Friday, July 25, 2014

Does the Irish constitution imply the existence of unenumerated rights? (Part Three)

(Part One, Part Two)

This is the third and final part of my short series on unenumerated rights and the Irish Constitution. The series is examining a classic debate about the interpretation of Article 40.3 of the Irish Constitution in light of some important concepts from linguistic philosophy, specifically the concepts of implicature and enrichment. In part one, I explained what those concepts were. In part two, I looked at an argument from the philosopher Gerard Casey which claimed that Article 40.3 does not imply the existence of unenumerated rights.

In this part I’ll look at a response to Casey’s argument. This response builds upon the concepts and arguments discussed in the previous entries. Even though I do revisit some of those concepts and arguments below, I would still recommend reading the previous entries before reading this.

1. Casey’s Reading and the Substantive Response
To understand the response to Casey’s argument we need to briefly recap some of the key elements of his argument. As you recall, Article 40.3.1 of the Irish Constitution says that the state shall “defend and vindicate the personal rights of the citizen”. Article 40.3.2 then follows up by saying:

Article 40.3.2: The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.

The argument for the existence of unenumerated rights holds that because this section refers “in particular” to a group of rights (life, person, good name and property) not elsewhere discussed in Article 40, it must be a non-exhaustive list of personal rights and therefore citizens must have other personal rights that the state must vindicate and protect.

Casey argues that this is the wrong way to read Article 40.3.2. He maintains that the article does not refer to a bunch of personal rights; rather, it only refers to one set of rights: property rights (which are mentioned elsewhere in Article 40). This is because he views the following as the correct way in which to parse what is being said in Article 40.3.2:

Casey's Reading: The State shall, in particular…vindicate [the life, person, and good name of every citizen] and the [property rights] of every citizen.

We also saw the last day that Casey seems to have pretty good support for his reading from the Irish language version of the Irish Constitution.

Now, you might be inclined to view Casey’s argument as nothing more than a bit of linguistic trickery. His claim — that Article 40.3.2 only refers to property rights — might be correct as a matter of pure semantics, but when you think about in more detail, you might be persuaded that Article 40.3.2 must — as a matter of legal necessity — refer to other rights.

How might you be persuaded of this? Well, take the first bracketed-phrase from Casey’s reading. Then ask yourself: how could the state vindicate and protect those things except by creating a set of legal rights? How could someone’s life, for instance, be protected by the state, through that state’s constitution, without there being some sort of legally recognised and enforceable right to life? How could someone’s person be protected without some sort of set of personal rights (including the right to bodily integrity, which featured in the case Ryan v. Attorney General) be recognised and enforceable? And so on.

This is the substantive response to Casey’s argument. It holds that even if Article 40.3.2 doesn’t literally and explicitly refer to anything other than property rights it does as a matter of legal substance. This response isn’t perfect. After all, it is technically possible for a state to protect someone’s life and good name without creating a legal right to those things. Nevertheless, within the world of constitutional law, there is a pretty tight connection between the protection of those things and the creation of a legal right. This, incidentally, means that if the substantive response is to succeed it will succeed as a matter of pragmatics, not semantics — see part one for the distinction. It is an argument about what makes sense in a particular pragmatic context; it is not an argument about what sort of meaning is semantically encoded into the text.

2. Casey’s Reply and Concluding Thoughts
Is the substantive response any good? Casey recognises and replies to it in his article. His reply is interesting, though I’m not sure what to make of it. First of all, Casey concedes the main thrust of the substantive argument. He doesn’t kick up a fuss about the conceptual connection between the existence of rights and the state’s proclaimed duty to protect and vindicate things like the life, person and good name of the citizen. The only thing he does say is that if we accept this we must accept the further linguistic quirk that article 40.3.1 and 40.3.2 both refer to “personal rights”. The repetition is not fatal to the case for unenumerated rights, but it is odd.

Casey’s main objection to the substantive response is that it proves too much. One of the keys to Kenny J’s original argument for unenumerated rights was the claim that the right to life and the right to a good name were not specified elsewhere in Article 40.3, but if the substantive response is correct they are specified in Article 40.3. They are specified in Article 40.3.2. It’s true that they are not specified anywhere else, but as Casey points out, what difference should that make?

There is still the problem that Article 40.3.2 uses the phrase “in particular”, which suggests (pragmatically if not semantically) that the list of rights in 40.3.2 is non-exhaustive. But Casey thinks you can deal with this by supposing that the phrase “in particular” attaches to the words “vindicate” and “protect” not to the list of rights. As he himself puts it:

…if the substantive response is correct, these rights are specified in Article 40; they are specified precisely, if implicitly, in 40.3.2. They may not be specified elsewhere in Article 40 but why should that be problematic, just as the mention of personal rights in both sub-s. 1 and sub-s. 2, on this reading, would have to be unproblematic. In this context the phrase ‘in particular’ could attach to the verbs ‘protect’ and ‘vindicate’ and would commit the State to protect the (implied) rights in sub-s. 2o from unjust attack and to vindicate them in the case of injustice done, as distinct, perhaps, from other rights in Article 40, such as those mentioned in 40.6.

I find this a little unsatisfactory. Casey seems to be tying himself into knots in order to get us to accept his preferred reading. If he’s right, then we’d have to accept two linguistic oddities: (i) the repetition of “personal rights” in 40.3.1 and 40.3.2; and (ii) the attachment of “in particular” to “vindicate” and “protect” rather to the list of rights (odd given that article 40.3.1 already refers to the state's duty to "defend" and "vindicate" personal rights). If we are going by which interpretation commits us to the fewest anomalies, I would suggest that the substantive response is more appealing in that it only commits us to the first.

