Replies

Etinson

Etinson’s perceptive and illuminating defence of dignity trades on a distinction between condition and status dignity. ¹ Status dignity, possessed equally by all and only human beings, gives rise to second-personal demands to be treated with dignity and first-personal demands to act with dignity. To be treated with dignity means to be treated in accordance with one’s elevated status as a human being, and to act with dignity means to act in accordance with one’s position – to act with a dignified and upright bearing worthy of one’s humanity. If one acts and is treated in accordance with one’s status dignity, one has condition dignity. We can therefore lose condition dignity (when we are enslaved or act in base ways), but we cannot lose status dignity.

The trouble with such views comes when they are asked to identify in virtue of what human beings have such a status dignity – a standing that raises them up in the order of nature and that demands virtue of them and good treatment by others. In the tradition, the most common response usually appeals to something like rationality, or the capacity to make decisions freely in accordance with reasons. But such capacities vary from individual to individual, so shouldn’t the dignity vary, too? Etinson concedes that this is a problem but argues that my own view also relies on a capacity – the capacity to maintain and develop an integral sense of self – that varies from person to person. So don’t I also fall prey to the variation objection?

In HWD, I argue that there is a crucial difference that allows me to embrace the variation in capacities to develop and maintain an integral sense of self. The key is that I do not yoke the possession of the capacity to the possession of worth or value. For traditional dignity-first views (like Etinson’s), we are owed respect because we are worthy. The worth is what commands the respect (one might think of, say, a particularly beautiful painting in a similar way). This produces a problem because, if the capacities on which the worth supervenes vary, then the respect qua reverence that persons are owed must vary as well: higher capacities, higher worth, greater respect. On my view, possession of a capacity to develop and maintain an integral sense of self does not give its possessor a higher worth (or ‘dignity’). Rather, the possession of such a capacity makes us vulnerable to certain kinds of harm, and it is the rejection of attacks that threaten these kinds of harm – namely, social cruelty – that triggers the need for a very specific kind of respect, which I have referred to as opacity respect (as a way of protecting people from the harm to which they are vulnerable). So, in my view, the third-party duties, and hence the character of the rights, will vary according to people’s vulnerability, and hence according to the particular nature of their relationships to others, not according to their worth. And this is, I argue, exactly what we should expect. It is important that variation in the underlying capacity for sociability should not be understood in scalar terms. There is no simple equation: less capacity, more vulnerable, more respect. The respect that people are owed will vary in more complex ways along with people’s vulnerability, and my account of social cruelty, I have tried to argue, helps us to explain why and how.

But, Etinson goes on to argue, even if we grant that my account is able to handle variation above some threshold, then what do we say about those human beings that entirely lack the capacity for sociability in the first place? They are not liable to the harms that social cruelty is designed to explain. Etinson correctly notes that my account of basic moral status allows me to explain how they still have rights against other kinds of harm, including purely physical cruelty, to which they are liable. But what about forms of dehumanization, stigmatization and objectification if and when they don’t involve any of these other harms? Let us sharpen the objection with an example. Suppose a group of boys dresses someone who is severely cognitively disabled, call him Andrew, in a chicken suit in order to laugh at him. They are careful in how they dress and undress him; there is no violence or physical injury; Andrew is not any colder or hotter than he ought to be. Andrew does not understand, and could never be brought to understand, the meaning of the laughter, the point of the chicken suit, and so on. This is because he entirely lacks the cognitive, affective and conative abilities required to interact socially with others. We recoil, but how do we explain the nature of the wrong?

Note that this will be a hard case for any view, including one grounded in status dignity. This is because the case can be modified so that any capacity that is named as grounding the high worth of a human being can be hypothesized as missing in Andrew’s case, too. There are two responses to which I am attracted.

On the first, on which I rely in the book, I argue that:

what matters morally with respect to beings with conscious, evaluatively laden mental lives will … depend on what it is like to live the life of a being of that kind, including the goods made possible by the kind of conscious mental life it is. (HWD, p. 66)

I am aware, however, that there are problems with a view of this kind, not least that it is difficult to explain why these modal facts regarding what would have been the case had he developed ‘normally’ (i.e. in accordance with the normal life cycle of other members of his species) matter morally. ²

So here is an alternative. The wrong is located, rather, in the attitudes of the boys. Why are they taking advantage of Andrew’s already vulnerable position to dress him in this way? Why do they take pleasure in play-acting Andrew’s humiliation? The wrongs involved are instances of viciousness but not wrongings of Andrew. What the boys lack is what Michael Rosen calls respect as respectfulness ³ – a respect, I would add, displayed towards the disabled in general, towards each other and towards those who love and care for Andrew. On this view, however, we must accept that there is no actual humiliation of Andrew, only a symbolic humiliation. Many will find this hard to accept. The challenge, for you as reader, is to find a credible alternative.

Floris

Floris’s thoughtful remarks challenge whether my account can deal with (a) political inequality and (b) cross-species comparisons. I answer each one in turn.

