One Person, One Vote: Fair Voting in an Unfair System

In a decision by The Supreme Court of the United States (SCOTUS), states will not be required to redesign their voting districts. The legal challenge put forward in Evenwel v. Abbott argued that the state government should be required to draw districts so that they contain a roughly equal number of eligible voters, a change from the current practice where districts a drawn to contain an equal number of people, regardless of their eligibility to vote.

The people behind this challenge are from a rural area in Texas, which owing to demographics, contains relatively more eligible voters per district than more urban districts. In an article by The Atlantic, factors such as illegal immigration, disenfranchised ex-convicts, and a higher proportion of children, are listed as causes for the disparity in the proportion of eligible voters compared to population.

A simple example will illustrate how this works. If District A is largely populated by small families and retired people, we could see a situation where 70% of people in this district are eligible to vote. If this district contains 100 000 people, then we would expect that this district would have 70 000 eligible voters.

District B contains large families, few retired people, and immigrants who are ineligible to vote. It also contains 100 000 people, but since only 50% of the residents are eligible to vote, there are only 50 000 eligible voters in this district.

The argument of Evenwel is that when we live in a system where everyone’s vote is supposed to count for the same as everyone else’s vote, it is unfair to select representatives based on total population when this means that the amount of voters needed to elect a single representative can vary substantially.

This argument has prima facie plausibility, and it accords with other plausible positions regarding voting equality. For instance, with few exceptions, most people believe that it would be wrong to give parents extra votes for each child they have. Nor would we accept a policy which gave the caregivers of the mentally disabled an extra vote for each person under their care.

What is more, the reasons presented against Evenwel’s argument aren’t exactly convincing. In both The Atlantic and The New York Times the writers cite the motivations behind Evenwel’s legal challenge as the (or a major) reason why we should reject eligible voter districting. The groups behind Evenwel are typically right-wing conservative groups who, according to The New York Times recognize that voter suppression is ‘good’ for conservatives, that is, conservatives are more likely to be elected as voter turnout drops.

However, even if Evenwel’s challenge is just another attempt to advantage conservatives, the mere fact that this change would be to the advantage of conservatives and to the disadvantage of liberals is not, by itself, a reason against redrawing voting districts around eligible voters. If changing how districts are drawn is the right thing to do, then whether it is to my advantage simply doesn’t matter.

Now, the SCOTUS decision is itself a limited decision. All it decided is that the states cannot be forced to redraw voting districts, but it left open the possibility that the states could change their laws without being in violation of the Constitution as well.

And although there is prima facie plausibility to Evenwel’s proposal, it is questionable whether a change as minimal as the one proposed would have any substantial benefit to the cause of democracy in the United States. Put bluntly, the American electoral system is so flawed that it is unlikely for the the proposal to have any positive benefits.

Let’s start with the House of Representatives as an example. In 2014, just over 75 million people voted for one of the two major parties. Of these 75 million, about 40 million voted for the Republicans and 35 million voted for the Democrats, or 53% for the Republicans and 47% for the Democrats. However, when converted into a seat count, the Republicans received 57% of the seats and the Democrats 43%.

If Evenwel’s primary concern was to ensure that the popular vote more closely aligned with the representative count on either side of the aisle, then they would need to sue for many other changes to ensure that one vote counts for one vote. They should be calling for an end to gerrymandered congressional districts, or for the overhaul of the first-past-the-post voting system altogether (which unrealistically favours a two-party system).

They should be against an electoral college system which makes it possible for a candidate to win the popular vote yet not become president. They should be concerned that voter turnout is abysmally low, just 36.4% in the 2014 congressional election. And most of all, they should be against Republican attempts to disenfranchise African Americans, young people, and the poor through restrictive voting policies which are designed to prevent nearly non-existent voter fraud.

We are right to be relieved with the SCOTUS decision, but we also need to recognize that there are much greater issues for American democracy than changing how we define ‘one person, one vote’.