I would also add, as a concluding thought, that the substantive response definitely seems more plausible when we think about the argument from a pragmatic rather than a semantic viewpoint. The problem with Casey’s arguments is that they tend to elide the distinction between the two, starting out by making purely semantic points and staying with those once the argument has drifted into pragmatic territory (which it has by the time we get to the substantive response). I am inclined to agree with him as a matter of semantics: the Irish constitution does not semantically imply the existence of unenumerated rights. Indeed, the cancellability argument that I outlined in part two would seem to be nearly decisive on that score. But the question is really whether the constitution implies their existence as a matter of pragmatics (i.e. as a function of the legal and historical nature of the relevant provisions). To be fair to him, Casey may acknowledge this point when, at the end of his article, he accepts that certain personal rights may require constitutional recognition as a result of the “Christian and democratic” nature of the constitution. To evaluate that argument, however — and the pragmatic argument for unenumerated rights more generally — would require a far longer series of posts. So I’ll have to leave it there for now.

Tuesday, July 22, 2014

The Philosophy of Mind-Uploading (Series Index)

Looking back over my old posts, I suddenly realise that I've written quite on number on the philosophy of mind-uploading. Mind-uploading is a general term for the phenomenon whereby our minds are transferred out of our brains and into some other substrate. Some people claim that this may be possible. It is an intriguing claim and it raises a number of philosophical issues, particularly relating to the nature of personal identity.

Anyway, I thought it might be useful to provide a convenient index to everything I've written on the topic. I may add to this series in the future.

Does the Irish constitution imply the existence of unenumerated rights? (Part Two)

(Part One)

This the second part of my short series on unenumerated rights in the Irish constitution. The series is looking a classic debate about the interpretation of Article 40.3 of the Irish constitution. It does so in light of some important concepts from linguistic philosophy, particularly the concepts of implicature and enrichment. I gave an overview of those concepts in part one.

In this part, I look at Mr Justice Kenny’s argument in favour of the existence of unenumerated rights. I also look at the philosopher Gerard Casey’s reconstruction and rebuttal of that argument. In doing so, I will be working primarily off Casey’s article “The ‘Logically Faultless’ Argument for Unenumerated Rights in the Constitution”.

If you haven’t read part one, I would recommend doing so. In what follows, I will be relying on some of the concepts and tests that are explained in that post.

1. Mr Justice Kenny’s Argument from Ryan v. Attorney General
Ryan v. Attorney General is a famous Irish constitutional law case. It involved a woman objecting to the fluoridation of the public water supply on the grounds that it violated her right to bodily integrity. The problem was that no such right is mentioned in the Irish constitution. In his judgment, however, Mr Justice Kenny found that the constitution — specifically Articles 40.3.1 and 40.3.2 — implied the existence of unenumerated rights, and that among those unenumerated rights was the right to bodily integrity. He did not, however, find in favour of Ryan, holding instead that fluoridation did not violate that right.

The right to bodily integrity is not what interests me. What interests me is the argument Kenny J. made for the existence of unenumerated rights. To understand that argument, we first need to review the wording of the relevant articles:

Article 40.3.1: The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen
Article 40.3.2: The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.

I’ve emphasised some of the key phrases since they are crucial to Kenny J’s argument. That argument — such as it is — is contained in the following extract from his judgment:

The words ‘in particular’ show that sub-s. 2 is a detailed statement of something which is already contained in the general guarantee. But sub-s. 2 refers to rights in connection with life and good name and there are no rights in connection with these two matters specified in Article 40. It follows, I think, that the general guarantee in sub-s. 1 must extend to rights not specified in Article 40.3.

So Kenny J thinks that Article 40.3.1 contains a general guarantee that the state will defend and vindicate the personal rights of the citizen. He then thinks that Article 40.3.2 provides a non-exhaustive list of some of those personal rights, and since none of those rights appear elsewhere in Article 40 (you’ll just have to take my word for this - unless you want to read the full text for yourself), it follows that the general guarantee covers unenumerated rights too.

The argument is a little odd, but in his analysis, Casey offers the following semi-formal reconstruction:

  • (1) Article 40.3.1 provides a general guarantee of the personal rights of the citizen.
  • (2) Article 40.3.2 by virtue of the words “in particular” provides a detailed specification of that general guarantee.
  • (3) But Article 40.3.2 refers specifically to rights in connection with life and good name and there are no such rights specified in Article 40.
  • (4) Therefore, the general guarantee in 40.3.1 must extend to rights not specified elsewhere in Article 40. (i.e. there are unenumerated rights)

The logical validity of this argument is open to doubt, but let’s grant that it is valid. It’s important to realise how premises (2) and (3) are crucial to the argument Kenny J is making. Initially, I thought it would be possible to make a case for unenumerated rights based solely on the wording of Articles 40.3.1 and 40.3.2. The idea being that in using the phrase “in particular”, Article 40.3.2 implies that the list being given is non-exhaustive and therefore that there must be other rights not specified in the article. But this is flawed, as we shall see in a moment. For Kenny J, it was the fact that Article 40.3.2 gave a non-exhaustive list combined with the fact that the rights listed there are not covered elsewhere in Article 40 that made the case for the existence of unenumerated rights.

Anyway, how plausible is this argument? In the remainder of this post, I will look at Casey’s rebuttal of the main premises.

2. Casey’s Critique of Premises 1 and 2
Casey doesn’t have much to say about premise (1), except that referring to the guarantee in Article 40.3.1 as “general” may prejudge the issue. Instead, we should simply say that it acknowledges that the state shall vindicate and defend a class of personal rights.

Premise (2) is more problematic. The claim made by Kenny J and his defenders is that the use of the phrase “in particular” implies the existence of other personal rights, i.e. it implies that the list being given is non-exhaustive. But does it really do so? Casey argues that it doesn’t. He bases his argument on the idea of conversational implication, but I find that argument unhelpful because it elides the distinction between semantics and pragmatics. So I’m going to substitute my own argument. It agrees with Casey’s basic conclusion, but hopefully provides a more compelling reason for doing so.

