Showing posts with label constitution. Show all posts
Showing posts with label constitution. Show all posts

Saturday, August 13, 2016

On Moral Progress

 Faculty Research Presentation

March 2, 2016



“The fox knows many    things, but the hedgehog knows one big thing.”

---- Archilochus -- Greek Poet ca. 690-645   BC



The Oxford philosopher Isaiah Berlin wrote an essay in 1953 in which he used “fox” and “hedgehog” to characterize two contrasting intellectual styles. Berlin characterized some thinkers, such as Plato and Nietzsche, as hedgehogs because their philosophies were unified by a single great idea, Forms for Plato, and the Will to Power for Nietzsche. While he said that other thinkers, e.g. Aristotle, Shakespeare, and Goethe, were foxes whose intellects ranged widely over many subjects, and whose thought could not be characterized by means of a single powerful idea. (As an aside, I remember attending a lecture by Sir Isaiah while I was a philosophy graduate student at the University of Illinois in the 1970s. I do not recall the topic of his lecture, but I do remember that he stared at the ceiling, rather like this, for nearly the entire time he was speaking). I think of myself as a fox, but one who is interested in collecting great ideas. Over my career my interests have ranged widely over many topics and disciplines including philosophy of science and technology, linguistics, cognitive science, bioethics, political philosophy, philosophy of law, international relations, human rights, evolutionary biology, economics, and environmental ethics. Unlike hedgehogs who focus their research in a small subfield of their own academic discipline, I have crossed disciplinary boundaries in search of insights and tried to see the larger patterns of history in their entirety.

I am a progressive, secular humanist who believes that humans can acquire moral knowledge through experience and systematic inquiry and that moral knowledge is a necessary but not sufficient basis for moral progress. I assume that many of you also share my belief in moral progress whether or not you regard yourselves as secular humanists. The Reverend Martin Luther King Jr. often expressed his belief in moral progress by quoting Theodore Parker, a nineteenth century Unitarian minister and abolitionist from Massachusetts: “The arc of the moral universe is long, but it bends towards justice”. If we take a long view of history there seems to be evidence for the truth of this claim based upon the progress over the past several centuries made towards greater human freedom and equality, for example, by the abolition of human slavery, the women’s suffrage movement gaining equal voting rights through the Nineteenth amendment, and, most recently, the ending of legal discrimination against homosexuals as evidenced by the U.S. Supreme Court decisions in Windsor v. United States and Obergefell v. Hodges that extended the rights to inherit and to marry to same sex couples.

However, when we take a clear-eyed look at history we can also find ample evidence of moral regress. The twentieth century witnessed mass murder on an unprecedented scale, not only two disastrous world wars, but major genocides in Ottoman Turkey, the Ukraine, Bangladesh, Cambodia, and Rwanda as well as the Holocaust, in which more than 100 million people perished. These moral catastrophes should remind us of the potential for human societies to regress morally and to rapidly descend into a moral abyss of cruelty and barbarism. We are witnessing yet another catastrophic moral slide right now in Syria and Northern Iraq where Daesh has engaged in public beheadings, institutionalized rape and sexual slavery, throwing gay men off rooftops, deliberate destruction of antiquities, and genocide against religious minorities. Those of us who here today are engaged in a privileged conversation; when millions of our fellow human beings are desperately struggling to escape from extreme poverty, political repression, and violent extremism, we must not be too quick to assert that the arc of the moral universe is in fact bending the right direction.

However, we must remember to distinguish between revolutions in the “real world” and revolutions in the world of ideas. In this respect moral revolutions are very different from scientific ones. We tend to think of science as progressive because we implicitly assume that there are certain consensus values that are normatively stable for epistemic communities of scientists. In the case of science, the stable consensus values are things such as predictive power and explanatory adequacy. Einsteinian general relativity was seen as progressive over Newtonian mechanics because it could both predict and explain the curvature of light around massive objects, and (as has been recently confirmed) the existence of gravitational waves. But in science one does not need to convince the entire population of the planet of the truth of General Relativity; one need only convince members of theoretical physics community. But as concerns moral revolutions, it is not sufficient that a few philosophers become convinced of some moral truth; there must be a change in moral sentiments that becomes widely diffused within society, accepted as part of moral commonsense, and incorporated into law. So we must distinguish between two different questions about moral progress: The first is whether we have gained important moral knowledge, and the second is whether this knowledge has been widely diffused and implemented within society. The first question is philosophically prior since unless we know which of our moral ideas are progressive we cannot determine whether we are getting to where we want to go.