Works Cited:

http://www.theatlantic.com/politics/archive/2016/04/evenwel-ruling-supreme-court/470280/

 

Ghomeshi Trial Verdict

Feminist Philosophers

The verdict has been read in the high-profile sexual assault trial of former CBC radio host Jian Ghomeshi. The Ontario Court judge acquitted Ghomeshi on four counts of sexual assault and one count of choking. The judge’s verdict was based on his finding the women who accused Ghomeshi not to be credible witnesses. A heartbreaking excerpt from his full verdict:

The success of this prosecution depended entirely on the Court being able to accept each complainant as a sincere, honest and accurate witness. Each complainant was revealed at trial to be lacking in these important attributes. The evidence of each complainant suffered not just from inconsistencies and questionable behaviour, but was tainted by outright deception.

I think that for many of us who were following the proceedings, it was not Ghomeshi on trial, but the women. Ghomeshi himself did not testify in the trial, so his behaviour was not similarly…

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‘Winning’ in Politics

Tomorrow night will be one of the most memorable in recent Canadian history. The Toronto Blue Jays will face the Kansas City Royals in game three of the playoff series – we will have the first realistic chance in a decade to replace the governing Conservatives with one of the other parties. But rather than endorse one of the leaders, I want to draw your attention to something more important, even more important than choosing a governing party for the next ~4 years.

The way we talk about politics is antiquated. The idea that a party can ‘win’ an election simply doesn’t make sense in a system where no party ever gets more than 42-44% of the vote (speaking of elections in the past four or so decades). I ask you, what does it mean for a party to ‘win’ an election? Under conventional uses of the term, I think that few would recognize 40% of the vote as enough to warrant a ‘clear majority’ in all but the most silly of games. Yet, somehow this has become the accepted threshold for ‘winning’ in Canadian politics. The governing Conservatives have been governing with the support of 39% of the electorate for the last four years without the media or the electorate questioning their legitimacy in any relevant way.

But as bad as this sounds, it isn’t nearly as bad as reality. In Canadian politics a party can ‘win’ simply by getting the most seats in parliament. The Harper Government ‘won’ the election of 2008 even though they only received ~37% of the vote. What I want you to do is to ask yourself what it means to actually ‘win’ in politics. The fact is that most parties think that if they come in first place, no matter how narrow their lead, they receive an authority to govern which transcends the actual results. A party which receives slightly more than a third of the popular vote governs as though they have a majority of the support (although this did not work out too well with Joe Clark, Harper has successfully governed as though he had a majority through two successive minority parliaments). Why is this acceptable?

The simple answer is that we have been conditioned to find it acceptable. We should be outraged that a minority, and by minority I mean either a minority in name or a minority in practice (a government with a majority of the seats with a minority of the popular vote), feels that it has the authority to govern without taking opposing views into account.

The only cases where it seems acceptable to run by a winner-take-all system is in sports. It makes sense to us that the sports team which scores the most goals ‘wins’ the game. But unlike politics, sports are trivial (sorry Blue Jays fans). Whether a sports team wins a game or not won’t impact a refugee’s access to healthcare, it won’t impact next month’s climate summit in Paris, and it doesn’t determine the direction of Canadian politics for the next four year.

We treat politics like another game which can be won or lost by narrow margins, and this is simply unacceptable in a democracy where legislation is supposed to come from the people, all the people. We need to stop treating elections as something that can be won, but rather as something which simply determines the composition of the legislature which must work together.

No matter what happens tomorrow, we can know one thing for certain, either the Blue Jays or the Royals will win. But we cannot know which party will ‘win’ the election. Not because we are in a tight campaign, but because no one can ‘win’ an election. If the Liberals receive a plurality of the seats tomorrow, then they have done just that. They must work with the other parties to pass legislation which will hopefully reflect the will of Canadians. But this will only be successful if we stop referring to one party as the winner, and the rest as the losers. Labeling some as winners and others as losers doesn’t contribute anything to the discussion, and only gives undeserved power to a minority. We would do well to abolish such a term from our political vocabulary.

