Maija Aalto-Heinilä HUMAN RGHTS AND HUMANITY: A Wittgensteinian approach - DRAFT-

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1 Maija Aalto-Heinilä HUMAN RGHTS AND HUMANITY: A Wittgensteinian approach - DRAFT- If you want to go down deep you do not need to travel far; indeed you don t have to leave your most immediate and familiar surroundings. (Wittgenstein, Culture and Value, p. 50) Introduction According to what John Tasioulas calls the orthodox view, human rights are moral rights possessed by all human beings simply in virtue of their humanity. 1 But in the philosophy of human rights and in moral philosophy in general this characterization is usually thought to be insufficient: it needs to be specified or supplemented with an account of some specific features or capacities that all humans possess, features which make humans worthy of the moral respect that human rights express. The theories which attempt to find and formulate these features or capacities may be called foundationalist or essentialist theories, since what they are doing is to try to find the grounding or foundation of human rights in some features which belong to the essence of humanity. The foundationalist project has been challenged by human rights theorists who identify themselves (or at least symphatize) with philosophical pragmatism. Pragmatism, in so far as it can be captured in any single definition, is a philosophical movement or attitude that is suspicious of essences and metaphysical foundations and that emphasizes the practical, real-life consequences of the phenomenon that is being (philosophically) investigated. In the context of human rights the pragmatist attitude means that we should look at the human rights practice, e.g. at the human rights instruments and the role human rights play in international politics, rather than search for some metaphysical essence of humanity; in so far as human rights have any foundation, it is to be found in the real-life practices of the relevant human rights actors and institutions. 1 John Tasioulas, On the Foundations of Human Rights, in Rowan Cruft, S. Matthew Liao and Massimo Renzo (eds.), Philosophical Foundations of Human Rights (Oxford University Press (2015)), p. 45 1

2 However, in their enthusiasm of the primacy of practice, some versions of pragmatism seem to make no great advance in the debate concerning the foundations of human rights, at least if one looks at their way of approaching the issue. It can be argued that they share with the foundationalists the same conception of what it is that a philosophical account of human rights must do, what form the question and answer about the deepest nature of human rights and humanity must take. As Martin Stone, drawing on Wittgenstein, puts it, the pragmatists easily make practice the new philosophical idol that preserves a certain kind of philosophical outlook intact. 2 In this paper I am interested in the possible dangers that the type of philosophical outlook that both foundationalism and (naïve) pragmatism exemplify may bring in their wake, and in two alternative ways of approaching the issue of what it is to be human (and, thus, of the moral importance of human rights). The first alternative is Richard Rorty s ethnocentric understanding of human rights, and the second draws on Cora Diamond s thoughts about the importance of being human. However, the most important philosopher in the background of this paper is Ludwig Wittgenstein. 1. Human rights foundationalism The reason why mere appeal to humanity is thought to be insufficient to account for the special moral worth of humans is that it faces the charge of speciesism. Speciesism means, analogically with racism or sexism, the improper stance of refusing respect to the lives, dignity, rights or needs of animals of other than the human species. 3 The thought here is that an individual s biological species, just like sex or race, is morally irrelevant: if we want to defend the claim that only human beings have full moral standing, then, as James Rachels puts it, we should be able to say what it is about being human that gives us this special status. Simply being human cannot be what does the job. 4 2 Martin Stone, Four Qualms about Legal Pragmatism, in G. Hubbs and D. Lind, Pragmatism, Law and Language (New York: Routledge, 2014), p Simon Blackburn, The Oxford Dictionary of Philosophy (OUP 1996), p James Rachels, Drawing lines, in Nussbaum, M. and Sunstein, C., Animal Rights: Current Debates and New Directions (Oxford: OUP, 2004), p I am indebted to Alice Crary s article Humans, Animals, Right and Wrong (in 2