Floris asks us to imagine a society in which a single person X takes all the political decisions now and forever. We are to suppose, furthermore, that there is no infantilization, stigmatization, dehumanization, instrumentalization or objectification in the society. X also rules in a way that is responsive to a deliberative process in which each is heard. X is a benevolent despot. And yet surely, Floris avers, the society does not respect the moral equality of all persons. After all, everyone is subject to X, who is subject to no one.

The case is somewhat under-described. Before we can assess it, we need to know what kind of relationship there is between the subjects and X. Floris tells us that X derives her authority from the will of God. This is somewhat obscure. Supposing the selection procedure is hereditary, it may, for example, suggest that X is considered to be of a higher rank or order than the subjects, who ought to comply with her rule because of her rank. If this were the case, then her ruling over them would be an instance of either stigmatization or infantilization (or both): the people are not fit to rule because they are not selected by God, or they are not fit to rule because only X, who has been selected by God, knows what is best for them.

So let us alter the description of the case in a way that puts aside this complication (and that is anyway suggested as an alternative by Floris in a footnote). Suppose that X was selected by lottery; everything else is as described above. It is tempting to conclude that this is a wrongful violation of moral equality just in virtue of the fact that X has ultimate decisional power and authority. On this view, political equality ought to be treated as a constitutive component of moral equality. ⁴ I think this is a mistake. To see why, let us fill in details of the case in the following way. Imagine that ruling in this society is considered a necessary burden. The lottery is widely considered a fair mechanism of selecting who has to do it. There is no higher social status attached to ruling, no special privileges; subjects are grateful for the labour done by those selected. Let us further imagine that those who are chosen to rule can be trusted to do their job well; this is because there is a strong sense of solidarity, service and duty in the society. ⁵ They rule in the best interests (as they see it) of the subjects, which they determine through deliberative, consultative procedures. There has never been a reason to think that any other method of decision-making could do any better (for this society). I do not see any reason to believe that this society thwarts the demands of moral equality.

Any view that abandons, as I do, the idea that humanity has a higher place in the order of nature faces a series of difficult challenges when considering how to compare interests across species. Floris presses me to be clearer about what the implications of my view are with respect to such comparisons. Although this was not a central aim of the book (whose focus was on how we ought to think about the wrongness of treating as inferior sociable beings like us), he is right that I must confront it. As I have mentioned above, and as I discuss at greater length in the book, what makes a being matter from a moral point of view is that it has a conscious, evaluatively-laden perspective on the world. A being’s mattering, in turn, means that its good – and its good will be relative to the kind of being it is – should weigh non-instrumentally in our practical deliberations about what to do. But, given a choice between aiding, say, a rational, sociable being (such as a normally functioning human being or an infant with a sociable nature that is yet to be realized) and a non-rational, non-sociable animal with a basic moral status, how should we choose? Under what conditions can we aid the human being rather than the animal? This is a large and fraught question, which we do not have the space to answer adequately, but we can say something to temper Floris’s certainty that the account leads to ‘unacceptable’ conclusions. Here is what Floris writes:

Sangiovanni, then, is right to point out that conferring basic moral status to both infants and kittens does not entail that they have to be treated in the same way because the treatment that is owed to them depends on the kind of beings that they are as well as the kind of beings that they will be. However, conferring basic moral status to both infants and kittens does entail that in the case in which only one of the two can be treated in a way that is justifiable from a common perspective, priority cannot be given to the right of the former over the right of the latter, other things being equal. This, I submit, is a conclusion that is hard to accept. ⁶

Müller, Haaf and Corrigan

Luise Müller, Johannes Haaf and Daniel Corrigan powerfully query whether my context-sensitive approach to human rights can be truly universal – i.e. universal in a way that does not depend on the vagaries and shifting circumstances of different contexts. If it is not, then, they argue, it can’t really be an account of human rights. They also both wonder whether my account makes enough sense of possible disagreement about what rights we have across different contexts. I take the two responses together because they raise similar concerns. In this response, I will try to motivate the idea that my context-sensitive approach can respect the universal aspiration of human rights even while being context-sensitive, and can accommodate disagreement where it matters.

In what sense are human rights universal? In HWD, I argue that they can’t be universal in the sense that they are moral rights that apply to every human being in every possible context of interaction. This construal would be either misleadingly broad or overly restrictive. Take ‘every human being’ first. If human rights apply to every human being, then that would imply that women’s rights couldn’t be human rights (cf. also the rights of the disabled, minorities, children, etc.). We might conditionalize the right to deal with this problem: ‘you have a moral right to [X only if you are a woman]’. Every human being has this right. But then, because they are meant to apply in every context of interaction, the class of human rights would be indistinguishable from the class of moral rights simpliciter. This is a problem because then the right not to be insulted or lied to would be a human right.

