Genetic screening and disability rights essay

April 2011 - Second Year - Applied Ethics - 2250 Words 

Jonathan Glover argues that parents who use genetic screening of their fetuses or embryos may still be committed to equality of respect for all. Evaluate Glover’s argument for this claim.

 [To think that a particular disability makes someone’s life less good] does not mean that the person who has it is of any less value, or is less deserving of respect, than anyone else. (Glover: 2006, p35)

In this paper I evaluate Jonathon Glover’s (Glover: 2006) argument that potential parents who use genetic screening of their foetuses or embryos and choose not to continue with pregnancy when disability is diagnosed may still be committed to equality of respect for all. My main contention is potential parents should be able to choose children with more potential to flourish than less, and that making this choice does not have to imply any lack of respect or denial of value towards anyone else, regardless of their capacity to flourish. My argument is in two parts – first, I present Glover’s (Glover: 2006) argument that we should be permitted to choose children that will flourish more than not less, and that in choosing not to have a disabled child this is the decision we could reasonably be making. I explain Glover’s (Glover: 2006) account of the relationship between disability and flourishing, and agree with his emphasis on the autonomy of the parent in making a reasoned assessment of the potential impact. I also present Glover’s (Glover: 2006) worry about ugly attitudes that may sour this assessment, and then move on to concerns of my own about the impact raising a disabled child may have on the flourishing of the broader family. In each case I argue that a reasoned assessment of impact communicates no lack of respect to the disabled. In the second part of my paper, I defend the first part from Adrienne Asch’s (Asch: 2000) expressivist argument that using the fact of the given disability as the sole criteria in determining not to continue the pregnancy does communicate a lack of respect to the disabled.

I: Choosing children that will flourish more rather than less
In ‘Choosing Children: Genes, disability, and design’, Jonathan Glover (Glover: 2006) has argued that disability limits the capacities for a child to flourish. This can help us understand what disability is. Against debates arguing disability can be a purely social construction, Glover’s (Glover: 2006) definition of disability posits there must be a failure or limitation of functioning, and that failure or limitation must impair capacities for human flourishing. Our capacity to flourish sets limits on what goals we can achieve in our lives, what desires we can fulfil, and this is true of all people, regardless of disability.  Having an impaired capacity to flourish is not the same thing as having a life worth living or not being worthy of equal respect from others. But we can still quite reasonably prefer that our own capacity to flourish is not impaired, nor the capacity to flourish of others, and this extends to preferring that our children have more capacity to flourish than less by not having a disability. (Glover: 2006)

We cannot conclude the full picture of a foetus or embryos potential to flourish as a child from a genetic screening. There is much we cannot know about what desires, talents, and personality of the child will be, regardless of what general features might be correlated with disabilities like Spina Bifida, Cystic Fibrosis, Down syndrome, or other. Some disabilities will only mildly limit the capacity to flourish, some will majorly limit it, and we recognize too that accounts will vary between groups of people with a given disability as to how much the condition has limited them. But we can reasonably believe that, other things being equal, the limits on our capacity to flourish are greater with disability.

Glover's (Glover: 2006) account stresses the autonomy of the potential parents in choosing to have children with more rather than less flourishing. I think he is right to emphasise the discretion of the parents in making this choice. We usually endorse the right to decide how financially secure they should be before having a child, and how many children to have, believing they should have autonomy over these decisions which impact the flourishing of the child that will be born, themselves, and any other children(Glover: 2006, p34). The expectations the parents have may not always pan out, but we think it is possible to make a reasonable assessment and to make decisions based on that (Glover: 2006, p34). In emphasising autonomy and discretion, Glover’s (Glover: 2006) is a permissive account: there is a lot of flexibility for the parents here – Glover (Glover: 2006) does not argue for a duty to maximise the children’s potential to flourish, or that it is wrong to choose to continue a pregnancy (or intentionally cause one to be) below some objective standard of flourishing.

But Glover (Glover: 2006) allows that in making an assessment of the impact disability will have on the child’s capacity to flourish, there are right reasons and wrong reasons that could guide the parents. Ugly attitudes and prejudice are commonly held against those with disabilities (Glover: 2006, p30). When we think of a disability as a person’s main feature, when we shy away from people with disability, and when we resist accounts of positive experiences had by people with disability and their families, we cling to ugly beliefs (Glover: 2006). These types of beliefs sometimes culminate in pressure from the medical profession not to continue a pregnancy, or obstruct the potential parents from making a reasonable assessment.

We need to send a clear signal that we do not have the ugly attitudes to disability. It is important to show that what we care about is our children’s flourishing: that this, and not shrinking from certain kinds of people, or some horrible projects of cleansing the world of them, is what motivates us. (Glover: 2006, p35)

If we are serious about valuing the capacity to flourish, we must stamp out these ugly attitudes. But it does not follow that because some have ugly attitudes, no potential parents can make a reasonable assessment of the impact a disability will have on their embryo or foetus’ potential to flourish. It does not follow that there would always be belief that the disabled are not equally valuable or equally deserving of respect.

 I would like to add to Glover’s (Glover: 2006) account by arguing the importance of considering the impact of having a disabled child on the rest of the family’s flourishing. I feel is an integral consideration for potential parents. We think it is reasonable for parents to delay parenting until they have achieved some of their own personal goals, such as travel and education, and to continue to pursue their own personal goals alongside being a parent. We think it is reasonable for parents to consider their other children when making reproductive choices – Parents with two or three children may feel sure they are capable of loving more children, but assess that more would require time and energy that would result in a loss to the children they already have. And we think it is reasonable for parents to value their romantic relationships, and to need time and energy to promote them. Raising a child with disability is bound to carry an additional cost in time and energy compared to a ‘normal’ child, though this will vary widely according to the disability and the particular child.  Parents should be able to make an assessment of what this extra time and energy will be, and determine for themselves if their individual circumstances can permit this extra time and energy. To judge that they cannot is not to render a judgement against people with the disability. 

