Rights aren't for sale. That's why they matter so much.
One of the fundamental aspects of liberal democracies is the protection and enforcement of rights that can't be bought.
When people talk about “polarized” debates these days, it’s partly that the general tenor of debate is to accuse the people you disagree with of being amoral monsters, but also that the debate is split between left and right - not by everyone being left and right, but by everyone accused of being left or right, including people who aren’t.
There are more extreme right politics and extreme left politics happening, and extreme right and extreme left have a number of elements in common, one of which is that they think if you don’t agree with them, you are diametrically opposed to them. So people who are far right will accuse everyone else of being communists, and communists will accuse everyone to the right of being fascists. If we want the names we slap on ideologies to mean something more than “bad,” “good,” “one of us,” or “not me,” we be more specific.
The Road to Hell is Paved With Good Intentions
There are a number of features that define both the far left and the far right. One is that their appeal is that they are both idealistic and utopian. They promise a better world, so long as we get rid of the people whose ideas and power is an obstacle to that.
Just as there are right-wing libertarians, there are also left-wing libertarians. In a very important sense, they see current government systems as something to dismantle. The right may argue for the dismantling of the regulatory state, or the welfare state. The left may call for defunding or abolition of the police. Both promise, and assume “efficiencies” and greater wealth for everyone.
Yet, far-left and far-right regimes in the past and present tend to be associated with totalitarian and authoritarian states, where there are no elections and the police and military either run the government, or do politicians’ bidding, and the government really just works for a handful of wealthy families who own the economy between them. They don’t have the rule of law - which makes them fundamentally corrupt, because it means people can do terrible things, without being stopped.
There are a couple of reasons I believe this happens in far left and far right regimes - which is related to their belief in their own ideology - that things will be so much better, you just won’t need as much government.
It has to be said, that capitalism and communism are fundamentally ways of organizing and thinking about society only in terms of the economy, and not in terms of the law, which is separate - it another entire branch of government.
In fact, that is something that both the far left and the far right share together - which is the workings of both finance and the law. How is money going to work in a communist, socialist or libertarian economy? How does justice work?
No matter what ideological system we live under, we have to have independent courts of justice that help deliver impartial decisions, can help make things right. If no one is above the law, then people have to be able to make claims against the most powerful and wealthiest people in society. If they commit crimes, or make their money from crime, the police need to be able to investigate and arrest them, the prosecutors need the resources to bring the case and prepare, and the means to enforce decisions. That requires rules, regulations, and laws, which people have write and make official. You need watchdogs with bark and bite.
You need a judiciary and a government and you have to pay for it somehow. Everyone chips in, through taxes.
This is the great danger of what is happening now, and has happened with the politicization of the judiciary, especially in the U.S.
We have to recognize that part of the crisis we are in because many people are suffering right now, and many are suffering because of an injustice that wasn’t their fault, which they are having to pay for, which they can’t remedy, and we’re seeing an escalating cycle of resentment and spite, but not solutions.
There have been some incredible tough economic times where people and businesses have been battered - through stuff that’s not their fault. That includes bank failures and financial crashes where there was lots of wrongdoing but no one ever seems to be held account, and nothing changes. We’re all paying for someone else’s mistakes.
The solution is that we have to put justice and making things right at the centre of political reforms, and it has to be based on recognition of the dignity of individual human beings and their rights. The founding documents of the U.S., and Canada, and of many religions besides aspire to the idea that we are all, at some level equal.
There’s a bizarre notion that socialists are obsessed with equality (check their record: they are not) so let’s recall that the U.S. Declaration of Independence reads:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
And while you could update it simply enough by saying “all human beings” are created equal, for those folks who are constitutional originalists, the authors are quite explicitly saying that the Creator created all human beings equally.
Now, I won’t ignore the blatant contradiction between this expressed commitment to equality and the crime of slavery. I will, however, argue that we can still have a more generous reading of the original, idealistic text - that the idea that we are all created equal doesn’t require endless explanation. It is self evident.