3 Thus, a crucial task in the philosophy of human rights has been to try to identify this what it is about being human that gives us a special moral status. The first obvious answer (that can be found e.g. in the preambles to the human rights treaties) is that human beings have dignity. But dignity is, as such, a vague ideal and only invites the further question, what is the ground of dignity? In the history of philosophy, the most common answer found e.g. in Plato s, Aristotle s or Cicero s thinking is that human beings (and only human beings) are endowed with reason: they are able to think and reflect upon both abstract and practical matters and are therefore different from all other worldly creatures. (Reason may be thought to be God-given or simply a given fact about us). Moreover, human beings are free to choose to obey the dictates of reason: this is what distinguishes them from animals who are slaves to their instincts and impulses, and what makes morality in general possible. The Kantian idea of autonomy combines these two aspects human beings are, because of their reason, able to find out the moral law, and because they are free, able to choose to follow this law. These familiar answers figure also in present-day attempts to formulate the foundations of human rights. One of the most influential of these is James Griffin s account, in which human rights are grounded in normative agency or personhood. More specifically, this means that human rights protect our ability to choose [our] own path through life, and also that once we have chosen, we must be able to act ; so personhood or agency consists in autonomy and liberty (and the practicalities which make the exercise of them possible). 5 John Tasioulas defends a pluralist approach in which human rights are grounded in universal human interests and on human dignity, where dignity consists in the fact that humans belong to a species which is in turn characterized by a variety of capacities and features: a characteristic form of embodiment; a finite lifespan of a certain rough duration; capacities for physical growth and reproduction; psychological capacities, such as perception, self-consciousness, and memory; and, specifically rational capacities, such as the capacities for language-use, for registering a diverse range of normative considerations (including evaluative considerations, prudential, moral, aesthetic, and others besides), and for aligning one s judgments, emotions, and actions with those considerations. 6 Crary (ed.), Wittgenstein and the Moral Life. Essays in Honor of Cora Diamond (Cambridge, Massachusetts: MIT Press, 2007, p. 382) for drawing my attention to Rachel s paper. 5 See James Griffin, On Human Rights (Oxford: OUP, 2008), p Tasioulas, On the Foundations of Human Rights (fn 1), p

4 Other attempts include e.g. John Finnis s objective list account of human well-being as underlying human (natural) rights; 7 or Martha Nussbaum s capabilities approach, according to which certain basic capabilities, i.e. individuals real opportunities to achieve certain functionings, form the basis of human rights Human rights pragmatism Human rights pragmatists challenge this search for the foundation of human rights in some objective, universal criteria. Pragmatism in general can be defined by means of the following three features (at least according to the most famous legal pragmatist, Richard Posner): 1) Distrust of metaphysical entities (such as reality, truth, or nature ) as warrants for certitude whether in epistemology, ethics or politics 9 2) An insistence that propositions be tested by their consequences, by the difference they make and if they make none, set aside. 10 3) An insistence on judging our projects, whether scientific, ethical, political, or legal, by their conformity to social or other human needs rather than to objective, impersonal criteria. 11 When this outlook is applied to law, it means e.g. that legal theorists should be critical of the mysterious entities that seem to play a large part in many branches of law (such as mind, intent, free will or causation ); rather than these mysterious entities, judgments of liability in e.g. tort law or criminal law should be based on social considerations. 12 A legal pragmatist will also reject formalism, which Posner understands to be an attempt to answer legal questions by inquiring into the relation between concepts (rather than examining their relation to the world 7 John Finnis, Natural Law and Natural Rights (Oxford: Clarendon, 1980) 8 Martha Nussbaum, Creating Capabilities (Cambridge, Massachusetts: Harvard University Press, 2011). For an overview of various grounds of human rights, see Rowan Cruft, S. Matthew Liao and Massimo Renzo, The Philosophical Foundations of Human Rights An Overview, In their edited collection The Philosophical Foundations of Human Rights (OUP 2015), p Richard Posner, What has Pragmatism to offer law? (63 Southern California Review (1990)), p Ibid., p Ibid., p Ibid., p