I am also adamant that it is fair to consider the financial impact raising a child with disability may have on the family’s flourishing. The parent’s ability to earn an income may be reduced by the time commitment necessary in attending to the child’s needs. The costs of healthcare and education may be massively higher for the disabled child compared to a ‘normal’ child. Essential services for the disabled child may involve significant travel, at a cost of both money and time. The reduced income and increased expenses increase the sacrifices the parents and any other children must make, and it may be necessary to support the disabled child financially well into their adult life. When public health care, carer’s allowances, disability payments are available these are often woefully insufficient to meet the needs. To some it is terribly vulgar to raise financial obstacles as a reason not to proceed with a pregnancy, but that does not dispute that financial obstacles are incredibly real. Financial struggle increases the stress of an already stressful situation, which not only affects the flourishing of the parents and other children, but also has a flow on affect to the flourishing of the disabled child. And when the financial resources the parents are able to muster are inadequate to provide for the disabled child’s needs, the disabled child suffers here too. No part of the financial worries of raising a disabled child are unreasonable, there is no part of them that convey attitudes of disrespect towards the disabled.

II: Responding to the Expressivist argument

The support for prenatal diagnosis and selective abortion contravenes the goals of people with disabilities for full acceptance and inclusion in our society. (Asch: 2000, p234)

A disability diagnosis from a pre birth genetic screening gives us one fact about the child that would be born – that it is likely to have the particular disability. Adrienne Asch (Asch: 2000, p235) worries that when we let this one fact speak to the whole of the child’s potential, we are making a decision to terminate based solely on a first impression; we do not seek to learn about the talents, desires, and personality the child could have, or envisage the joys raising the child could bring to the lives of the parents.

 Asch (Asch: 2000, p235-236) argues in ‘letting one part stand for the whole’ and dominate the decision to continue or not continue the pregnancy, we make a judgement that applies to any person living with that disability. The message is: the fact of your disability trumps any other facts about you. Giving birth to you was wrong. Your life is not worth living. The disabled person is left feeling that they must defend their right to exist, and that they constantly have to remind people that they are ‘more’ than just their disability (Asch: 2000, p236). Glover (Glover: 2006, p30) offers a case study where these feelings are expressed: disability rights commissioner and chair of the Social Care Institute for Excellence Jane Campbell recounts being in hospital with severe pneumonia. Campbell has spinal muscular atrophy, and was so worried that doctors would assume she would not want to be resuscitated if she fell unconscious; she kept herself awake for 48 hours. Her husband brought to the hospital a photo of her in university gown being awarded her degree, a reminder to the staff that she was more than just her disability, that she had a life worth being saved. (Glover: 2006, p30) 

 I think this is a haunting account and it shows that Asch’s (Asch: 2000, p235-236) criticism should be considered. It is the strongest from a group of claims by disability rights advocates labelled the expressivist argument. The central claims of expressivist arguments is that genetic screening for disability reinforces prejudice against the disabled and communicates the message that they are not worthy of the same respect as others. The argument works by speculating that when the relevant fact to a child’s potential flourishing is the disability, the relevant fact in determining a person’s actual flourishing is the disability. Glover (Glover: 2006) and Asch (Asch: 2000) seem in agreement that this can commonly occur, when people refuse to see passed a disability and to the genuinely complex dimensions of the person, but Glover (Glover: 2006, p33-34) also maintains (and I agree) that this is not always the case. It doesn’t always follow that we would transfer our projection about flourishing with a particular disability to actual people who have that disability. When we make a decision on a limited set of information, it does not necessarily follow that we would make the same decision when given a broader set of information.

And though we cannot deny Asch’s (Asch: 2000, p235-236) assertion that one fact is being used to determine the child’s entire potential for flourishing, it does not follow from this that the potential parents would not consult more facts if they could. This is simply the only fact that is available to estimate the child’s potential to flourish before the child is born. Once the child is born, we have more facts at hand, but any judgement that the child should (other things being equal) not have been born cannot be acted on. I am certain that many parents facing a diagnosis of disability after pre birth genetic screening genuinely struggle as they seek to determine a reasoned assessment of the impact the disability would have on the child’s flourishing, and the flourishing of themselves and their family. If there was a crystal ball into the future that could give them more facts about the child that would be born, they would look into it.  Working only from the facts at hand does not convey a lack of respect for a broader set of facts that is not available.

I do believe the expressivist is right to worry about ugly attitudes, prejudice, and misinformation that may influence a parent’s assessment regarding the potential flourishing of the child and family, particularly when these attitudes are disseminated by the medical profession. I believe it is the persistence of these ugly attitudes that has kept the expressivist critique in public debate. But as Glover (Glover: 2006, p29-36) has argued, a consistent commitment to flourishing demands that we combat these ugly attitudes. There is no contradiction between preferring, on balance, not to have a disabled child in favour of another child who has more potential to flourish, and maintaining that respect towards the value and rights of the disabled must be defended.  So it seems particularly uncharitable to me when the expressivist argument is particularly uncharitable when used to question the integrity of potential parents attempting to make a reasoned judgement.