And that means that the legal obligation for governments to treat people as equal will conflict with the market. That is because some money-making schemes can be unjust, just as some government policies can be unjust.
Democracy literally treats people as equal.
One of the ways that democracy and the rule of law “interfere” with the free market is by using the rule of law to ensure that people are more honest and fair, that markets are open so that insiders don’t benefit due to their knowledge of an impending trade. They can ensuring either that people live up to their agreements, or that agreements that run contrary to the public interest aren’t enforceable.
Rights Aren’t For Sale
While fundamental rights — freedom of speech, freedom of religion and so on — are areas that are supposed to be free from trespass by government, neither are they part of the market.
“A vast number of entitlements and privileges are distributed universally and equally and free of charge to all adult citizens of the United States. Our laws bestow upon us the right to obtain equal justice, to exercise freedom of speech and religion, to vote, to take a spouse and procreate, to be free in our persons in the sense of immunity from enslavement, to dissociate ourselves from American society by emigration, as well as various claims on public services such as police protection and public education.”
So wrote Arthur M. Okun in “Equality and Efficiency: The Big Trade-Off” in which Okun examined the roles of government and the free market.
Okun argues, the features of democratic rights exist in several ways outside of the market.
Rights are “acquired and exercised without any monetary charge. Because citizens do not normally have to pay a price for using their rights, they lack the usual incentive to economize on exercising them...society does not try to ration the exercise of rights
“Second, because rights are universally distributed, they do not invoke the economist’s principle of comparative advantage that tells people to specialize in the things they do particularly well.”
“A third characteristic of rights is that they are not distributed as incentives, or as rewards and penalties... only in a few limited and extreme cases, like the loss of the right to vote by convicted felons, does society establish a quid pro quo in the domain of rights.” (In Canada, the right to vote is constitutionally protected: even prisoners maintain it).
Fourth, the distribution of rights stresses equality even at the expense of equity and freedom. When people differ in capabilities, interests and preferences, identical treatment is not equitable treatment, at least by some standards... People are not forced to exercise their rights — freedom of speech includes the right to be silent... Moreover, people are forcibly prevented from buying and selling rights; and that deprives them of freedom.
That important principle — that rights cannot be bought and sold — is the final characteristic on my list.”
The fact that these rights are outside the reach of the market is very important. Michael J. Sandel, in his book What Money Can’t Buy: the Moral Limits of Markets points to a number of areas where introducing the market devalues and cheapens things and ideals that we hold dear or consider sacred: life, rights, and certain common values and experiences.
We think of bribes as corrupting, especially in public life, and even more so when it involves fundamental rights, like voting or the right to a fair trial. Vote buying is considered illegal and corrupt, and so is bribing a judge or threatening a jury in order to obtain a desired verdict.
Sandel’s offers a range examples of rights being for sale, some of them shocking - the woman who set up a foundation that paid drug addicts to be sterilized was one.
The other was a practice of Wal-Mart’s. As employers, Wal-mart knew about the individual health record of each employee, and would then “invest” in life insurance, and when the employee died, Wal-mart collected insurance, while leaving the mourning family with nothing.
As Sandel puts it, the market crowds out morals:
“In its own way, market reasoning also empties public life of moral argument. Part of the appeal of markets is that they don’t pass judgment on the preferences they satisfy. They don’t ask whether some ways of valuing goods are higher or worthier, than others. If someone is willing to pay for sex or a kidney, and a consenting adult is willing to sell, the only question the economist asks is, “How much?” Markets don’t wag fingers. They don’t discriminate between admirable preferences and base ones. Each party to a deal decides for himself or herself what value to place on the things being exchanged.
This nonjudgmental stance towards market values lies at the heart of market reasoning. But our reluctance to engage in moral and spiritual argument, together with our embrace of markets, has exacted a heavy price: it has drained public discourse of moral and civil energy, and contributed to the technocratic, managerial politics that afflicts many societies today.”
