Wil jij lekker onbekommerd van de zomer genieten maar nog wel wat kennis opdoen? Ga dan luisteren naar onze nieuwe podcast-serie “Van Droom Naar Daad”. Hierin gaan we in gesprek met de Delftse wetenschappers over de toekomst. Hoe zien zij de wereld voor zich en welke rol nemen zij daarin op. Ga mee op ontdekkingstocht in een wekelijkse aflevering zodat jij je deze zomer niet hoeft te vervelen. In de allereerste aflevering voelen we hoogleraar bio-elektronica Wouter Serdijn aan de tand. Ziet hij de opkomst van de bionische mens voor zich? Een versmelting van mens en machine? En hoe dit te beschouwen, positief of negatief? En wat is dat nou precies bio-elektronica, wat kunnen we daar nu al mee? Je kunt de podcast beluisteren via Soundcloud, Stitcher en ITunes.
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Share your ideas for the most enlightening lectures, debates, discussions and workshops in Delft!
Do you have a critical mind and a keen eye? Are you interested in promoting lively debate and discussion? Then we are looking for you!
What would you like to add to our programme? Studium Generale wants to offer you the chance to share your ideas and organise your own event.
Fill out the web form below and we will be in touch!
Sinds kort wordt een deel van ons programma ook aangeboden door We Are Public. Deze maand is We Are Public nog op zoek naar 300 cultuuroptimisten in Delft.
Studium Generale helpt graag mee met de zoektocht naar cultuuroptimisten! Vind jij ook dat cultuur meer publiek en meer inkomsten verdient? Doe mee en haal We Are Public naar Delft! Voor € 15 per maand ben je al lid en krijg je dagelijks gratis toegang tot de beste concerten, exposities, voorstellingen en films.
Sluit je nu aan via www.wearepublic.nl/delft
Remember when there was a creative magazine in Delft where you could get published and read what other students and staff members are making?
Neither do we! But in order to stimulate such creativity a team of students and staff are pioneering a new magazine, Hesiodos, and they are calling for your content. Are you a writer, poet, illustrator, cartoonist, or a photographer? A budding columnist perhaps with a scathing opinion? If you need an outlet for your creative, non-academic productions, look no further. Hesiodos will be published for the first time in May 2018, in print. Contributors can send their questions and submissions to firstname.lastname@example.org or check out their Facebook page . Submissions are preferably in English, but there is room for Dutch content as well. You can also be published anonymously, although the editors need be aware of your identity.
The Creative Skills Workshop series that we’ve organized together with Sports&Culture will soon draw to a close. Dozens of Delftian students will look back on some seriously fun sessions with authors, journalists, and comics artists.
The comics & illustrations workshop, led by Stephan Timmers, held a vote to choose the three best contributions and agreed to share them online. Here are the winners:
As part of the TU Delft 175th anniversary celebrations, the TU Delft Library organised a whole month of events surrounding the brain, including workshops, exhibitions, interactive installations and a series of lectures and debates.
70 YEARS OF CRITICAL THINKING
Last year (2016) Studium Generale celebrated its 70th birthday, and what better way to honor our origins as TU Delft’s patron of critical thought than by questioning the current moral status of our academic community?
In February and March 2016, 300 students from all faculties participated in the SG Conscience Survey where we asked them to reflect on their own moral code, the ethical problems and promises of their field of study, and how prepared they feel to deal with difficult moral issues as engineers. Though intended more as a poll than as a serious academic survey, students were highly enthusiastic and the results were compelling. So we prepared a presentation of the results which was exhibited back in September.
You’ll find the results here, illustrated by Total Shot productions, as well as a number of responses from industry leaders in the Netherlands and at the university. Enjoy! And think. And enjoy.
WHAT DID WE LEARN FROM THIS SURVEY?
Surveys are fun! That was lesson number one. We now have more insight into the hearts and minds of students at the TU Delft, what their hopes and fears are. And if we’re fully honest, what we’ve seen is overwhelmingly positive.*
*If we can add one critical note, and we wouldn’t be SG if we didn’t, there was one disappointing result. When asked if they felt properly prepared by the university to deal with difficult moral decisions (panel 4), only 11% said yes. That’s shockingly low. Considering the pivotal role that engineers play in shaping the world, we hope the university will take this result to heart and think of ways to help students more. SG will continue to stimulate critical thought and self-reflection, but the conscience of the university is something we should all actively try to be.
Many of the people and institutions we reached out to for a response on the survey results were gracious enough to provide one. Others did not respond at all. And still others responded but without really digging into the issues at hand. We would have loved to have read the response from the ministries of Defense and Education, but alas. So many students unwilling to be maneuvered into the weapons and fossil fuels industries, while that’s exactly what many of them are being prepared for? Seems like a bit of a problem. But we’ll just have to imagine what they might say. In the comments section below, for instance.
Thanks for reading!
Big Data, Human Rights and the Ethics of Scientific Research
John Tasioulas ABC Religion and Ethics Australia
Updated 1 Dec 2016 (First posted 30 Nov 2016)
John Tasioulas is the Director of the Yeoh Tiong Lay Centre for Politics, Philosophy and Law at King’s College, London. This article is adapted from the 2016 Van Hasselt Lecture, which he recently delivered at the Delft University of Technology.
As we all know, digitization is radically transforming our lives. The internet, mobile devices, massive data collections and the analytics applied to them are propelling a digital revolution. The World Economic Forum spoke recently of a Fourth Industrial Revolution.
There are many inter-related facets to this digital revolution, but at the heart of it lie the increased capabilities to amass and store data and the analytical models applied to them for yielding knowledge.
This is the Big Data phenomenon. A phenomenon that is a rapidly advancing, pervading increasing areas of human existence from life insurance to the sentencing of criminals, and one that seems to be here to stay.
Yet the apparently inexorable rise of Big Data has provoked sharply conflicting responses.
At one end of the spectrum, we find unbridled enthusiasm about the proliferating opportunities to improve our lives; at the other end, there is increasing alarm at the pressures and distortions to which Big Data applications subject our established patterns of life.
For every opportunity that Big Data presents, there seems to be a corresponding anxiety.
So, on the one hand, Big Data has generated hopes about the potential good that it can bring to all facets of our lives. Some of the most beneficial applications of big data are expected in the area of biomedical research and public health. Early detection of disease outbreaks, identifying the genomic underpinning of diseases, or recognizing patterns of unknown and unreported adverse side-effects of blockbuster drugs, are just some of the areas in which big data applications have delivered promising results.
But, on the other hand, the Snowden revelations about government surveillance have underscored growing fears about how certain uses of Big Data can undermine not just privacy, but ultimately trust, democracy and liberty. The stream of reports about hacked databases, data kidnapping and other cyber-crime have stoked fears of a new vulnerability in the digital world.
And so the pressing question arises: can we harness the potential of big data while keeping faith with our ethical values?
The appeal to ethics is often interpreted as a conservative gesture, one hostile to scientific progress. However, it is a bad mistake to view ethics and science as inherently in tension, to think of ethics as just a series of roadblocks on the path to scientific knowledge. Science is itself an inherently ethical enterprise. In order to grasp this, we need a suitably broad interpretation of the “ethical.”