 In this passage, Asch smuggles into her ‘letting one part stand for the whole’ objection the implication that potential parents are unfairly assessing the extra burdens raising a child with disability will bring.

 The prospective mother and her partner may feel that they haven’t the financial or emotional resources to “cope” with the “extra” demands that a child with a disability would entail. Or they may already have a child with the same or another disability and feel stretched to the limit and want a child whose needs and demands will not be “special” …  that decisions still concludes that one piece of information about a potential child suffices to predict whether the experience of raising that child will meet parental expectations.

(Asch: 2000, p236 [The quotation marks are in original text; I have added the bold highlighting.])

 I was surprised to encounter this passage. Choosing to emphasise the words I have highlighted (by placing them in air quotes) is an indirect and uncharitable way to criticise of the integrity of the potential parents. Asch herself grants that disability causes stress for parents and expense for them and society (Asch: 2000, p251) and that some families experience tremendous difficulty and upheaval (Asch: 2000, p249), yet this passage suggests any estimation that this will be the case is unfairly made and biased. I think it is also an appeal to the sense that appeals to finance are a vulgar basis to choose not to continue a pregnancy, but as I have already argued, any vulgarity makes financial considerations no less real, and no more disrespectful to those with disability.  

 Conclusion
In this paper I have argued that even if some potential parents do not make reasoned assessments when choosing not to proceed with a pregnancy after genetic screening reveals disability, it is implausible and unfair to tar all potential parents with the same brush. I have drawn on and added to Glover’s (Glover: 2006) argument that potential parents should be able to choose children with more potential rather than less, and shown how it is plausible to think that some parents are making this decision when they choose not to proceed with a pregnancy where the child would be born disabled. Finally, I defended this argument from the criticism put forward by Adrienne Asch’s (Asch: 2000) that using only the fact of disability to decide not to continue pregnancy communicates disrespect to the disabled.

 References
Adrienne Asch, ‘Why I haven’t changed my mind about prenatal diagnosis: Reflections and refinements’, in Erik Parens and Adrienne Asch (eds.), Prenatal Testing and Disability Rights, Washington, Georgetown University Press, 2000.

Jonathan Glover, Choosing Children: Genes, disability, and design, Oxford, Oxford University Press, 2006, ch1., pp. 04-36.

The Trolley Problem Essay

 May 2010 - First Year - Introduction to Ethics 

In emergency rescue cases, like Trolley, it seems to many people that it is permissible to kill an innocent person. Explain your attitude to Trolley cases, and justify your view with reference to some of the theories we have discussed in the unit. 
 
Trolley is an emergency rescue case where a runaway trolley careens down a track. Unless the trolley is diverted, it will collide with five workers, causing their death. A bystander could flip the switch to divert the trolley, but this will kill the lone worker on the other track. Should the bystander flip the switch to save five lives? This essay considers Thomson’s (Thomson 1990) justification that it would be permissible to do so. Firstly I consider if turning the trolley is justified solely by the number of lives to be saved. This idea has disturbing implications and thus must be rejected. I introduce the idea that the right to life explains why it is wrong to kill people, even if there are favourable consequences. I explain Thomson’s account that the lone worker forfeits the right to life, and do not find it plausible that one could be bound by a promise to forfeit such an important right. I wonder if Thomson’s idea of tacit consent might instead provide an argument that infringing the right to life is justified.

My intuition is that it is permissible to turn the trolley, and this intuition is shared by many. Do the numbers at stake justify this? Other things being equal, it seems better to have five survivors than one, so perhaps it should always be permissible to have a consequentialist principle, bring about an outcome where the most will live. But this idea has disturbing implications. In the transplant case, a surgeon has five ill patients needing organ transplants. The patients are expected to die very soon as no matching donors can be found. By coincidence, the surgeon encounters a healthy patient, a perfect match for the five needed organs. The surgeon asks the healthy patient if he is willing to give his life so his organs can be used to save the five. The healthy patient refuses, should the surgeon kill the patient and take his organs anyway? Like the bystander in trolley, he could save five by killing one. I think it would be obviously wrong for the surgeon to do so. Intuitively it is deeply disturbing, even macabre, to imagine this happening. Maybe there is a number of lives to be saved that would always justify killing one, a very large number, like ten thousand or a million, but even this would be problematic to settle. Saving five lives cannot provide sufficient justification to turn the trolley.

What is wrong with killing someone, if the outcome will benefit other people? I argue we should consider more than the consequences of killing. I contend that individuals have a right to life – a high priority justified reason not to kill them. Rights are claims that protect an individual’s interests and it is usually very wrong to infringe them. Turning the trolley would appear to infringe the lone worker’s right to life; to settle its permissibility we will need to understand the mechanisms of rights thinking. Two accounts permit actions that appear to infringe rights. Firstly, a rights bearer can forfeit a right - give it away, trade it, or lose it by some wrongful action. Secondly, a rights infringement can be justified by overwhelmingly good reasons. The reasons must significantly eclipse the importance of the right; consider the earlier consequentialist consideration as an argument, saving five lives does not sufficiently eclipse the importance of the lone worker’s right to life.