Sandel argues that the moral objections to markets intruding and putting a price on life, or rights, or the environment goes beyond objections of fairness. The market can be corrupting, in a way that we recognize and is borne out in our day-to-day behaviour as well as our laws. We can all understand the notion of some things being “priceless” or “beyond price” - as being too important or too valuable to be bought and sold. Putting a price on something can “cheapen” it, which Sandel argues is a form of corruption.
The very nature of regulations and laws is that they are controls on what you can do with money, because of the harm that is attached to that transaction.
But unless we define, as societies, in real, legal and enforceable way what money can be used for, it can’t have any value. The price of having money in a society is regulation and the law. And that has to be regulation and the law with human oversight.
Sandel also makes another important point, which is that there is an assumption that many problems associated with power imbalances will go away if we had greater equality. Sandel argues that is power imbalances and equality are the only issues, then there can be no objection to willing transactions between consenting adults — selling a kidney, or a baby, or sexual relations, or hard drugs.
I include hard drugs for the reason that many are severely addictive, and that the addiction itself undermines people’s capacity to consent freely, because of the agony of withdrawal and the relief of consuming again. It’s not just toxic supply that kills. The dose makes the poison.
That, Sandel says, is where
“The corruption objection is different. It points to the degrading effect of market valuation and exchange on certain goods and practices. According to this objection, certain moral and civic goods are diminished and corrupted if bought and sold. The argument from corruption cannot be met by establishing fair bargaining conditions. It applies under conditions of equality and inequality alike… Even in a society without unjust differences in power and wealth, there would still be things that money should not buy. This is because markets are not mere mechanisms; they embody certain values. And sometimes, market values crowd out nonmarket values worth caring about.”
The effects of markets “devaluing” or cheapening things is quite real. Sandel points to examples of lawyers asked to do work for a charity: when asked to cut their rate to $30 an hour, they refused to do the work, but agreed to work for free instead. It is even present in the difference between doing something for pleasure — writing or performing — and then doing the same activity for work. Sometimes, the market transaction transforms an activity from freely chosen play into a chore and an obligation.
The fact that economics is free of moral considerations is, to some, a benefit: the virtues of the market — of efficiency and agents rationally pursuing what is best for them supplants conventional morality.
One example is what happened with the explosion of the Space Shuttle Challenger. After warnings that it was too cold to launch - because cold weather would shrink rubber seals that helped keep in burning rocket fuel. It was taken out of the engineers’ hands, and turned into a “management decision”:
The managers were struggling to make a list of data that would support a launch decision, but unfortunately for them, the data actually supported a no-launch decision. During the closed manager's discussion, Jerry Mason asked the other managers in a low voice if he was the only one who wanted to fly and no one answered him. At the end of the discussion, Mason turned to Bob Lund, Vice President of Engineering at MTI, and told him to take off his engineering hat and to put on his management hat. The vote poll was taken by only the four senior executives present since the engineers were excluded from both the final discussion with management and the vote poll. The telecon resumed and Joe Kilminster read the launch support rationale from a handwritten list and recommended that the launch proceed as scheduled. NASA promptly accepted the launch recommendation without any discussion or any probing questions as they had done previously. NASA then asked for a signed copy of the launch rationale chart.
Once again, I must make a strong comment about the turn of events. I must emphasize that MTI Management fully supported the original decision to not launch below 53 °F ( 12 °C) prior to the caucus. The caucus constituted the unethical decision-making forum resulting from intense customer intimidation. NASA placed MTI in the position of proving that it was not safe to fly instead of proving that it was safe to fly. Also, note that NASA immediately accepted the new decision to launch because it was consistent with their desires and please note that no probing questions were asked.
The change in the launch decision upset me so much that I left the room immediately after the telecon was disconnected and felt badly defeated and angry when I wrote the following entry in my notebook. "I sincerely hope that this launch does not result in a catastrophe. I personally do not agree with some of the statements made in Joe Kilminster's summary stating that SRM- 25 (Challenger) is okay to fly."
One of the most telling aspects of this tragedy is that a vote changed when a manager was asked to “take off his engineering hat and to put on his management hat.” People died as a direct consequence of those decisions - the market crowded out morals.