Progress may be understood as change for the better. We make progress when there is a change that brings one closer to a goal or ideal. Let me narrow my focus to the ideal of human equality. The examples of moral progress I mentioned earlier are milestones in the development of one of the great moral innovations of modernity: the notion that all human beings are equal in dignity and rights. In the examples of moral progress mentioned earlier, unchosen personal characteristics that were once regarded as providing a legitimate basis for discriminating among persons, one’s race, sex, and more recently, sexual orientation, gradually came to be seen as illegitimate bases for denying people equal respect and rights. Another way of describing these transformations of our moral thinking is to say the idea of equality moved us away from a stratified, and hierarchical idea of moral status in which people were assigned different statuses based unchosen personal characteristics, and towards the ideal of a single status moral community in which all persons are respected as having equal dignity and rights at birth. This revolutionary shift from a stratified hierarchical system of moral status to a flat one is the core of the human rights revolution. Although I do believe that there has been progress towards realizing this ideal in the real world – it is now widely diffused and regarded by many people as moral commonsense, this empirical claim is not the question I wish to address here today. Instead my focus will be on the prior philosophical question: Why is change towards greater equality evidence for moral progress?

One way of answering this kind of question is just to say “Well, it just is!” This may sound like question-begging, but in the realm of values, there must be some that are regarded as ultimate or axiomatic. Different moral philosophers have built their systems of ethics on different ultimate moral values, for examples, Aristotle chose eudaimonia, Kant chose dignity, and Mill and his utilitarian followers chose happiness or welfare. The particular idea of equality that I am  interested in is political equality, (sometimes called democratic equality), and is to be distinguished from economic and other forms of equality. Democratic equality is aptly described by the political philosopher Elizabeth Anderson when she says, “The proper negative aim of egalitarian justice is not to eliminate the impact of brute luck from human affairs, but to end oppression, which by definition is socially imposed” (Anderson, 1999). This view of the value of equality differs from the view known as “luck egalitarianism” which holds that “people should be compensated for undeserved misfortunes and that the compensation should come from only that part of others’ good fortune that is undeserved” (ibid.). There is a vast literature on these different understanding of equality which I will not attempt to review here. My focus will be on political equality as a moral ideal as understood in relation to systematic and institutionalized forms of oppression based upon differences of race, sex, class, caste, sexual orientation, and citizenship. Over the past two centuries or so, political distinctions based upon these sorts of personal characteristics have come to be seen as illegitimate and unjust.

It is at this point that I want to talk about my own modest contributions to this discussion. Over many years I have been developing a theory of human rights that attempts to explain how human rights arose and why they are justified as authoritative and globally applicable system of moral and legal norms. My theory of human rights is set forth in several of my publications, but most fully in a journal article from 2007 titled “Human Rights as Moral Rebellion and Social Construction,” which is currently one of my most cited publications. In this essay I develop and defend the thesis that human rights norms have arisen as normative responses to historical experiences of oppression. Taken as a whole, the system of human rights norms embodied in the contemporary human rights canon is designed to thwart known systems of domination and oppression by providing guarantees of social protection to members of society who are or may become vulnerable to specific forms or techniques of oppression. A key feature of my account is that specific human rights norms and values are viewed as having been created from the “bottom up” by means of an inductive reasoning process akin to hypothesis formation in science. Top- down theories of human rights generally begin with some abstract positive value such as freedom, equality, or dignity and attempt to derive specific rights from these values.

In contrast, bottom-up theories begin with the experience of specific forms of oppression and abuse that ”shock the conscience” or violate our sense of justice and proceeds to create norms that, if followed, would function effectively to prevent them. The initial step in the bottom-up process of norm creation is the act of moral rebellion. But the second, critical step, is the formulation of a moral norm (or norms) that if adopted would tend to prevent similar forms of abuse. Following the 19th American philosopher Charles Sanders Peirce, I call the form of reasoning that creates moral and legal norms, moral abduction.

The idea of moral status equality is the master value of the entire human rights paradigm. It is the idea found in Article 1 of the Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” The drafters of the UDHR expressed this fundamental moral principle in Article 1 in order to emphasize its status as a systemic “master value” that undergirds the entire system of human rights. The idea of moral status equality, although widely regarded as radical in earlier times, has become for many of us a tenet of moral commonsense. Even among philosophers, George Sher, a contemporary moral philosopher, notes that “One of the rare points of agreement among moral and political philosophers is that, despite their innumerable physical and mental differences, all persons have equal moral standing,” (Sher, 2014, p.74). But exactly how did this shift take place? What were the conditions under which social distinctions that were once perceived as legitimate grounds for discrimination came to be seen as immoral and unjust?

This is the question that Kwame Anthony Appiah addressed in his 2010 book The Honor Code: How Moral Revolutions Happen. Appiah says that “fundamental equality, in the eyes of morality, of all human beings “is the great modern discovery. In his view, this moral discovery came about largely by means of a recasting of the idea of “honor.” Having honor means “being entitled to respect,” but there are at least two senses in which we use this term: there is what Stephen Darwall terms “appraisal respect” in which we judge a person’s qualities or achievements relative to some standard, for instance, when we say that Roger Federer deserves honor and respect for his skill at tennis. But there is also, “recognition respect” that involves giving appropriate weight to some fact about a person, for instance, in light of an office that they hold, e.g. judge, or because of their personal identities or characteristics. Under the older honor codes that the modern idea of democratic equality displaced, persons who were recognized as female, black, or gay were accorded less recognition respect than straight, white, men.