The natural move at this point is to constrain the context of application, but in a way that maintains universality. But which context? If we say human rights are those moral/legal rights that should constrain the exercise of power across all institutional contexts (i.e. contexts in which rule-making occurs), then the account would seem too restrictive. ⁷ Such an account would rule out, at a stroke, economic, social and cultural rights, as well as the right to democracy. There are many institutional contexts – chess clubs, churches, narrow and specialized international organizations like the International Standards Organization, corporations, NGOs – for which it would seem wildly implausible to argue that they must, say, fulfil the ‘right to the highest attainable standard of health’ or the right to vote among all stakeholders. The rights listed in the covenants, and their subsequent development, were clearly intended for states (who were also signatories). Saying that human rights must be those moral/legal rights that must apply across all of those contexts no matter what kind of context it is would make human rights hostage to the contexts where human rights make the least sense.

What about saying that human rights are the collection of all those moral/legal rights that ought to apply in any institutional context – i.e. as long as the moral/legal right applies in some context, then it counts as a human right? This would make the list very broad indeed. But more importantly, it would be unclear what unity there is in the master list of human rights compiled in this way, and it wouldn’t help us to determine which human rights apply to which contexts, and how they do so.

In HWD, I suggested that there is a way of retaining universality while allowing for variation in context. What we need to do is to specify a Broad View of human rights that builds universality – suitably reframed – into it, and then allow for variation at the level of particular conceptions of human rights for different contexts. The Broad View says that human rights are those moral rights that ought to garner universal political, legal and moral concern. ‘Universal’ and ‘political, legal and moral concern’ are intended as variables that are assigned values only in specific contexts of application and implementation. ⁸ Note further that ‘universal’ refers to the scope of the rights in that context rather than to their scope simpliciter. This allows us not to worry whether women’s rights are human rights or whether human rights apply across every possible institution or interaction.

Because what counts as ‘universal’ and ‘political, legal and moral concern’ will vary by context, the human rights that will be picked out in this way will also vary. This is what triggers Müller, Haaf and Corrigan’s misgivings. Corrigan, for example, worries that, since Amnesty International and the UN are different contexts in which human rights are invoked, it could be the case that Amnesty and the UN (rightly) come to different conclusions about what counts as a human right in the first place. Corrigan gives the example of the UN’s most recent foray into specifying and enforcing the human rights obligations of corporations, namely the ‘UN Guiding Principles on Business and Human Rights’. If we assume (contrary to fact) that Amnesty’s domain of concern is exclusively state action, then it looks like it would be appropriate for Amnesty to deny that human rights can apply to corporations while at the same time allowing the UN to affirm that they do so. Doesn’t the Broad View, he wonders, force us to the conclusion that they can both be right? This looks incoherent: either human rights should apply to corporations or they shouldn’t. The Broad View looks like it dissolves disagreement when it should affirm it.

At stake here is what determines the truth value, on a context-sensitive view like mine, of a particular human rights statement, such as ‘there is a human right to x’. The variables in the general statement of the Broad View, and hence the truth value of a given statement, are determined by fixing (1) the context of application and (2) the context of implementation. (My commentators are right that I should have been clearer about this in HWD.) The context of application refers to a given institutional order or other interaction (we can be ecumenical here about the scope of possible applications since we have abandoned the idea that there is a single scope of application). The context of application might be corporations, NGOs, international organizations, personal interactions, states and so on. The context of implementation refers to how the human rights invoked are meant to apply to the object. For example, we might be activists protesting a corporation’s activities in a failed state, or members of Amnesty, or judges on the European Court of Human Rights. In the first case, human rights are intended to be moral-political guidelines for reform of corporations. In the last case, they are meant to provide part of the rationale for legal human rights applied exclusively to state actors. Once one has fixed both contexts, one can then provide a further specification of the ‘universal moral, political and legal concern’ relevant for the contexts one is interested in. If one is an activist focused on corporations, for example, then one might fill in the list of human rights by arguing that these are the moral rights that anyone who is aiming for reform of corporations in any part of the world should use when evaluating, say, the permissibility of a corporation’s activities vis-a-vis stakeholders and employees. If one is focused on the ECHR, then one might fill in the list by arguing that these are the moral rights that any state should recognize as minimum standards of legitimacy – standards that, in turn, support the system of legal rights enshrined in the European Convention on Human Rights. Universality is here reinterpreted as universality given some suitably general context of application and implementation.

What the context-sensitive view implies is that there might be different lists that apply in each case. There is no reason to suppose that each of these different actors, in their different contexts of application and implementation, need to agree on a single list. This makes sense, I have argued, given their very different concerns. Of course, there will be overlap in the lists but, as I have argued above, there is no reason to suppose that the best account of human rights will contain just the collection or the intersection of those lists. Does this dissolve disagreement where we want to preserve it? I don’t think it does. Anyone in any context can question the rights announced by the ECHR, or the list appealed to by the activists. As long as those engaged in the debate agree on the context of application and implementation, there is no reason to suppose that they can’t genuinely disagree about either what universal concern is appropriate for that context, or what rights should apply there. Why assume that everyone appealing to human rights in every context in which human rights are relevant must assume that there is a single master list, or that human rights must have the same function or role in international/national/transnational/subnational politics, law and society?