The argument draws on Marmor’s cancellability and negation tests, both of which were discussed in part one. The tests help us to determine whether an implication arises as a matter of semantics or as a matter of pragmatics. The idea is that if it is not possible to cancel an implication, then the implication is semantically-encoded into the text. If, on the other hand, it is possible to cancel an implication, then it arises as a matter of pragmatics (i.e. as a function of the specific context in which the text was produced).

We need to apply these tests to the text of article 40.3.2. To do this, we must first identify the relevant portion of 40.3.2 and specify the alleged implication. As follows:

“The State shall in particular… vindicate the life, person, good name and property rights of every citizen” → there are other unenumerated personal rights that the state must vindicate.

Now we must apply the negation test. Take the negation of the alleged implication:

There are no other personal rights that the state must vindicate.

And then pair that negation with the original wording. What do we then have? Well, we have the statement that the state will, in particular, vindicate a certain set of rights, and the claim that there are no other rights beyond that set. The question is whether this pair of statements involves a contradiction. The answer is that it doesn’t. It just involves an awkward turn of phrase. This means the alleged implication is cancellable in this instance, which in turn suggests that if Article 40.3.2 implies that the list of rights there specified is non-exhaustive, it does so pragmatically, not semantically. In other words, the existence of unenumerated rights is rendered possible but not necessary by the use of “in particular”.

An analogy will probably be helpful, and Casey supplies a good one. Consider the statement:

"John is an attractive fellow. He has, in particular, a friendly disposition and a generous spirit."

We might suppose that this form of words implies that John has other attractive qualities. But that implication would not pass the negation test. It is logically consistent to state that he has those qualities in particular, and that he has no other attractive qualities. It’s an awkward way of putting it, to be sure, but it’s not inconsistent. The same could be true in the case of Article 40.3.2.

3. Casey’s Critique of Premise (3)
The rebuttal of premise (2) makes a neat linguistic point, but it is hardly fatal. There could be other linguistic factors which decisively make the case for the existence of unenumerated rights. That’s exactly what premise (3) tries to do. By highlighting the discrepancy between the rights listed in 40.3.2 and those mentioned elsewhere, it tries to add further linguistic reasons for thinking that the list provided in 40.3.2 is non-exhaustive.

The problem, as Casey points out, is that premise (3) is false. Kenny J is convinced that 40.3.2 specifically mentions the right to life and good name, but it actually doesn’t. It only mentions property rights. To see the problem go back to the wording of 40.3.2:

Article 40.3.2: The State shall in particular… vindicate the life, person, good name and property rights of every citizen.

Kenny J seems to parse that in the following manner:

Kenny J's Reading: The State shall, in particular…vindicate the [right to life], [right to person], [right to a good name], and [property rights] of every citizen.

But that’s a very odd way of reading it, particularly since it seems to force us to accept the notion of a “right to person” (though maybe this could be read as simply repeating the general guarantee to respect the “personal” rights of the citizen). The correct reading, according to Casey, is as follows:

Casey's Reading: The State shall, in particular…vindicate [the life, person, and good name of every citizen] and the [property rights] of every citizen.

This reading makes clear that only property rights are referenced in Article 40.3.2. What’s more, property rights, unlike the right to life and good name, are explicitly covered by another subsection of Article 40 (and again later in Article 44). This defeats premise (3) of Kenny J’s argument.

Actually, there is an even more decisive reason for endorsing Casey’s reading. The Irish constitution is written in two languages: Irish and English. Whenever there is an inconsistency between the two, the Irish language version prevails. The Irish language version of 40.3.2 reads like this:

Article 40.3.2: Déanfaidh an Stát, go sonrach, lena dhlíthe, beatha agus pearsa agus dea-chlú agus maoinchearta an uile shaoránaigh a chosaint ar ionsaí éagórach chomh fada lena chumas, agus iad a shuíomh i gcás éagóra.

This does translate as being roughly equivalent to the English language version, but the way in which the bit after “in particular” is drafted in the Irish version is slightly clearer. I have highlighted the relevant portion of text. It reads literally as “life (beatha) and person (pearsa) and good name (dea-chlu) and property rights (maoinchearta)”. The use of “and” suggests that these are all distinct things, and the use of the composite “maoinchearta” for property rights is important. “Cearta” is the Irish for “right”. If it occurred at the end of the phrase as a separate word, we might have reason to prefer Kenny J’s reading. The fact that it is explicitly conjoined to the word for property, suggests that Casey’s is the correct reading.

For that reason, Casey holds that Kenny J’s argument for the existence of unenumerated rights is flawed. There are, however, some possible responses to Casey’s rebuttal. I’ll discuss those in part three.

Monday, July 21, 2014

Does the Irish constitution imply the existence of unenumerated rights? (Part One)

I haven’t done a post on legal theory in a while. This post is an attempt to rectify that. It’s going to look at the philosophy of legal interpretation. It does so by honing in on a very specific issue: the implied existence (or non-existence, as the case may be) of unenumerated rights in the Irish constitutional text. The issue arises because of the wording of Article 40.3 of the Irish constitution. The offending provisions are (in their English language versions, and with emphasis added):

Article 40.3.1: The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
Article 40.3.2: The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.

In an influential decision back in the 1960s, an Irish High Court judge (Kenny J) held that these two provisions, when read together, implied that the Irish constitution recognised and protected a class of unenumerated personal rights. His argument for this conclusion was described by John Kelly — a famous Irish constitutional scholar — as “logically faultless”. The courts then took the idea and ran with it, identifying a whole of raft of unenumerated rights in subsequent case law.

But was the argument really logically faultless? In a short piece, the philosopher Gerard Casey claimed that it was not. Far from it, in fact. He argued that if you read the two provisions correctly, Kenny J’s case for the existence of unenumerated rights is borderline absurd.

