What counts as a human rights violation? Or, alternatively, What counts as a fundamentally illegitimate government action?
These are very important questions. Answering them is a condition of our capacity to understand and critique political authority.
I think there are two basic and distinct approaches to these questions, one moral and the other political. While the moral approach has its inherent appeal, I am no longer convinced that it can be sustained. Its answers and the methods by which it arrives at them are, so to speak, too facile. As applied to the current controversy over America’s interrogation regime, for example, its argument is too short: torture is morally impermissible; therefore, it is politically illegitimate. On the other hand, the political approach, though it arrives at the same negative conclusion, avoids this problem by correctly bringing more considerations into the fold while at the same time, in a way I’ll describe, integrating the moral point of view--but in a subordinate role to which morality is not accustomed. I'm not entirely convinced by the political approach, and neither am I entirely clear what it involves, but it strikes me as more relevant and applicable to our heterogeneous political world.
The most common approach to human rights is expressly moralistic. It rests on a moral picture of human beings, and sets to answer our questions by reference to violations which would undermine or constrain human beings (as painted by that picture). This approach is moralistic partly because it places moral characteristics front and center, particularly dignity and autonomy. Additionally, the approach wants to understand the concept of human rights as a moral concept. The study of human rights is fundamentally the study of a part of morality; and, the application of a human right requires only a recognition of the relevant moral principles in conjunction with a perception of the salient moral reasons.
On this approach, all one needs to evaluate the legitimacy of a political decision is to know its moral standing.
For some time now, I’ve found this moralistic approach laudatory. The connection between morality and a human rights violation, crudely put, is this: a political activity constitutes a human rights violation whenever it expresses a morally illegitimate exercise of political authority. This formula allows us to arrive at an assessment of political activities in a ‘pure’ manner, expressly setting aside all irrelevant considerations, i.e. all non-moral considerations. Moreover, since morality takes itself to apply everywhere rational activity exists, the approach’s scope is basically total and unconstrained. That is, anyone can transport the moral viewpoint, correctly construed, and use it to judge political activity wherever and whenever it exists.
As operating on political institutions and its activities, the moralistic approach has the great and heavily advertised advantage of being outside of what it judges. Often and clearly so, this is the correct standpoint. For example, this external view constrains the human tendency to exaggerate the weight and importance of self-serving considerations, e.g. nationalistic ones. Another advantage is morality’s integrity or holism. The univocal nature of its pronouncements and its refusal to countenance compromise are what make morality so beautiful and appealing.
This is nicely exemplified, for example, in the character of Socrates. Unlike all true statesmen, Socrates cares little that a political decision is necessary to save the state if that decision is, judged from the standpoint of the moral virtues, wrong. He couldn’t make any such decision because, being the virtuous man he was, he couldn’t see the reasons in favor of it. Most of us understand Socrates’ moral incapacities as virtues, and we have a strong tendency to judge political life from this perspective. We recoil, for example, when we witness President Obama’s evident betrayal of Senator Obama’s promises on government transparency. We applaud, on the other hand, the alacrity with which he announced the closure of Guantanamo (but, let us not forget, not Bagram). Here the expressions of blame and praise spring from the same moral source. Just as lying for political gain warrants moral repugnance, curbing torture deserves moral praise.
Our admiration for Socrates’ integrity should not blind us, however, to what it sacrifices. In particular, Socrates understood that he could never be a politician. He predicted that his inability to compromise, operating within the political, would have meant an even quicker death than he actually suffered. We can learn something here. I believe Socrates rightly sensed the deep incompatibility between moralism and the political. His a(nti-) political stance isn’t just a peculiar fact about himself, it belies the thought that the political can be adequately evaluated by just the moral standpoint. If so, then the moral incapacities which are so valuable to correct individual behavior become vices in political decision-making.
Is there another approach?
The philosopher, Bernard Williams, constructed a concise, expressly political, formulation of what constitutes a fundamentally illegitimate policy: (roughly) any governmental policy the effect of which makes the existence of government worse than its absence. Government exists to solve and resolve certain basic social problems; but, when its policies make government appreciably worse than the problem, that amounts to a paradigm case of a human rights violation. In short, when political authority approximates unmediated coercive power, we have an illegitimate exercise of state power; we have a human rights violation.