The core of the 18th century’s human rights revolution was a rejection of this honor code, and in particular the notion that “people deserve better (or worse) treatment on account of identities that they did not choose” (185). The philosophers and revolutionaries of the European Enlightenment, both in France and in America, who championed the idea of equality did not have a clear idea of the respects in which all humans are equal, rather, they arrived at their idea of equality by means of the negative route: they were united in their opposition to inherited privilege, in particular, to the institution of the aristocracy, and to the manner in which people were treated badly “merely because they were not born into the nobility” (Appiah 127). We may tend to forget the fact that a rejection of “titles of nobility” was one of the beliefs that united the Founding Fathers. Benjamin Franklin expressed their shared belief that inherited titles of nobility were not only, “groundless and absurd, but often hurtful to that Posterity, since it is apt to make them proud, disdaining to be employ'd in useful Arts, and thence falling into Poverty, and all the Meannesses, Servility, and Wretchedness attending it; which is the present case with much of what is called the Noblesse in Europe” The Founders felt so strongly about this matter that they wrote it directly into the U.S. Constitution: “No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state” (Article I, Section 9, Clause 8).

Opposition to discrimination based upon inherited personal characteristics was not originally understood to apply to all such forms of discrimination: the propertied white men who fought the War of Independence and created the American republic could not accept being looked down upon by the “noble men” of Europe, but were at the same time pleased to elevate their own status above that of women, slaves, and men without property. But equal rights are not won by means of philosophical argument: they are only secured by means of social movements which engage in protracted political struggle. In my theory of human rights, there is a process in which rights are socially constructed by means of a series of stages. Different categories of human rights are generally found at different stages in this process, and in most cases, many rights have not yet reached the final stage of operability.

But the logic of the argument that inherited characteristics are not proper grounds for discrimination, was very useful to other oppressed groups seeking to press their case for equal respect: for women (Mary Wollstonecraft), and for blacks (Frederick Douglas, Willian Wilberforce, Harriet Tubman), more recently for gays and lesbians (the Human Rights Campaign). In each of these cases an unchosen personal characteristic came to be seen as an inappropriate ground for differential recognition respect. The 18th century’s moral rebellion against aristocratic privilege started a “justice cascade” that eventually came to include many other forms of undeserved social status privilege based upon unchosen personal characteristics such as gender, race, ethnic background, physical appearance, nationality, disability, or sexual orientation. The more general moral insight that is the core of the human rights revolution is the idea that unchosen personal characteristics ought not to be used as a basis for differential recognition respect.

We are now in a position to return to our main question “Why does the recognition that all persons have equal moral standing count as moral progress?” I believe that there are at least four good answers to this question: first, it contributes to ending systematic or institutionalized forms of oppression based upon unchosen personal characteristics, second it makes competition for social and economic goods within societies more just and fair; third, it allows for a greater number of diverse individuals to achieve the full development of their human potentials; and fourth, it promotes greater social cohesion and voluntary social cooperation within society.

Moral status inequalities are not only oppressive, unfair, and limiting, they also undermine social cooperation, because people who are stigmatized by forms of unjust discrimination are oppressed and thus become less willing to participate in cooperative social enterprises in which they have no realistic hope of benefiting. In the remainder of this talk I would like to focus on the claim that moral status equality promotes social cooperation.

In his Theory of Justice, John Rawls defines a scheme of social cooperation as stable when it is “more or less regularly complied with and its basic rules willingly acted upon” (TJ6/6). In his version of social contract theory, members of society can be induced to develop and deploy a sense of justice that will enable them to reliably and willingly accept the basic rules of justice, if and only if they regard these rules as fair in the sense that they do not provide some individuals with social and economic advantages based upon characteristics over which they have no choice. For Rawls, the observance of basic human rights is the primary condition for social cooperation. Human rights are, for Rawls, a special class of rights that provide minimum standards for decent social institutions. For all of the philosophers in the social contract tradition, facts about human nature and about the political conditions necessary for extensive schemes of cooperation within human societies, are relevant to justifying basic principles of justice, such as moral status equality.

Morals norms and laws are basically social techniques that we have developed over many centuries of living together that enable us to get along with one another in very large complex societies whose effective functioning require high degrees of sustained social cooperation. My conception of social morality is very close to one proposed recently by the moral psychologist Jonathan Haidt, who says, “Moral systems are interlocking sets of values, virtues, norms, practices, identities, institutions, technologies, and evolved psychological mechanisms that work together to suppress or regulate self-interest and make cooperative societies possible” (Haidt 2012, 314). While I think is a pretty good definition of social morality, I also think that social morality, or intragroup ethics, is only one branch of ethics.2 Nevertheless, Haidt’s claim that the essential function of social morality is to regulate intragroup competition, comports very well with our current understanding of human evolution and the place that our species occupies within the biological world. There is now good reason to believe that humans evolved to be both “selfish” and “groupish” -- “Our minds were designed not only to help us win the competition within our own groups, but also to help us unite with those in our group to win competitions across groups” (283).