5 of facts). 13 Unlike the formalist, the legal pragmatist thinks that concepts should be subservient to human needs and therefore wants law to adjust its categories to fit the practices of the nonlegal community. 14 In short, pragmatism in jurisprudence means a rejection of a concept of law as grounded in permanent principles and realized in logical manipulations of those principles, and a determination to use law as an instrument for social ends. 15 In the philosophy of human rights this means that instead of trying to find a foundation to human rights in some essential features which constitute human dignity, we should look at the human rights practice: [The practical approach] tries to grasp the concept of a human right by understanding the role this concept plays within [the human rights] practice. 16 [T]he meaning of the idea of a human right can be inferred from its role in a discursive practice. 17 [According to the Practical view] the key to understanding the concept of human rights is to see how claims about human rights function in international human rights practice. 18 A human rights pragmatist begins with practice rather than theory 19 To put it linguistically, the semantics of terms like human rights and international human rights must answer to their pragmatics, their use. Their meaning is their use, and philosophical theory should limit itself to slight regimentation of the language of human rights practice without pretending that the practice must answer to it. 20 In practice this emphasis on practice means e.g. looking at the role that human rights play in the international political sphere (usually this role is that if a state violates human rights, then other states are justified in taking action against the violator); or looking at the human rights documents, such as the actual catalogues of human rights, or court s decisions, in order to give content to the idea of human dignity. For example, when the Israeli Supreme Court declared that 13 Ibid., Ibid., p Ibid., p Charles Beitz, The Idea of Human Rights (Oxford: Oxford University Press (2009)), p Ibid., p Allen Buchanan, Why International Legal Human Rights?, in Cruft, Liao & Renzo, Philosophical Foundations of Human Rights (2015), p David Luban, Human Rights Pragmatism and Human Dignity, in Cruft, Liao & Renzo, Philosophical Foundations of Human Rights (2015), p Ibid., p

6 interrogating suspects through stress positions violates human dignity, that inference [...] becomes part of the meaning of the term human dignity The common ground (a Wittgensteinian perspective) One way of continuing this paper would be to go to the details of this debate between foundationalist and pragmatist theories of human rights. However, what I want to do next is to look at this debate from a different viewpoint one that is inspired by Wittgenstein s philosophy. My aim then is not to provide a new grounding for human rights or a solution to this debate, but rather to bring to light the common ground of these two approaches, and to draw attention to the potentially dangerous tendencies that are built into the type of philosophizing that both foundationalism and (naïve) pragmatism exemplify. As we saw from the above characterizations of human rights pragmatism, the idea of practice (instead of theory ) is essential to legal pragmatists. Practice should e.g. determine the meaning of human dignity, and not the other way round that is, as we saw Luban put it, philosophical theory should [not pretend] that the practice must answer to it. 22 The Wittgensteinian question here is: is this appeal to practice really an alternative to the foundationalist project of grounding human dignity in some essential features or capacities of humans? Here I would like to draw on Martin Stone s paper Four Qualms about Legal Pragmatism, where Stone points out that such a philosophical pragmatism which essentially sets its face against transcendental tendencies and essentialism in favor of practice [...] is really only a negative variation on the suspect metaphysics it purports to avoid. For it keeps the form of the traditional transcendental question firmly in place the demand for a constructive account of the very possibility of meaning and concept use while only changing the answer to practice. ( Practice, you might say, inherits the job that God or Essences once did for us; it replaces them takes their place while leaving the underlying philosophical demand unchanged.) 23 In other words, a worry with legal pragmatism that fiercely denounces foundationalism, objectivism, essentialism and universalism is that it at the same time in a sense preserves 21 Luban, Human Rights and Human Dignity, p Ibid., p Stone, Four Qualms about Legal Pragmatism (see fn 2), p

