Why Human Rights have Deep Roots in Human Psychology, History, Ethics, and Law

Why Human Rights have Deep Roots in Human Psychology, History, Ethics, and Law Presented by: Prof. Dr. Mahlmann Date: February 20, 2022 The Fading Promise Of Human Rights? - The many forms of human rights revisionism and skepticisms: • Twilight of Human Rights?  Historical Revisionism  Political Critique  Moral Psychology, Cognitive and Neurosciences  Normative Theory and Philosophy - Unprecedented global challenges - Consolidated authoritarianism - New victorious authoritarianism - Self-destruction of democracies and human rights cultures The Starting Point - Protection of basic human rights urgent as ever - The political, theoretical and philosophical base of the human rights idea in danger of eroding - New kid on the block: current moral psychology and neuroscience • Human rights expression of skewed human thinking • Cognitive process of moral cognition do not lead to insight but false beliefs and illusions • - Resurrection of Descartes' spectra of the malign, deceiving demon? Struggle against new authoritarianism depends on better alternative political idea of human social life - without such idea it will aimless and futile - How to get a grip on the problem? A New Challenge - Diachronic universality: - The rights of future generations - Global human rights activism: • Deep justification of human rights not a question, but a reason for (courageous) action - Why is this so? What is the reason for the charisma of human rights (despite all academic qualms)? Three Theses - Human rights have deep roots in history • No anachronism • No teleological account of history, no theodicy in disguise • No backward projection to legitimize current ideas • Key: Human rights history must include normative phenomena that are not human rights but provide building blocks to develop this idea - - Human rights are well-justified by • Human anthropology • Political theory • Normative principles Psychology, cognitive neuroscience, evolutionary theory • Critique of human rights as cognitive illusion unconvincing • Nothing in human moral psychology undermines the idea of human rights • There are interesting constructive possibilities for a rich explanatory theory of moral cognition giving rise to human rights The Law Of Human Rights - Multi-layered human rights protection - A central catalyst: • International Convention on the Elimination of All Forms of Racial Discrimination (1965, in force 1969)  Key Actor: Jamaica The Crucial Role Of The Global South In Human Rights History - An example: The Global South and the Universal Declaration of Human Rights - The Universal Declaration's preamble and Art. 1 - Colonial relativism • Selective application of human rights to imperial states, not colonies • The debate about colonial application clauses  UN Charter, Universal Declaration of Human Rights  European Convention on Human Rights - Racist relativism • Human beings in Global South not developed enough to need and enjoy human rights - Brutal suppression of anti-colonial movements - from Vietnam to Algeria, from Malaya to Kenya - Universal human rights as an inspiration, demand and tool of decolonization Human Rights And Self-Determination - The danger of dissociating the right to self-determination and human rights - Western power's complicity with human rights violations by post-colonial dictatorships - Relativism, the apology of crimes and the trap of de- politicizing human rights - Human rights, critical thought and individuals as moving powers of history Justice For The Past And The Perspective Of Indigenous People - Diachronic universality - or no whitewashing of history - Statement of slave woman, Yahling Dahbo • "It was against my wish that prisoner came to me at night, being a slave I was afraid. (...) I was at Prisoner's as a slave. Nobody has put the word slave into my mouth. Prisoner himself used to tell us that we were his slaves. That is all the reason I have for saying I am a slave. It is not because I [was beaten] that I say that I am a slave. All the world beats. Not because I make rice farms. If you are in the hands of a person, if you are free born you will know." - Does Yahling Dahbo's testimony simply report the brute fact of harm, or is there a normative dimension to her suffering? - Did she think (in whatever terms) that she could justifiably demand that this not happen and that the slave holder was bound not to rape her, even though the customs of a slave society were on his side? - What are the reasons why this is naturally assumed for European women of this time, but not for her? - Conversely, what are the reasons to think that the experience and evaluation of both African and European women share crucial common elements? - Does rape only constitute a normatively evaluated harm after a cultural development comparable to that of Europe? - What about Dahbo's longing for freedom? Did it have a normative dimension, or was it just a non-normative wish, like "I wish I could fly"? Building Blocks Of Human Rights - Material content (e.g. liberty, material means for dignified life) - The category of (claim) rights • No invention of Glossators • Rights in antiquity - in law and culture • Implied and explicit The Problem Of Exclusion - Human rights and the problems of incompleteness and exclusion • In historical predecessors, well-justified rights not included, implausible rights included  No freedom of belief of atheists (e.g. Locke)  De Vattel: Right to abduct women under necessity • Exclusion of non-aristocrats, women, people of certain skin color, religious creeds - "(T)he historic value of any single pronouncement affirming the rights of man as against authority is not dependent upon the degree of its completeness." H. Lauterpacht - The central lesson: • The privileges for a few spearhead the rights for all. Some More Lessons From History - History of human rights has to include phenomena that are not human rights, including cultural manifestations and normative implications of human struggles - Human rights have deep roots in human