The right rights

My topic for today is human rights (see previous post), and now I want to air some ideas about the actual make-up of any bill of rights, and my thoughts and concerns about them. I’m no expert – in fact I had the chance to do a course called Moral and Legal Foundations of Human Rights for my uni prep program, but the schedule didn’t fit, so I missed attending it and learning more, and thus I’m really quite ignorant. Nevertheless, that’s never stopped me having an opinion on something before, so why stop now? 😉

Some of you may recall a post of mine a while ago where I made the offhand comment in a footnote ” I think the scope of human rights needs to be curtailed.” I did expect that to generate some discussion, but sadly no-one took the bait. Or no-one read it!

I want to revisit that comment and put some flesh on it.

Rights are social constructs. Despite the concept of ‘rights’ seemingly having some innate or fundamental force (the common perception of them, their colloquial use), they are in fact privileges that we grant ourselves and have our government enforce and obey. Therefore, rights can be anything we want or agree to. Therein lies the problem.

What problem could there be? Well, what I alluded to in the footnote – some rights, if enforced, will overturn other rights.

There is an important distinction when talking about rights. There are at least two kinds, positive and negative. Very simply, positive rights are those which allow or mandate an action, and negative rights are those which forbid an action. So the right to life, for example, is a negative right (you can’t kill me), as is freedom of religion (you can’t tell me what to worship), and the right to food or education is positive (they must be provided to me). The most famous framing of human rights is the Universal Declaration of Human Rights, and it incorporates negative and positive rights.

Australia must not adopt the UDHR willy-nilly. This might sound weird to you, but I believe it is a flawed and dangerous document.

Allow me to explain. The distinction between positive and negative rights isn’t just an academic curiosity. Negative rights are, in my humble opinion, the only ones that matter, and the only ones which should rightly be called ‘human rights’. With some minor quibbles, you can call the first 21 articles of the UDHR the complete set of negative rights – life, liberty, property, etc – also called “civil and political rights”. All the rest are what are termed “economic, social and cultural rights”, and are positive in nature. However, in order to comply with the positive rights, the negative rights would have to be put aside to varying extent.

Take article 23.1 – “Everyone has the right to work”. Sounds desirable, right? At worst, harmless. Not so. What it means is that someone out of work is having their human rights violated, and this must be remedied. They must be given a job. No-one will voluntarily do so (otherwise it wouldn’t be an issue), so someone has to be forced to provide a job, breaching their right to association, their right to property, their right to liberty.

Or take 26.1 – “Everyone has the right to education.” Again, sounds wonderful. Who could possibly object? But again, it means an action is forced upon others, in contravention of their pre-existing rights.

It would be nice if everyone had plenty of food, a good education, a good job, access to all services, a good standard of living, a clean environment. And this can be achieved, just as it has for me and my readers – through economic growth and development. But to say anyone has a ‘right’ to these? That is a good recipe for ensuring people miss out.

What matters is priority. Negative rights are superior in every sense. They require only refraining from action to be upheld – there is no obligation or duty to perform. That means they cost nothing. They are immediate, meaning there is no process that has to be worked through to uphold them. Their meanings are precise, they are easy to judge and measure. They are as close to non-ideological as you can get, although they have capitalistic characteristics. But that’s definitely a good thing.

I encourage people to have their say on what Australia does about human rights laws. But for all our sakes, demand we legislate to protect the rights that matter, the rights that work, not the fuzzy feel-good aspirational counter-productive anti-rights that are positive ‘rights’.

This entry was posted in law and tagged , , , . Bookmark the permalink.

12 Responses to The right rights

  1. Peg says:

    I refer you to Dialogue 21, 3, 2002 and the article by Laki Jayasuriya (or anything else you can find by him) available through the Academy website for download ( – go to Publications then Dialogue then look at Contents in previous issues). Also Frank Brennan wrote an interesting book about human rights a few years ago, which raises lots of issues.

  2. Jarrah Job says:

    That was quite an interesting article, thank you (though it relates more to the other post than this one). Jayasuriya presumably didn’t have the space to expand on his ideas about the interplay of citizenship and rights and multiculturalism, which is a pity – it would have been interesting to see it in more detail and from different angles.

  3. Loofa says:


    I think some of the heavy lifting in your argument has already been done for you.

    The rights in the UDHR are codified in two documents – the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). The rights in the ICESCR are subject to a principle of ‘progressive realisation’, which is set out in Article 2(1). That is, states must take the steps they can within their present capacity to ensure ICESCR rights are enjoyed by their citizens. This provides a level of flexibility, in recognition of the fact that economic rights cannot be achieved immediately. In fact, the implementation of the economic, social and cultural rights are intended to be achieved through exactly the mechanisms you suggest – economic growth and development. In circumstances where the steps a particular state can take to fulfil an economic right are insufficient, the should should seek international assistance in either economic aid or technical assistance.