7 these isms. Although he changes the answer to it, the pragmatist inherits and preserves the structure of the question that troubled his foundationalist and essentialist interlocutor; and along with the question, preserves the demand for a philosophical account. 24 This kind of pragmatism, as Stone notices, exemplifies a situation where by rejecting an idol we easily end up with a new idol. Stone is here referring to Wittgenstein: All that philosophy can do is destroy idols. And that means not creating a new one for instance as in absence of idol. 25 As Stone explains this remark, [t]he philosophical idol lies, for him [Wittgenstein], in the structure of the question, not just in this or that particular answer to it. [...] Practice and interpretation insofar as they appear as answers to the philosophical ( how possible ) question are the contemporary pragmatist s absence of idols, in Wittgenstein s sense. They are our new idols. 26 Now someone who is familiar with Wittgenstein s Philosophical Investigations might object that if we adopt a Wittgensteinian approach to the question about the foundation of human rights, isn t attention to practice then exactly what we should do? Wittgenstein does, after all, repeatedly instruct us to attend to our practices when we are philosophically confused 27 ; so shouldn t it be the way to liberate us from the dialectic that Stone identifies between foundationalism and pragmatism? And what is wrong with this dialectic anyway? The question in what way we should look at our practices is difficult but of utmost importance to those who claim to follow or apply Wittgenstein s philosophical method. Here it is not possible to deal with this issue thoroughly, but it can be noted that (whatever it means exactly) the Wittgensteinian way to tend to practice is to be reminded of it, not to inflate it into a new idol. In the legal context, this means, following Stone, that [i]nstead of trying to underwrite seriousness about legal concepts by taking practice as the basis for a new answer to an old transcendental question ( How is concept use possible? ), we might simply remind ourselves of the perspective of practical engagement in the law, the perspective of the lawyer at work. [...] And to do this need not be to 24 Stone, Four Qualms about Pragmatism, p Ludwig Wittgenstein, Philosophical Occasion (ed. by J.C. Klagge and A. Nordmann; Indianapolis: Hackett Publishing Company, 1993), p Stone, Four Qualms about Pragmatism, p See e.g. Wittgenstein, Philosophical Investigations (Tr. by G.E.M. Anscombe, ed. by G.E.M. Anscombe, R. Rhees & G.H. von Wright; Oxford: Blackwell, 1967 (1953)), 197, 202,

8 endorse an answer pragmatic or otherwise to a philosophical question about how the lawyer s engagement is possible. Indeed, we all adopt such a practical attitude every day (in our concourse with rules, concepts and meanings), without aspiring to have any distinctly philosophical perspective on what we are doing, or even having to believe that such a perspective exists. 28 As can be seen from the previous quotes from the human rights pragmatists, they were clearly motivated by a puzzlement about the concept of human rights, about its meaning; and practice was offered as an answer to this puzzlement: the semantics of terms like human rights [...] must answer to their pragmatics, their use. 29 But one thing that a Wittgensteinian approach to practice means is that we should look at practice freed from pictures or ideas of what must there; as Cora Diamond puts it, the important thing is your willingness to look, without laying down any philosophical requirements. 30 The philosophical requirement in human rights pragmatism seems to be that there must be this thing out there in reality the practice which determines the meaning of the concept human right. But this way of posing the question seems to presuppose that we can somehow detach the concept from the practice and compare them to one another compare e.g. our mental images to (whose?) external behavior and see if they match; if they don t, then we must adjust our images, since the semantics of a term must answer to the practice (or, as we saw Posner put it, the law must adjust its categories to fit the practices of the nonlegal community ). Whereas if we are willing simply to look, we may come to see that we are always already embedded in our practices; and especially in the legal context, cannot even make sense of the practice without its basic concepts and principles; 31 and so cannot really answer the How is concept use possible? -question without already assuming that use. Thus, if there is such a thing as a Wittgenstenian approach to philosophy of law (and to philosophy of human rights), it means, at least, that one does not turn a concept-independent practice into a philosophical idol, but instead realizes the interconnectedness between our concepts and practices and the impossibility of a viewpoint from which these could be viewed as distinct things. This kind of attention to practice does not give us philosophical propositions, but 28 Stone, Four Qualms about Pragmatism, p Luban, Human Rights Pragmatism and Human Dignity, p (e.a.) 30 Cora Diamond, Wittgenstein and Metaphysics, in her Realism and the Realistic Spirit (Cambridge, Massachusetts: The MIT Press (1991)), p Hans Kelsen shows nicely the absurdity of an attempt to describe a legal practice without legal concepts. See Kelsen, Introduction to the Problems of Legal Theory (Tr. by B.L. Paulson and S. Paulson; Oxford University Press 1992), p. 8. 8

