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’.