Canada General Election – Part 1

Today I’m going to take some time to write about the electoral system in Canada. We have an election coming up at some point this year, most likely in October, and one of the issues that at least two parties are supporting is proportional representation. Both the New Democratic Party and the Green Party support electoral reform, with the NDP favouring what is called Mixed Member Proportional or MMP.

In later posts I’ll go into detail about MMP, but for now it will suffice to show what I think the problems are with the existing system. Our system as it stands is called First Past the Post or FPP. Our country is divided into 308 (which will change to 338 this year), with each of these ridings being represented by a single Member of Parliament (MP). In a general election eligible voters cast a ballot in the riding in which they live for the candidate of their choice. At the end of the night the candidate with the most votes wins, regardless of the margin or of the actual proportion of the vote they received.

In a country with only two parties, such as the United States, this will usually lead to the ‘winner’ in the riding with at least half of the vote. The problems only become pronounced when a country has more than two parties, with the problems becoming more pronounced the more parties we have. In Canada we have three main, national parties, each with support greater than 20% of the electorate, but less than 40%. The Conservative Party is right of centre, the Liberal party is roughly centrist, and the NDP is slightly left of centre. In addition to the main three, we also have one main regional party, the Bloc Quebecois which only operates in Québec, and the Green party, which has support of around 5% of the electorate. Both parties are roughly centrist, with the Bloc a bit further left than the Liberals.

To illustrate the main issue with the FPP system I’ll take the example of a recent poll released by OKOS Research. In the province of Ontario they have the Conservatives at 37%, the Liberals at 35%, the NDP at 18%, and the Greens at 6%. If we were to treat the province as a single riding with one representative there would be no clear winner, but the Conservative candidate would still ‘win’ because her or she has a plurality of the vote.

This gets even more pronounced with Québec where, in the same poll, the Conservatives have 22%, the Liberals have 23%, the NDP have 24%, the Bloc have 23%, and the Greens have 6%. If we treated this province as a single riding the NDP candidate would ‘win’ with less than a quarter of the vote.

Of course, nothing I have written here is novel, especially to people who follow politics on a regular basis. There is an organization called Fair Vote Canada which has as its goal to reform the electoral system and replace it with MMP. A couple years ago they released the following video where they illustrate FPP with pizza (in their example two people vote for meat lovers, with the remaining four people splitting their vote):

What I would like to do for the rest of this post is build on their example because I think that it falls short in demonstrating just how unintuitive FPP can be. When FPP goes from a single riding and is expanded to the results of multiple ridings the results can look very different from what the popular vote was. Further, this isn’t a mere theoretical possibility, the unintuitive results are actually projected.

At threehundredeight.com they compile and combine the polling data from different sources and use their expertise to project a seat count. They project that 33.4% of people would vote Liberal, 32.6% Conservative, 20.8% NDP, 5.9% Green, and 4.8% for the Bloc. From those figures they project that the Liberals would get 124 seats, the Conservatives would get 142, the NDP would get 66, two for the Greens, and four for the Bloc. This translates into the following proportion of seats for the following parties, 32% for the Liberals, 37% for the Conservatives, 17% for the NDP, 0.5% for the Greens, and 1% for the Bloc (mind the rounding).

What is stunning about the forecasted results is that it would give the Conservatives more seats than any other party even though they are forecasted to come in second place in terms of the popular vote.

To illustrate just how wrong this could turn out, let’s expand on the pizza example from Fair Vote Canada. Let’s imagine that we are students in a school with eleven classes. Each class has thirty students, giving us 330 students. In order to decide what types of pizza to order for an upcoming school-wide pizza party the principal has asked each class to elect one representative from their class to come to a meeting. At this meeting the students must vote on what type of pizza will be ordered.

Now, to make this manageable let’s assume that there are only three kinds of pizza which they can vote for. These are: vegetarian, meat lovers, and cheese (represented by V, M, and C).