9 only (what Stone calls) utter commonplaces, such as sometimes a rule needs to be interpreted, and sometimes not, because sometimes the rule is sufficient to show you what to do. 32 Or, as concerns the problem of what it is to be a human, commonplaces such as only of a living human being and what resembles (behaves like) a living human being can one say: it has sensations; it sees; is blind; hears; is deaf; is conscious or unconscious. 33 But, someone might quite reasonably object, why shouldn t we demand a traditional philosophical account about the foundations of human rights (or about some other area of law, or about whatever else)? Isn t Wittgenstein simply interested in different things than most (legal) philosophers, so that a Wittgensteinian viewpoint has no real relevance to conventional philosophical theories about e.g. human rights? 34 To see how it might be relevant, I will next turn to Richard Rorty s version of human rights pragmatism (and to its affinity with Wittgenstein). 4. The danger of alienation: Rorty and Wittgenstein In his Oxford Amnesty Lecture Human Rights, Rationality, and Sentimentality 35 Rorty claims that moral education that appeals to reason is inefficient. If, for example, we want some intolerant and racist human rights violators to be nice towards all human beings, it is futile to appeal to some philosophical account of the essence of humanity that unites everyone despite superficial differences. The intolerant people would happily accept this criterion e.g. that deep down, all human beings are rational agents in the Kantian sense but they would simply leave certain groups of people outside the circle of humanity. They would e.g. see Muslims as circumcised dogs, or women as dangerous, malevolent whores, or black people as stupid children not as real human beings. 36 By raping or murdering or exploiting these people they do not see themselves as violating human rights; they are just making a distinction between real humans and 32 Stone, Four Qualms about Legal Pragmatism, p Wittgenstein, Philosophical Investigations, I might say: if the place I want to get to could only be reached by way of a ladder, I would give up trying to get there. For the place I really have to get to is a place I must already be at now. Anything that I might reach by climbing a ladder does not interest me. (Wittgenstein, Culture and Value (ed. by G.H. von Wright, translated by Peter Winch) (The University of Chicago Press, 1984), p In Patrick Hayden (ed.), The Philosophy of Human Rights (St. Paul: Paragon House, 2001), p The lecture was originally published in Rorty, Human Rights, Rationality and Sentimentality, p

10 pseudohumans. 37 The pointing out of the essence of humanity might strengthen, rather than weaken, their sense of their own superiority ( yes, that s what we are like, and they aren t ) or at least this is what I understand Rorty to be saying. (For example, one of the Founding Fathers of the U.S. Constitution, Thomas Jefferson, was able both to own slaves and to think it selfevident that all men were endowed by their creator with certain inalienable rights. He had convinced himself that the consciousness of Blacks [is like] that of animals. 38 ) So philosophical theorizing about the essence of humanity, from the point of view of actually making a difference in life, is, at best, inefficient. And sometimes it can make things even worse. This, I think, is what Wittgenstein was also attempting to show us in many of his remarks (although his examples usually concern our everyday life, ordinary situations, and not the extreme circumstances of war). Edmund Dain has suggested that the ethical point of Wittgenstein s Tractatus Logico-Philosophicus (and also of Wittgenstein s later philosophy) was that ethical propositions e.g. propositions about our duties, rights or promises are not only redundant, i.e. add nothing to ordinary, non-ethical language; but also harmful insofar as they stand in the way of an immediacy between our words and action. 39 Although I would not go as far as seeing all ethical language as redundant, I think Dain hit on an important teaching of Wittgenstein here: theorizing not just about ethics, but about what it is to be human in general may distort our relations with one another and alienate us from, rather than bring us closer to, one another. For example, if I start to wonder about what thinking or pain or consciousness really is, and get caught in false analogies between physical and psychological explanations, I might not as readily, as spontaneously, respond to other human beings joys or sufferings, as I do in the midst of everyday life (where the question about whether other people really have consciousness or feel pain does not arise); 40 or if I adopt the meta-ethical view that rational agency is the necessary condition of morality, I might not so instinctively feel horror at the mistreatment of a retarded person who does not have that capacity. (Cora Diamond has pointed out the problems that 37 See ibid., p Ibid. 39 Edmund Dain, Ethical Eliminativism and the Sense of Wittgenstein s Tracatatus, in M. Weiss and H. Greif (eds.) Ethics Society Politics. Papers of the 35 th International Wittgenstein Symposium (Kirchberg am Wechsel: Austrian Ludwig Wittgenstein Society, 2012), p See e.g. Wittgenstein, Zettel (Tr. by G.E.M. Anscombe, ed. by G.E.M. Anscombe and G.H. von Wright (Berkeley: University of California Press, 1970)), 540,

