Posner on Human Rights: A Fractal of Fallacies

December 2014  |  Status: First Draft

A rather long excerpt from Eric Posner’s new book on human rights has been featured on The Guardian today. The article nicely summarizes the history of human rights law, its less than stellar results in many parts of the world, and the political and economic challenges facing it.

However, Posner’s argument also exemplifies a lot of things that are wrong with contemporary Western political theory. Led by lawyers and politicians rather than philosophers, it has lost its bold assertions, given up its patience of centuries, and become too sensitive to passing fads, temporary turns of the fickle economy, and the shifting fortunes of the world’s superpowers.

The following are several examples of Posner’s reasoning that just don’t seem to understand the meaning of normativity.

Giving Up Too Soon

Given that all governments have limited budgets, protecting one human right might prevent a government from protecting another.

That’s not an excuse to dismantle human rights, only a reason to talk more about how to define and balance competing rights. Just because it is impossible to protect every right all the time doesn’t mean that we can ignore them at will.

To take an example that should be familiar to computer scientists, consider the CAP theorem. It is impossible to achieve consistency, availability, and partition tolerance at the same time. But that doesn’t mean that we should ditch any or all of them as a goal. We just make do with as much consistency as we can achieve, as much availability as our budget allows, etc. according to our specific needs. As our hardware and software improve, we’ll get even better at balancing those three, though we’ll never reach perfection.

There’s a tendency for grandiosely minded people to try and come up with a single, internally consistent set of interpretations and set it up as eternal truth. But political philosophy sits at the junction of ideals and the messy real world, and real-world politics doesn’t like to be consistent. In politics as in database design, you always tinker with this and that, adapt to new material constraints, and make different compromises as you go along. None of that means you should reconsider your ideals. No, not so easily.

Distinguishing Tyranny from Incompetence

If a government advances one group of rights, while neglecting others, how does one tell whether it complies with the treaties the best it can or cynically evades them?

That distinction is only difficult if you’re trying to split hairs like a lawyer in a courtroom. Oh no, there’s no conclusive evidence that the defendant murdered his wife. We should let him go! That works fine in a courtroom, but it’s the wrong approach to use when evaluating the performance of a government.

In practice, it’s often easy to tell when a government is evading its responsibilities instead of trying the damnedest to make do with what’s available here and now. Because most governments in evasion mode don’t even try to test the alternative.

In the early 1990s, Lee Kuan Yew, the long-time leader of Singapore, made waves in the political philosophy community by arguing against human rights. Naive philosophers took Lee’s arguments at face value and tried to construct all sort of elaborate theories in an attempt to respond. After only a few years, however, it became clear that Lee was only trying to justify his own dictatorial rule.

Also, when in doubt, assume that the government is being an asshole. It’s almost always a safe assumption to make, especially since most modern political philosophy already assumes an adversarial relationship between the government and the governed.

Taking China at Face Value

China cites “the right to development” to explain why the Chinese government gives priority to economic growth over political liberalisation.

Just because somebody invokes some right to justify violating some other right doesn’t mean that anyone else needs to take them seriously. I’ll take China seriously when they can present compelling evidence that “the right to development” is truly, fundamentally, utterly incompatible with the right to criticize the Communist Party. Until then, what they’re saying is worth less than cattle manure. They’re not even trying!

Trading human rights against one another is something we should do as a last resort when we really, seriously can’t have both after years of trying hard. It’s not something that we should accept by default, least of all because some power-hungry regime tells us to do so.

Besides, all of this is old news to political philosophers. We’ve had that debate in the 90s and early 2000s, and we decided long ago that most of it was bullshit. This is getting boring. Call me again when Chinese citizens, who oh so love their traditional Confucian values, finally stop trying to circumvent the Great Firewall.

White Guilt

However, in practice, international human rights law does not require western countries to change their behaviour, while (in principle) it requires massive changes in the behaviour of most non-western countries.