The great biologist Edward O. Wilson, in a recent book with the immodest title The Meaning of Human Existence, argues that homo sapiens sapiens are one of the few eusocial species. Wilson defines eusocial species as those which “cooperatively rear the young across multiple generations. They divide labor through the surrender by some members of at least part of their personal reproduction in a way that increases the “reproductive success (lifetime reproduction) of other members” (105). Eusociality allows animal species, including ours, to excel at multilevel selection: “individual selection based on competition and cooperation among members of the same group, and group selection, which arise from competition and cooperation between groups” (154). Wilson is following in a long tradition of natural philosophers, running from Aristotle through Darwin to Aldo Leopold, all of whom viewed human morality in a biological perspective, and saw it as
embodying limitations on our freedom to pursue self- interest in the struggle for survival. Wilson believes that there was a stage in human evolution, in which intensified competition among human groups favored societies that excelled at group level selection, and this “promoted altruism and cooperation among all members of the group” which in turn led to the creation of “innate group wide morality and a sense of conscience and honor” (239). Summarizing his theory Wilson says, “The competition between two forces can be succinctly expressed as follows: Within groups selfish individuals beat altruistic individuals, but groups of altruists beat groups of selfish individuals.” (239).

The idea that humans are innately predisposed to both compete with others in their own societies and to cooperate with them when confronted by external threats, while important, is not really that new an insight into the human condition. Every demagogue and tyrant knows that they can gain a following by telling people that they are threatened by an “other.” Nor is their idea that the core function of morality is to produce stable conditions for social cooperation a new one; moral philosophers have been saying this for a long time. But what is new and interesting is the connection between honor, equality, and social cooperation. In Appiah’s view, it was the insult to honor produced by discrimination based on unchosen personal characteristics that provided the stimulus for moral progress towards greater social equality. Honor and conscience are bio-psycho-social adaptations that enable individual members of human societies to cooperate in competition with other human groups. The appeal to honor and respect relies on the evolved human desire for reputational status within one’s own identity group. The offense of feeling dishonored due to personal characteristics over which one had no control is one of the spurs to the moral rebellions that moved us towards greater status equality. But by following this idea we have discovered an important moral truth: that those human societies that embrace the value of social status equality are superior at both individual and group level selection. Because they afford every member of society equal recognition respect, they have fairer forms of individual competition within the society; and they also have better social cohesion enabling them to cooperate more effectively in competition with other societies. In others, words, given our eusocial nature, greater social equality is beneficial for humans at both the individual and group levels.

If providing the basis for a stable system of social cooperation is, as I have suggested, an enduring value against which we can measure moral progress, then we can then assert that the human rights revolution that has produced change towards greater social equality has been progressive, at least in those liberal societies that have embraced democratic equality as a normative ideal. However, the human rights revolution remains an unfinished project. it is obviously unfinished as long as the majority of the world’s people still live in traditional societies in which status discrimination based on sex or race or other unchosen personal characteristics remains the norm. But it is also unfinished because the human rights movement has not yet successfully addressed all of the norms and institutions that undermine trust and social cooperation both within and between human societies. If we wish to make further moral progress in the 21st century the question we must ask is: “Which of our current social norms, values, and institutions are not conducive to our maintaining a stable system of global social cooperation?”

There are several good candidates, but I want to focus attention on one unchosen personal characteristic on which we continue to discriminate, the country in which one happens to be born. The migrant crisis in Europe, South Asia, and elsewhere reveals a fundamental form of injustice in our current institutional arrangements based upon sovereign territorial nation states: in our globalized world capital and goods can more freely across national borders than people can. In fact, the current exclusionary system based on birth or inherited citizenship is a form of global apartheid in which millions of persons are prevented from moving freely around the planet in search of political asylum, refuge, economic opportunity, and a better life for themselves and their families. If it is wrong to discriminate against individuals because of unchosen personal characteristics such as their race or sex, why is it not also illegitimate to discriminate against people because of their parent’s citizenship or the place of their birth?

For a cosmopolitan progressive like me, the struggle for human equality must now confront issues that limit the full development of human potentials and undermine the bases of social cooperation globally. This is a very daunting challenge because the moral and legal norms that support the current system of sovereign nation states and a capitalist political economy are deeply entrenched in the popular moral conscience, and there are powerful interests which are fighting vigorously, and often unfairly, to protect their power and privilege. But this should not stop us from trying. Our current form of civilization, based upon industrial mass production driven by the unrestricted burning of fossil fuels for energy, has powered rapid economic development, but has also destroyed ecosystems, driven other species to extinction, and is disrupting the global atmosphere and hydrosphere in potentially disastrous ways. More than ever before in human history, we need to cooperate as a species in order to voluntarily limit our competition with other species and our unsustainable exploitation of the ecosystems upon which all life depends. We also need to promote greater international cooperation to address other threats to our own well-being and that of other species, such as preventing war and terrorism, rescuing people fleeing from conflict or famine or political repression, and more equitably sharing the benefits of economic cooperation among people and the nations of the world.

Human survival and flourishing requires now that we forge a set of moral norms and values, and an accompanying legal framework, that enables us to cooperate not only the group level, nor only at the society level, but internationally, and globally – also at the interspecies level -- in order to solve the problems of living that we face in Anthropocene Epoch. We are on a difficult and perilous part of our journey, one in which we face many threats and challenges.