11 seriously retarded persons cause for moral theories and I will return to this theme shortly). Here, as Dain put it, theories may stand in the immediacy between our words and actions. Of course this is not to say that traditional essentialist philosophizing will turn us into psychopaths, but only that certain kind of theorizing exhibits the same alienating tendency whose most extreme and horrible manifestation is the total dehumanization that Rorty draws our attention to. There seems to me to be something in common here between Rorty and Wittgenstein: both are aware how potentially harmful a philosophical, essence-digging attitude towards other human beings can be. And in so far as (human rights) pragmatism shares the same way of posing the question as its foundationalist opponent (what is out there in reality which grounds our concepts and gives meaning to our words?), it faces the same risk. 5. Rorty on humanity and human rights If the foundationalist project of grounding human rights in the essence of humanity is inefficient it does no real work in moral education what to do then? Do we have any use for the idea of common humanity or human nature, and consequently, for the idea of universal human rights? Although Rorty finds the former idea as irrelevant to morality, he nevertheless does not completely reject ethical propositions, especially propositions about human rights. Rorty claims straightforwardly that human nature is not a useful moral concept. 41 That is, if we want to commend a particular way of behaving towards other people, a reason given for this behavior that appeals to the fact that these other people are our fellow human beings has no moral significance: according to Rorty, because she is a human being is a weak, unconvincing explanation of a generous action. 42 It is weak and unconvincing because there is, if we are honest to ourselves (and take the teachings of Nietzche and Freud seriously), no such thing as humanity as such or a common human nature. Rorty believes that our selves and moral consciences are shaped by our community and the language used in that community; and these are nothing but the products of contingent historical forces. Therefore a morally strong and convincing explanation for a generous action is to point out, not that the object of the generous action is a 41 Rorty, Objectivity, Relativism and Truth (Cambridge University Press, 1991), p Rorty, Contingency, Irony, and Solidarity (Cambridge University Press, 1989), p

12 fellow human being or shares in the universal nature of humanity, but that she is a member of our group, one of us e.g. a neighbor, a colleague, a fellow citizen, a fellow parent. 43 This dependence of morality on one s community is not moral relativism but ethnocentrism. According to Rorty, To be ethnocentric is to divide the human race into the people to whom one must justify one s beliefs and the others. The first group one s ethnos comprises those who share enough of one s beliefs to make fruitful conversation possible. In this sense, everybody is ethnocentric when engaged in actual debate, no matter how much realist rhetoric about objectivity he produces in his study. 44 However, Rorty nevertheless believes that moral progress is possible. Obviously, for Rorty, this cannot mean coming to know some universal moral truths (upon which human solidarity is founded). Instead, progress is possible by expanding our ethnos, the scope of we ; and this in turn is made possible by our ability to notice, and identify with, pain and humiliation 45 : there is such a thing as moral progress, and [...] this progress is indeed in the direction of greater human solidarity. But that solidarity is not thought of as a recognition of a core self, the human essence, in all human beings. Rather, it is thought of as the ability to see more and more traditional differences (of tribe, religion, race, custom, and the like) as unimportant when compared with similarities with respect to pain and humiliation the ability to think of people wildly different from ourselves as included in the range of us. 46 Rorty counts present-day Western human rights culture as an example of moral progress, as a successful expansion of the range of us : he claims that the human rights culture is morally superior to other cultures; and we should make this culture more self-conscious and powerful. 47 This will not happen by reading more Plato or Kant or other foundationalist philosophers, but by telling sad and sentimental stories; i.e. by manipulating feelings, rather than attempting to increase (other cultures ) knowledge about the essence of humanity and moral truths. 48 The aim of manipulating sentiments is to 43 See Rorty, Contingency, Irony, and Solidarity, chapter 9 ( Solidarity ). 44 Rorty, Objectivism, Relativism and Truth, p Rorty, Contingency, Irony, and Solidarity, p Ibid., p Rorty, Human Rights, Rationality, and Sentimentality, p Ibid., p