Ethics is about goods that we have reason – and sometimes even an obligation – to pursue, such as
the good of knowledge that can be used to bring about significant improvements in health. In this way, health research is an ethical enterprise from the very outset. After all, it would be deeply uncharitable to regard scientists engaged with Big Data as merely pursuing their narrow self-interest, whether defined in terms of monetary enrichment, satisfaction of curiosity, or career advancement. Instead, they are seeking public goods, goods that benefit all, such as scientific knowledge, which is both intrinsically valuable and instrumentally valuable as a means of realizing goods such as health, education, enjoyment, and so on.
But there are, of course, ethical considerations bearing on how we may properly pursue these goods. In particular, these considerations centrally include human rights, but not only human rights.
The rights to privacy and science
Both the right to privacy and the right to science appear in the Universal Declaration of Human Rights of 1948:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
(Universal Declaration of Human Rights, Article 12)
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
(Universal Declaration of Human Rights, Article 27)
Unlike the right to privacy, the “right to science” is an unfamiliar right, but one with massive unexplored potential. My focus here is on the first component of this right: the idea that everyone has a right to benefit from scientific advances, and the idea that people have a right actively to participate in scientific inquiry. Ordinary people have a right, in other words, not just to be passive beneficiaries of advances made by professional scientists, but to engage in scientific research themselves.
Although a right of popular participation is a familiar idea in the realm of democratic politics, the right to science takes participation much further. The result is that participation infuses and potentially radically transforms our modes of scientific practice and our culture more generally. Indeed, I would argue that democratic political participation itself requires public participation in the wider culture in order to be effective.
In recent years, technological developments have enabled increasing numbers of people who are not professional scientists to exercise their right to participation, sometimes as part of the phenomenon dubbed “citizen science.” So, in the area of health research, devices that collect and transmit data about individuals facilitate the exercise of the right. Health research produced by such “citizen scientists,” often in relation to rare diseases that are not profitable enough to attract the attention of pharmaceutical companies, has appeared in leading scientific journals, including Nature.
Both the human right to science and to privacy are binding norms of international law, and they are also given force by the laws of regional and domestic jurisdictions. Behind these legal manifestations, however, lies human rights conceived first and foremost as universal moral rights – in other words, moral rights possessed by all human beings simply in virtue of their humanity. It is these background norms of human rights morality that control the proper interpretation of the rights to privacy and science in human rights law.
Understanding human rights
I want to make four points about how we should understand the morality of human rights: the grounding of human rights – that is, the values that justify human rights norms; the content of human rights – that is, the duties associated with them; the bearers of human rights duties; and what I will call the incompleteness of human rights.
Regarding the grounding of human rights, I think we should accept two ideas. First, human rights are not fundamental norms, but owe their existence to the way in which they protect other values. And, second, any given human right does not typically protect one master value – such as human dignity or freedom – but a number of values.
So, for example, the right to privacy protects a variety of interests: our interest in being able to make life-choices without interference or surveillance, our interest in not being humiliated, in forming and maintaining intimate relationships, and so on.
The right to science also serves a multiplicity of interests. These include: the interest in acquiring knowledge of the world, the interest in achievement (where this knowledge is acquired through one’s own successful efforts), the interest in community with others (participation in science typically involves cooperation with other colleagues towards the shared goal of generalizable scientific knowledge).
A human right protects our interests, but it is not the same as those interests. The human right identifies the extent to which the protection of our interests imposes a duty or obligation on others. The duty specifies what the duty-bearer must do or refrain from doing in order to comply with the right. The duty associated with a human right is its practical content.
So, for example, if I am in dire need of a kidney transplant, my interest will be greatly served if you donate to me your spare healthy kidney. But I do not have a right to your kidney, because you do not have a duty to serve my interest in that way. You would not be wronging me in refraining from donating your spare health kidney.
The process of specifying the duties associated with human rights is a complex one. Ought implies can, so a person can only be under a duty that it is feasible to impose it on them. Minimally, it must be generally possible for duty-bearers to do what they have a duty to do: there can be no duty to do the impossible. So, even if in theory certain security measures – such as fool-proof anonymization of data – would enhance my interest in privacy, there is no right to them if there is no way to implement those measures given the current and foreseeable state of technological capacities.
In addition, even if it is possible to do something, imposing a duty to do it must not be unduly burdensome. So, for example, my interest in privacy does not impose an obligation on the police not to require me to tell them my identity if they find me behaving suspiciously. Recognising such a right would be unduly burdensome in relation to other important values, such as the detection and prevention of crime. Or, back to our original example, my right to life does not include an obligation on your part to donate your spare healthy kidney, as this would be excessively burdensome for you.
Who bears the duties imposed by human rights? Human rights law, especially international human rights law, treats the state as the exclusive, or at least the primary, duty bearer. However, there is nothing in the underlying idea of a moral human right that restricts duty-bearers to the state and its organs.
Some rights, such as the right to a fair trial, might be primarily targeted at the state, but non-state actors, ranging from individuals to transnational corporations, may also bear human rights duties. This has been recently underlined by the UN Guiding Principles on Business and Human Rights, which were endorsed in 2011, and are political rather than legal principles. The Guiding Principles directly impose an obligation to respect human rights on all corporations, irrespective of whatever the law may say in the countries in which they operate.
This latter issue is of special relevance to Big Data for several reasons. Corporations engage in massive data collection that stretches over many national jurisdictions. They possess powerful computational tools that are opaque to outsiders. Given the accelerating pace of developments in Big Data, national laws designed in the analog era may be inadequate in protecting rights affected by big data. Big Data companies have responsibilities to respect privacy rights even when law does not explicitly demand such protections.
Corporations also have responsibilities to respect the right to science. For example, those with control over large scientific data repositories tend to have exclusive legal rights to their use. Even if they exploit the data for scientific purposes themselves, they may have obligations to make such data sets accessible to other researchers. If obstacles to sharing impede scientific progress, they may also impede our right to share in, and enjoy, its benefits.
Although human rights are weighty moral standards, they are incomplete. They do not exhaust all of the ethical standards relevant to law and public policy. To begin with, there are duties that are not associated with rights, such as duties to oneself (for instance, to develop one’s talents or to maintain one’s health), or duties of charity and solidarity. The breach of these duties is a wrong, but no particular person is wronged, in the sense of having their right violated, when this happens.
In addition to the domain of duties, law and public policy needs to be responsive to a whole range of ethical concerns, including the fulfilment of human needs, economic prosperity, the preservation of nature, the furtherance of the common good, even beyond the point at which any of these concerns generate duties, let alone rights-based obligations owed to some individual.
It is vital to stress this notion of incompleteness, because otherwise we lapse into the error of pressing human rights to do all the ethical work that needs to be done, which risks distorting them while simultaneously marginalizing non-rights-based considerations.
Rights in conflict?