    By contrast, the rights under the ICCPR are not subject to progressive realisation.

    Here’s a comment of the OHCHR on the obligations of states under the ICESCR 2(1):

    With respect to one of your specific examples, the right to work (which is Article 6 in the ICESCR), I think you characterise it incorrectly. The right to work is the right of a person to make a living by doing work that he or she freely chooses or accepts, and the right not to be arbitrarily deprived of employment. It is not a guarantee that every person will have a job. The right to work does place an obligation on governments to take progressive steps towards full employment within the bounds of their capacity but it does not mean that any unemployed person must be given a job. It is not a right that will force anyone to give anyone else a job.

    The right to education (Articles 14 and 15 in the ICESCR) is a little different, as it is intended to guarantee access to primary school-level education for all children. Beyond that however – the provision of secondary and tertiary education – it is subject to the same principle of progressive realisation as other economic rights.

    I don’t think the danger you have described as arising from ‘positive’ rights is a real one – these rights do not enable one person to deny another anything; these rights will not ensure that people miss out. They are designed, in fact, to achieve what I am confident is your intended aim – mutual advancement through development, in which all people can take part without discrimination. They do so by providing frameworks for development and a powerful tool for advocacy. I wonder if any of this might cause you to step back from your description of ICESCR rights as fuzzy and counter-productive.

    Finally, I’m not sure the distinction between positive and negative rights is as clear as you make out. What about, for example, the right to a fair trial? There is a lot of work in fulfilling the obligations under Article 14 of the ICCPR – ensuring that a person has access to legal counsel; can have a decision appealed; has access to an interpreter. This is certainly a political right but I think you’ll agree it’s expensive to provide. Political rights require more than omission.

  4. David says:

    Good day! I’m bored on a Saturday afternoon. Now, I’m not saying that I disagree with your position – I don’t know enough about the UDHR to comment – but I feel like I have a different view on right than you. When I see that everyone has the right to work or the right to education, I don’t feel like that these are things that are forced on me or I must have. What it tells me is that that if I want an education or want a job, you can’t tell me that I can’t.

    Anyhoo, I started writing this about 9 hours ago and I’m sweepy and want to go to bed. Enjoy your time off and I’ll speak to you soon. : )

  5. David says:

    Actually it was a Sunday afternoon. I’ve been sweepy for that long!

  6. Adrien says:

    Hey dude, didn’t know you had a blog. How long’s this been going on?

  7. Jarrah Job says:

    Gosh, I step away from my blog for a couple of days, and it fills up with commenters! I guess a watched blog never, um… boils over with comments? Groan.

    OK, in reverse order –

    Adrien, I’ve been blogging for a month and a bit. I’ve had short-lived ones before, but I hope to make this one stick. I haven’t been advertising this one so far, except among family and friends, but when I come out of the closet entirely and ditch fatfingers as a moniker, I’ll ask Jason to make a post on the Cat about it.

    David, glad to see you drop by. What I would say to your comment about rights to work or education ties in with the more detailed one I will give Loofa in a minute – the right to not be impeded in getting a job or education is inherent in earlier, negative rights.

    Loofa! Long time no see! Very happy to have someone more knowledgeable about the subject come along, and I appreciate the constructive criticism.

    “states must take the steps they can within their present capacity to ensure ICESCR rights are enjoyed by their citizens.”

    Then do they really belong in human rights law? It seems to me to be the wrong vehicle.

    “in recognition of the fact that economic rights cannot be achieved immediately.”

    This reinforces my objection – they are aspirational, normative statements about a high standard of living, and as such quite distinct from negative rights which are foundational, and about minimum standards for human life and liberty.

    “The right to work is the right of a person to make a living by doing work that he or she freely chooses or accepts”

    Like I told David, that right is inherent in earlier articles. And “the right not to be arbitrarily deprived of employment” arguably contradicts articles 12, 17 and 20.

    “these rights will not ensure that people miss out. ”

    What I meant was, the positive rights will undermine the predominant process of ensuring that people don’t miss out – free exchange under a system of negative rights.

    “What about, for example, the right to a fair trial?”

    I did say there were some quibbles with the first 21 articles (I have several others as well). The fair trial provision could be said to be redundant if everyone is treated as equal under and before the law, but I’m not sure. Also, an impartial and just legal system could be considered the default provision by a government, which requires government action to make unjust. But I take your point – there are areas where not all benefits I ascribe to negative rights apply.

  8. Jarrah Job says:

    This is the kind of creeping extension of the human rights discourse that I think is dangerous: “Access to secure and safe housing is a basic human right.”

  9. Loofa says:


    I’ve done some more digging on this.