13 sufficiently [acquaint] people of different kinds with one another so that they are less tempted to think of those different from themselves as only quasi-human. The goal of this manipulation of sentiment is to expand the reference of the terms our kind of people and people like us. 49 Human rights culture flourishes in the post-enlightenment Europe because we have, in relatively safe and secure living conditions, been manipulating each other s sentiments for so long that we have produced generations of nice, tolerant, well-off, secure, other-respecting people 50 ; and the more youngsters like this we can raise, the stronger and more global our human rights culture will become. 51 Does Rorty s neo-pragmatism manage to disentangle itself from the dialectic that Stone identifies between foundationalism and pragmatism? I think that in the end it doesn t. Although Rorty tries very hard to get rid of any notion of a universal human nature or humanity as such, his conception of morality nevertheless relies on some human features and capacities that make morality (and moral education) possible. We saw that he has to assume the ability of humans to feel for each other 52 and to notice and identify with pain and humiliation; and his idea of moral education, manipulating feelings thorough sad and sentimental stories, presupposes a type of instrumental rationality (the manipulator has to reason about such things as, what kind of stories are most efficient? Who should tell them and when and to whom?). 53 So in the end Rorty, too, makes a distinction between humans and non-humans that is based on some features and capacities that only humans possess, and is therefore not completely freed from the same way of posing the question as foundationalists and practice-idolizing pragmatists (a way which assumes the possibility of a viewpoint where our concepts and practices are torn apart). This means that despite the similarity that I pointed out earlier between Rorty and Wittgenstein their sense of the alienating power of philosophical theorizing there are also deep differences between them. I will end this paper by briefly introducing some of Cora Diamond s remarks about the idea of 49 Ibid., p Ibid., p. 250, Ibid., p it would help to stop answering the question What makes us different from the other animals? by saying We can know, and they can merely feel. We should substitute We can feel for each other to a much greater extent that they can. (Human Rights, Rationality and Sentimentality, p. 248)) 53 I am indebted to Lars Hertzberg for making me think of the problems that the concept of manipulation causes for Rorty. 13

14 human nature and its relevance to ethics that should further show the distance between Rorty and Wittgenstein, and that will also to provide a new viewpoint to the idea of human rights as rights that we possess simply in virtue of our humanity. 6. Diamond on the importance of being human Cora Diamond wants to save the idea of a human being that is, human being as such, without any other qualifications that is morally important, yet not dependent on any background theory of the essential features of humanity. 54 Diamond s task is not easy, since, as she points out, the importance of the notion of human being for ethics can be attacked from two different angles. On the one hand, there is what Diamond calls the orthodox view the view that was discussed at the beginning of this paper, the view according to which the morally relevant thing in human beings is not their being simply human (that would be speciesism), but their having some special property, e.g. consciousness or capacity for rational choice. But since these properties can be possessed by other creatures as well, and on the other hand some human beings (in the biological sense) may lack them, it would be better if a being who has these properties were called e.g. a person ; being human as such is not morally relevant. On the other hand, there is the Rortyan view according to which there are no such objective, universal, essential moral properties; there are only the cultures and communities in which we are brought up, and only appeals to our fellow community members (our neighbors, our fellow-citizens, etc.) have significance. 55 However, as was already noted, the orthodox view and the Rortyan view are not necessarily that wide apart. Diamond brings this to light by considering the case of a seriously retarded person: Despite their deep philosophical differences, Rorty and the orthodox have in common this combination of views: (1) the fact that the retarded lack or have to a far lesser degree capacities like that for rational choice makes it hard, or harder, to treat them as the objects of moral concern, and 54 Cora Diamond, The importance of being human, in D. Cockburn (ed.), Human Beings (Cambridge University Press, 1991), p Ibid., p