Here is one way in which the vote could turn out. In classes 1-6 V receives 9 votes, M receives 10, and C receives 11 (adding up to a total of 54 for V, 60 for M, and 66 for C). If we were using FPP the voters for cheese would elect six representatives (out of 11). As for the remaining five classes, let’s assume that there is unanimous support for V, giving a total of 150 votes for V (but only five representatives.

Our tally is now at 204 for V, 60 for M, and 66 for C. But since the students don’t vote for the type of pizza directly, and since the principal only asks for a majority vote in this meeting to decide which pizza to order, the cheese party will win even though they represent only 20% of the students, whereas the vegetarians, with 62% of the votes get effectively no say.

The chief issue with FPP is not the first step where a plurality of votes is sufficient to ‘win’ a vote, although this is a problem as well, it is the second level where a majority of representatives have absolute control over the agenda of parliament, even though there is no guarantee that, at this second level, they even have a plurality of the original vote. Under FPP obscure results like the one I have described become more likely as the number of parties increases. It also accentuates regional differences and under-represents parties with even support over the entire country.

Rights of Future Generations and Resource Depletion

Richard De George defends the position that future people cannot be said to have rights due to the various issues that would arise if we treated them as if they did. He defends this position in “The Environment, Rights, and Future Generations” which was reprinted in Responsibilities to Future Generations, a volume edited by Ernest Partridge. De George’s focus is on resource depletion and whether future generations can properly be said to have rights to resources which are in limited supply. Before getting into the details of his arguments against the position that future people cannot have rights, I want to quickly go over what he thinks are the limits of his argument.

The first point to note about his position is that he sees the rights of future generations as a topic which has risen out of the increasingly complex world in which we live, at least in part because of technology. Although he does not put it like this, our increasing power to impact future generations of people, even in the distant future, requires us to re-evaluate our intuitions. We hold the power to destroy our way of life in a way which past generations could not. In light of these changes, people have conflicting intuitions about how we should deal with generations of the distant future, and it is here where he seemingly wants to focus (I say ‘seemingly’ for the reason that his claim about the novelty of the debate only makes sense when considering distant generations since, presumably, past generations have had the ability to influence near generations since the beginnings of human society and hence would not count as a novel debate).

The second point to note is that De George only takes his argument to show that rights claims cannot work in the narrow circumstance he is here describing. He says at both the beginning and end of his paper that a more comprehensive argument is needed in order to fully determine what, if any, rights are held by future people. We should not, therefore, take his argument as a definitive attack on rights qua rights for future generations.

The third point to note is that he makes what has become the definitive argument for the claim that future people cannot have rights. The argument says that future people cannot be said to have anything since the present tense verb ‘to have’ does not make sense within the context of future people. Although I do not want to get into the debate here, it should be noted that De George makes a much subtler point than the debate would have us think. What he says is that future people cannot have rights in the same sense as presently existing people have rights (159). This leaves open the possibility that future people can have rights in a different sense, whatever that sense may be, but as he argues at both the beginning and the end of his paper, determining the nature of these rights must be done at length somewhere else.

The position he attempts to defend in this paper is that future generations of people do not have a right to limited resources such as oil. If we use all of the available oil in the next twenty years, so long as we don’t waste it, then future generations will have no right to the use of oil. For this claim he gives three arguments.

First, people can only have a right to something which exists. As an example, if two parents conceive a child who happens, through bad lack, to inherit sickle cell anemia, then that child simply cannot have a right to have been born without the disease. Since the child’s identity is determined by her genetics, and since sickle cell anemia is in inherited trait, she would not exist and could not exist without the disease. She, therefore, cannot have a right to have been born without the disease. Similarly, at least according to De George, if oil is consumed prior to the birth of some future person, that person cannot have a right to use oil.