Rights theorist Thomson (Thomson 1990) has an account for the permissibility of turning the trolley grounded in the idea of rights forfeiture. Before we consider it, we need to understand that consent to rights forfeiture can be assumed rather than explicitly given. This is known as tacit consent. Australian citizens tacitly consent to forfeit some freedom and property rights so the government can require them to obey laws and pay taxes. It is generally in the citizens self interest to do so; they benefit from law and order, and infrastructure like roads, schools and hospitals. Thomson argues that track workers would probably consent to a policy of turning the trolley, and this tacit consent provides grounds for permissibility. Suppose the workers were randomly allocated their stations each day, they would have a five in six chance of being on the first track, and a one in six chance of being the lone worker. The workers would likely consent to a track turning policy before they were given their stations because the policy gives each a better chance of survival, if runaway trolley circumstances arise. Thomson successfully argues tacit consent distinguishes the trolley case from transplant; sick patients may consent to the healthy being killed to save themselves, it is unlikely that healthy patients would.

Thomson’s (Thomson 1990) account requires us to accept that a promise to forfeit your right to life should be binding. I disagree. A particular track worker may indeed give up their right to life in an emergency rescue situation; a brave and selfless act. Promising you would be willing to do so, if the extremely unlikely circumstances arose, raises doubts about whether the worker would follow through with the agreement. Imagine the lone worker, faced with his co-worker’s imminent doom, shouting to the bystander “Take me instead!” and reflecting that it was a shame to have to die, but after all, he had made a promise. This is an implausible degree of altruism to attribute to the lone worker. An agreement where one party is realistically not likely to deliver is not a legitimate agreement. It does not seem plausible to say the lone worker has actually forfeited the right to life, merely because he probably would have agreed to a trolley turning policy. (Hobbes 1651)

Perhaps there is another interpretation of Thomson’s argument. Tacit consent could form part of justifying right to life infringement rather than suggesting forfeiture. The difference is significant. If the lone worker can be understood to have forfeited his right to life, there is nothing bad about the bystander redirecting the trolley. But I think it is obvious that there is still something bad, something upsetting, about taking a life in these circumstances. Justified infringement acknowledges that something disturbing has taken place but is nevertheless permissible. Saving five lives is not reason enough to justify infringement, but maybe Thomson’s argument shows that if five lives are to be saved, AND the rights bearer would have consented to the policy by which the decision was made, it can be justified. This account needs further consideration; it is not obviously beyond reproach but it is intuitively more just.

In this essay I have argued that saving five lives is not reason alone to justify turning the trolley. I have explained the lone worker has a right to life but sometimes a right to life can be forfeited or justifiably infringed. I have argued Thomson’s account of right to life forfeiture by tacit consent should not be accepted. I have not rejected Thomson’s account entirely however, I have argued we may interpret her idea of tacit consent as explaining how the right to life could be justifiably infringed in this case.

References
Thomson, J. 1990. The Realm of Rights. Excerpt reproduced in LDM Study Guide. Monash University, 2010.
Hobbes, T. 1651. Leviathan. Excerpt reproduced in LDM Study Guide. Monash University, 2010.

Determinism and Moral Responsibility in Minority Report Essay

January 2011 - Second Year - Philosophy of Film Essay  


The following dilemma is presented in Minority Report:
If pre-criminals have free will then it's not clear how we can be sufficiently certain that they would have committed the crimes for which they are being punished. But, if they lack free will then it seems like we have reason to believe that they cannot be morally responsible for their actions, and thus cannot be punished.
Explain how Frankfurt and Smilansky arguments can be combined to find a way out of this dilemma. You will need to explain compatabilism and show it how makes pre-punishment morally permissible.  
In the film Minority Report (Spielberg:2003), there is a police unit responsible for arresting "precriminals" - people who it is known will commit a crime in the near future. That it can be known with certainty what persons will do suggests a determined universe, but if future is determined we should worry that persons do not have free will and should not be held responsible for their actions. In this paper I confront these issues. First I will explain why we might think there is no free will and moral responsibility in a determined universe, and why this should make punishment problematic. Then I will introduce the idea of compatabilism as a way to accommodate free will in a determined universe and make punishment permissible. Thirdly I will draw on Frankfurt's argument in advance of a compatabilist viewpoint (Frankfurt:1969), then Smilanky's explanation that compatabilists must support prepunishment (Smilansky:2007). Finally I will reflect on Smilansky's objective : in showing that compatabilist's must endorse prepunishment, he reduces their overall claim that determinism has no impact on a person's moral responsibility to absurdity  (Smilansky:2007).

If the future is determined, then it seems we do not have free will. When we think about ourselves as creatures with free will, we think of ourselves as choice makers, Each time we make a choice, we believe we could have chosen differently. I decided to take a philosophy class, but I believe that I did so freely and could have chosen to study Italian instead. But if the future is determined, then it would always have been the case that I chose philosophy and not Italian. I could not have made an alternative choice, which would mean that I do not have free will.

If we do not have free will, then the idea that we are morally responsibility for our actions seems problematic. We usually think that a person is only morally responsible for actions they freely chose to take. When someone commits an offence because they are being coerced to do so, or because they are mentally ill, then we believe that they could not have done otherwise and it does not seem right to hold them morally responsible. But if the future is determined and we do not have free will, then it is true for all actions that an agent could not have done otherwise, so if we are consistent then it does not seem right to hold any agent morally responsible, for any actions, in a determined universe.

We usually think that moral responsibility is necessary for punishment.  There may be other objectives for punishment (for example, to deter others from offending), but we think that what justifies punishing a particular person is that they are deserving of the punishment. But again this raises the problem - could the person have done otherwise? If they could not - if they did not have free will - then it seems they are not morally responsible, and if they are not morally responsible then it seems they do not deserve punishment. Again, an offender who has been coerced or is mentally ill seem relatively uncontroversial examples here. So if the future is determined, there is no free will and we cannot hold people morally responsible for their actions, or be justified in punishing them.