    It seems both the ACT and Victorian parliamentary counsel agree with you – neither of the human rights acts in those jurisdictions contain economic and social rights. They do contain cultural rights but only insofar as it is mentioned in the ICCPR. The ACT Act is explicit in only adopting ICCPR rights; the Victoria Act does so in practice.

    Both Acts require a review in a couple of years. The Victorian Act leaves open the possibility of adding more rights, if warranted, including those from the ICESCR.

    From the look of it, the push for the federal bill of rights is directed towards the same level.

    But there has been an interesting recent development in respect of the ICESCR. The UN General Assembly last week adopted an Optional Protocol to the ICESCR, which copies the machinery from the ICCPR First Optional Protocol. Essentially that machinery opens up the complaints process to individuals. Normally, it is only the UN bodies and other states that monitor each other. If countries sign up to these protocols it allows their citizens to complain to the UN bodies that their rights are not being fulfilled. The ICESCR Protocol isn’t in force yet – 10 countries will have to sign up to it before it comes into force.

    So, although domestic legislation doesn’t look like enshrining ICESCR rights in the immediate future, there may nonetheless be a way for individuals to hold Australia to account in respect of them (assuming the government signs up to the protocol).

    Of course, this doesn’t dispose of our argument about whether ‘positive’ rights are a good thing. I’m still of the opinion that they foster development; your reason for rejecting them seems to be that they will impede development. But at least it’s a disagreement about means, rather than ends :)

  10. Jarrah Job says:

    “Both Acts require a review in a couple of years. ”

    This is always and everywhere a good thing. If only all acts of Parliament were reviewed periodically. But on with the show.

    “the push for the federal bill of rights is directed towards the same level.”

    Depends who you talk to. Amnesty (of which I am a long-standing member) is pushing for the full kit and caboodle, for example. But I’m glad there are some voices of reason out there 😉

    “Essentially that machinery opens up the complaints process to individuals.”

    More good news. You are welcome any time if you keep bringing such (ahem) positive tidings.

    “I’m still of the opinion that [positive rights] foster development”

    I don’t think they deserve the term in the first place. The word ‘right’ implies many things — pre-existence and pre-eminence to mere laws and regulations; a minimum level of human equality/dignity/civilisation; perhaps a measure of what everyone deserves regardless of their moral worth as individuals. Negative rights fit the bill, positives ‘rights’ do not.

    “foster development”

    You might be interested in a related discussion over at Larvatus Prodeo where people are talking about gay rights and UN declarations, and the effectiveness of “pieces of paper” in helping change the world for the better with regard to homosexuals. Mark and Adrien are two bright, knowledgeable guys who I’ve met and like, and they make good (opposing) points.

    “it’s a disagreement about means, rather than ends”

    Absolutely. My philosophy is all about the greatest good for the greatest number, as I’m sure yours is too. It’s just that you’re wrong 😉

  11. I thought that this quotation might perhaps be of interest:

    “Radicalism at the end of the eighteenth century expressed its case in terms of “natural rights”. Ever since Paine’s Rights of Men was published, the notion of inalienable natural rights has been embraced by the mass of men in a vague and belligerent form, ordinarily confounding “rights” with desires. This confusion in definition plagues society today, notably in the “Universal Declaration of Human Rights” drawn up by the United Nations Organization: thirty articles, and a somewhat greater number of “rights” defined therein, including the right to free education, the right to “enjoy the arts”, the right of copyright, the right to an international order, the right to “the full development of personality”, the right to equal pay, the right to marry, and a great many more which actually are not rights at all, but merely aspirations. The conservative adage that all radical “natural rights” are simply, in substance, a declaration of the Right to be Idle is suggested in Article 2: “Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.” This lengthy catalogue of “rights” ignores the two essential conditions which are attached to all true rights; first, the capacity of individuals to claim and exercise the alleged right; second, the correspondent duty that is married to every right. If a man has a right to marry, some woman must have the duty of marrying him; if a man has a right to rest, some other person must have the duty of supporting him. If rights are confused thus with desires, the mass of men must feel always that some vast, intangible conspiracy thwarts their attainment of what they are told is their inalienable birthright. Burke (and after him, Coleridge), perceiving this danger of fixing upon society a permanent grudge frustration, tried to define true natural right and true natural law.”

    ~~Russell Kirk. The Conservative Mind : from Burke to Eliot. (1985), pp.47-48.

  12. Jarrah says:

    Thanks, MCB, Kirk puts it well. If I keep practising, perhaps I’ll be able to write as cogently one day.

    I can’t decide if the fact my thoughts on the subject are hardly original is depressing (everything has been said before, and better) or encouraging (I’m independently coming up with stuff better people have said before). 😉

Leave a Reply

Your email address will not be published. Required fields are marked *