An argument given by another author, which I find easier to work with, is that current people cannot have a right to see a live Dodo bird since the Dodo is currently extinct and we cannot have a right to see something which does not exist. The problem with arguments of this kind is that they have the consequence that present people can do anything with a resource (or with the Dodo) so long as they are careful to us all of the resource (or hunt the Dodo well). Let’s say that we want to determine whether future people have a right to see a Black Rhino in the wild, of which there are only about 4000 left. If the above argument is correct that future people only have a right to something which actually exists, then we can fulfill our duty by either conserving the Black Rhino or by hunting it to extinction. In the first case we will discharge our duty by ensuring that future people have the opportunity to see something which they have a right to, and in the second we ‘discharge’ our duty by ensuring that future generations do not have a right to see the Black Rhino.

While De George, and others who have made this argument, might be correct in saying that future people will have no right to see a Black Rhino if they no longer exist at some point in the future, their argument contributes nothing to the real issue. The real issue being whether we have duties to future generations. If we still have a duty to preserve the Black Rhino, or oil for future people, then it is useless to ask whether future people have a right to the Rhino or the oil, our actions are already constrained.

The second argument he makes is that if we assume that all future generations have a right to oil, but we also know that the supply of oil is finite, then there must be some generation in the future which uses the last of the oil and therefore violates the rights of the next generation (161). We would have to perpetually save oil, which would undermine the point of the right of future generations to have oil. Before addressing this point I would like to outline De George’s third argument which makes a similar point.

The third argument he makes is that we (present generations) would face impossible demands. We would have to determine how much oil each person has a right to which would give us each very little oil to use, perhaps a thimble full. Given the problems with ascribing rights to future generations for oil, he thinks that it is best to leave them out of consideration altogether. Future people do not have a right to use oil. (161)

The reason why I treated the first argument separately from the second and third is because I agree with De George that future people do not have a right to oil. And I think that the two reasons above give us good reasons not to treat oil as something which future people can have a right to. My point of departure is that I think no generation has a right to use oil to any extent they desire. Resources aren’t the kind of thing which people have a right to. While it makes sense to say that we have a right to clean air or to a stable environment because those things aren’t limited, any limited resource cannot be the kind of thing we have a right in. It is useful to help us fulfill our needs, but it is not the only means to our ends. Without oil to burn I can still heat my house with wind power or solar power. I can power my car with electricity, and with some adaptation, I can do practically anything I can currently do without oil.

There is nothing necessary about oil which gives future people a right in it unlike something like clean air. While I think it is plausible to deny that future people have a right to oil, it is a lot less plausible to claim that they do not have a right to clean air. If in the next hundred years we do something to the atmosphere to make the air unbreathable, or at least damaging to one’s health, it would be hard to defend a position which claims that at the time when the damage was done to the atmosphere, future people had no rights to a clean atmosphere. Or to use a more realistic example, if in the 80s and 90s when science started to show that CFCs were damaging the ozone layer people decided to continue using CFCs knowing that their actions would harm future people, it would be hard to say that the people of that era did not violate the rights of future people.

What my criticism of this paper comes down to, or more correctly, my criticism of the way in which De George’s argument has been interpreted, is that while De George may have present some good reasons for us to assume that future people do not have a right to finite resources, that group of rights was dubious to begin with. The focus on his semantic argument about how we use the verb ‘to have’ has taken on a stronger usage than De George intended, and still needs to be defended with greater rigour if people want to use it to defend the much stronger claim that future people cannot have rights.

De George, Richard T.. “The Environment, Rights, and Future Generations.” In Responsibilities to Future Generations: Environmental Ethics, edited by Ernest Partridge, 157-165. Buffalo, New York: Prometheus Books, 1981.

John Locke and Consent

In this post I am going to address an issue which comes up in Locke’s writings on political consent by addressing an argument made by A. John Simmons. The issue is over how Locke treats aliens as opposed to denizens (by Locke’s definition, long-term residents with a different status than even resident aliens). As such, this discussion will be historical in character rather than philosophical. I will not attempt to determine how political consent ought to be understood, I will only try to develop a picture of how Locke understood consent.