Human rights are not ahistorical and unchanging. Instead, they can evolve over time. This is because that to which we have a human right depends on what is practically feasible – what is possible and what is not excessively burdensome. And what is feasible changes over time as our circumstances change, thanks to technological evolution, climate change, new modes of economic production and social organization, and so on. Now, digitization and Big Data constitute major upheavals in the conditions of contemporary life.
This means that new human rights can come into being that did not exist before. One example is a right to internet access, as proposed by Frank La Rue, the UN’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. Existing rights also can change in shape – so, for example, the right to health may encompass new forms of treatment as their cost declines over time, such as anti-retrovirals, thereby rendering the duty to supply that treatment not unduly burdensome.
But the changes need not always be in a positive direction. New circumstances can mean we lose human rights we formerly had. In one grim scenario, perhaps ongoing climate change will mean that we can no longer reasonably affirm a right to an adequate standard of living, because this becomes simply impossible to secure, but only to a subsistence level of provision (at best).
This is one of the main challenges of human rights thinking. It requires those who are serious about human rights to scrutinize the conditions of life, the ever-changing profile of opportunities and risks. And it goes without saying that part of the difficulty here is that this is a multi-disciplinary endeavour – human rights is not the monopoly of any one discipline, whether philosophy, law or something else.
What does this mean for the complex dynamic between the rights to privacy and to science? They may appear to be in tension with each other. The right to science demands that opportunities be made available to participate and benefit from scientific advances. In some areas, however, such advances can be achieved only through the use of identifiable data that carries a risk to privacy.
Can the right to science be in conflict with the right to privacy? Is there a duty to enable the use of identifiable data and at the same time a duty to protect the privacy of those who could be identified? If these duties are in conflict, what is to be done? Are we to trade off one right, and the interests it represents, against the other? How is that trade-off to be determined?
Now, I think it is a mistake to suppose that one right can be secured only if another is systematically violated in the process. Before embracing such a drastic conclusion – of rights in constant conflict – we need to take a step back.
Specifying the duties imposed by human rights is a holistic process. Duties can’t be specified one-by-one, but only as a totality. It’s a matter of solving a simultaneous equation with multiple variables. Human rights impose duties, and duties are stringent moral reasons that are not regularly or easily overridden by other considerations, including by other duties. To think of human rights as habitually subject to trade-offs, therefore, is to misunderstand their nature. It follows that the duties associated with human rights must in general be jointly satisfiable, with conflicts arising only in exceptional, emergency-like, circumstances.
So, apparent conflicts like the one between the rights to privacy and to science are to be largely pre-empted at the level of adequately specifying the duties associated with each human right. To illustrate this point let me use an example with great contemporary relevance: the application of Big Data analytics to electronic health records.
The dynamic relationship between Big Data and human rights
The maintenance of electronic health records (EHRs) is increasingly becoming standard practice in health care. The primary purpose of EHRs is to store patient information that is used in the clinical care of the patient. But EHR data from a large number of patients can be pooled together, linked to other databases, and queried with important scientific questions. To date, however, EHR data are underutilized in health research and public health practice relative to the benefits they are capable of generating.
One of the main reasons for this is underutilization is worries about privacy. The analysis of data may reveal patterns, behaviours, health risks and so on concerning individuals or groups. The disclosure of such information can have adverse consequences for them. For example, it can be used to discriminate against them or stigmatize them. Protecting privacy interests, such as keeping their health information confidential, shields them from these risks. On the other hand, making this information accessible to third parties is necessary for many scientific advances, and it can further people’s interests to share in, and benefit from, such advances.
One way of easing some of the tension here is by asking individuals if they are willing to undertake a privacy risk in order to contribute to the advance of scientific knowledge. This is typically done through informed consent procedures and the authorization of one’s health information for secondary uses. A second way of easing the tension is through anonymization of data, which prevents data being associated with particular individuals.
Unfortunately, both of these approaches are of limited utility. It is often impractical to seek consent every time a research question emerges, while a very broad consent for general data uses is not morally robust enough to cover quite unanticipated uses. Meanwhile, to allow people to opt-out by not consenting stands in the way of valuable scientific research – since significant opt-outs introduces a risk of selection bias. Anonymization, on the other hand, may be undesirable depending on the research project, and in any case re-identification may soon become possible as new capabilities or computational methods emerge.
A more radical, and promising, way forward I think is to ask whether the right to privacy is to be specified in a way that it actually poses significant obstacles to the right to science.
Consider, then, the right to privacy in health research. The interests that it serves, for example, the interests in non-discrimination and non-stigmatization, do not necessarily have to be served by conferring on the right-holder exclusive control over the flow of data.
Another way to protect such interests is by shifting the focus onto the conditions under which certain uses of data are to be regarded as permissible. Here are some conditions that could permit the use of data without prior authorization:
- data-driven research (like all other research) must be socially valuable and its benefits ought to be shared fairly among the community;
- data users should not subject data to queries that create excessive risks, and if they do, the information gleaned should not be released to any parties that might use it to harm the person in question;
- data users commit to full transparency about data uses and related actions;
- one’s interests in not being harmed through discrimination maybe be better protected by regulation that punishes discrimination, or through other means that serve as deterrent to discriminatory activity, including compensation mechanisms.
This solution considers privacy interests only insofar as they concern certain harms – such as discrimination – resulting from privacy breaches. But we can easily imagine an objection here.
Though only a sketch of a proposal, this suggests the broad direction in which, I believe, our thinking about human rights and Big Data needs to move.
The emergence of Big Data is a dramatic example of how scientific and technological innovation generates both enormous potential benefits and grave risks. In responding to the challenge of securing the benefits while minimizing the risks, we have to engage in ethical thinking that is just as innovative as thinking in science and technology.
In particular, we should not confront these developments with a dogmatic understanding of human rights that is fixed and unresponsive to changing circumstances. Instead, we have to think creatively about how the content of human rights – such as the rights to privacy and science – might need to be revised to meet the challenges of this Fourth Industrial Revolution.
John Tasioulas is the Director of the Yeoh Tiong Lay Centre for Politics, Philosophy and Law at King’s College, London. His Van Hasselt Lecture is based on an article co-written with Effy Vayena, “The Dynamics of Big Data and Human Rights: The Case of Scientific Research.” He thanks Professor Vayena for permission to use this material.
Professor Tasioulas discussed the relationship between human rights and moral obligations with Scott Stephens earlier this year on The Philosopher’s Zone on RN.
After the success of our “SG Conscience Survey”, the results of which are on display in the Aula entrance hall this month (September), we’ve concocted a few fresh polls for you to fill in.
Both are related to upcoming events: the lecture by Rutger Bregman, Gratis geld voor iedereen, and the Delta debate “Making Room for Religion on Campus?”
The polls are anonymous, and the results will be shared online and discussed at the events. We’d love to hear your opinion too! Time to complete: no more than 2 minutes.
(In Dutch): Enquete “Gratis geld voor iedereen”
The Future of Peace, Weapons, and War
Mary Ellen O’Connell
It is an honor to deliver this lecture named for Frans van Hasselt, who in 1940 spoke out in protest of the injustices of the Nazi occupation of The Netherlands while at the Deflt University of Technology. He paid for his words with his life. Yet, his example lives on and is rightly commemorated on the day when 70 years ago peace returned to The Netherlands and with it, the hope of justice. These remarks call for the return of peace again—the return of the idea that peace is as possible as it is necessary for justice to flourish.