Unless you’ve been living under a rock, it seems that Western countries must change their behavior just as much as others do. Torture and mass surveillance in the United States! Censorship in various EU member states, oh my! No country even comes close to respecting all human rights, and the fact that some score better doesn’t mean that the rules are unfair to others. Just because somebody stole an iPhone doesn’t mean that everyone should be allowed to steal iPhones without consequences.

On the other hand, as a citizen and resident of a very non-Western country, I fully agree that the behavior of my country must undergo “massive changes”. Seriously, fuck this authoritarian, chauvinistic, intolerant culture. If it needs to be changed beyond recognition in order for the people of this country to enjoy some human rights, by all means change it. Good riddance, I won’t miss those “traditions”. Only those who are currently enjoying power, and a bunch of white dudes who don’t know any better, dare to romanticize the status quo as a worthy alternative to human rights and democracy. It seems that some Westerners still haven’t overcome the orientalism that used to captivate them so much in the 19th century.

Empiricism Doesn’t Mean What You Think It Does

Expectations have been lowered; the goal is no longer to convert poor societies into rich societies or even to create market institutions and eliminate corruption; it is to help a school encourage children to read in one village, or to simplify lending markets in another. It is time to start over with an approach to promoting wellbeing in foreign countries that is empirical rather than ideological.

Practically, yes, it’s better to take baby steps first. But that doesn’t mean that eliminating poverty and corruption should take the back seat forever. Once you have taught enough children to read and write, the next step is to offer them even more education — until they can enjoy the fruit of our great civilization on a level equal to everyone else. That might take a few decades, but does it mean that it is “ideological” (in a bad sense) to want to give poor African children an opportunity to go to Oxford?

Too often, people get so preoccupied with immediate goals that they lose sight of the long-term goal. But why are you even helping those children if you have no long-term goal? If there are no human rights, or a similarly important principle to guide your philanthropy, why not let the poor children die? Why do anything at all?

Everyone has long-term goals. Some just happen to be too shy to admit that they have long-term goals, for fear of sounding politically incorrect or offending someone who deserves to be offended.

With the Benefit of Hindsight

With the benefit of hindsight, we can see that the human rights treaties were not so much an act of idealism as an act of hubris…

With the benefit of hindsight, what I can see is that political theorists are too easily swayed by temporary turns of economic fortune.

Do you know what finally made googly-eyed Western philosophers realize that Lee Kuan Yew’s criticism of human rights was a load of bullshit? It wasn’t any profound philosophical realization, it was the Asian financial crisis of 1997. As soon as the Singaporean economy crashed, nobody gave a damn about what the leader of Singapore had to say about human rights. His economy crashed, so he must be wrong, right? Duh.

Western political theorists are getting nervous these days because China is growing fast. But I wonder what they would say if the Chinese economy crashed tomorrow. This also happens in other topics. For example, most scholars nowadays are good ol’ progressives who don’t like the U.S. meddling in the Middle East (so far so good), but somehow feel like they need to support their opinions with unrealistically favorable depictions of poor, victimized Middle Eastern communities.

But wait, you don’t need to glorify the victim in order to condemn the aggressor! Go to Afghanistan or Saudi Arabia and ask the women whether they like being oppressed. They’re not Western, so they can’t be too hungry for Western-style human rights, right? riiiight?

The recent surge of doubt about human rights among Western scholars is, at best, little more than an extension of white guilt, and at worst, playing into the self-serving rhetoric of rich dictators in China and other developing countries. It does a disservice to the countless non-Western, non-white activists who are risking their lives this very moment to bring free speech, due process, gender equality, and other basic human rights to their own neighbors.

By the way, Eric Posner is the son of Richard Posner, a federal judge who recently argued that the government should have unlimited access to our digital data. People don’t always share the political views of their parents, but two Posners coming out against fundamental human rights in the same week gives me the impression that this family isn’t particularly fond of our rights :(