Minority Report is a science fiction film that suggests a determined world where future crimes can be predicted. For now I will ignore some narrative elements that question whether the future is determined at all, and focus on the moral question raised by the film's treatment of those who are foreseen to commit crimes. These offenders-to-be are prepunished. Prepunishment is punishment administered before a crime has been committed.

To be morally justified in prepunishing an offender, we must be certain the future is determined. If the future was not determined, there could be the possibility the offender-to-be would change their mind and not go through with the crime. We must also address the epistemic problem of how the future could be accurately predicted. Suppose the epistemic problem could be overcome, we still face the problem that in a determined universe a criminal cannot be held morally responsible, so how could punishment of any kind be permissible? A compatabilist perspective can be utilized here,  offering an argument that free will is compatible with a determined universe. If compatibilism is true, then an agent can be held morally responsible and can be permissibly punished. For the remainder of the paper, I will consider Frankfurt's argument advancing a compatibilist perspective (Frankfurt:1969), and Smilanky's case that compatabilism is compatible with not only punishment generally, but prepunishment specifically.

Frankfurt advances a compatabilist argument by disputing the proposition that an agent is morally responsible for what they do only if they could have done otherwise (Frankfurt:1969). To do this, Frankfurt focuses our attention on the reasons for an agent's action. He draws out examples where an agent acts in a certain way and could not have done otherwise, but that they could not have done otherwise is not their main reason for acting so. (Frankfurt:1969)

The key idea in Frankfurt's argument is that what matters for morally responsibility is why I do what I do (Frankfurt:1969). Suppose I am choosing whether to eat an orange or an apple. Unbeknownst to me, an evil demon has seized partial control of my brain and is determined that I will choose the orange. The demon is capable of directing my choice towards the orange, however will only do so if I first choose the apple. If I choose the orange outright, the evil demon will not need to intervene. Now the facts of the matter are, I can only choose the orange. If I attempt to do otherwise, the evil demon will ensure that I do in fact, choose the orange. I cannot do otherwise. And yet, suppose I don't decide to choose the apple - I go straight for the orange, and the demon does not intervene. Haven't I chosen the orange freely? Certainly my experience is of exercising free will and not being coerced. It was the reason I chose the orange rather than the presence of the demon that was necessary for me having free will.

Frankfurt argument challenges that free will requires could have done otherwise (Frankfurt:1969). His new argument is that free will requires could have done otherwise OR acted for reasons other than could not have done otherwise (Frankfurt:1969). Even if the future is determined, we do not have the experience of the determination. We have an experience of thoughts and feelings contributing to our choice makers. We act for our own reasons, and not because of some sense of coercion. All of my choices may be as certain as the certainty I would choose the orange in the above example, but that is not my experience of those choices, and it is my experience of my own agency and choice making that is necessary for free will.

Frankfurt's argument supports the idea that we can live in a determined universe and yet still experience free will, be held morally responsible, and be punished when appropriate (Frankfurt:1969). As I type this sentence, then if the future is determined it was always the case that I would type this sentence, yet my experience of it is still something I choose to do freely. Just as I can be permissibly rewarded for writing a good sentence, I can permissibly be punished for committing a crime.

Smilanky argues that if we accept that determinism is compatible with free will, we must think that prepunishment is morally permissible in a determined universe  (Smilansky:2007). The common sense view is that prepunishment is morally reprehensible because people are innocent until they commit a crime, but in a determined universe the crime will necessarily be committed, there is no special moral reason why the punishment should be administered after the crime and not before  (Smilansky:2007).  

Smilansky is not arguing that the compatabilist should always prepunish, or that prepunishment is unproblematic. He allows that there may be epistemic and pragmatic problems with prepunishment. What Smilanksy is emphasizing is that there may be circumstances where post punishment is not possible, and in these circumstances a compatibilist has no principled reason not to adopt prepunishment  (Smilansky:2007).  What is important is that the criminal is punished, when the punishment takes place in the chronological sequence of events is of no consequence  (Smilansky:2007).

We can combine Smilansky's  (Smilansky:2007) and Frankfurt's (Frankfurt: 1969) arguments to conclude that prepunishment is morally permissible in a determined universe, if we adopt a compatibilist view. But Smilansky has offered his argument not as a defense of compatabilism, but to illustrate the absurd conclusions a compatabilist must make  (Smilansky:2007). Prepunishment goes so against our strong intuitions about how persons should be treated, that it shows compatabilism is wrong to say a determined universe does not change the morally responsible status of persons  (Smilansky:2007). I think Smilansky is correct here, showing that what is meaningful to us when we speak of free will has not been captured by the compatibilist argument. Our sense of the kind of creatures we are is intrinsically linked to our idea of ourselves as choice makers. Our relationship to the future is one of expectation of many possibilities. The possibilities the future offers justify our effort as human beings, as we labour and as we labour over our choice making. A determined universe undermines that effort,  so the prospect of it lacks moral resonance as well as undermining the sense that our lives have any purpose at all.
This paper has examined the problem of prepunishment in a determined universe, prompted by the film Minority Report (Spielberg : 2003). I have explained the problems attributing moral responsibility to persons if the future is determined, and considered the argument of Frankfurt (Frankfurt : 1969) in defence of a compatibilist position. I have drawn on Smilansky's (Smilansky : 2007) argument that compatibilists must support prepunishment and presented his conclusion that this shows the compatibilist position to be absurd.
Bibliography
Frankfurt, H (1969) <span>Alternate Possibilities and Moral Responsibility</span>, Journal of Philosophy, vol. 66, no. 23, p. 829-839.