This plea for peace is necessitated by a growing perception that security demands constant war. In March 2015, Georgetown University law professor Rosa Brooks published an essay in the influential journal, Foreign Policy, titled, “There’s No Such Thing as Peacetime”. In it she argues that we should abandon “the Sisyphean effort to ‘end’ war and instead focus on developing norms and institutions that support rights and the rule of law … not premised … on a distinction between war and peace.” She is not alone in imagining no future for peace.
These remarks argue the opposite. They draw on two 17th-century thinkers, who have come to personify today’s competing characterizations of our world as a place where war has become the normal situation and peace the exception or where peace remains the norm and war is the exception. The hero of the war camp is the Englishman, Thomas Hobbes; the hero of peace is the Dutchman, Hugo Grotius.
Hobbes included in his famous book, Leviathan, published in 1651, the belief that outside of nation-states ruled by governments is the state of nature, where people are prone to engage in constant war–wars of all against all. Hobbes describes humanity as being, in the words of Sir Hersch Lauterpacht, “essentially selfish, anti-social, and unable to learn from experience … the basis of political obligation is interest pure and simple; the idea of a sense of moral duty rising supreme over desire and passion is a figment of imagination ….” [Hersch Lauterpacht, The Grotian Tradition in International Law, 23 BRIT. YBK. INT’L L. 1-53 (1946).]
Grotius, by contrast, saw the world and humanity very differently. His book, On the Law of War and Peace of 1625, was written to help to end the Thirty Years War between Catholics and Protestants in Western Europe. Grotius did not believe a world government is necessary to preserve the peace; he did believe world law is needed. According to Lauterpacht, Grotius developed his ideas out of his conviction that people are “intrinsically moved by a desire for social life, endowed with an ample measure of goodness, altruism, and morality, and capable of acting on general principle and of learning from experience.”3 Grotius affirmed the legal and moral unity of humanity and understood law to be necessary to all human societies from the local to the international. His views contrast starkly with those holding that national interest should be the overriding basis of state policy.
It has been fashionable since the end of the Cold War to take the Hobbesian view, which in contemporary terms means to extol military force. For twenty-five years we [ Id. at 24Hersch Lauterpacht, The Grotian Tradition in International Law, 23 BRIT. YBK. INT’L L. 1-53 (1946)] have been hearing of the utility and even morality of resort to war to achieve all sorts of desirable ends from advancing human rights, democracy, and self-determination to preventing terrorism and punishing the use of chemical weapons. Because the use of force for these purposes currently violates international law, we are also hearing arguments for expanding the legal right to use military force. The aim is to modify the United Nations Charter’s general prohibition on the resort to force to permit more exceptions. Currently the Charter provides only two express exceptions. One is for self-defense to a significant armed attack. The other is for the use of force with the authorization of the UN Security Council.
There is, however, a different perspective. It is based on the Grotian view of humanity and sees the possibility of greater peace under the international law than we have now. This view supports the current strict limits on resort to war and advocates expanding the restrictions. The Groatian view may sound to many contemporary ears platitudinous, unrealistic, and even dangerous. People have become convinced that it is a matter of kill or be killed. Such a conviction can be reversed once it is understood how the contemporary Hobbesian view became so dominant and how the Grotian view can be seen as the more compelling.
There are many reasons why Hobbesian realism has come to dominate Western thinking. Realist ideology helps to account for the growth of the massive military apparatus found in the United States, which has taken on a life of its own.4 Having such capacity seems to cry out to some people for using it. Just one aspect of this this phenomenon, new weapons technology, amply demonstrates how the possession of President Dwight Eisenhower waned of the “military-industrial complex” in 1961 [ available here: http://coursesa.matrix.msu.edu/~hst306/documents/indust.html].
Here words were prophetic and unheeded certain weapons is associated with pressure to use them, regardless of the law. The computer revolution in military affairs has given the world the weaponized unmanned vehicle or drone, which is rapidly being developed into fully autonomous robotic weapons along with another computer dependent invention, so-called “cyber weapons.” [See generally, Mary Ellen O’Connell, 21st Century Arms Control Challenges: Drones, Cyber Weapons, Killer Robots, and WMDs, 13 WASH. U. GLOBAL STUD. L. REV. 515 (2014), http://openscholarship.wustl.edu/law_globalstudies/vol13/iss3/11]
For US leaders this new weapons technology has substantially lowered the political costs of killing with military force. The impression of low cost, especially in terms of personnel killed, has helped to bring about the result that the US now engages in militarized policing at home and abroad. More worrying is that prominent international law scholars, like Brooks, and philosophers, like Oxford’s Jeff McMahan, defend the policy to use force abroad regardless of current rules.[See McMahan’s view that the law against war in the UN Charter is “largely obsolete” in Jeff McMahan, Laws of War, in THE PHILOSOPHY OF INTERNATIONAL LAW 493, 496 (Samantha Besson & John Tasioulas eds., 2010)]
In responding in Grotian terms to these challengers of international law, new hope lies in aesthetic philosophy–the philosophy of beauty, which supports Grotius’s optimistic view of humanity; his view that our interest in others, our social nature and capacity for altruism are as true of us as self-interest. [ See Mary Ellen O’Connell, Drawing on Beauty, Aesthetics, Authority and International Law (in progress.)]
With a more balanced view of human capacity, the case for respecting international law, especially, the prohibition on the resort to military force, becomes attractive again. The philosophy of beauty adds persuasive weight to the Grotian response to Hobbes and can renew us in the desire to do the work that must be done for a future of peace.
I. From Hobbes to Brooks
The Hobbesian view can be seen clearly in Rosa Brooks’ essay:
[Human] rights advocates are often inclined to dismiss the increasing blurriness of the boundaries between war and peace as merely a product of disingenuous U.S. government rhetoric. They are wrong to do so. No question, there has been some disingenuous rhetoric, but recent decades have also seen real and significant changes in the geopolitical landscape: Revolutionary technological changes have reduced the salience of state borders and physical territory and have increased the lethality and disruptive capabilities of non-state actors and even individuals. The nature of modern security threats makes it virtually impossible to draw neat lines between war and peace, foreign, and domestic, emergency and normality.
She may be correct that it is more difficult today to draw “neat lines between war and peace.” She begs the question of whether it was ever “easy”, but in the era of human rights if it is difficult to distinguish war from peace, our legal and ethical principles tell us when in doubt characterize situations as peace and apply the law of peace. Defaulting to war conflicts with the priority these principles demand that we give to human rights. In the emergency situation of war, international law permits limitations on human rights. Most significantly, during armed conflict lawful combatants will not face criminal charges for intentionally killing enemy fighters even if those fighters do not pose any immediate threat, so long as the restrictions in the Geneva Conventions and other international humanitarian law are followed.
