief in human rights is "only a moral belief" (p. 146). He then adds that people's moral beliefs vary, and that agreement does not guarantee effective action. He concludes that there "are no natural rights" (p. 146). I think this is because of the lack of the enforcement mechanism he thinks is essential to the very idea of a right. If we give up that requirement then his argument seems to be reduced to the observation that a belief in human rights is a moral belief. And I agree with that, but don't see it as a problem.

Geuss on rights

OK, a more philosophically contentful post for a change.

In History and Illusion in Politics Raymond Geuss writes that:

A 'human right' is an inherently vacuous conception, and to speak of 'human rights' is a kind of puffery or white magic. (p. 144)

His primary complaint seems to be that there is no means to enforce these rights, and perhaps should not be. So to say that everyone has a right to x is to say no more than that it would be good if everyone had x, and yet to imply somehow that one means more than this.

I don't see what's wrong with this though. That is, I don't see what would be wrong with rights talk if all it amounted to was "a moralising conception about what would be desirable" (p. 142); nor do I see what would be wrong with such talk if it were meant to be more than that (but less than the claim that there is an actual, enforceable, legal right), because adding the word 'very' or 'extremely' before 'desirable' would provide the more without introducing any obvious error; nor do I see anything wrong with the allegedly implicit suggestion that we can discover what is so desirable, given that we can discover what is desirable and have discovered (or perhaps remembered) that women and men are equal, for instance, and that their being treated so is desirable; nor do I agree with Geuss that, if rights are a fiction, they are an inconvenient fiction (see p. 147). Rights talk isn't going away, as he recognizes, and whether it does more harm than good surely remains to be seen.

More on this soon, I hope, but Geuss strikes me as better on the idea that rights are a fiction than on the claim that they are a malign fiction. I don't deny that they are a kind of fiction, so it's the malign part that most interests me. He sometimes seems to think the fiction is malign just because it is a fiction, and I don't buy that. He also seems to be thinking of heavy-handed attempts to enforce moral views, which I agree could well be bad, without considering the good that can be done with this kind of rhetoric. (For an example of the kind of thing involving rights-talk that I like see here.) A quick read suggests that there is some old-fashioned positivism in his thinking (rights are either enforceable or mere expressions of moral views), but I'm curious to find out what I might have missed or got wrong.      

My perfect cousin

Hacker objects to certain combinations of words on the grounds that they haven't been given a sense. But what if we give them a sense? His way of doing philosophy is not obviously equipped to deal with this possibility (I'm not saying that he couldn't deal with it). But there are innovations, as Fleischacker describes in his book. For instance, the law can grant people certain rights and then morally justified (but not legally defensible) claims might be called rights in what Adam Smith called "a metaphoricall sense" (Lectures on Justice p. 9, according to Fleischacker p. 27). We can accept this metaphorical use of the word "rights" or we can reject it as nonsense. If accepting it seems to threaten confusion then we can distinguish between, say, perfect and imperfect rights, as Smith, Hutcheson, and Pufendorf did. Dismissing such talk as nonsense is not something we can do without either failure to remember, or to see, that innovation is possible (and allowed) in language, or else to take an evaluative stand (which, of course, is also allowed), as Bentham does.

As Fleischacker remarks,

For Hutcheson and especially Smith, these "imperfect rights" did not much resemble their perfect cousins, did not, in particular, lend themselves well to legal formulation.

But they do lend themselves to a musical segue.