Smilansky, S., ( 2007) <span>Determinism and prepunishment: the radical nature of compatibilism</span>, Analysis, vol. 67, no. 4, p. 347-349
Spielberg, S., (c2003) <span>Minority report [videorecording]</span>, [United States] : 20th Century Fox Home Entertainment.

Who is responsible for upholding human rights essay

Written May 2010 (first year) - Human Rights Theory Essay - 1500 Words

Who has primary responsibility to uphold, protect, and respect human rights? Individuals, governments, or other entities? Why/why not?

In this essay I will show that states have primary responsibility to uphold, protect and respect human rights. I consider that individuals have unlimited interests, finite resources, and varied capabilities, and that this produces an inherent tension which requires systematic facilitation to avoid a state of war. I say that this is the reason we have states, to provide the facilitation and seek to satisfy citizens' interests. I argue that human rights are a high priority subset of individual interests. I show that these special interests, human rights, are subject to the same pressures of finite resources and varied capabilities as other interests, and furthermore are too important not to be secured, so individuals must not bear primary responsibility for human rights duties. I consider that a worldwide body could bear primary responsibility for human rights, but reject this notion on account of it the inefficiencies and difficulties with transferring the necessary knowledge, resources, and legal powers from states. I settle on the notion that states are the bodies most appropriate to take primary responsibility for human rights. I consider the problem of rogue and weak states who do not uphold this primary responsibility. I contend that states have a secondary responsibility to pressure states that fail to protect their citizen's human rights. I evaluate two problems of states exerting this pressure on rogue and weak states - violating state sovereignty and worsening human rights violations, and endorse Luban's (Luban: 1980) perspective that extreme pressure is justified only when a state violates its citizens most basic human rights in a systematic and sustained way, in which case the state is actually illegitimate and has forfeited sovereignty rights. When citizens' most basic rights are not met, intervention that may worsen their situation in the short term can be justified by the prospect of long term improvement. Finally I conclude that this notion of states taking primary responsibility for the human rights of their own citizens and secondary responsibility for human rights worldwide is likely to provide a powerful incentive for rogue and weak states to protect those most basic of human rights.

Individuals have interests, some of which are unique and some of which apply to all. An interest that might apply to all is the ability to earn an income or to use preventative health care; a unique interest could be a desire to read all of Shakespeare's plays. But interests are unlimited, and resources are finite. The capability of an individual to satisfy their own interests also varies greatly; some are stronger or smarter than others for example. Without a systematic method of distributing resources and maintaining law and order, few citizens’ interests would be met. Something like Hobbes state of nature would result - all citizens would be in a state of war, or anticipation of war, at all times. To prevent this, we have states. States are organizing bodies that try to address the problem of infinite interests and limited resources, in a way that satisfies their citizens' interests.

A subset of an individual’s interests is those fundamental interests known as human rights. Human rights are high priority justified claims to objects of rights that all humans are entitled to, equally and universally. Human rights are necessary for a life of minimal decency, which includes a range of civil and political rights such as the right to participate in government and economic, social and cultural rights like enough food to eat and basic healthcare.

If every individual has human rights, perhaps every individual should be responsible to uphold and protect them? But individuals would still need an organizing body to facilitate these interests, for the same reasons I argued individuals needs states. And I think there is a more important reason why individuals should not bear the duties of human rights - human rights exist to protect human beings, who are not always capable of meeting their own interests. Human rights are too important, too necessary, to risk them not being secured. To saddle individuals, who may not be able to meet their own basic needs, with responsibility for serving everyone else's interests generates too great a risk they will not be met.

Perhaps it is plausible that the duties of human rights could fall on a worldwide organizing body to address the subset of individuals’ interests that we call human rights. There is something initially attractive about this idea. If all humans have the same interests in the objects of human rights, it could be sensible that a universal body address these needs equally. But there are major flaws with this concept. In short, it would be too difficult to make such an enterprise work. Upholding and protecting human rights requires legal systems and resources, and a specialized understanding of each community’s needs. If a worldwide body was responsible for human right, states would need to transfer some of their knowledge, resources, and some scope of their own legal system. This notion seems problematic and inefficient to orchestrate, at best, and at worst (and most likely) ineffective.

States are experts in the concerns of their citizens and the infrastructure, resources and means of production available to them. States already have legal and political systems; they already operate in a role of redistribution and consideration of the needs of their citizens. So it is very plausible that states could and should bear the duties to uphold and protect their citizen's human rights. States have the necessary frameworks and the necessary powers, so they are the most likely bodies to succeed. This idea is not incompatible with a single state that comprising the whole world, but it is not a practical or necessary notion. For the foreseeable future, existing states should bear primary responsibility for upholding their citizens’ human rights.

So states have primary responsibility for their citizens’ human rights, but what of the states that do not fulfil their responsibilities? A state may simply be too weak to do so - lacking in resources, expertise, or effectiveness in governing. There are also rogue states, which practice blatantly unjust policies, and choose not to respect and uphold human rights. (O’Neill: 2001, p182)

We need an expanded understanding of state's responsibilities regarding human rights. States have primary responsibility to uphold their own citizens’ human rights, but also have secondary responsibility for the human rights of all the world's citizens. In practice, states must exert pressure on weak and rogue states that violate their citizens’ human rights. States may operate in alliance with other states (like the United Nations) to coordinate this, but membership of a coalition is not a necessary condition for states to bear this duty. Any and all states bear secondary responsibility to uphold the human rights of all the world's citizens. (Luban: 1980)