Humans have been able to progress morally in large part because of our ability to create knowledge, an in particular, to fulfill the Socratic dictum “Know Thyself” and this ability gives me some hope that we can overcome these challenges and survive and continue to flourish as a species among others on this planet.




March 2, 2016




Works Cited


Anderson, Elizabeth. “What is the Point of Equality?” Ethics, Vol. 109, No. 2 (1999): 287- 337.

Appiah, Kwame Anthony. The Honor Code: How Moral Revolutions Happen. New York:
W. W. Norton, 2010.

Haidt, Jonathan. The Righteous Mind: Why Good People are Divided by Religion and Politics. New York: Vintage, 2012.
Rawls, John. A Theory of Justice. Cambridge MA, Harvard University Press, 1971,1999. 
Sher, George. Equality for Inegalitarians. Cambridge University Press, 2014
Wilson, Edward O. The Meaning of Human Existence. New York: W. W. Norton, 2014. 
Winston, Morton. “Human Rights as Moral Rebellion and Social Construction.”  Journal of
Human Rights, Vol. 6 (2007): 279-305.

Saturday, November 22, 2014

Princeton Library Lecture
 November 18, 2014
Human Rights and Social Justice

I am honored to have been invited to speak today in the Princeton Public Library's NEH-funded 2014-2015 "Spotlight on the Humanities" series. The theme for this year’s lecture series is Justice, Ethics and Public Life. As it happens, this year’s campus-wide theme for TCNJ, where I teach philosophy, is also “Justice.”  I am currently teaching a freshman seminar on social justice and social entrepreneurship. In the spring I will be leading an interdisciplinary faculty-student research seminar on this same theme. So this is my “justice year.”

Last month I took my freshman students on a field trip to Philadelphia where we spent several hours at the National Constitution Center before repairing to a local restaurant to eat lunch and discuss what we had learned. I had given them an assignment before the trip, which was to compare the individual rights recognized in the Bill of Rights (and the subsequent amendments) with those recognized in the Universal Declaration of Human Rights and in the constitution and bill of rights of one other nation. The discussion was lively and the students had many observations to share about rights found in other constitutions but not in ours, and also rights found in our constitution but not in others. Google has made it easy to carry out this kind of comparative constitutionalism by partnering with the University of Texas at Austin and several others to create the website: ConstituteProject.org. 

In our discussion I drew attention to the famous and often imitated Preamble to the U.S. Constitution which reads: “We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” Fine sounding ideals, but the devil is, as they say, in the details. In particular, what does Establishing Justice involve? How can we determine whether or not we have succeeded in establishing it?

Philosophers from Plato to Rawls have been theorizing about this question and they have as you might expect produced a rich literature on the topic. It is far too expansive a literature for me to attempt to summarize it here, so I will simply cut to the chase and offer my own definition of a Just Society:

A just society is one in which all members of the community have reasonably secure enjoyment of all of their human rights.

The tag line “All human rights for all.” was the slogan of the 50th anniversary of the UDHR in 1998 (and is also the title of a recent book on the subject of human rights by Manfred Nowak). In the nearly seven decades since the end of the Second World War no philosophical idea has had a more profound impact on international relations and world politics than the idea of human rights. The idea of human rights, and the accompanying canon of international declarations, treaties, and conventions, which now number more that eighty, is the closest thing we presently have to a to a global standard for social justice.

It is a global standard for social justice in at least two senses. First the contemporary human rights canon articulates a set of universal normative standards that are to be used as a benchmark to assess many of the most important aspects of social justice. It is, in the words of the UDHR, a “common standard of achievement for all peoples and all nations….” Human rights are commonly understood as being those rights which are inherent to the human being. The concept of human rights acknowledges that every single human being is entitled to enjoy his or her human rights without distinction as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Human rights are inalienable, in that no one can have his or her human rights taken away; although they can be limited in specific situations (for example, the right to liberty can be restricted if a person is found guilty of a crime by a court of law). Human rights are held to be indivisible, interrelated and interdependent. The interdependence of human rights is the reason that it is insufficient to respect some human rights and not others. In practice, the violation of one right will often affect respect for several other rights. The contemporary human rights framework provides a template against which one can assess how well different societies do in protecting core social values such as the liberty, equality, security, and dignity of the human person. 

Secondly, the shared belief in human rights is the basis of a global ethical consensus among liberal states, which is shared to a certain extent also among illiberal, authoritarian states, about the requirements of a just world order. This consensus is thin and frayed on certain issues, while in others it is fairly robust; it is, to borrow a term coined by John Rawls, an “over-lapping consensus,” since not all states agree on the relative validity and importance of all of the things that are claimed to be human rights. This should not be surprising since the term “human rights” now signifies a rather large number of distinct ethical and legal norms concerning a large number of social justice issues.