Sandel also tells the story of how economist Lawrence Summers, who was an economic adviser to the Clinton and Obama administrations, delivered the morning prayer in Harvard’s Memorial Church.
“[Summers] chose as his theme what “economics can contribute to thinking about moral questions…He concluded with those who criticize markets for relying on selfishness and greed: “We all have only so much altruism in us. Economists like me think of altruism as a valuable and rare good that needs conserving. Far better to conserve it by designing a system in which people’s wants will be satisfied by individuals being selfish, and saving that altruism for our families, our friends and the many social problems in this world that markets cannot solve.”
In rebuke, Sandel cites Aristotle, who argues that altruism, love, and civic duty are all things to be cultivated, not a non-renewable resource.
“We become just by doing just acts, temperate by doing temperate acts, brave by doing brave acts."
In North America, if you point to the importance of “equality” in society while criticizing the functioning of the free market, you run the risk of being branded a socialist, a communist, or “European”.
Okun is no socialist — he was Chair of the President Richard Nixon’s Council of Economic Advisers from 1968 to 1969 ( though he did somehow ended up on Nixon’s enemies’ list). He was a centrist advocate of mixed capitalism who saw the need for progressive income taxes and transfer payments in order to make up for societal inequality that is generated by a free market system.
For people today, the idea that Okun was writing about inequality in 1976 may seem ironic, since he was writing just at the beginning of nearly years of wage stagnation and steadily growing inequality.
In countless ways the world has changed enormously since he wrote it in 1976. The Soviet Union, Eastern Europe and China were all centrally planned economies. Now, Russia and China are not - though they aren’t democracies, either. Many of the business behemoths Okun writes about are either bankrupt (Kodak, Polaroid) or are shadows of their former selves (GM, IBM), and “shareholder value” and derivatives had not yet taken hold. There had not been a major financial crisis since 1929. In the intervening period there have been many.
It seems absurd to have to argue for the importance of equality, or be accused of being socialist for insisting on rights and their equal application, when rights are all spelled out in the foundational legal documents that govern democratic countries — constitutions, charters and bills of rights.
People are supposed to be equal before the law as a matter of fundamental justice.
As Okun puts it, “dollars transgress on rights” especially in the political arena:
“Some transgressions of money on rights make a mockery of America’s commitment to civil liberties and democracy. Some of our most cherished rights are auctioned off to the highest bidder.”
But Okun is equally aware of transgressions by the state.
“A market economy helps safeguard political rights against encroachment by the state... In the polar case of a fully collectivized economy, political rights would be severely jeopardized. If the government commanded all the productive resources of the society, it could suppress dissent, enforce conformity, and snuff out democracy. As an entry on some of the “enemies lists” compiled by Nixon aides, I shudder in imagining my income and status during that era if the federal government had been the only employer. That ardent exponent of laissez-faire, Friedrich Hayek, quotes approvingly a brief passage from the disillusioned communist Leon Trotsky: “In a country where the sole employer is the State, opposition means death by slow starvation. The old principle, who does not work shall not eat, has been replaced by a new one: who does not obey shall not eat.” I cherish this rare occasion when I can agree with both Hayek and Trotsky!”
The reason why having an effective social democracy, with effective and independent justice system, as well as private markets and private enterprise, in part because we want to ensure a societal division of powers. Where we can work together and keep each other in check, and hold each other to account - or to be more straightforward, keep each other honest.
Libertarians will sometimes grouse that property or economic rights are not granted protection in constitutions. But property rights are different from fundamental individual rights precisely because they can be bought and sold and aren’t equally distributed. What’s more, while they are not defined in constitutions or legislation, they are the subject to protection by a huge body of common law.
Okun’s conclusion is that the market needs a place, and it needs to be kept in its place. The framers of constitutions who set out equal rights for all would seem to agree. They may present an ideal towards which we strive that we often fail to reach, but the basic fairness we are aiming for comes as the result of widespread outrage, dissent and occasionally rebellion at perceived (or real) unfairness, either in the exercise of power or the how justice is dispensed.