Over the next two posts, I want to take a look at this debate, focusing specifically on Kenny J’s original argument and Casey’s rebuttal. Along the way, I want to highlight some important concepts from linguistic philosophy and show how these concepts can help us to understand the arguments on display. I’ll start, today, with a basic primer on the concepts of implicature and enrichment. I’ll look at the actual arguments about the interpretation of Article 40.3 in subsequent posts.

1. Implicature and the Cancellability Test
To start, we must have some general sense of the distinction between semantics and pragmatics. This is a standard distinction in linguistic theory, but it is not widely-known. Semantics refers to the meaning of the words used in a particular utterance. That is to say: the meaning that is encoded into the linguistic signs and symbols used by the speaker. The semantic meaning of an utterance is general and not context dependent. Pragmatics, on the other hand, refers to the token-specific meaning of an utterance. That is to say: the meaning that is communicated by a given speaker, in a particular time and place. It is specific and highly context-dependent.

It is important to be aware of these distinctions because the debate about the interpretation of Article 40.3 sometimes slides back and forth between both domains.

Anyway, with that general distinction in mind, we can turn to the distinction between implicature and enrichment. Both concepts cover the ways in which the communicated meaning of an utterance can extend beyond the words used in the utterance, but they do so in different ways. We’ll start by looking at implicature.

Implicature covers the phenomenon whereby the words used in an utterance can imply something beyond what is said. For example, if I say “I am going to wash my car”, I imply that I own or have use of a car. Or, if I am a member of a criminal gang, and I say to a local business owner “It’s a nice place you got here, it would be a shame if something happened to it”, I imply that if the owner doesn’t pay us some protection money, we will destroy his place of business. Both cases involve implicature, but they are rather different in nature. In the first case, the implied ownership or use of the car is semantic (i.e. it is implied by the actual words used). In the second case, the implied threat is pragmatic (i.e. it is a feature of the particular context in which the words are used).

The legal philosopher Andrei Marmor has helpfully identified three classes of implicature, each of which can feature in different legal contexts

Conversational Implicature: This is probably the most widely discussed form of implicature. It was first identified by the linguistic philosopher Grice. It arises frequently in everyday conversations and its occurrence is linked to certain norms of everyday conversation. This kind of implicature is highly context-sensitive and is firmly within the pragmatic branch of analysis. If you’re interested, I wrote about the legal implications of this before.
Semantically-encoded implicature: This is a distinct form of implicature, one which should not to be confused with the conversational form. As Marmor puts it, it arises when “the speaker is committed to a certain content simply by virtue of the words she has uttered…regardless of the specific context of conversation”. This is not context-sensitive and belongs more properly within the semantic branch of analysis.
Utterance Presupposition: This is where an utterance presupposes something not explicitly mentioned or stated in the utterance itself. In other words, it arises when an utterance would not make sense without us presupposing some unmentioned entity, activity or state of affairs. Utterance presuppositions occupy a somewhat uncertain territory.

The reason for the uncertain position of utterance presuppositions has to do with the test that is used to determine whether implicature is semantically-encoded into the words of an utterance. This is the cancellability test. According to this test, an implicature is semantically-encoded if it is not possible for the speaker, using those words, to cancel the implied meaning. Conversely, if it is possible to cancel the meaning, then the implicature is conversational and contextual in nature. The problem with utterance presuppositions is that they are sometimes uncancellable, sometimes cancellable. Thus, depending on the form of words used, they can be either context-dependent or non-context dependent.

Marmor gives us some examples of this. Consider the following two utterances and their presuppositions:

  • (A) “It was Jane who broke the vase” → presupposes that someone broke the vase 

  • (B) “The Republicans and Senator Joe voted for the bill” → presupposes Joe is not a Republican

Marmor’s argument is that the presupposition in A is not cancellable, whereas the presupposition in B is. This argument is supported by a new test, the negation test. This is an add-on to the cancellability test. It works like this: if we add propositions A and B together with the negation of their presuppositions, do we get an outright contradiction, or do we just get an awkward but not inconsistent turn of phrase?

If we take “Jane broke the vase” and add it to “no one broke the vase”, we get a contradiction. This suggests that the presupposition in this instance is not cancellable and is hence semantically-encoded into the utterance. Contrast that with proposition B. If we add that together with “Joe is a Republican”, we don’t quite get a contradiction. We just get an awkward form of expression. This suggests that the presupposition is cancellable in this instance, though the context may dictate otherwise. So an utterance presupposition could be highly context-specific, but might also not be.

This is all pretty technical stuff, but if you can wrap your head around it, it really does help to make sense of some of the arguments about the meaning of Article 40.3. As we shall see, one of the crucial issues there is whether Article 40.3 implies the existence of unenumerated rights in a semantic or pragmatic way. And one way in which to test for this is to apply the cancellability test to the wording of the article.

2. Enrichment and the class of rights
Okay, so that’s everything we need to know about implicature. What about enrichment? This is less important for present purposes, so we can go over it in less detail. Enrichment is the phenomenon whereby the meaning of particular phrases is enriched by the pragmatic context in which they are uttered. It arises because in most everyday speech contexts we compress what we want to say into fewer words than are strictly needed. Most commonly, enrichment serves to restrict the class of objects or actions to which a given utterance is intended to refer.

Here’s an example. Suppose you and I are roommates moving into a new apartment together. We are busy installing our furniture and putting up pictures and ornaments. At one point, clutching a painting beneath my arm and eyeing an appropriate spot on the wall, I tell you: “I am going to use the hammer”. Presumably, what I mean in this context is that “I am going to use the hammer, to put a nail in the wall upon which I can hang this picture”. Note, however, that the original wording was, strictly speaking, vague as to the precise way in which the hammer was going to be used. A hammer could, in fact, be used in many ways (e.g. as a paper weight or as a weapon). But the restrictive meaning of “to use” was implied by the context in which the utterance was made and is part of the enriched meaning of what was said. The same enriched restriction of meaning frequently arises with noun classes.