My first step in this debate is to outline what Locke said on the subject. Briefly, Locke believed that we consent to join a political society when we explicitly agree to society’s political authority. In §119 of the Second Treatise, Locke says that “an express Consent, of any Man, entring [sic] into any Society, makes him a perfect Member of that Society, a Subject of that Government.” He also says in § 122 that “[n]othing can make any Man so [a member of the commonwealth], but his actually entering into it by positive Engagement, and express Promise and Compact.” From this we might reasonably conclude that becoming a member of a political society requires some type of explicit statement.

The next thing to notice is that Locke believed that all men were born free in the state of nature. In §116 he says that the father, and parents generally, do not have the power to bind their children to a particular commonwealth. Also that “by the Practice of Governments themselves, as well as by the Law of right Reason, that a Child is born a Subject of no Country or Government.” (§118) And finally in §122 that “Consent… makes any one a Member of any Commonwealth.” So here we see that children are born neither as the subject of a commonwealth, nor necessarily tied to a commonwealth by their parents, with the further stipulation that men can only become members of a commonwealth by consent.

The final thing to notice before moving on to Simmons’ argument is that tacit consent, which is given by people in virtue of residing in or enjoying the protection of the land, seems to provide very little to both denizens and aliens (§119). Tacit consent is sufficient to provide consent to the laws of a nation, but it is not sufficient to give wider rights such as the right to participate in government or to receive the benefits of social programs. For those rights you need to be a member, which as I have already highlighted above, Locke seems to think that you can only become a member of a commonwealth through explicit consent (§122).

As Simmons points out, this creates a conflict between what Locke seems to say about denizens and aliens (Simmons, 163). For instance, Locke says earlier in §116 that children will come to be members of the commonwealth by inheriting the property of their parents, property which has come to be tied to the commonwealth. But, as we saw in §119, this type of act seems to be indistinguishable from tacit consent which Locke says is not sufficient to make one a member of a political society. For, in the case of aliens, the use of property is not sufficient to make one a member of a political society, yet for natural born residents (denizens), as per §116, the use of property is sufficient to make one a member of political society.

In order to make Locke’s theory consistent with itself, Simmons argues that we ought to interpret Locke as using two different types of tacit consent which can be distinguished by the content they attempt to develop. The type of consent that an alien gives when she crosses a border is consent to the laws of a nation for the duration of her stay (171). For instance, if I were to cross the border into the United States in order to enjoy the beaches and warm weather in Florida, then according to Simmons I have given my consent and agreed to follow the laws of the United States while I am visiting that country without consenting to have my income taxed, or be subject to conscription, or the right to vote.

In contrast to the tacit consent of the alien, a denizen consents to much more when he uses the property or decides to reside in a particular nation. He intends to have access to the political system and to be subject to much more than the mere protection of the laws (171). Say, for instance, that instead of taking a temporary vacation to Florida to escape the cold Canadian winter I decide to emigrate to (or even happen to be born in) Florida. In that case I would consent to far more than someone who is merely visiting.

In light of this distinction, Simmons asks us to differentiate between the two forms of tacit consent based on what the consent contains as its content. He highlights that in §119 Locke refers to explicit consent as conferring perfect membership rather than being the only source of membership in a community (173). Similarly, he takes the argument of §122 as being that the only way for aliens to become a member of the commonwealth is through explicit consent, but given the context of the argument, we should not apply it to denizens. Here I happen to agree with Simmons given that the entire section seems to be devoted to consent for foreigners,

But while Simmons’ interpretation seems to conform with most of Locke’s theory, at least so far as he has cited, I would like to draw attention to another passage in §118 which I think throws doubt on such a charitable reading of Locke. There he says that “if an English-Man’s Son, born in France, be at liberty, and may do so [choose which government to put himself under], ‘tis evident there is no Tye upon him by his Father being a Subject of this Kingdom; nor is he bound up, by any Compact of his Ancestors.” What I think this passage shows is that with the domestic case, that is, the choice a child born within a particular commonwealth makes, is, or ought to be, the same as the child born in another commonwealth.