A recent book on human rights [1]has a section titled “Selected Human Rights” including chapters devoted to the following topics: the right to equality and nondiscrimination, the right to life, the right to an adequate standard of living, the right to health, the right to education, the right to work, the right to social security, prohibition of slavery and forced labor, prohibition of torture, right to judicial protection, right to privacy, rights to freedom of expression, assembly, and association, freedom of religion, right to political participation, right to property, and the right to national self-determination.  There are also chapters on the human rights of especially vulnerable groups: children, persons with disabilities, people living with HIV/AIDs, ethnic minorities, LGBT people, indigenous peoples, refugees, and detainees. Even this list does not convey fully the breadth of the contemporary human framework, because unlike some older philosophical theories of justice, the idea of human rights is not a relic in the museum of ideas – it is a dynamic, evolving, and contested ethic-legal paradigm, one that has practical applications by which contemporary forms of injustice can be judged.

The contemporary human rights paradigm has several important roles in moral and political discourse. As Philip Alston noted in a recent Op-Ed in the Washington Post:

….rights language provides a context and a framework, invokes states’ legal obligations, underscores that certain values are nonnegotiable, brings a degree of normative certainty, and makes use of the agreed interpretations of rights that have emerged from decades of reflection, discussion and adjudication. Most important, rights language recognizes the dignity and agency of all individuals and is intentionally empowering.

The primary aim of human rights discourse is to open up domestic policy issues within particular countries to scrutiny by other countries and their citizens, and to assess them by means of common international standards.

Let me illustrate this function by means of a recent example here in the USA – the shooting of Michael Brown in Ferguson Missouri in August. Despite the huge amount of new coverage this tragic event had in the American media, few Americans are probably aware of the way in which it was viewed by citizens in other nations and by domestic human rights NGOs.

Amnesty International issued a report on this incident, On the Streets of America: Human Rights Abuses in Ferguson (October 2014) which called into question the constitutionality of the Missouri statute concerning the use of lethal force by police officers. It also pointed out that the Missouri statute is not consistent with international standards concerning the use of deadly force set out under the UN Code of Conduct for Law Enforcement Officials and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. According to these standards: 
International standards provide that law enforcement officers should only use force as a last resort and that the amount of force must be proportionate to the threat encountered and designed to minimize damage and injury.  Officers may use firearms as a last resort – when strictly necessary to protect themselves or others against the imminent threat of death or serious injury. The intentional lethal use of firearms is justified only when “strictly unavoidable in order to protect life.” (p. 2)
The law in the state of Missouri, however, states that:
 ….a law enforcement officer carrying out an arrest or attempting to prevent an escape from custody is justified in using deadly force only when specifically authorized; or when he or she reasonably believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested has committed or attempted to commit a felony; or is attempting to escape by use of a deadly weapon; or may otherwise endanger life or inflict serious physical injury unless arrested without delay.
The Missouri stature clearly does not restrict the use of deadly force to cases in which it is strictly unavoidable in order to protect life, but allows it to be used when an officer “reasonably believes” it is necessary to effect an arrest, which is contrary to the international standard which says that “a fleeing thief who poses no immediate danger must not be killed even if that means the thief will escape.”

Some people might react to this criticism, by saying “So what?” America is a sovereign nation that makes its own laws, and we do not have to be held accountable to international legal standards in this or any other matter. But the Amnesty report also cites a decision by the US Supreme Court in which a state law similar to Missouri’s was struck down as unconstitutional: 
The US Supreme Court in Tennessee v. Garner held that Tennessee’s use of deadly force statute was unconstitutional, noting that “Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so ... A police officer may not seize an unarmed, non-dangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.”
 The Amnesty report provides a powerful critique of the current law in Missouri, and concludes by recommending that the US Department of Justice: “Review and revise guidelines to law enforcement agencies on the policing of protests to ensure that there is compliance at all times with international human rights obligations and with international standards on policing…” (21). This example reveals what was so disturbing about this incident in the minds of many Americans, namely that the fatal shooting of an unarmed black teenagers by police should be illegal. It is not a matter of “white privilege” that the police do not often shoot unarmed white teenagers; rather it is a case of the violation of the human right to equal treatment under law of African-Americans that they frequently are unjustly killed in this way. The case highlights the unequal protection of the law, and also the need for legal reform.

This use of human rights has been highlighted in the writings of moral and legal philosophers such as H.L.A Hart and Amartya Sen. Hart saw human rights as the “parents of law” in the sense, that human rights concerns have often provided the motivation for specific legislation or legislative reform. Examples of this are not hard to come by: think of the women’s suffrage movement of the 19th century, the civil rights movement of the 20th century, and the contemporary LGBT rights movement: each of these social movements has invoked the idea of universal human rights as the basis for criticizing existing law, and for pointing the direction for new and more just legislation.

But as Sen notes, “The effectiveness of the human rights perspective does not rest on seeing it invariably in terms of putative proposals for legislation” (The Idea of Justice, 365). The means of advancing human rights need not always take the form of making new law; as ethical claims, human rights norms can also be fruitfully employed as means of moral persuasion by means of advocacy and informed public discussion, involving what Sen calls “open impartiality.” Sen explain this concept by invoking Adam Smith’s idea of an “Impartial Spectator” who advises that we should view our own moral sentiments and intuitions as they might be seen by a moral observer who is at “certain distance from us” and so does not share our same cultural biases, prejudices and customs. It is necessary to strive to gain this impartial perspective in order to be open to possibilities that would otherwise elude our imaginations. Just as Aristotle, brilliant as he was, could not free himself from the ancient Greek cultural norm that women and slaves were naturally inferior persons, so we must guard against cultural parochialism in assessing our own moral beliefs.  Human rights norms provide a way for us to do this.