Brooks is plainly aware of this limitation on the right to life during armed conflict and the current international legal definition of armed conflict. She recognizes that two US presidential administrations have claimed the right to kill with military force far from actual combat zones. Yet, she is willing to support these because of what she sees as new security threats that fall outside existing legal categories. In her words: “In a war against a geographically diffuse terrorist network, the spatial boundaries are necessarily arbitrary.”
But the decision to intentionally kill outside armed conflict zones or outside a zone of uncertainty is a choice. There is nothing inevitable or dictated by nature in the concept of a boundary or characterizations of what is inside the boundary, outside, or uncertain in location. Spatial boundaries are ideas. They are lines with no width; concepts of geometry that we imagine. If boundaries are arbitrary for Brooks it is because she has chosen to conceive of boundaries as far more abstract than someone who associates boundaries with real people and the places where they live, work, and die. It is a choice to conceive of boundaries as arbitrary. It is clearly a choice to decide that killing is lawful and moral in zones of uncertainty. Current international law rejects these choices when it comes to killing.
Brooks’ argument against boundaries is consistent with her call for “perpetual war”. While she has criticized some drone strikes, she also finds fault with current international law, believing like McMahan that it is obsolete. She served as a political appointee for two years in the Obama Pentagon and shares the now prevailing view in U.S. military, legal and philosophical circles that circumstances have so changed that international law should be interpreted or changed to allow a greater legal right to use military force.
This development did not begin with 9/11. It really started when the first Clinton administration took office in 1992 and has spread in the international law and philosophy literature from the United States to NATO countries and Australia. The French philosopher Grégoire Chamayou has recently written:
[L]arge-scale intellectual maneuvers are in the offing and semantic coups are being plotted. In fact, a whole collection of theoretical offensives are being launched with the aim of appropriating, twisting, and redefining concepts that, by naming and theorizing violence, allow it to be legitimately exercised … Bringing about this moral conversion and transmutation of values is the task to which philosophers working within the confined field of military ethics today devote themselves … But the offensive is also and perhaps above all pushing into the field of legal theory. “Warfare without risk,” in which the drone is probably the most effective instrument, critically undermines the meta-legal principles that underpin the right to kill in war. … The aim is to accommodate the right to “targeted assassination”.[ GRÉGOIRE CHAMAYOU, A THEORY OF THE DRONE 17 (2013).]
For Chamayou, we in the West had a better understanding of the need for restrictions on war when we conceived that the risks were reciprocal. If our populations and soldiers faced death by the use of force, we wished to try to restrict that force by all available means, including legal and moral norms protecting the right to life. The drone has undermined that source of tangible awareness of the need for restrictions. Reciprocal risk is gone. Substantial evidence indicates that following almost a decade and a half lethal operations with drones, many view drone attacks as less serious than killing carried out by ground troops, piloted planes, manned naval vessels, or a CIA agent using a knife, all of which pose some level of risk to the one doing the killing. One U.S. official has observed: “People are a lot more comfortable with a Predator strike that kills many people than with a throat-slitting that kills one.”[Jane Mayer, The Predator War, What are the Risks of the C.I.A.‘s Covert Drone Program?, THE NEW YORKER (online), 26 October 2009, http://www.newyorker.com/reporting/2009/10/26/091026fa_fact_mayer.]
The possession of technology lowers the political and psychological barriers to killing, making it easier to overlook the legal, policy and ethical limits as well.
Several years ago, a UK military report on the psychological effect of drones, observed:
[O]ne of the contributory factors in controlling and limiting aggressive policy is the risk to one’s own forces. … For example, the recent extensive use of unmanned aircraft over Pakistan and Yemen may already herald a new era. That these activities are exclusively carried out by unmanned aircraft, even though very capable manned aircraft are available, and that the use of ground troops in harm’s way has been avoided, suggests that the use of force is totally a function of the existence of an unmanned capability—it is unlikely a similar scale of force would be used if this capability were not available. [United Kingdom Ministry of Defence, Joint Doctrine Note 2/11, The UK Approach to Unmanned Aircraft Systems, (30 March 2011) Ministry of Defence, , http://www.mod.uk/NR/rdonlyres/F9335CB2-73FC-4761-A428-DB7DF4BEC02C/0/20110505JDN_211_UAS_v2U.pdf, pp. 5.8-5.9.]
A national leader knows he can deploy drones without his own citizens coming home in body bags. This fact plainly makes the decision to kill easier for political reasons, especially in the United States where the body bag count that went on for years during the Vietnam War still haunts politicians and citizens alike. [ See, See Mary Ellen O’Connell, Seductive Drones: Learning from a Decade of Lethal Operations, 21 J. INFO. L. & SCI., 116 (2012), available at http://ssrn.com/abstract=1912635.]
For the 2011 intervention in the Libya civil war, President Obama moved away from manned aircraft to drones entirely. He had promised that the US would only be using military force in Libya for a few days. As those few days stretched into weeks, he shifted from manned aircraft to drones. With drones he could still assure US Allies that the US was making a major military commitment while at the same time assuring the American people that the US was not really involved in another armed conflict. In a debate about whether Mr. Obama was exceeding his legal authority in Libya, a Congressman asked: ‘“Could one argue that periodic drone strikes do not constitute introducing forces into hostilities since the strikes are infrequent” and “there are no boots on the ground?”’ [ Charlie Savage, Libya Effort is Called a Violation of War Act, N.Y.TIMES, May 25, 2011, available at http://www.nytimes.com/2011/05/26/world/middleeast/26powers.html?_r=1&emc=eta1.]
This last point, no boots on the ground, has been a significant political factor in the use of drones in Pakistan. Pakistan’s government has restricted the US military presence on its territory to a small number of military trainers. To comply with this mandate, the US’s drone attacks in Pakistan have been the CIA’s responsibility.
Ironically, in Yemen, the request was the other way around. In reporting on the 2002 CIA drone strike that killed six persons in Yemen, the media related that Yemen’s President Saleh had acquiesced in the strike. We now know from Wikileaks, Saleh banned further drone attacks but permitted manned vehicle strikes. Saleh could claim that Yemen itself had carried out the attacks. The choice of launch vehicle was tied to the fact that Yemen did not possess armed drones.
Related to the political reasons for killing with drones are the psychological factors. We know that technological distance from a victim makes the decision to kill easier for the person actually controlling the weapon. Distance may ease the decision for those in the operator’s chain of command, as well, if they know they are not risking their own nationals’ lives along with the enemies’.