The child of the Englishman is in a position that is not exactly the same as an alien visiting France, as the Englishman is, but is not the same as the child of French parents born in France. But, if we were to take Simmons’ reading to its logical conclusion, if the Englishman intended to live in France as a citizen then that would be sufficient for tacit consent not only to follow the laws as a foreigner, but to participate fully as a member of that society. But, as Locke says in §122, it is not sufficient that a foreigner reside in a commonwealth to become a member of it. She still must give explicit consent in order to gain the additional rights and responsibilities which we associate with membership in political society.

It appears that Simmons’ argument has moved the goal-posts, so to speak, but without actually resolving the tension between granting denizens rights and granting aliens rights. Even taking the purpose of consent into account does not resolve the issue that Locke treats foreigners of all types are requiring explicit consent in order to become members of the commonwealth even if they have the same intention behind their tacit consent as denizens, whereas denizens only need to consent tacitly.

I think that it is a mistake to try to make Locke’s theory completely consistent with itself. Given an historical reading and taking the context into account, it is reasonable to assume that Locke just assumed that denizens would be members of a political community whereas aliens would not. This is similar to our present-day assumption, at least in many liberal democracies, that citizenship is granted to all people born within a certain geographical area. Foreigners who come to reside within those border take on additional responsibilities to consent, but such explicit consent is simply not required for natural-born citizens. This is in conflict with Locke’s treatment of consent, but this tension does not need to be directly addressed if we read into his theory the hidden assumption that natural-born citizens just are different from aliens.

Bibliography:

Locke, John. Two Treatises of Government. Edited by Peter Laslett.Cambridge: Cambridge University Press, 1960.

Simmons, A. John. ““Denisons” and “Aliens”: Locke’s Problem of Political Consent.” In Social Theory and Practice 24:2 (1998): 161-182. Accessed February 21, 2015. url: http://search.proquest.com/docview/199287610?accountid=15115

Must Theories of Justice Confer Rights?

In his paper, “The Impossibility of a Theory of Intergenerational Justice,” Wilfred Beckerman argues that it is incoherent to speak of intergenerational justice because future generations cannot hold rights. His argument is fairly simple:

  1. “Future generations – of unborn people – cannot be said to have any rights.” (53)
  2. “Any coherent theory of justice implies conferring rights on people. (54)
  3. “Therefore, (3) the interests of future generations cannot be protected or promoted within the framework of any theory of justice.” (54)

Of the two, I think that he has the least difficulties defending the first premise. To have a right in the normal sense of the term ‘to have’ you must exist. He says, as an example, that if he were to describe to us how his friend X has a fantastic music collection, and we were to ask who X is, and he replies that there is no X, we would rightly think that he is crazy or is talking nonsense. It does not make sense to us to talk of something that X has if X does not exist. (55)

A further difficulty when speaking of future rights holders is that the right which they have must be something we can satisfy. If my collection of rare and one of a kind stamps were destroyed in a fire, it is meaningless to say that I have a right to have my collection restored. As Beckerman says, ‘ought implies can’, meaning that I can only have a right to something if that thing is possible for someone to fulfill.

The second premise is much more difficult to defend since it is necessary to show that there are no theories of justice which do not confer rights on people. Or to clarify, if there is a single theory of justice which does not confer rights on people then his second premise is false. This is important for his argument since his aim is to not only show that future people cannot be rights holders, which has already been argued by many people before him, but the stronger claim that justice does not apply to future people.