Inequality and Corruption
Buying elections, buying free speech, buying votes, paying off juries, judges or police excites our sense of outrage and disgust — or it should, if we are not too cynical, because it violates our basic sense of fairness. Elections are supposed to be free and fair, and have a secret ballot so that people can make their choice free from intimidation. Justice is supposed to be blind so that the rich and powerful criminal will face the same charges and punishment as the petty and poor criminal who commits the same crime.
It is one thing to earn money, and another to help yourself to it. It is why elections and the administration of justice in particular have huge amounts of regulations and checks and balances in order to limit mistakes, including abuses of power. The political fight about this in the U.S. has been shocking - including rulings that equate money with speech and the Supreme Court overturning the voting rights act.
For elections to be free, you have to work to free them from purely market forces.
Of course elections are profoundly affected by donations that allow politicians to run winning campaigns. The electoral process costs money — paying workers, organizing, and running advertising (especially advertising that has to reach a huge audience). Many jurisdictions try to make the process more fair by limiting or banning corporate or union donations, or by placing a legal limit on campaign spending, or limits on third-party spending or advertising.
When it comes to legal systems, people who are wealthy can afford to hire much better lawyers, and right-wing critics of the justice system see granting criminals “due process” as protecting criminals, rather than innocent people.
The checks and balances of rights in prosecutions are a check against the awesome power of the state to literally deprive an individual of all their liberties, or, in places that practice capital punishment, their life.
When it comes to freedom of speech, the U.S. has a very different approach than countries like Canada, the UK or France. The premise in the U.S. is that public figures in particular have to stand up to greater scrutiny and accountability, which means that people can make and publish statements about “public figures” that they wouldn’t be able to make about private citizens in the U.S., and that might be considered defamatory or libellous in other countries. This is why right-wing pundits could falsely suggest Bill and Hillary Clinton were involved in a conspiracy to murder White House aide Vince Foster, when he committed suicide.
In Canada and in the UK, defamation laws mean that powerful people can sue — or threaten to sue a media outlet even before a story has been printed, because libel or slander is defined as damage to the person’s reputation. This is very different from the U.S. since defamation effectively protects powerful people with good reputations, whether they deserve the reputation or not. People with no reputation to protect can’t sue. It was only in 2009 that the Supreme Court of Canada ruled that the media could disseminate information if it was in the public interest as long as the reporters had reliable sources and had tried to get both sides of the story.
Despite this restriction, the UK media has maintained an incredibly aggressive press, that, hacked into people’s phones (especially those of celebrities) to listen to their messages. Since one of the defenses against defamation is truth, the British media knew they could defend themselves against libel suits.
In France, the situation is tipped even more in favour of people in power. Even satire is forbidden, and cartoonists and comedians have been charged and fined just for mocking politicians.
In countries with strong defamation laws, the priority is on preserving people’s reputation at the expense of freedom of speech.
There’s another problem with extreme partisanship, which is that it can make it hard for people to tell the difference between political theatre and someone who is delivering a critical warning. The freedom to speak truth to power it there not just for the purpose of rabble-rousing or political posturing, but because we have to be able to point out real risks and bad ideas, to protect themselves or a constituency they represent.
Of course, there are false alarms, but people’s ideology is their world view:
In the 1990s, the Ontario government was engaged in cost-cutting measures, and privatized water testing that had previously been done by public labs while ending the requirement that officials needed to be notified if water samples proved to be contaminated. The water system in a town called Walkerton ended up contaminated with E. coli, several people died and many more got sick. At an inquiry, it turned out that the people in charge of the water supply were barely competent.
However, the government had removed two levels of safeguards that had previously been in place: public labs and mandatory notification if a sample showed contamination. At a public inquiry into what happened, the Premier of the day said he had been warned by bureaucrats that the cuts were too deep, but their warnings were dismissed because that’s what bureaucrats always said at budget time. To the politicians, the bureaucracy was the boy who cried wolf.