Enrichment can have an important role to play in debates about the meaning of a legal text. Indeed, the vagueness of the verb “to use” has occasionally caused headaches for courts. Suppose there is a statute saying that if you “use” a firearm during the commission of a drugs offence, you add five years to the jail sentence. Now, imagine that you and I are involved in a drug deal. I am selling you cocaine. I do so in my office, where there is a firearm resting on a stack of papers on my desk throughout the sale. Have I used the firearm during the drugs offence? That depends on whether the verb “to use” has a restricted enriched meaning or not. (This is based on a real case, but I can’t remember the name or the outcome right now).

Enrichment also has a role to play in the interpretation of unenumerated rights provisions. Assume, for sake of argument, that the Irish constitution does imply the recognition and protection of a class of unenumerated personal rights. Is that an unrestricted or restricted class of rights? Some irish judges have suggested that the class is restricted by the “Christian and democratic” nature of the Irish state, suggesting a degree of enriched meaning. This may nor may not be plausible. Similar arguments have been made about the class of unenumerated rights recognised by the US constitution. Randy Barnett — a prominent libertarian legal scholar — has argued that the unenumerated rights clause in the 9th Amendment is restricted to “liberty rights”. He does on the grounds that, in the pragmatic context in which the US constitution was drafted and ratified, that restricted meaning would have understood. It would be interesting to see whether analogous arguments could be made in the Irish context about the "Christian and democratic" nature of the rights. I won’t, however, pursue the matter any further in this series of posts.

So that’s it for part one. Hopefully this conceptual overview has been somewhat illuminating. We’ll look at the actual arguments about Article 40.3 in part two.

Friday, July 18, 2014

Philosophy and the Basic Income (Series Index)

I've written a number of posts about the ethics and justice of the basic income grant. I thought it might be useful to provide an index to all of them in this post. Most of these posts look at whether an unconditional basic income grant can be justified from a particular theoretical perspective, e.g. feminism, libertarianism, liberal egalitarianism, and republicanism. One of them asks whether there should be a right not to work. Enjoy:

Thursday, July 17, 2014

Should we have a right not to work?

Voltaire once said that “work saves a man from three great evils: boredom, vice and need.” Many people endorse this sentiment. Indeed, the ability to seek and secure paid employment is often viewed as an essential part of a well-lived life. Those who do not work are reminded of the fact. They are said to be missing out on a valuable and fulfilling human experience. The sentiment is so pervasive that some of the foundational documents of international human rights law — including the UN Declaration of Human Rights (UDHR Art. 23) and the International Covenant on Economic, Social and Cultural Rights (ICESCR Art. 6) — recognise and enshrine the “right to work”.

But what about the right not to work? Although the UDHR and ICESCR both recognise the right to rest and leisure, they do so clearly in the context of a concern about overwork. In other words, they recognise the right to work under fair and reasonable conditions. They do not take the more radical step of recognising a right to opt out of work completely, nor to have that right protected by the state. But maybe they should? Maybe the right not to work is something that a just and humane society should recognise?

That, at any rate, is the argument developed by Andrew Levine in his article “Fairness to Idleness: Is there a right not to work?”. In this post, I want to take a look at that argument. In broad outline, Levine defends the claim that a right not to work is entailed by the fundamental principles of liberal egalitarianism (of a roughly Rawlsian type). He does so, not because he himself endorses liberal egalitarianism, but because he wishes to highlight the more radical implications of that view.

I think Levine’s argument is intriguing. I also think that if we are entering an age of increasing automation and technological unemployment — i.e. a world in which economically productive activity will be taken over by machines — its alleged impracticalities will become less and less of an issue. Consequently, it is something we should start to take more seriously. I’ll break my discussion down into two main sections. First, I’ll sketch Levine’s argument for the right not to work. Second, I’ll consider his response to the major criticisms of that argument.

1. Levine’s Argument for a Right not to Work
One of the central precepts of liberal egalitarianism (as Levine understands it) is the principle of neutrality. According to this principle, the state should be neutral with respect to its citizens’ conception of the good. That is to say, the state should not promote any particular conception of what the good life consists in. Instead, it should work to tolerate and facilitate people in their pursuit of different conceptions of the good. Obviously, it can only do this to a certain extent. If a person’s conception of the good consists in the belief that, say, all black people should be killed, then that can neither be facilitated nor tolerated. Or if a person’s conception of the good involves unreasonable demands on resources, such that it would deprive many others of their conception of the good, then it may not be permissible or possible to facilitate it. But assuming that a person’s conception of the good does not unjustly or unfairly deprive anyone else of their conception of the good, it should be tolerated, and if possible, facilitated.

This principle of neutrality provides the basis for Levine’s argument for the right not to work. Although he does not offer a formal summary of that argument, I think we can craft a formal version by reading between the lines. Here is my stab at it:

  • (1) If the state is committed to the liberal egalitarian model of justice, then it should tolerate and facilitate any individual citizen’s conception of the good, provided that that conception of the good does not unjustly or unfairly deprive anyone else of their conception of the good.
  • (2) There is a conception of the good in which a person refuses to work and instead pursues a life of leisure.
  • (3) This conception of the good does not unjustly and unfairly deprive anyone else of their conception of the good.
  • (4) Therefore, the liberal egalitarian state should tolerate and facilitate the refusal of work and the pursuit of leisure (i.e. it should recognise a right not to work).

Let’s talk about the premises of this argument. Premise (1) is the normative principle. As you can see, it is conditional in nature. It assumes that we first accept the liberal egalitarian model. This is a model many would challenge, but we are assuming it arguendo (for the sake of argument). This is because that is the argumentative strategy adopted by Levine. Some may also dispute the claim that liberal egalitarianism entails the restricted form of neutrality that I have outlined in the second half of premise (1). Indeed, as we shall see, Levine himself disputes it, thinking in particular that the “unfairness” condition may be overstated. This means we may have to modify premise (1), but we’ll only do that once we confront the relevant objection to the argument.