His argument is difficult to decipher from his paper, but I think it can be summarized as follows:

  1. The well-known theories of justice in the literature focus on the distribution of something. For instance, Rawls defines justice as the way in which fundamental rights and duties are distributed.
  2. In an article written by Vlastos, he defines the main theories of distributive justice by the way they finish the sentence ‘to each according to his…’ where the various theories will fill in the sentence according to the good distributed (hard work, need, worth, etc.).
  3. Any theory which can be defined as above can be rewritten to say ‘everybody has a right to…’. So if we said ‘to each according to his needs’ we can rewrite this as ‘everybody has a right to what he needs’, and so on.
  4. Therefore, “a defining feature of any coherent and morally acceptable candidate for a theory of justice is that it attributes rights(and hence counterpart duties).” (64)

The first thing to note in premises (1) and (2) is that they add nothing in their present form to the logic of the argument. For (1), merely having an example of a theory or set of theories which confer rights does nothing to show that all theories of justice confer rights. For this reason premise (1) should be excluded from the argument. The claim in premise (2) is a bit more complicated, since Beckerman’s point is that even theories which do not explicitly use rights language can be rewritten in terms of rights. The first thing to note about his argument here is that premise (2) refers directly to distributive justice rather than justice on its own. It may very well be the case that all theories of justice can be interpreted as forms of distributive justice, and therefore rewritten in terms of rights, but that point needs to be argued.

Suppose that we subscribe to some form of justice which says that justice is acting virtuously in public life. In order to outline this as a form of distributive justice we might say that the good being distributed is honour, so that the sentence from above is ‘to each according to his virtue’, and ‘everyone has a right to honour’. But, as might be seen, to say that virtuous people have a right to honour goes against the common notion of what honour is supposed to be. As soon as you treat it as the sort of thing which can be claimed or justly distributed you destroy part of its character. To use an example from Plato’s Republic, he thought that the perfectly just person would be seen as completely unjust (and therefore lacking honour), whereas the perfectly unjust person would be seen as perfectly just. Even if we were to concede that our system of honour ought to be distributed according to virtue, it seems contrary to the theory to say that we have a right to honour.

This example also attacks the third premise on the basis that even if a theory can be outlined using the statement ‘to each according to his…’, that does not necessarily mean that it can be understood as conferring a right to something.

To put my criticism of his argument into a simple term (or terms), on the first he is equivocating the terms distributive justice with justice since there could be theories of justice which cannot be written in the form of ‘to each according to his…’. While my second criticism is that he provides no clear reason why all sentences of the above form can be rewritten as a right. He says in defence that “[i]t is obvious that all such principles of justice imply certain rights.” (63) He then goes on to list examples of the well-known theories. My argument is that (2) does not imply (3) in all cases, his premise is not obviously true.

Of course this does not mean, even if his argument is successful, that we do not have any duties to future people. Beckerman says that most of the rights we are concerned with for future people are of the type that are called claim rights, using Hohfeld’s terminology. (56) A claim right is a type of right which has a corresponding obligation tied to it. So if I have a right to clean air, then there must be someone who has a corresponding duty to provide clean air (whether this be some individual or the government). While claim rights have corresponding obligations, rights are not the only way to derive obligations. As an example, Beckerman says that if your neighbour’s house is on fire, you may have an obligation to let your neighbour use your phone without admitting that they have a right to do so.

So, for future people we may still have moral obligations to provide consideration for them without that consideration being a requirement of justice or a right. So not only is it impossible for future people to hold rights, and also impossible for them to be subjects of justice, but (luckily) it is not necessary for them to be so. Many theorists seem to think that our obligations are exhausted by obligations of justice tied to rights, but that leaves out an entire set of obligations.

On this point I agree with Beckerman. For most issues it should be possible for our normal system of moral obligations to deal with issues which arise in the intergenerational sphere. But to reiterate, I do not think that he has given us an argument sufficient to show that intergenerational justice is always an incoherent term.

References:

Beckerman, Wilfred. “The Impossibility of a Theory of Intergenerational Justice.” In Handbook of Intergenerational Justice, edited by Jörg Tremmel, 53-71. Cheltenham, UK: Edward Elgar Publishing, 2006.

Vlastos, Gregory. “Justice and Equality.” In Theories of Rights, edited by Jeremy Waldron, ch.2. Oxford: Oxford University Press, 1984 [originally published 1962].