At the Volokh Conspiracy, Jacob Levy critiques Amnesty International for collating and enumerating human rights violations without reference to the particular political system in which the violations occur.
I can see where he's coming from: some systems enshrine principles of human rights, and therefore help to propagate certain cultural values of human rights, and so forth. Failure to recognize this can seem like wilful blindness to the political structures that promote respect for human rights. And I think you can argue that given what we know about the expected outcomes of various political systems, this failure can be negligent in the extreme when it comes time to advocate for one political system over another. Claiming indifference when comparing a benign dictator with a democracy because they have the same number of human rights violations in a year is negligient because the structural risk of future violations is so much higher in a dictatorship.
Levy may also want to be making a deeper claim (It's hard for me to tell, based on what he wrote) that the mere possession of certain kinds of state power by the benign dictator is itself immoral, even if said dictator never decides to use it. Since we all possess powers to commit crimes that we choose not to commit--and in fact, that's what constitutes a moral choice--I don't think it's the mere possession of the power that would be the problem here, but the fact that that power is arrogated to the state. Or the dictator. L'etat, c'est moi, and all that. That would seem to be a claim that one of the human rights we're talking about is the right to govern one's own community, rightly or wrongly, just as one has a more immediate right to govern one's body or life, rightly or wrongly. Many times it is argue that there is a separate benefit, a moral benefit, gained when one freely chooses the right thing, as opposed to being compelled to do the right thing, or, as Kant would have it, having a strong natural inclination to do the right thing. But I don't think you need to believe in that to get at what I'm talking about here. Necessarily. What I'm talking about here is the idea that being prevented from having a free choice is a wrong in itself. The reason these two positions are not the same is that there's no obvious moral good to choosing chocolate ice cream over strawberry, but one can see the possibility of being harmed by being forced to choose chocolate when strawberry is an equally available and appropriate option. Simply put, dictatorships are bad in themselves because you're not free, and Levy doesn't like that AI seems not to be interested in that.
There are two things that bother me about this critique.
1. It's very difficult to talk about the relative objective merits of political systems without having a common set of political values to begin with. Every government constrains freedoms to some degree or other in the name of preserving other freedoms, and the legitimacy of a hierarchy of freedoms depends directly on a hierarchy of values. An example that weighs on my mind nearly all the time is the balance between freedom of speech and threatening or libeling a group. In the United States, there is a long-standing tradition of placing the right to speak above threats or libels aimed at a group unless specific individuals can demonstrate concrete harms. (The case law is actually kind of convoluted, but that's sort of the net result we get.) Whereas in Canada and in Europe, group threats and libels can be regulated. In France or Germany or Canada you can face charges for simply denying the Holocaust, even without advocating any violence, something that is pretty much unthinkable in the United States, for better or worse. An absolutist would be tempted to argue that one of these is a human rights violation and the other isn't, but I'm not sure that doing that in every case is a useful understanding of what makes a human right different from a policy goal. And even if one of them is a human rights violation, I don't think there's consensus on which one it is. But you have to have that kind of consensus if you want to assert that one system is obviously better than the other.
One may be inclined to say that one can't compare such tiny discrepancies among industrialized democracies that agree on a great many other things to the fundamental philosophical disagreements between such democracies and, say, a Marxist-Leninist dictatorship. And I would agree that from where I'm standing, some differences seem much bigger than others. But whenever I read or hear defenses of Marxist-Leninist dictatorships, I am always struck by the fact that their defense comes in moral terms, only balancing the relative rights and benefits of individuals in a different way. "If we don't imprison bourgeois intellectual counter-revolutionaries, the capitalist imperialists will enslave us all!" and so forth. Is such a government "built on and centrally dedicated to the violation of human rights"? It's hard to imagine a government predicated on violating human rights for its own sake. Maybe an autocracy run by a sadistic sociopath would be like that. But it seems to me that most violations of human rights occur either in the name of some ideal or other, some ill-defined notion of state security, or out of self-defensive incompetence (the Brazil scenario).
To me, what this means is that if AI is going to take an absolutist position on human rights, it has to stay out of the debate of the relative merits of political systems as long as violations are taking place. Otherwise they will find themselves mired in the debates about what sorts of situations merit what sorts of violations, and they will be open to charges of double-standards and favoritism. It's not that they are saying that all governments that don't violate these basic human rights are equally defensible, or even that political structures don't matter. There just has to be a baseline for what constitutes a violation.
If Levy, as he seems to imply, doesn't agree with AI on what those basic always-inviolable human rights are, then it's no surprise that he's dissatisfied with their general positions. But even if he didn't, I think he needs to understand that AI's position is that protecting these basic human rights precedes all other political arguments. I
2. But I have a deeper objection: I do think it can be legitimately claimed if your political system derives its legitimacy from its ability to defend human rights, but results in human rights abuses in a regular or consistent manner, then maybe it's not as legitimate as you think it is. Tallying human rights abuses blindly with respect to the purported goals of a political system, instead looking only at results, is therefore useful in a very directly empirical way when evaluating political systems. I think it's very easy in political theorizing to end up more concerned about having an elegant theory than the real-world outcomes. If you genuinely care about human rights you want unflinching, unbiased reporting, and if you believe that your political system derives its authority from its ability to defend human rights, then it seems to me that you have to take what an unflinching reporter says seriously.
I have heard liberal democrats get annoyed when AI reports on human rights violations in their respective liberal democracies because it seems to give ammunition to anti-democratic forces, who then use it to bolster their own claims of legitimacy ("We will save you from capitalist imperialism!") or maybe use it to show that all governments are illegitimate in this respect and wouldn't you rather just live somewhere you can be well-fed?
But I don't see how you can have it both ways. Too often liberal democrats act as if it is a priori obvious that their system is the most just. If your political system's legitimacy comes from its defense of human rights, then you had better defend them, and not be surprised by charges of hypocrisy when you fail. And isn't that an opportunity to shore up your legitimacy, by taking the criticisms to heart and remedying the situation?
Moreover, I think AI's stance of simple reporting without judging political systems or ideology reflects a truth that I think most people concerned with the idea of individual rights would acknowledge: if you're being tortured, executed, or imprisoned for your convictions, the harm done doesn't depend on the loftiness of the ideals of your captors. Most people with ideals think their ideals are lofty, anyway. That's what makes ideals so dangerous.
After all that, I do think that while liberal democracies do better than many other forms of government (and I'm hard pressed to think of a better one) there do seem to be failures that are indeed systemic and structural. For instance,while democracy mitigates the tendency for majorities to victimize minorities, it does not eliminate this tendency. Stigmatized minorities can suffer greatly as majorities, responsible for holding state power accountable, look the other way. In the meantime, the majority may even legitimize this practice as the will of the majority. This is Indeed, what seems to matter more is the degree of stigma rather than the size of the minority. Consensus government also can make remedying human rights violations a slow and difficult battle. Finally, (and I'm probably leaving out some) the ultimate failure mode of a democracy is that it can vote down the very idea of human rights, something that has happened in the past.
I'm interested in identifying these failures. Hence the title of this blog.
--Melissa O, at 19:56