Without the risk to U.S. nationals and the ability to check off names on a kill list, the pressure has been on US officials to show the program is not only politically acceptable but also laudable in law and ethics. Former CIA Director Leon Panetta has emphasized that using drones is lawful because they are ‘precise’. He apparently did not address whether resorting to drones in the first place is lawful. “[V]ery frankly,” he said, “it’s the only game in town in terms of confronting and trying to disrupt the al-Qaida leadership.”’13
The US administration measures the game’s success by the number of “militants” killed with each drone strike. This feature of the drone wars is again reminiscent of the American experience in Vietnam. Year after year, US officials provided statistics of the number of enemy persons killed. The war, however, was never won. Judging by the situations in Libya, Yemen, Somalia, and to some extent Pakistan today, drone strikes have helped create far more dangerous situations than prior to their use. [Noah Shachtman, CIA Chief: Drones ‘Only Game in Town’ for Stopping Al Qaeda, WIRED, May 19, 2009, available at http://www.wired.com/dangerroom/2009/05/cia-chief-drones-only-game-in-town-for-stopping-al-qaeda/]
The wide acceptance of using drones to kill in far off countries tracks the findings of Lieutenant Colonel Dave Grossman in his 1996 book, On Killing, that distance from a victim makes the decision to kill easier or more acceptable. For Grossman, “distance from the victim” includes various concepts of distance, including physical, emotional, social, cultural, moral, and mechanical. These factors seemed to be at play in a tragic incident that occurred in Afghanistan in February 2010, in which 23 Afghan civilians were killed and another 12 injured. “[I]n his desire to support the ground forces, … the [drone] pilot ‘had a strong desire to find weapons,’ and this ‘colored — both consciously and unconsciously — his reporting of weapons and children.’”[ See the investigation into a drone strike in February 2010 that resulted in the deaths of a number of civilians. Christopher Drew, Study Cites Drone Crew in Attack on Afghans, N.Y.TIMES, Sept. 10, 2010, available at http://www.nytimes.com/2010/09/11/world/asia/11drone.html. (The Pentagon report found the Predator crew exercised “poor judgment”.]
Grossman focuses on the person who actually pulls the trigger or uses the joystick to fire the missile. Yet, the distance factor could impact everyone involved in the kill decision, including a whole society that supports such killing. By 2015, drone killing has reached a very high level of acceptance in the United States. It dipped somewhat when the media revealed several American citizens had been killed intentionally and unintentionally. Yet, with the rise of the militant group calling itself the “Islamic State”, attacking abroad has regained high levels of popularity. [See Ken Dilanian and Emily Swanson, AP-GfK Poll: Americans Approve of Drone Strikes on Terrorists, May 1, 2015, http://ap-gfkpoll.com/featured/findings-from-our-latest-poll-]
Indeed, the acceptance is so high that Americans joke about killing with drones in a way they would not, presumably, about killing with a bayonet or a cruise missile. In May 2010, at an annual dinner for journalists, politicians, and celebrities in which invited guests are expected to tell jokes, President Obama quipped about his two young daughters being fans of a band called The Jonas Brothers. Members of the group were in the audience and the president said, ‘“Boys, don’t get any ideas. I have two words for you – Predator drones…You will never see [them] coming.”’ [Adam Entous, How the White House Learned to Love the Drone, REUTERS, May 18, 2010, available at http://www.reuters.com/article/2010/05/18/us-pakistan-drones-idUSTRE64H5SL201005]
The Bush and Obama administrations have presented killing with drones as precise and imperative, and, therefore, so morally unproblematic we can joke about it. Chamayou argues that drones have altered the very relationship of the state to deadly force. He quotes the German political and legal theorist, Carl Schmitt, saying that Schmitt accurately pinpointed the effects of airpower on the juridical and political categorization of the enemy”. Schmitt’s analysis of the effects of ‘autonomous aerial warfare,’ in which ‘the lack of relation between military personnel in the air and the earth below, as well as with inhabitants thereon, is absolute,’ is still applicable today to the armed drone: ‘… Given the fact that war has been transformed into a police action against troublemakers, criminals, and pests, justification of the methods of this ‘police bombing’ must be intensified. Thus, one is compelled to push the discrimination of the opponent into the abyss.’ … He is no longer positioned, in any sense of the term, on the same ground as oneself. [Chamayou, supra n. 8, at 165-66.]
More worrying is Chamayou’s account of how populations will lose their critical attitude to war as a result of needing to make no personal sacrifice. Recall the widespread reaction in the United States to the Vietnam War once college students lost their exemption and began to be drafted. That was the beginning of the end of a thirty-year engagement.
The moral and legal cover being provided to political leaders to use drones has helped smooth the way for creating weapons with even lower political costs: fully autonomous robotic weapons and cyber weapons.[See O’Connell, 21st Century Arms Control Challenges, supra n. ]
Leaders in the United States and Israel boasted about a computer worm that infected Iranian computers associated with its nuclear program. The International Atomic Energy Agency discovered that, in 2009, highly sophisticated malware infiltrated the Iranian computers running the centrifuges along with computers across the world. US and Israeli politicians denied direct responsibility.
It soon became clear that in response to the attack, Iran began recruiting its own team of elite hackers, their goal being to prevent another attack and to gain the capacity to retaliate. Something like a world arms race for cyber weapons may now be underway. An adaptation of Stuxnet known as DuQu has already been created.
The negative consequences of Stuxnet have not, apparently, deterred the United States. In 2012, another virus was detected, known as “Flame,” which appears to be a part of the same campaign as Stuxnet. A researcher at Kaspersky Labs, who brought Flame’s existence to public light, said, “We believe Flame was written by a different team of programmers but commissioned by the same larger entity.” Like DuQu, Flame is an espionage tool. Virkram Thakur, a Symantec researcher, said, “This is the third such virus we’ve seen in the past three years. It’s larger than all of them. The question we should be asking now is: How many more such campaigns are going on that we don’t know about?”
The Stuxnet virus was intended to target facilities with a specific layout. However, it was spread using USB flash drives and other means which have reached across the globe. As one expert said, “[Stuxnet] spun out of control. Although it was intended to stop the progress of Iran’s nuclear program, it also damaged 100,000 computers all over Europe. There was a need to stop it. Cyberwars act like boomerangs . . . . So it would be advisable for governments not to enter cyber-wars because in a boomerang war there are no winners.” [http://www.israelhayom.com/site/newsletter_article.php?id=9983.]
International law raises substantial barriers to both using cyber weapons and defending cyberspace from cyber attacks through the use of military force. In general, international law supports regulating cyberspace as an economic and communications sphere. The same sort of coercive measures that are lawful to use against economic wrongs and violations of arms control treaties will generally be lawful to use in the case of a cyber attack.
Despite the availability of these alternatives to the use of military force, it is important to reiterate that protecting cyberspace—keeping it viable for economic and communication uses—will generally require defensive measures, not offensive ones.
Rather than put the major emphasis on cyber security and protecting cyberspace for communications and commerce, the United States, in particular, is building capacity and developing strategies that make the Department of Defense the major player in Internet use and protection. The Pentagon conceives of cyber space as it does conventional space, with war fighting in mind. The principal U.S. activity regarding cooperation over Internet protection is within the auspices of NATO, not the UN specialized agency with Internet oversight, the International Telecommunications Union.