Allow me to illustrate this aspect of human rights by means of some examples. As many of you may know, every year since 1977 the U.S. Department of State has compiled and published reports on the human rights conditions found in virtually every nation. The most recent report, covering 200 countries and territories for the year 2013 (which can be found here), documents the killings of civilians in Syria, unsafe working conditions in garment factories in Bangladesh, use of excessive force by Egyptian security forces, and laws curbing freedom of expression in Russia, China, and Vietnam, among many other human rights concerns. As someone who has been reading these reports for approximately 30 years, I can attest to the fact that they are well-researched, detailed, and often accurate in their assessment of the human rights conditions in many countries. However, there is one country that these reports do not cover, namely the United States.

A number of other countries that have objected to the United States government compiling an annual critique of their own governments’ human rights records have begun publishing critiques of the US government’s record on human rights. The Peoples Republic of China, for example, issued a stinging critique of the state of human rights in the USA in March 2014.  It begins with the following: 
The State Department of the United States, which posed as “the world judge of human rights,” made arbitrary attacks and irresponsible remarks on the human rights situation in almost 200 countries and regions again in its just-released Country Reports on Human Rights Practices for 2013. However, the U.S. carefully concealed and avoided mentioning its own human rights problems. In fact, there were still serious human rights problems in the U.S in 2013, with the situation in many fields even deteriorating.
The Chinese report goes on to describe abuses such as mass killings, (Sandy Hook), government surveillance (PRISM), solitary confinement, high unemployment, child labor, homelessness, racial discrimination, torture, indefinite detention (Guantanamo), and violations of the human rights of people in other nations (irregular renditions and drone strikes). It should be obvious that the Chinese report is intended as propaganda, but nevertheless, many of the concerns it raises can also be found in the reports of more impartial critics.

In order to get to a position of “open impartiality” on the human rights problems and issues in this country one has to look to other sources. Let me briefly discuss the topics of the most recent Human Rights Watch report and on human rights in the USA and the section on the USA in the Amnesty International Annual Report
The Human Rights Watch report (January 2014) mentions the following human rights issues and concerns in the USA:
·       Extensive government surveillance and infringement of privacy rights
·       Harsh sentencing guidelines and high rates of incarceration.
·       Continued use of the death penalty.
·       Racial disparities in the criminal justice system.
·       Rape and sexual abuse in US prisons.
·       The criminalization of poverty and homelessness.
·       Sentencing juvenile offenders to life in prison w/o the possibility of parole.
·       Abusive conditions in immigrant detention centers
·       Child labor on American farms
·       High levels of sexual violence against women and girls.
·       Indefinite detention of detainees at Guantanamo.
·       Continued secrecy concerning the CIA’s post-9/11 interrogation practices.
·       Lack of judicial oversight for President Obama’s policy of targeted killings abroad, and
·       Harsh prosecutions of whistle-blowers such as Chelsea Manning and Edward Snowden.

The Amnesty country report on the USA for 2013 expressed many of these same concerns, but added lack of accountability (impunity) for crimes under international law committed during the George W. Bush administration, and excessive use of force by police. Both reports also noted some positive developments, such as the abolition of the death penalty in Connecticut, New Jersey, and Maryland, and the US Supreme Court rulings striking down the Defense of Marriage Act and upholding the central provisions of the Affordable Care Act. 

Another window on how the human rights record of the United States is seen differently by people here in America and by “impartial spectators” applying the human rights framework can be had by reviewing Periodic Review Report of the USA under the human rights council, and the response to its report. Since 2006 when the old UN Human Rights Committee was replaced by the Human Rights Council, state members of that body have been obliged to submit periodic reports detailing their compliance with human rights standards. The USA underwent its first universal periodic review in 2010. Its second UPR is scheduled to be delivered to the UN HRC on January 19, 2015.

The 2010 report was written from the perspective of the first two years of the Obama administration, and unsurprisingly trumpeted some of the legislative accomplishments of that period. After some introductory remarks about how the USA was founded on the same ideals of human dignity and inalienable rights as those that form the foundation of the international human rights framework, the report goes on to detail how in the effort to “form a more perfect union” with liberty and justice for all, the government of the USA has enacted: the Lily Ledbetter Fair Pay act of 2009, the Matthew Sheppard and James Byrd Hate Crimes Prevention Act of 2009, the American Recovery and Reinvestment Act, and the Affordable Care Act. It also highlights the president’s executive order ending unlawful interrogation methods and his intention to close secret CIA detention facilities and Guantanamo. The report ends by noting that “Delivering on human rights has never been easy, but it is work we will continue to undertake with determination, for human rights will always undergird our national identity and define our national aspirations.”