There are two problems with this secondary duty states have to global human rights. The first problem is that some types of pressure a state may exert will violate state sovereignty. The modern idea of state sovereignty is that other states cannot and should not intervene with the operation of a state. This idea is essential for a state to function, so there is a paradox here. A weak or rogue state that does not uphold human rights may lose its’ ability to function at all as a state, if other states violate its’ sovereignty. The second problem is that some types of pressure, like economic sanctions or military intervention, can cause more human rights violations within a rogue or weak state than were already occurring. (Luban: 1980)

Not all human rights violations are of equal severity, nor are all violations systematic and sustained. Responsible states must assess the stringency of violations and how likely they are to continue, in choosing the appropriate level of pressure to exert on rogue and weak states. Luban argues that the most aggressive types of pressure should only be exerted on the worst of human rights violating states. These are states that violate the most basic of their citizens’ rights, in a systematic and prolonged way. The most basic rights are rights that must be satisfied for any other rights to be enjoyed, like security and minimal subsistence. (Luban: 1980)

Luban's idea provides counterargument to both problems of state pressure on weak and rogue states. Those states that do not protect and uphold the most basic rights of their citizens are actually illegitimate; they are not fulfilling their reason for being. States exist as organizing bodies to meet their citizens’ interests and they have primary responsibility for the human rights of their citizens; the worst weak and rogue states are not upholding these duties. This failure means the states have forfeited sovereign rights to non intervention, so there other states may justly intervene. And when the most basic of human rights are being violated in a systematic and prolonged way, a foreseeable short term increase in violations because of external intervention is justified by the likely long term benefits for the citizens. (Luban:1980)

When states fulfil their secondary responsibility to pressure rogue and weak states on human rights issues, those rogue and weak states have good incentives to comply. If they are assured that sustained and prolonged violations of their citizens’ most basic rights will result in aggressive pressure from other states, they have very strong incentive to avoid these most egregious of human rights violations.

In this essay I have argued that states have primary responsibility to uphold, protect and respect human rights. I have illustrated that they are the most likely body to succeed in doing so, and that doing so involves both a primary responsibility to their own citizens and a secondary responsibility to global human rights. I have considered Luban’s (Luban:1980) idea that the worst human rights violating states are illegitimate and used this to provide counterarguments to problems raised by states pressuring rogue and weak states to fulfil their human rights responsibilities. Furthermore, I have shown that this method is likely to result in rogue and weak states being compelled to minimize the most harmful of human rights violations.

References
Hobbes, T. 1651. 'Leviathan', Excerpt reproduced in Life Death Morality Study Guide. Monash University, 2010.
Luban, D., (1980) 'Just War and Human Rights', Philosophy and Public Affairs, v9, n2, p. 160-181.
Oneill, O. (2001) 'Agents of Justice', Metaphilosophy, v32, n1/2, p. 180-195

Group Rights for Cultural Minorities Essay

Written November 2010 (first year) - Human Rights Theory Essay - 1500 Words


Is the granting of group rights to cultural minorities defensible? Why/why not?

 When members of minority cultures claim their cultural preservation is under threat, necessitating additional rights for their members, qua their group membership, to protect their culture, our initial reaction might receptive. We think that cultural participation and identity is an important individual right, so it plausibly follows that cultures struggling to maintain themselves have important claims to protections. But in this essay I dispute that culture should necessarily be protected, and I argue that where culture should be protected it can be done so by securing individual rights. Firstly I seek to challenge any intuition that changes to, or loss of cultural practices is necessarily bad. Secondly I consider some reasonable concerns we might have about threats to culture, and show that they are actually concerns about individual human rights violations. Thirdly I discuss more worrying types of claims some groups make, that their culture can only be protected by suspending individual legal rights of their members. I argue this is not tolerable. I contrast this to an example where the law is adapted to the needs of a religious group, to actually strengthen a human and moral right. Then I shift to a discussion of Indigenous groups who have a powerful group rights claim. I consider how this claim may be fulfilled in concert with human rights concerns, including some thoughts on how human rights risks of new sovereign Indigenous governments might be mitigated.

We should resist any prima facie intuition that threatened minority cultures necessarily should be protected, because change to or loss of culture is not intrinsically bad. There are some traditional cultural practices that are deeply rooted in sexism or that violently subordinate the human rights of their members (such as female circumcision – or, for that matter, male circumcision). If indefensibly problematic practices are lost, it is not intrinsically bad. Other, non problematic cultural practices will simply fall out of favour, as the views and needs of their members change. Cultures are fluid and evolve over time, responding to internal and external reform and stimuli (Donnelly 2006:86) which again, is not intrinsically bad. Even at a static point of time, there is frequently dispute within members of a culture about their beliefs and practices. In contemporary Islam, some women believe it’s an absolute requirement they wear the burqa, while others believe it is entirely optional to wear the radically less modest hajib. Indefensibly problematic practices and the very nature of culture as a non static entity show us that change and loss of culture does not intrinsically warrant protections.  

But we should be concerned if members of a minority culture want to engage in certain practices and mainstream society obstructs them doing so. If the mainstream community is hostile or discriminatory towards members of that group, if the group are prevented from congregating in public spaces or is harassed by members of the police, then these are threats we really should be worried by. These worries remind us that individual human rights of the group’s members, rights like freedom of association, freedom of religion, and freedom from discrimination are violated by this mainstream activity. Individual human rights impose very important duties for nation states to adequately protect them, and members whose individual rights are being violated on grounds of their group membership have very strong claims against the government. In Chandran Kukathas’ view, freedom of association is a right that governments need to particularly strengthen to ensure other human rights are fulfilled (Kukathas 1992), a plausible claim when you consider it is the most socially unpopular associations (like fundamentalist religious groups or racial hatred groups) who are likely to attract hostility and discrimination from majority community. We are reasonable to be concerned by some discriminatory threats to minority cultures, but these threats can be understood as violations of individual human rights.