US military researchers are also now hard at work on artificial intelligence toward robots that once constructed and programmed will be able to make the decision to attack without additional human intervention. Such an attack could occur years after the robot is programed. The parties to the Convention on Certain Conventional Weapons began a process in 2013 to study fully autonomous robotic weapons as the first step toward a new protocol controlling or prohibiting such weapons. In April 2013, UN Special Rapporteur Christof Heyns called for a moratorium on moving beyond the design stage in the development of fully autonomous weapons pending the formation of a panel of experts to create a policy. Delft’s Jeroen Van Den Hoven and his co-authors recently presented to the experts a position that captures the way forward that I am advocating here today: “[W]e have to learn how to design for responsibility and accountability in weapon systems to make them demonstrably compliant with the fundamental moral principles underlying IHL and Human Rights Law.”[21 Jeroen van den Hoven, et al., Why the Future Needs Us Today, Moral Responsibility and Engineering Autonomous Weapons Systems, April 2015, http://www.unog.ch/80256EDD006B8954/(httpAssets)/89116E298AE593C2C1257E2A00413D61/$file/2015_LAWS_MX_VanDenHoven.pdf.] And I would add international law in general.
II. Back to Grotius
Prior to the advent of new weapons, legal scholars and moral philosophers taught that the taking of human life is only justified to protect human life. In other words, the exceptional right to resort to lethal force rests squarely on a moral justification of necessity. In armed conflict hostilities, the necessity to kill is presumed. Away from such hostilities the necessity to kill must be related to an immediate threat to life. International law on killing was built on these fundamental moral insights.
Given the political and psychological lures to killing and destroying with new technology weapons international law specialists should be alert to whether the current law on lethal operations is adequate. Rather than urge the loosening of rules as appears to be the trend today, the argument here is that the rules should be strictly applied to counter-balance the seductive attraction of killing without risk. Returning to close compliance with the rules will likely require a rejection of the realist motive of killing to project power. Killing to send a message of strength or for retribution should be seen as neither moral nor lawful.
The philosopher Jeremy Waldron has published a highly persuasive philosophical analysis rejecting arguments to loosen the law against killing, supporting every reason to strengthen it.
It seems that our first instinct is to search for areas where killing is already “alright”—killing in self-defence … or killing of combatants in wartime … and then to see if we can concoct analogies between whatever moral reasons we can associate with such licenses and the new areas of homicide we want to explore. In my view, that is how a norm against murder unravels. And it unravels in our moral repertoire largely because we have forgotten how deeply such a norm must be anchored in light of the temptations it faces and how grudging, cautious, and conservative we need to be—in order to secure that anchorage—with such existing licenses to kill as we have already issued.[22 Jeremy Waldron, Justifying Targeted Killing with a Neutral Principle? Three Possible Models in TARGETED KILLINGS, LAW AND MORALITY IN AN ASSYMMETRICAL WORLD (C. Finklestein et al. eds., 2012).]
Part of the reason that Hobbesian arguments against this view have arisen has to do with our loss of the anchor for current moral and legal norms. International law, like all law, arose out of religious beliefs. Our respect for law today can be described as an inheritance from an age when belief in the divine was widespread. Hugo Grotius exemplifies this thinking when he said, “What God has shown to be his Will, that is law.” “God determines the full and exact content of all normative categories—justice, goodness and so forth.”[ HUGO GROTIUS, COMMENTARY ON THE LAW OF PRIZE AND BOOTY (1604).]
It was Grotius himself, however, who began the undermining of the anchor or foundation on which our belief in law began. In order to win the adherence of both Protestants and Catholics to one common law above them, he famously wrote in the LAW OF WAR AND PEACE (1625), “What we have been saying [about law] would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to him.” It was this new concept that began the process of eliminating the divine basis of legal authority in the West. Grotius’s proposition helped him avoid theological disputes in winning adherents to his legal arguments in the short term. For many decades, the Western European conception of law continued to benefit from the centuries of association with belief in divine authority. That inheritance seems more or less depleted today.
In more recent times we see law, including international law spoken of as a substitute for religious belief. The Finnish international law scholar Martti Koskenniemi has written:
International law increasingly appears as that which resists being reduced to a technique of governance. When international lawyers are interviewed on the Iraqi war, or on torture, or on trade and environment, on poverty and disease in Africa – as they increasingly are – they are not expected to engage in hair-splitting technical analyses. Instead, they are called upon to soothe anxious souls, to give voice to frustration and outrage. Moral pathos and religion frequently fail as vocabularies of engagement, providers of ‘empty signifiers’ for expressing commitment and solidarity. Foreign policy may connote party rule. This is why international law may often appear as the only available surface over which managerial governance may be challenged, the sole vocabulary with a horizon of transcendence … I often think of international law as a kind of secular faith.[ Martti Koskenniemi, The Fate of Public International Law: Between Technique and Politics, 70 MOD. L. REV. 1, 30 (2007).]
Yet how can humanity have faith in something invented by them? Hobbes based his views on what he believed could be proven materially, the selfish nature of human beings. Once belief in things outsides ourselves waned, this material fact seemed all that was left. It is no wonder that wealth maximization, the theory of so-called “rational choice” is the dominant philosophical principle underlying today’s legal scholarship in the United States, a scholarly view that is sweeping Western Europe as well. Rational choice is a form of realism that easily co-exists with Hobbesian realist ideas about international relations and international law.
In the past, law was respected because, as one legal scholar put it, “[E]very human or positive law derive[d] from the “eternal law,” which is the divinely ordained order governing the universe, and positive law gains its status as law by virtue of participating in that order….” Rational choice theory is no substitute for this concept of law. While many of us in the world have not lost our religious belief, many have. Some of us have tried to substitute the history of belief for belief itself in by explaining the binding authority of law. We have tried to anchor law in tradition.
Like Waldron, however, I am no longer persuaded that approaching the problem of legal authority through history is promising. Unlike him, I doubt that a return to religion per se will be persuasive enough to the international community. We have an area of human thought that does hold persuasive promise: Aesthetic theory provides an alternative answer to the question of why obey the law. In this ancient branch of philosophy, we can find an argument for social life, for interest beyond self-interest. It provides an argument for why equality, fairness, and justice should form the core principles of law. Aesthetic theory provides a proof for law that appeals equally to believers and non-believers.
The German philosopher, Hannah Arendt has argued that while Immanuel Kant never wrote a theory or philosophy of politics or law, he provided the basis for a political theory in his work on aesthetics, Critique of Judgment. [HANNAH ARENDT, LECTURES ON KANT’S POLITICAL PHILOSOPHY 7-8 (Ronald Beiner ed., 1992).]
That basis is a new grounding for law as well. Central to Arendt’s understanding of Kant’s political philosophy is what he says about beauty. He wrote that a human being’s happiness does not depend on experiencing self-interested pleasure alone. We perceive beauty and experience pleasure outside of ourselves: “‘The fact that man is affected by the sheer beauty of nature proves that he is made for and fits into this world … ’”26 Our pleasure in beauty creates the opposite sense to that of alienation from the world, and is, therefore, a reason to be open to society [Id., at 30. HANNAH ARENDT, LECTURES ON KANT’S POLITICAL PHILOSOPHY 7-8 (Ronald Beiner ed., 1992).]