At the same time the State department was preparing its report, the UN HRC was also accepting comments and recommendations from domestic human rights NGOs. These comments were compiled into a report published by US Human Rights Network and a summary of these comments was published by UN GA on 10 October 2010. This shadow report by the USHRN gives a rather different picture of the state of human rights in the USA. Here are a few highlights: Amnesty International noted pointedly that the United States had not ratified a large number of international human rights treaties nor ensured their implementation into domestic law including CEDAW, CRC, ICESCR, OPCAT, the International Convention for the Protection of All Persons from Enforced Disappearance, the Rome Statute of the International court, the American Convention on Human Rights, and the Vienna Convention on the Law of Treaties.

The USHRN noted that the US lacks an independent human rights commission to monitor compliance with human rights standards or an effective mechanism designed to ensure a coordinated approach towards the implementation of human rights at the federal, state and, local level. The United States is the only developed Western nation that does not have a national human rights institution. Over 100 countries have them, but not the USA.

American Bar Association (ABA) noted that current US prohibitions of torture lack sufficient status in law, are unclear, and their implementation lacks transparency. In ratifying CAT and the ICCPR, the US attached reservations stating that it “considers itself bound by the obligation … to prevent ‘cruel, inhuman or degrading treatment or punishment,’ only insofar as [that] term … means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments” to the US Constitution, which have sometimes been interpreted so broadly as to permit practices such as water boarding which have been consistently regarded as torture under international law.

PEN recommended restoring full privacy protections by ending dragnet and warrantless surveillance. Other recommendations concerned topics such as: Indigenous Peoples, Immigrants and Asylum seekers, Equal Access to Health Care and Education, inadequate housing, unsafe working conditions, and counter-terrorism policies and practices. 

Taking these submissions together with the official US PRR, the Working Group led by France, Japan, and Cameroon, compiled a report on US compliance that included 228 specific recommendations for improvement many of which were based upon the NGO civil society submissions.

In responding to the judgment of the UN Working Group, a somewhat chastened Harold Hongju Koh, who was at the time serving as the chief legal adviser to the US Department of State, concluded his summary of these recommendations by noting: “In closing, let me express our deep appreciation to our own civil society for continuing to work with us to achieve a more perfect union. Civil society has made invaluable contributions to our UPR report and presentation and will continue to be our partner as we consider these many recommendations.”

Both the US DOS submission for 2015 and a shadow report compiled by the US HRN are currently being written. It will be interesting to see how they agree and disagree about the state of human rights and social justice in this country in 2014.

Allow me to conclude with a few caveats. First, I do not wish to oversell the idea that human rights can be seen as a template for assessing social justice. While the human rights framework does cover a great many topics and issues that are reasonably regarded as matters of social justice, it does not (and does not aspire to be) a complete theory of social justice. Human rights are paradigmatically equal rights, and while equal rights are important elements of any theory of social justice, there are also social goods, such as wealth, income, status and other competitive goods that are and should be distributed unequally. For instance, tax policy can be seen as a matter of social justice, but the human rights framework is almost completely silent on this topic. It is also largely silent on the many questions and issues that have to do with the institutional mechanisms for delivering on human rights norms and standards. For example, the ICESCR does tell us that: "Article 12 -  1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health". But it does not specify how enjoyment of that right is to be delivered, whether health care should be delivered by means a national health service as in the UK, a national health insurance system as in Canada, by a mixed public/private system such as we have here in America, or by means of any other particular institutional scheme.

Surely questions about wealth and income inequality, taxation, and institutional reforms are legitimate questions of social justice, but they are not within the scope of the human rights paradigm. The current debate about high level of income and wealth inequality sparked by the Occupy Movement and books like Thomas Piketty’s Capital in the 21st century, are certainly issues about social justice, but the human rights framework says nothing about such matters.

The current human rights paradigm is also mainly silent on questions of environmental justice, for instance issues such as climate change, species preservation, biodiversity, and ecosystem protection. However, there are some theorists who are currently looking into these questions from the perspective of human rights.

Finally, it should be noted that the idea of human rights does not provide a utopian vision of a perfectly just society. When I said at the outset of this talk that my idea of just society is one in which all members of the community have reasonably secure enjoyment of all of their human rights, I did not mean to suggest that I expect there will ever be perfect compliance with all human rights norms and standards. What one can expect is “reasonably secure enjoyment and access to remedy.” This means that most people will feel secure in the enjoyment of their human rights most of the time, and that when violations and abuses occur, as they certainly will, those persons whose rights have been denied  can access to effective remedies. Human rights are not a type of perfectionist ethic which supposes that the goal of social development is to make every society maximally just. Instead, human rights is really a kind of minimalist ethics that attempts to articulate the necessary conditions that a human society must meet in order to be considered minimally just and decent. When understood in this way, the idea of human rights still present a stiff challenge to contemporary societies, one that few, if any, contemporary society has adequately met.

Morton Winston
November 22, 2014





[1]        Manfred Nowak, Karolina M. Januszewski, and Tina Hofstatter  All Human Rights for All: Vienna Manual on Human Rights.  Intersentia, 2012.