Here’s a guest post from regular commenter Brian Bahnisch, on the philosophy behind our stance on asylum seekers. It raises some important (though not entirely new) questions about the adequacy of utilitarianism in contexts like this.
In the comments thread of this post Jack Strocchi raised a number of issues concerning asylum seekers including utilitarianism as the basis for our stance. The legal/ethical basis for our stance is central and deserves greater scrutiny, discussion and reflection. The following is not intended as a complete philosophical justification for an alternative approach, merely to demonstrate that alternatives are possible.
I’m going to start with the statement that I don’t accept utilitarianism as providing an adequate basis for public policy or law generally, but in this case in particular.
Suddenly on this blog I feel like a pigeon amongst the cats, so I’ll base the argument mainly on my big gun, Desmond Manderson, whose views are compatible with my own.
On 24 August, 2001 Desmond Manderson, then Director of the Julius Stone Institute of Jurisprudence at the University of Sydney, had an article “Care of strangers’ published in the AFR. He clearly understands that the law operates in a social context, and is related to philosophy and values.
The Benthamite dictum has existed in my mind as “the greatest good for the greatest number.” To me this begs the question of what the ‘greatest good’ consists of, and who decides. Turns out I was wrong about the quote, which should read “the greatest amount of happiness for the greatest number of people”. This is even worse because in ‘happiness’ we have a private good, which may be different for different people. Moreover the happiness of one may conflict with the happiness of another. Indeed it opens the way for the circumstance that the pain of one or some may contribute to the happiness of others.
It is easy to argue in these circumstances that governments in decent countries should protect individuals and small groups from the tyranny of the majority. This, Manderson says, is normally done on the basis of (human) rights.
The problem with interests and rights is that both are based on the individual, albeit within a social context. That is, happiness is an individual interest, which may conflict with the interests of others. Ditto for rights, but rights must be both claimed and granted in a social context. In other words rights are socially constituted.
This may work OK within the (democratic) tribe, or by extension within the state (if it is working properly in an inclusive way) but does not as such recognise the needs of the stranger in trouble. Nor indeed does it help alienated and voiceless groups within a society.
The problem here is that we may see it in our interests (and we do) to deny strangers the means to make a claim for refuge from persecution based on basic human needs and universally recognised human rights, recognised by us too as signatories to an international convention. In effect and actually we turn the strangers away without listening to them.
Manderson is suggesting here that our approach, our jurisprudence, is based on the notion that society is comprised of a collection of freely associating isolates. The self and self-interest is the ultimate ground of explanation. Altruism remains as a problem, or at best an interest of some of us.
Manderson turns here to an alternative jurisprudence “built on the work of the great ethical philosopher and Jewish theologian Emmanuel Levinas (1906-1995).” According to Levinas, Manderson says:
“Our very sense of selfhood is a construction; it comes from our relationship with others, initially as a child and then throughout our lives. The ‘other’ comes ‘before’ the self because there is no self without them. We might even say that we are a mirror in which others are reflected.” [Personally, I think the mirror metaphor is too limited, but that’s another story.]
In view of this:
“We do not ‘give’ them [others] charity (or rights) from the depths of our autonomy. We already owe them a debt, for their otherness is the very condition of our existence. We are ourselves, not just among them but because of them. Charity or kindness is not a torchlight which we hold and decide to shine on someone else. No, it is the sunlight without which we could not see anything at all.
You will note here that we have moved from questions of law to questions of philosophy, not just ethics but the ontological question of the nature of our being. The ontology behind or assumed by utilitarianism is seldom discussed.
Responsibility, the second Levinas’ concept brought to bear, is our ability to respond. In a sense we don’t choose whether to respond, merely how. We are chosen by the proximity of the stranger in need. This responsibility “comes from the ‘face to face’ encounter with another person and cannot be satisfied by the rote application of rules.”
We can choose to accept or reject our responsibility. If we accept then both we and the ‘other’ grow in humanity. If we reject our responsibility we certainly diminish ourselves and may also harm others. In the end it’s a simple argument. We are all connected and we are here to help each other. Out of that we grow and, as a matter of grace, may become happy.
“The fundamental test of justice is one of hospitality to the stranger. Too bad for us, but we do not have a say in the matter. In this, we are already the chosen people.”
That was Manderson’s challenge. Two days later the Tampa showed up. I’ll leave it to you to work out how well we went on the test.