Our pleasure in beauty creates the opposite sense to that of alienation from the world, and is, therefore, a reason to be open to society. Kant’s real interest in beauty was even more directed to what it tells us about “disinterest” or interest in the other. Many beautiful things exist solely for their beauty and not because they have any usefulness for us. Thus, the pleasure is owing to the thing’s mere existence and not for any gain. Arendt tells us that Kant wrote in a notebook, “‘the Beautiful teaches us to love without self-interest.’”[Id., at 73. HANNAH ARENDT, LECTURES ON KANT’S POLITICAL PHILOSOPHY 7-8 (Ronald Beiner ed., 1992).]
The beautiful and the disinterested pleasure experienced leads to a desire to communicate, which, in requires the ability to stand in the shoes of another, to have the enlarged mentality that reaches to the consideration of all of humanity.
The experience of beauty is different from the experience of seeing something that is simply pleasant or interesting in an object. It is a universal experience, not something that is experienced differentially depending on an individual’s personal taste. When we call something beautiful we think that everyone must recognize it as such. Kant equates judging something to be beautiful means that the thing has the aesthetic quality of universality. Terry Eagleton explains “we can experience our shared humanity with all the immediacy of our response to a fine painting or a magnificent symphony. Paradoxically, it is in the apparently most private, frail and intangible aspects of our lives that we blend most harmoniously with one another.”[28 SIMON SWIFT, HANNAH ARENDT 77 (2009), citing Eagleton 1990, p. 76.]
This understanding of shared humanity founds social life, and, therefore, political life. Social and political life being aspects of law, Arendt’s insight can be extended to the reason for law. Law supports social peace, harmony, and order. Arendt quotes Kant but uses as many of her own words in saying, “if everyone expects and requires from everyone else this reference to general communication [of pleasure, of disinterested delight, then we have reached a point where it is as if there existed] an original compact, dictated by mankind itself.”[29 ARENDT, supra n. 25, at 74.]
On the basis of this compact a political system and law to support it may be established—in the world community and in smaller ones. Without law, human beings are left with brute force or unregulated violence to resolve disputes. Violence is the anti-thesis of social life, certainly social life based on the need to communicate. Non-violent, peaceful resolution of disputes through law fosters harmony, Augustine’s “tranquility in order.” The rules that foster peace and suppress violence reflect the equality, fairness, and justice that form the heart of the law as validated through the insights of aesthetics.
Our perception of beauty indicates a yet more important empirical fact. The experience is common to people. All human beings experience this pleasure, which has no apparent purpose. The blind experience it through music or imagination. It is a pure aspect of our common humanity, which supplies a far more tangible basis for empathy, for seeing the other as us, than the religious concepts of human dignity or the existence of a soul, or the natural law fact of common needs. The pleasure in experiencing beauty is a universal, harmonious, and non-competitive aspect of humanity. People can have the common experience of pleasure in a rose in first bloom, a sunset, or Vermeer’s painting, View of Delft. Kant and Arendt see in the perception of beauty the truth of social life as integral to human existence. Why else have the experience of beauty?
We have largely lost this aesthetic vocabulary and understanding from our political and jurisprudential thought. By this point, some of you may be seriously questioning the value of bringing it back. You may doubt that there really is a common experience of beauty (you are thinking, isn’t beauty is in the eye of the beholder?) or even if there a common experience, how can it do all that I am claiming: winning law and morality back from Hobbesian realism?
It is true that taste differs among people. Someone credited with “good taste” often has a combination of talent and training and may therefore have a more profound experience of beauty. The intensity of the experience of beauty differs. That fact does not, however, diminish the common ability of all people to experience some level of disinterested pleasure in beauty. Pointless pleasure is an extraordinary thing to have in common, and for those still skeptical, there is a wealth of scientific evidence to support what Plato, Aristotle, and Aquinas concluded without brain scans or surveys. Contemplation of beauty reveals a common fact of human experience, which is an experience of disinterested pleasure. This is not a revelation about human nature as much as a revelation of a human capacity, an intuition or reaction of the senses.
The Oxford philosopher Iris Murdoch would agree with Hobbes that human beings are naturally selfish. Murdoch, however, builds moral philosophy around antidotes for selfishness. She writes that “Following a hint in Plato (Phaedrus 250) I shall start by speaking of what is perhaps the most obvious thing in our surroundings which is an occasion for ‘unselfing’, and that is what is popularly called beauty.”[ IRIS MURDOCH, THE SOVEREIGNTY OF GOOD 78 (1970).]
“Plato pointed out, beauty is the only spiritual thing which we love by instinct.”31 [31 Id. at 84.] Murdoch offers a gloss on Kant’s observation of disinterested pleasure in contemplation of the beautiful. She accepts that this experience may be produced through contemplation of good art. The surer object for the experience of unselfish pleasure, however, is nature. “[W]e take a self-forgetful pleasure in the sheer alien pointless independent existence of animals, birds, stones and trees. ‘Not how the world is, but that it is is the mystical.’” [Id. at 85.]
The good life is the unselfish life. This is known through the unselfish pleasure experienced in the contemplation of beauty, especially in nature. “The self, the place where we live, is a place of illusion. Goodness is connected with the attempt to see the unself, to see and to respond to the real world in the light of a virtuous consciousness.”
Plato, Dante, Kant, Simone Weil, Arendt, Murdoch and others, see the perception of beauty having the impact of drawing us from the contemplation of a particular beautiful thing to the general, the universal. Care for, caring about, one thing of beauty leads to care and concern for the world.
The legal scholar Costas Douzinas reminds us that the connection between beauty and law was once well known and continues to be represented in the attractive, blindfolded statues of justice, such as the one standing over the main square of Delft holding her balance and sword. Douzinas points to “the inner relationship between the beautiful and the good”, noting the pre-Reformation “link between law, order, and harmony, or between justice and beauty forms a consistent theme in the writings of the humanist lawyers both in England and continental Europe.”[Costas Douzinas, Prosopon and Antiprosopon: Prolegomena for a Legal Iconology, LAW AND THE IMAGE: THE AUTHORITY OF ART AND THE AESTHETICS OF LAW 53 (Costas Douzinas and Lynda Nead eds, 1999).]
Aesthetic theory’s answer to the basis of legal authority is consistent with both religious and secular reasoning. It helps to answer the question, why obey law, even when Hobbesian realism says to disobey. It supports our respect for the right to life of others even when it seems in our self-interest to kill others when killing them holds no risk for us.
Rosa Brooks concludes her essay on perpetual war by asking what implications might follow from replacing peace with perpetual war. She says she does not know, that it will take many minds and many years “to prevent [the] arbitrariness, mistake, and abuse in targeted killings” that we see today. Let us forgo all of this hard work, which is really the work of destroying the international law of today. Instead, join me in imagining a world in which intentional killing with military force is restricted to ever smaller zones, increasingly disappearing with our desire to see the expansion of the zones of peace.
Those of you in the world of design and engineering have a particular opportunity to create as part of your designs beauty at many levels, including the means to protect the lives of others. You can design the computer programs that keep the Internet a weapons free zone. And you can design the means that restrict autonomous robotic weapons from deciding to kill without a human conscience in the loop. The law follows our mental images and we are free to choose what they will be along with Hobbes, Brooks, Grotius, and me.