Premise (2) makes what I think is a relatively uncontroversial point, namely that a life of leisure is a possible model of the good life. Since most people accept that leisure is a good, I think they might be willing to accept this claim. Admittedly, a lot more would need to be said to fully defend it. In particular, the concept of “leisure” would need to be unpacked in more detail. The only thing I would say here is that, for me, the concept of a “life of leisure” is not used to denote a life of senseless pleasure-seeking. Rather, it is used to denote a life that is not economically productive or consumptive. Thus, a life of leisure could consist in producing things with no economic value (like blog posts!). Furthermore, I would add that premise (2) is consistent with the view that a life of leisure is “less than ideal” or “sub-optimal”. In other words, it only claims that it is a conception of the good; not that it is the best one.

Premise (3) is probably the most important one. It makes the key claim that the pursuit of a life of leisure does not unjustly or unfairly interfere with anyone else’s conception of the good. It is this claim that allows us to reach the conclusion that there could be a right not to work. Without it, the argument crumbles. There are several obvious rejoinders to premise (3). We’ll talk about the most obvious one — the reciprocity objection — below. In the meantime, we’ll consider another possible rejoinder.

Some people might be inclined to view leisure as an expensive taste, one that the state is under no obligation to facilitate. To give an example: sailing around the world on a fully-staffed, multi-million dollar yacht, may well feature in some people’s conception of the good life (I believe I have met such people). But I doubt anyone would say that the state is obliged to facilitate that conception of the good life. If that’s the way you want to live, you’ll have to work and earn the money needed to fund that expensive taste. That’s usually the way we look on all expensive tastes. But isn’t leisure time the same thing? Isn’t it just expensive taste that we need to work hard to earn?

Levine argues that this is the wrong way to look at the life of leisure. He argues that looking on leisure as a consumption-good — i.e. that can bought and paid for, and substituted for other goods — misses the point in at least two ways. First, it adopts a perspective on leisure that is a function of our capitalistic, commodification-prone society. Second, it ignores the fact that working hard in order to obtain leisure undermines the very nature of that good.

Instead, Levine argues that we should view leisure as an intrinsic, non-substitutable good: something that can’t simply be purchased in return for a fee. To defend this claim, Levine adopts a rather ingenious strategy: he draws an analogy between the typical arguments for the right to work and the argument he wants to make for the right to leisure. I’ll quote from him here:

To make the case that the state ought to accord [a right to work]… one would have to show that, for some individuals, the benefits of employment are such that nothing can adequately substitute for them. Presumably the benefits would be non-pecuniary, since direct grants can always substitute for wages…thus it is almost certainly relevant to any likely defense of a right to work that individuals generally cannot purchase jobs through markets…it is also relevant that social norms are such that participation in the monetized economy is, for most people, a basis for self-respect and the respect of others. 
In much the same way, it is fair to view leisure as an intrinsic, non-substitutable component of particular conceptions of the good. The rationale is the same: like employment in the monetized economy, idleness can sometimes be so connected to individuals’ self-understandings, to their relations with others, and indeed to their very identities that trading off leisure for a wage can only be to the detriment of what matters fundamentally [to them].
(Levine, 2013, 106-107

As I say, I think this is ingenious. This is mainly because I think Levine is correct about the right to work. If people believe that work is so important that it must be facilitated and protected by the state, it must be because they think the goods associated with it cannot simply be bought and sold on a market. But if this is correct then why not look on leisure as being the same thing (for at least some people)?

The problem, of course, is that many will think that facilitating leisure will be unfair and unjust in other ways. Let’s consider this type of objection in more depth.

2. Reciprocity and the Unfairness of Non-workers
The view that non-workers are no-good free-loaders, whose lifestyles are funded off the hard-graft of others, is a persistent one. There is good cause for it. The idle leisure-seeking classes of the past and present are typically wealthy landowners or capitalists who fund their extravagant lifestyles from rents they earn from the productive work of others. Surely we cannot be wish to protect and facilitate their right to do this?

Embedded in this rhetorical question are two related objections to the right to not to work. The first, and more straightforward, is the objection that the state couldn’t really sustain this sort of lifestyle choice. If everybody pursued the life of leisure, there would be nobody left to fund it. The second, and more ethically complex objection, is that even if some people did get to pursue this lifestyle, they could only do so by unjustly or unfairly exploiting others.

As I say, the first objection is the more straightforward one. We can respond to it in a couple of ways. One is by acknowledging that if everyone chose that lifestyle it would, indeed, be unsustainable, but then suggesting that this is unlikely. This is Levine’s response. He thinks the work ethic is so dominant in our societies that it is highly unlikely that a sufficient number of people will drop out of work. Another response, which I hinted at in the introduction, is to suggest that automation and technological unemployment will either (a) allow for many more people to drop out of work or (b) force many people out of work. Consequently, a life of leisure will become feasible (if not compulsory) for more and more people. Of course, technological unemployment on a large scale could create huge inequalities of wealth, and these would need to be addressed, but that wouldn’t defeat the point I making: that technological unemployment will bring us closer to a world in which a life of leisure is increasingly the norm.

The second objection is the more ethically contentious one. It derives its logic from classic “public goods” problems like the tragedy of the commons. Societies have a number of coordination problems to solve. Oftentimes, the solution requires some form of cooperation: if everyone (or a sufficient fraction thereof) pitches in, a cooperative gain will be realised. If they do not, the cooperative gain will be lost. The belief is that the gains from economic growth are much like this. Unless a sufficient number of people pitch in (either by supplying capital or labour), those cooperative gains will be lost. Furthermore, the belief is that the shares of those cooperative gains should, in a just and fair society, be proportionate in nature. That is to say, your share of the cooperative gain should be proportionate to the amount of effort you put into realising it. If your share is greater than your contribution, you are unjustly and unfairly profiting from the contribution of others.