15 (2) there is available no notion of human being, embracing them and us, capable of playing a substantial role in moral life (capable, that is, of being anything more than inspirational rhetoric). 56 In the case of Rorty, the fact which makes it harder (although not of course impossible) to treat seriously retarded as objects of moral concern is that, as we saw, Rorty makes morality nothing but the ability to notice, and identify with, pain and humiliation 57 ; but if a seriously retarded woman is e.g. raped, there may be far less (in comparison with the rape of a normal woman) mental pain or humiliation. 58 So the problem for Rorty is, with what do we identify in the case of people who are not (because of their disabilities) capable of feeling pain or humiliation? According to Rorty, there is not available the option that we identify with their simply being human. Identification with them would not of course be impossible for Rorty, but it would have to happen through a complicated route of telling sad and detailed sentimental stories about e.g. what pain and suffering it would cause to have a seriously retarded person as a brother or sister. And of course it is not impossible for traditional foundationalist or orthodox moral theories either to take retarded persons morally into account, but that would have to happen, as Diamond puts it, by turning somersaults so that a general principle can cover these cases. 59 (Kant s attempt to justify why animals should be treated well is an example of this kind of somersaulting.) Diamond s own view is that things are simpler: there is no need to turn somersaults, since we do have a notion of human being that is capable of embracing us and the retarded: there is the possibility of deep moral concern for retarded people, in which they are having, however incomprehensible we may find it, a human fate, as much as anyone else s. They are seen as with us in being human, where that is understood not biologically, but imaginatively. 60 A human being is someone who has a human life to lead, as I do, someone whose fate is a human fate, as is mine. We show what we make of this in our language and literature, but in large measure also in the language of our relations to each other Ibid., p Rorty, Contingency, Irony, and Solidarity, p Diamond, The Importance of Being Human, p Ibid., p Ibid., p Ibid., p

16 The idea here is that we can identify with a seriously retarded person who lacks all the capacities that usually are considered as morally relevant in a way that we cannot identify with e.g. gorillas or robots: the retarded person s fate is a human fate that, had things gone differently, could have been mine or yours (whereas a gorilla s fate cannot be imagined to be mine, at least not in the same way). That we identify with even the most seriously retarded people is, as Diamond puts it, shown in the language of our relations to each other. It is shown e.g. in that we take it for granted and never pause to wonder at, the fact that they are given names (just like anyone else); or that they are given a funeral; or that we do not eat their dead bodies. 62 Being a human being shows itself in ways of talking and acting like these; and these ways of talking have moral significance they may be said to belong to what Diamond refers to as the sources of moral life. 63 Their being sources means that they are something deeper than ordinary moral principles and rights, something which underlie our ordinary moral talk. This is shown in the fact that it would be odd to say that someone who e.g. refuses to call a child by a name (but instead calls her by a number) does something morally wrong : We can most naturally speak of a kind of action as morally wrong when we have some firm grasp of what kind of beings are involved. But there are some actions, like giving people names, that are part of the way we come to understand and indicate our recognition of what kind it is with which we are concerned. And morally wrong will often not fit our refusals to act in such a way, or our acting in an opposed sort of way, as when [calling] a child Girl number twenty. Doing her out of a name is not like doing her out of an inheritance to which she has a right and in which she has an interest. 64 Because we are dealing here with something more fundamental than what moral philosophers usually deal with with something that forms the background of all (moral and other kinds of) justifications getting at the moral importance of being human cannot happen through traditional philosophical argumentation. Diamond talks of imaginatively seeing the retarded as our fellow humans. Discussing this imaginative method and its importance for moral philosophy is beyond 62 See Diamond, Eating Meat and Eating People, in her The Realistic Spirit, p Ibid., p Ibid., p

17 the scope of this paper. 65 Here it suffices to say that the aspects Diamond tries to draw our attention to may sometimes be best conveyed by literature or poetry rather than by traditional philosophical writing. The later Wittgenstein s reminders can also be seen as attempts to engage our imagination so that we may come to notice something that is present in our everyday dealings with one another. Although the reminders are often nothing but utter commonplaces, they have value in so far as they enable us to see something that is difficult to see because it is so close to us, right there under our eyes. What makes a subject hard to understand if it s something significant and important is not that before you can understand it you need to be specially trained in abstruse matters, but the contrast between understanding the subject and what most people want to see. Because of this the very things which are most obvious may become the hardest of all to understand. What has to be overcome is a difficulty of having to do with the will, rather than with the intellect. 66 Being human is one of these things which, unreflectingly, is obvious, not needing any grounding, but which causes knots in our understanding when we start to philosophize about it (for example, when we attempt to clarify the idea of human rights). 65 Diamond elucidates the imaginative method e.g. in her article Anything but Argument?, in The Realistic Spirit, p Wittgenstein, Culture and Value, p