history - not as Bills of Rights in cuneiform, but as claims of common human unmoral understanding to a just share to existential human goods like liberty, to equality and respect, turned in a slow process into explicit human rights - Concrete moral judgements about justified claims - Formulated in abstract terms - Objectified - Generalized - Universalized - Made explicit - Concept of explicit, critically reflected human right is born - after many centuries of thought and struggle Varieties Of Justification - Human rights justified • By social function? • As a tool to engineer social efficiency? • As a means to maximise happiness? • By discourse, consent or contract? • By argument from human agency? • By human needs, interests or capabilities? • As an (international) political practice? • As an element of eudaimonia? Three Pillars Of Justificatory Theory: Anthropology, Political Theory, Normative Principles - A theory of core human goods • - Selective, threshold condition Anthropological anchoring of human rights: Some working assumptions about normatively relevant universally shared characteristics of human beings • For instance: Women's and girls' right to education • Assumption: Women and girls can and want to learn, grow and think • Women's right to bodily integrity: • Assumption: Beating hurts and humiliates Afghan women as much as women from Zurich, Kreis 4. - Liberties and the taste for autonomy - Equality and the common core of humanity - Just access to the material goods produced in human society - Respect and the desire of recognition The Political Theory Of Rights - - Human rights are not • Expression of existential decisions beyond normative principles • Ineffective ethical and legal balderdash • Means for economic disempowerment • Handmaidens of (performative) power • An impediment to postcolonial worldmaking • A tool to perpetuate the subjection of women (and other identities) • Curtailing illegitimately democracy and sovereignty • Tools to crowd out egalitarian politics • Entangled in an aporia Human rights are • Means of ethical and legal entrenchment of the protection of certain goods • Empowering human beings to be subjects of their personal life and history • A precondition of community • As legal rights subject to specific qualifications derived from character as law (e.g. Justiciability) - Consequences of imperatives after crimes of the 20th century • Human beings are ready to do any harm to others • No political order is legitimate that does not respect the basic rights of individuals The Normative Wellsprings Of Rights - Justice as equality - the prima facie equal rights of humans to the common heritage of humankind - Solidarity - the duty to care for the goods and rights of others - Dignity - why humans count • Protection of rights senseless if humans are beings without worth The New Kid On The Block: The Moral Psychology Of Rights - The task: a theory of moral and legal understanding - A task requiring "art and pains", because "the understanding, like the eye, whilst it makes us see, and perceive all other things, takes no notice of itself." John Locke - Philosophy of language: the bewitching of our thought by language - Moral psychology: the bewitching of our moral judgement by the structure of our moral cognition? Neuroscientific And Psychological Attacks On Human Rights - Dual process theory of the mind • Deontological principles including human rights are cognitive illusions, generated by activation of emotional centers of human brain, VMPFC • Human rights post-hoc rationalization • Utilitarianism: rationalism, generated by centers of cognitive control, DLPFC • Problem:  Contradicting empirical evidence, if plausible theoretical framework of interpretation of data is applied  Self-refutation: Utilitarianism relies on principles of equality that are not consequentialist and thus (according to this theory) themselves post-hoc rationalizations of emotional reactions - Social intuitionist model - Morality, ethics, law depend on fixed moral "taste buds" - Problems: • Irreconcilable with the complex structure and material content of moral judgements • Example: corporeal punishment of children not simply a matter of moral taste • Self-contradictory: Correction of moral evaluation generated by "taste buds" by ethical principles is held to be necessary A Better Way Forward (Perhaps): Mentalist Theory Of Ethics And Law - Theory of moral cognition - Structural analysis of intentions and action over abstract categories (e.g. agency, internal states like purpose or knowledge, consequences) generating ascription of normative status (morally right, wrong; just, unjust) to a selective set of possible objects of moral evaluation with volitional and emotional consequences - Normative categories (e.g. agency, duties, rights) - Normative cognitive space and qualia - Objects of possible moral evaluation - Substantial principles • Justice and proportional equality • Altruism  Direct intention to foster the well-being of others • Respect and non-instrumentalization:  Illustration: Trolley-problems - Variety of evidence - and counter-evidence, for instance: - Analysis of moral judgement - Experiments about moral and legal cognition - Child psychology Breaking Hume's Law? - Facts of human psychology are not normative arguments - Three benefits of a theory of moral cognition: • Explanatory theory of one of the defining elements of the • human form of life • Critique of unconvincing psychological theories, distinguishing psychology and politically skewed ideology • Drawing the contours of a life form of humans as reasoning, moral, sentient, self-conscious, autonomous, and liberty- seeking beings yearning for justice, respect, and recognition A Mixed Message - A proposal: humans are terrible and remarkable - Human rights attempt to - • Prevent the terrible • Enable the remarkable Progress within the normative boundaries of human rights: Human rights keep the door open to the betters worlds we still may be able to construct - and may help to prevent the worst that may very well lie ahead of our species