The objection to non-work is simply that if society tolerated and facilitated this lifestyle, it would presumably have to be through some form of redistribution that allowed the leisure-seekers to meet their basic needs without working. That would mean they would receive a share of economic gains that was not proportionate to their contribution. Hence it would mean that they were unjustly and unfairly depriving others of what they were due.

Interestingly, Levine accepts this criticism (this is where the modification of premise (1) comes into play). He accepts that the life of leisure would involve some degree of unfair gain (though how great is a separate issue). He just doesn’t think this is a normative problem. Why not? Because cooperative gains are rarely, if ever, shared in accordance to contribution. It is usually very difficult to work out what the contributions really are, and oftentimes impractical or undesirable to distribute in accordance with those contributions. For example, the state provides (or heavily regulates the provision of) public goods that cannot be easily supplied by the market. A classic example is healthcare. When it does so, the benefits of that good are rarely equally shared among the population. But we usually do not fret greatly about this. For example, I contribute far more to the public healthcare in my country than I take out of it, but I don’t find this to be terribly unfair to me. Other people need those resources more than I do.

Is there something different about work and non-work? Should a lack of contribution to economic productivity be treated differently? Levine argues that, in principle, it shouldn’t, but there is a good historical reason as to why it is perceived differently. Material scarcity was, and still is, a fact of life for many human societies. For example, hunter-gatherer tribes living off the land, couldn’t afford to tolerate group members who didn’t do their fair share (certainly not for long). Otherwise, they would all starve. This probably encouraged our ancestors to resent the idle. Levine suggests that this resentment may now be deeply engrained in our psyches. It could be what makes the life of leisure seem so self-indulgent and unfair.

But the historical rationale for this resentment may no longer be present. We now live in pretty affluent societies, which often overproduce essential goods like food and housing. There are still material scarcities, of course, but they are largely due to failures to distribute the abundant gains in an equitable maner. This increasing affluence — particularly if it can be achieved through machine rather than human labour — reduces the need for everyone to do their “fair share”. As Levine puts it:

… it is no longer a reasonable functional adaptation to real world conditions to demand that everyone do their “fair share” in the face of scarcity. Increasing affluence diminishes, without extinguishing, the moral urgency of reciprocity. At the same time, it enhances the importance of doing what it required to implement genuine neutrality. 
(Levine, 2013, 111)

In other words, as we become better and better at meeting our material needs without human labour, it becomes more and more important to ensure that our society meets the other requirements of justice, which in this case means recognising, respecting and facilitating the right not to work.

3. Conclusion
That brings us to the end of Levine’s argument. To briefly recap, Levine argues that the principle of liberal neutrality implies a right not to work. This is because leisure is an intrinsic, non-substitutable good, that can feature in a person’s conception of the good life. If the neutral state ought to tolerate and facilitate its citizens’ pursuit of the good, then it ought to tolerate and facilitate the rejection of work.

Levine defends this argument from charges of impracticality and injustice. He does so primarily on the grounds that increasing affluence and abundance negates the need for everyone to do their “fair share”. I have suggested that this argument can be strengthened by considering the possible impact of automation and technological unemployment.

Tuesday, July 15, 2014

Feminism and the Basic Income (Part Two)

(Part One)

This is the second part of my series on feminism and the basic income. In part one, I looked at the possible effects of an unconditional basic income (UBI) on women. I also looked at a variety of feminist arguments for and against the UBI. The arguments focused on the impact of the UBI on economic independence, freedom of choice, the value of unpaid work, and women’s labour market participation.

Although the values at stake in those arguments, as well as the predictions to which they appeal, are too complex and variable to admit of a simple summary, some clear themes did emerge from that discussion. The first was there is some reason to hope that a UBI could increase women’s independence, de-gender work roles and facilitate female participation in the labour market. At the same time, it is possible that granting women an individualised income could serve to entrench gendered norms about social roles, particularly if the payment of that income encourages more women to drop out of the labour market.

In this post, I want to step back a little from the particularities of these arguments and focus instead on different models of welfare and how they may link-up with different feminist goals. I also want to comment briefly on the important role that the feminist perspective could play in political debates about the introduction of the UBI.

Again, I’ll be basing my discussion on materials found in the book Basic Income: An Anthology of Contemporary Research. Primarily, on the discussion of welfare models found in Tony Fitzpatrick’s chapter “A Basic Income for Feminists”, and also, towards the end, on Carole Pateman’s “Free-riding and the Household”.

Fitzpatrick’s chapter is particularly helpful because he draws upon the work of Nancy Fraser. Fraser, in her 1997 book Justice Interruptus, distinguishes between three models of welfare: (i) the universal breadwinner model; (ii) the care-giver model; and (iii) the universal care-giver model. Fitzpatrick looks at each and considers how the UBI may, or may not, contribute to them. I’ll start by going through each of these three models.

1. The Universal Breadwinner Model
Each of the three models is based on a set of values and assumptions. The universal breadwinner model is based on the assumption that paid employment, and the traditional wage contract, is good and that the cause of sexual equality is advanced by allowing women to access those things. In this respect, the universal breadwinner model maps onto the classic goals of liberal feminism (at least as “liberal” feminism is commonly understood). It tries to make women more like men by de-gendering the role of the breadwinner, but without questioning the value of that role.

What kinds of reform would be needed to achieve the goals of the universal breadwinner model? Fitzpatrick mentions a few:

[W]omen would require: employment-enabling services to free them from unpaid responsiblities; workplace reforms to promote equal opportunity; cultural reforms so that women identify themselves with the workplace (and so that men can accept this); macroeconomic policies to generate high levels of quality jobs; social insurance reforms to ensure that women’s entitlements are equal to men’s. Care work would need to be shifted from the family to the market and the state, but the status of care-work employment should also be raised. Benefits would be strongly linked to employment status and record, but a residual means-tested safety-net would still be required.
(Fitzpatrick, 2013, p. 168

No doubt elements of this mix of policies will be familiar. Arguably, it is this model of welfare that has been pursued in European countries over the past 50 or so years, though how successful this has been in achieving the goal of de-gendering the breadwinner role is, of course, debatable.