The common link between the Challenger shuttle explosion and the deaths of people from tainted water was the idea of self-interest - rather than a higher interest.
There is a point here, which many people don’t realize or consider about government. The general attitude towards government of so many economists is dismissive and often outright contemptuous.
The game of politics can be ludicrous or tragic, but government is also whether or not we’re going to live in a society where people are going to be able to get justice, in the very real sense of whether people have their rights recognized and enforced (bearing in mind states of emergency, etc.).
The issue of how we’re going to have better justice and democracy really mean are missing from our debates, because - people talking about capitalism and communism, but not about democracy, and not about the law.
Our inability to address issues that are clearly wrong is an unwillingness, because we are concerned that doing the right thing will come with financial costs. If that is the case, why is it? Shouldn’t we consider that we need to reexamine the rules of a market that punishes ethical behaviour?
Ensuring that people are treated well and fairly is critical to government legitimacy.
Rothstein writes that
“One of the best-known scholars in this field of research, Larry Diamond, has expressed this: There is a specter haunting democracy in the world today. It is bad governance—governance that serves only the interests of a narrow ruling elite. Governance that is drenched in corruption, patronage, favouritism, and abuse of power. Governance that is not responding to the massive and long-deferred social agenda of reducing inequality and unemployment and fighting against dehumanizing poverty. Governance that is not delivering broad improvement in people’s lives because it is stealing, squandering, or skewing the available resources.”
“Experiencing low-quality government is more important for the decline of political legitimacy than being part of the constituency behind the ruling electoral majority…
It is the absence of corruption, discrimination, and similar violations of the principle of impartiality when exercising political power that creates political legitimacy.”
This creates a self-reinforcing trap, of corruption and inequality.
The trap of inequality, corruption, and low social trust can be described as follows: Countries with an initial level of high inequality or with a dishonest, clientelist, or corrupt government are less likely to establish universal social programs because citizens will not entrust such governments with resources (that is, pay taxes) at the level needed to establish such programs. Universal social programs demand high taxes because “all” citizens or very broad groups of the population are going to receive benefits. The rich and the poor in a country with a highly unequal distribution of wealth, such as Brazil, may live next to each other, but their lives do not intersect.
Wealth isn’t distributed equally, but individual human rights are.
Freedom of speech allows even a child to point out the emperor is wearing no clothes. Universal suffrage allows everyone to get rid of people in power and put in people they agree with more instead, and get rid of those people in turn. The right to due process, the presumption of innocence and a fair trial are not designed to protect criminals, they are designed to ensure that innocent people aren’t wrongly imprisoned. Rights are there to protect people, and their equal distribution means they protect everyone, including the powerful.
The other side of this coin is responsibility - responsibility to follow the law. The law must apply to everyone, and without the protection of individual rights, there can be no justice, because those rights will be subordinated to the collective.
This is the fundamental challenge of a just society, and it is why the idealistic and utopian visions of the libertarians of the left and right turn into authoritarian dystopias, and why our democracies are being challenged, right now.
That is part of the crisis facing democracy. It’s not about being “tough on crime,” - it’s about recognizing that the elements of fundamental justice must prevail, because too many injustices are occurring within organization and institutions that are seeking to defend themselves and corrupt practices, rather than doing the right thing.
Power tends to corrupt, and absolute power corrupts absolutely because the powerful can act with total impunity. The result is not freedom for many - it is license for a few.
This is the vital importance of democracy and a functioning, independent judiciary - with checks and balances, with oversight, to both protect rights, enforce the law, and treat people as individual human beings, not just as one in a crowd - as an other.
It is also why the far right and the far left do not deliver the justice they promise: they want to be a law unto themselves.
And that is why liberal democracy and the rule of law is fundamentally different from these other ideologies: it is about recognizing the value of every human being - about laws and justice, not about economic systems.
The far right may see the insistence on human equality as socialism or communism, the far left the enforcement of the law as oppressive, when it is liberal democracy with individual rights and the rule of law. We are all only dealing with human beings - the hardest thing of all.
-30-