Some groups insist that their individual members’ legally implemented rights must be suspended or waived to maintain their cultural practices, and this is usually not tolerable. They may wish that their children’s educational rights be suspended so they can work instead, or be home schooled without government approval of the curriculum and oversight of its delivery. They may wish to actually restrict their members’ right to leave their land, or force the members’ to participate in religious practices against their will. These types of requests cannot be tolerated because they clearly interfere with the autonomy and opportunity to live a minimally decent life that human rights protect. But liberal states are responsive to claims that flexibility and exceptions must be introduced to their law making to strengthen individual human rights protections, and we can see this in examples like motorbike helmet laws in the UK. Helmet laws are utilitarian policy to reduce the threat of injury to citizens, but religious Sikhs are required to wear a turban which cannot be worn with a helmet. The laws have been amended to exempt Sikhs from the helmet requirement. We might classify this a group right, in so far as any individual Sikh would lose the right to the exemption if he left the religion, but what is more relevant here is the way the exemption is being used to strengthen the individual right to freedom of religion without compromising other human rights. Removing protections such that individual rights will be infringed cannot usually be justified by any minority culture’s claim to preservation.   

The most powerful group right claim is that made by Indigenous peoples. Indigenous peoples may claim that mainstream society discriminates against them and obstructs their practice in certain ways. They may also reasonably claim that systematic tensions exist between their traditional ways of living and western state structures, which makes those practices untenable. . But we have seen these concerns are not a prima facie successful case for group rights, because it is not always bad that some practices don’t persist, and claims against discrimination and obstruction are issues addressed by individual human rights.  So how is it that that Indigenous people have a powerful claim to group rights?  Some Indigenous cultures have claims to self government: they have claims to sovereignty and land rights as a matter of justice. In many cases, Indigenous sovereignty and land was seized by colonial occupiers who have subsequently imposed their rule, methods and belief systems. Aboriginal Australians had made their living off the land and were no longer able to, yet their religious beliefs and cultural practices were deeply connected to their methods of living off the land. For the next two hundred years they were exploited and discriminated against without legal recognition of their moral rights, and in many cases families were torn apart by the government removing children from the care of parents and communities. So returning sovereignty and land, granting self government, to Australian Indigenous people seems simply to be a matter of justice.

But we cannot assess this case for Indigenous justice independently of human rights concerns, both of the Indigenous peoples and the peoples of the existing sovereign. If granting self government would obviously result in significant human rights violations to Aboriginal Australians or other Australians, this would obstruct the case for self government. However I do not think this is so, and the burden of making a case for this is against those who disagree with me. However there is a concern with any new sovereign state, because we cannot have much insight into what future developments regarding human rights might occur. Once Australian Aboriginals have self government, the relationship between sovereign Australia and the sovereign indigenous state is similar to the relationship between any two sovereign states. One sovereign state’s practices might degenerate in areas like gender discrimination, prohibiting political participating in group decision making (I am highlighting the most probable areas to worsen in an Indigenous culture previously denied opportunity to engage in internal reforms) and the other sovereign state could take no coercive action against those violations. Yes, the other sovereign state and international community could criticize these behaviours, and attempt to persuade the government to change, but only the most egregious “intolerable” violations of basic rights, like genocide warrant coercive intervention from other sovereign states (Kymlicka 1996). 

I think we can make reasonable efforts to satisfy Indigenous rights to self government in concert with human rights concerns, and increase the chances that the future of an Indigenous sovereign state will be rights respecting. Firstly, In the case of Australian Aborigines, Indigenous leaders have long shown enthusiasm for establishing a sovereign-to-sovereign treaty with Australia. Creating this treaty is an opportunity for consultation and debate between the Australian government and Indigenous leaders, as well as the public and the broader international community. It is also a terrific opportunity to establish and maintain friendly relations with Australia which could promote future trade and tourism opportunities, powerful ways to facilitate ongoing respect for human rights in the new state. Secondly, we should not assume indigenous leaders are not concerned about human rights protection or resistant to the idea of international accountability (Kymlicka 1996). On the contrary, we should expect that human rights are an important concern of theirs, and that the international community is poised to assist them. The 2007 United Nations Declaration on the Rights of Indigenous Peoples has been developed over 20 years of consultation and reflects a wealth of collaboration between Indigenous communities and external parties, and should be taken as a strong encouragement that the international community and Indigenous sovereign states can assist each other.

In this essay I have shown that minority cultures need not necessarily be protected, and that when they should be protected this can be achieved by securing individual rights. I have done this by demonstrating that changes to culture is not intrinsically bad then assessing different types of claims that groups have made for protection. Finally, because Indigenous groups do have powerful claims to rights of self government I have examined their claim and proposed ways we could mitigate human rights concerns of a new Indigenous state.

References

Jack Donnelly, Universal human rights in theory and practice, 2nd Edition, (Cornell University Press, 2006).

Chandran Kukathas, “Are There Any Cultural Rights?” Political Theory, Vol. 20, No. 1, (February 1992), pp. 105-139.

Will Kymlicka, “The Good, the Bad and the Intolerable: Minority Group Rights,” Dissent, Summer, Vol. 43, No. 3 (1996), pp. 22-30.