The question we are interested in is whether the UBI would have any role to play in this model of welfare. Fitzpatrick argues that it would not. Indeed, many of the central features of the UBI would run contrary to the spirit of the universal breadwinner model. The UBI deliberately tries to de-link income from paid employment, thereby challenging the ethics of paid work. In doing so, it provides people with the choice of opting out of paid employment. That said, the UBI may encourage some people to seek work, particularly work they actually enjoy, which could bolster the breadwinner model, but this would be a secondary and unintended effect. On the whole then, the UBI is unsympathetic to the aims of the universal breadwinner model.

2. The Care-Giver Model
The Care-Giver model is premised on the value of care work, particularly the unpaid forms of care work that have traditionally been performed by women. It rejects the notion that sexual equality is advanced simply by encouraging women to become more like men. Instead, it calls for us to use the welfare system to raise the status and recognition of care work, bringing it onto the same level as paid employment. This would allow women to choose between different roles (care-giver; breadwinner) or mixes of those roles (e.g. part-time in both). It would not, however, challenge the sexual division of labour with respect to care-work.

In order for this model to work a variety of policy reforms would be needed. Fitzpatrick mentions the following:

[W]omen would require: care-allowances set at a level comparable to breadwinner wages; workplace reforms to facilitate the kind of life pattern flexibility just mentioned [i.e. the ability to choose between the different roles]; job search, retraining and flexitime; extensive social welfare programs. Here, then, most care-work would continue to remain in the home but would be supported with substantial public funds. Part-time jobs and care-work would have to generate as many entitlements to insurance benefits as full-time employment but, as before, a residual assistance tier would also be required.
(Fitzpatrick, 2013, p. 169

Some of these policies have been implemented in different countries, particularly those concerning flexitime and direct provisions for childcare. The effect of these on revaluing care-work and raising its status are, again, questionable.

Could the UBI have any role to play in a care-giver model of welfare? Fitzpatrick argues that it could. One thing it could definitely do is facilitate the transition of women in and out of the labour market. In particular, it could make part-time work a more viable option for many women. Women in those roles would receive two incomes: their basic income grant and the income from the work. And if the UBI was financed through a progressive tax, they may not even need to pay taxes toward it.

One major problem with UBI, however, is that it might not be specific enough to raise the status of unpaid care work. Since the income would be payable to all, irrespective of what they do, it wouldn’t single out care-work for special treatment. A Participation Income (i.e. one granted to people on the condition that they engage in unpaid but socially valuable work) might be better able to achieve this aim.

3. The Universal Care-Giver Model
The universal care-giver model is premised on the value of completely de-gendering care-work and encouraging a more equitable distribution of work between the sexes. This marks a contrast from the two other models. The universal breadwinner model was questionable in that it implied that paid work was of greater value; the care-giver model was questionable in that it did not challenge the traditional sexual division of labour with respect to care-work. The universal care-giver model tries to go beyond the limitations of these two models. It aims to equalise the status of both kinds of work and to breakdown the traditional sexual division of labour with respect to care-work.

What reforms would be required for this? Fitzpatrick mentions three (based on Fraser’s work):

First, all jobs would have to be designed for people who are also part-time carers which means a working week shorter than that for full-time jobs and the support of employment-enabling services. Second, care-work activities would be distributed between the state, the household, and civil society. (Fraser talks of locally-managed and democratically care-work institutions). Finally, the most substantial change would be cultural, that is, a dismantling of the gendered assumptions which sustain the existing forms of social organisation.
(Fitzpatrick, 2013, p. 169-70

A basic income could play some part in achieving these ends, though its limitations would have to be acknowledged. By de-linking work and income, and increasing job-choice flexibility, it could encourage more men to take-up care-giving duties. But it could only really do so with substantial shifts in the cultural attitude toward care-work. Changes in income payment cannot do this, certainly not in the short-term. In fact, they could simply encourage more men to drop out of paid work, without taking up any corresponding care-work duties. Fitzpatrick once again suggests that a Participation Income, which tied income payments to specific socially valuable forms of work, would be more beneficial in this regard.

4. The Importance of the Feminist Perspective in Debates about the UBI
The relative ineffectiveness of the basic income in the face entrenched gendered norms and beliefs is something that should be kept in mind when it comes to political debates about its introduction. Assuming we embrace the goal of de-gendering work roles, we need to be conscious of ways in which political reforms could simply serve to perpetuate the gendered system. This suggests that a critical and questioning mindset will be needed when such reforms are being debated, even in purely philosophical terms.

To this extent, Carole Pateman’s article “Free-riding and the Household” is a useful corrective. She encourages participants in the debate about the basic income to shift perspectives. One telling example of this is the attention she draws to the debate about free-riding and reciprocity. As highlighted in earlier posts, one of the most common objections to the basic income is that it allows people to drop out of paid employment and free-ride on the hard work of others. This is thought to be exploitative because the people who remain in paid employment finance the system and the drop outs consequently don’t do their “fair share”. This is where the image of hippie surfers and beach bums find their foothold.

But as Pateman points out, this understanding of exploitation and free-riding focuses on the ethics of paid work and the virtues of the (male) breadwinner. It ignores the huge problem of exploitation and free-riding within the traditional family structure. Within that structure men free-ride on the unpaid work done by their partners and consequently don’t do their fair share. Yet it is telling that it is the relationship between the idle surfer and the paid worker that dominates the literature, not the relationship between, say, the idle husband and the hard-working wife. To address this oversight we need to ensure that the debate about the basic income works with a larger concept of reciprocity what it means to do one’s fair share.

As I say, I think this is a useful corrective.