It is a weakness of our current human rights regime that, philosophically, it is grounded in moral concepts like human dignity and autonomy. Although morally powerful, these concepts are politically stunted (especially in America which has made no explicit use of them). Williams’s political formulation avoids this problem because, like his ethical approach in general, it embraces minimalism and avoids moralism. It does this by working only with concepts like power, coercion and authority. These are taken to be non-moral concepts which nevertheless any conceivable political construction must employ. Even if it is true that criminals or terrorists have no dignity, and that no accommodation is made for an individual's moral autonomy, we can still hold that, in its ambitions, a government can overreach and, in taking action, make itself more monstrous than the problem its ambitions attempt to resolve. Anyone can make this comparative judgment, irrespective of their substantive moral standpoint.
Even an amoral fanatic like Dick Cheney recognizes this. You can see it in how he defends the interrogation regime no doubt he had a hand in shaping and making into policy. In numerous interviews, Cheney virtually contemns moral considerations emphasizing instead the mantra that his methods directly helped thwart untold (literally, since the details of the supposed upside were, and continue to be, conveniently classified) number of attacks. If he's telling the truth, it would at least render intelligible how Bush’s government did not make itself worse than the problem. This is true even if it does not make the regime any more morally acceptable, for his is not an attempt at moral justification. Cheney’s defense is expressly political and offers a story (Williams calls this type of story a legitimation story) for how an interrogation regime can take the shape his did and yet maintain its legitimacy. In particular, this story places great stress on the necessary connection between these policies and the basic responsibility of government to protect its citizens.
As I suggested, the moral approach to assessing a Cheney-style legitimation story is too quick. Since no decent human being could help but arrive at the conclusion that torture is morally repugnant and hence wrong to do no matter the context, adopting this viewpoint leaves us with the puzzle of how a regime taking this shape could sustain itself over so many years and even after the facts about the nature of the interrogations have been known for nearly 5 years. Since ignorance of the morally relevant facts is not at issue, the only way out of the puzzle is to point to a virulent moral weakness induced by fear. For reasons I cannot get into, I find this utterly implausible.
The political approach’s evaluation goes beyond a narrow moral assessment of the interrogations themselves. It takes in all the political conditions required to make interrogations of this type possible. In the case of our torture regime, here are some of them. At the highest levels of government (not to mention the lower levels), generally there existed a pervasive and mendacious secrecy; unendingly imaginative forms of obfuscation and, when these failed, outright lies were told to Congress, to the courts, to foreign governments, to domestic and international organizations, and to the American public; powerful and influential members of Congress colluded with the executive to maintain the regime as well as pass laws designed to offer legal cover for its criminal acts; international covenants the US ratified were repeatedly violated and, in general, our moral and legal obligations were repeatedly and maliciously ignored, thereby making a mockery of international law; when they weren’t kept completely in the dark, institutions like the press, the OLC and the DOJ were subverted and/or used to propagandize; and, in sum, the domestic law and, really, our entire legal tradition was turned on its head and perverted.
All this is interconnected and interlocked to support the government’s project to manufacture the authority needed for its interrogation regime. When we have all of this before us, it is difficult to see how the Bush/Cheney government did not make itself worse than the problem it attempted to solve. The secrecy with which it carried out its policies points to the explanation for its illegitimacy. In particular, it rests to a large extent on how we understand ourselves here and now: no modern legitimation story can depend on the belief that political good and the means to it are the sole provenance of political authority. So, even if we are charitable and entertain the notion that the principal architects of this government aimed at the benefit of the citizenry, to protect us—if necessary, from ourselves—that alone wouldn’t serve to legitimize anything (this remains true even if, more fantastically, the regime served to actually protect us). This is a political and not a moral explanation, but through it we can see how the political can acknowledge the moral. It does so not necessarily as an independent constraint (that would be moralism all over again), but rather because its field of operation can, and in our case does, involve beings whose self-understanding includes morality. Lastly, this helps explain why Machiavellianism, although it can make a temporary appearance, can’t really work for us. Only a fanatic can suggest that we should just discard the moral understanding of ourselves and return to a ‘simpler’ time (if it ever existed) during which statesmen, with their good intentions, could run things without running them by citizens. This is fanaticism, not because it is immoral (although that’s a conceivable reason), but rather because any such suggestion is now beyond the political pale. If it is to exist at all, it must hide and remain underground, just as the interrogation regime and its instigators have been doing. And as with all forms of fanaticism, killing it doesn’t require moral arguments, but rather a spotlight.
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