Theory and practice of human rights: a Tory view
The concept of human rights is a difficult one for me, as a Marxist. Some of the most provocative and revolutionary documents in the history of mankind have espoused a notion of rights that belong to an individual, by virtue of being human. The second sentence of the US declaration of independence is one of my favourites;
We believe these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.
Or Article 1 of the United Nations Universal Declaration of Human Rights:
All human beings are born free and equal in dignity and rights.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Yet the material context in which these ‘rights’ have been enacted has made a liar of the ideals behind them. ‘Equal rights’ becomes a rhetorical talisman with which to ward off actual equality, a phrase behind which can hide vast poverty and exploitation. This is how many liberals tend to use the concept of equal rights, or that other much-prostituted phrase, ‘equal opportunities’.
It makes sense; the only thing required by capitalism is that each individual is free to sell his or her labour to the lowest bidder, and that each individual can be treated as a legal entity for the purposes of contract. ‘Equal rights’ then adds the gloss of the brotherhood of man to systemic inequality, where each can rise or fall on ‘merit’, and where the successful are still willing to look back and help the less successful.
This is one of the reasons I don’t understand the conservative attack on human rights, particularly in evidence in this article at Con Home. Let’s begin with some of the theoretical attacks:
Human rights are supposed to apply to all of us, regardless of the history of our cultures and constitutions and the legal systems that are their embodiments. According to the human rights theorist it could never be that a culture could develop, say, in which familial relationships are so central that spouses have just one vote between them and that vote is delivered by the woman (and no, it is not silly for me to choose the woman rather than the man here; matrifocal societies are well-known). Likewise, in no culture could the physical be so central that physical punishments are appropriate. No society could be so collectivist that private property cannot be tolerated. And many other such universal judgements.
This is a traditional objection to human rights in International Relations 101, that they override ‘cultures’ and constitutions or legal systems that have grown organically in any given region. The anti-imperialist spin is to take the actual rights currently espoused, rather than abstract human rights, and brand them as Western norms, and thus not necessarily appropriate for the rest of the world.
The trap into which this approach falls is to assume that what exists locally should somehow be superior to the concept of ‘human rights’, and a second is to assume that in our own case these human rights have been imposed from outside our local culture, constitution or legal system.
In the case of the second mistake, perfect retorts against British Conservatism are the high ideals of the Atlantic Charter, agreed between Churchill and Roosevelt, and in which the preservation of human rights were not only integral but were to be secured by the co-operation of sovereign nations, which is exactly how ‘human rights’ are secured to this day – the development of the EU notwithstanding.
A lot of the rights enumerated by the UN Declaration of 1948 flow directly from the meeting that secured the Atlantic Charter. These were rights that were to be owned by men by virtue of their humanity, for example, that ‘all men in all lands may live out their lives in freedom from fear and want.”
The reality, of course, was different – as Churchill and subsequent British governments were to demonstrate in their treatment of the Empire, and as Roosevelt and subsequent US governments were to demonstrate particularly in Latin America. But the ideals are clear enough. They were distillations of ideas that had been latent in Anglo-American society for centuries. That all people should be entitled to the same protections and support, particularly as regards their government.
Considering the segregration and subsequent annihilation of special groups, particularly the Jews, in German death camps, it shouldn’t be hard to see why this was such an issue – or why it was so popular when Churchill returned home. It was also the recognition that individuals should have inviolate rights against any national State, and that sovereignty should be abridgable in defence of these rights.
Agree or disagree with this stance, especially in view of its exploitation by successive governments, it’s a bit rich for Brits to speak in terms that oppose the British constitution or culture to the concept of human rights. Actually, we were amongst the originators.
It would be nice to say that other nations subsequently bought into these ideas by choice, and that peoples around the world subsequently endorsed them, thus making them integral to local cultures and constitutions around the world on the basis of a local choice. Yet it would be silly to say so. When these ideas were not enshrined into law at the point of a bayonet, they were enshrined as the dominant economic powers wrought change to systems of trade and industry, and by extension government, around the world.
Ironically the resistance to this overthrow of local cultures and constitutions can also take the form of a fight for human rights, demonstrating that in reality these rights are inflected with a class content not by their nature but in their appropriation by different movements. Take Ireland, for example – both Unionists and Nationalists approach the issue of marching couched in terms of the himan rights of each community. Even movements opposed to human rights attempt to adapt their language to make use of the ‘positive’ connotations of such rights.
Thus the right for employers to pay lower wages transubstantiates into the right of workers to get any job without interference by the government.
In any case, there’s nothing to say that the idea of individualism and human rights are inferior to local traditions. It’s a judgment call, and on the Left, one which has regularly resulted in the idealization of pre- or proto-capitalist cultures and their values, despite their own exploitative elements. But to say, as the article at ConHome does, that the fact of the subjectivity of the issue makes human rights unacceptable because there’s no capacity to opt out of them, is silliness.
Virtually every law is based on subjective judgments and ideology – so what makes the inability to opt-out of human rights more illiberal than the ability to opt out of legislation on property rights or legislation imposing the sort of moral standards Conservatives often wish to see?
My answer is ‘nothing’. This strand of thinking continues on a practical note:
[T]he equalities aspects of human rights doctrines are probably even more illiberal. We are not allowed to express our moral views about others if our morality does not happen to coincide with human rights concepts. If our views of Islam, or Christianity, or homosexual behaviour, or abortion, or the role of women, or any number of other things happens not to be perfectly aligned with the doctrines of human rights advocates, then giving anything more than the most factual, culture-appealing, subjectivist expression of them makes us human rights violators. Employment tribunals and other court cases follow, along with ruin for the dissenters.
I suspect this is a hyperbole that reacts against the willingness of the British people to endorse the general concept of ‘human rights’ (even if not specific pieces of British or EU legislation passed in its name). No one likes being the minority opinion. I should know.
Yet the hyperbole exposes key weaknesses in the argument. Firstly, the concept of human rights defends the right of the individual to free speech. Conservatives can and do wax lyrical (often in defiance of empirical evidence) on various topics that impact on rights. Abortion or the ‘right’ to adopt being recent examples, following the recent HFE Bill.
The problem is that neither British law nor European law permits action that discriminates between individuals on the grounds of things like their religion or their sexual preference. So whilst people can think and say what they like as private citizens, their actions are restricted in their ‘public’ guise. This isn’t an equalities agenda run rampant, it’s a simple attempt to prevent employers or others who wield structural power from being racist, homophobic, sexist and so on. For this I’m quite happy, as we Irish have not always been as well-loved as we are now.
If Conservatives want to defend the right to be racist, that’s their call – but they should call a spade a spade. I suspect that the average voter will show them short shrift. And that is both our legal right as citizens in a nominally democratic state, and as humans, to collectively self-determine our own government.
2) You say that the first trap into which the Anti-HR argument falls is to assume that what exists locally is better than Human Rights. I don’t think that is an assumption. Intuitively it is grounded in the idea that each man should be able to choose his own good – which is at the intellectual heart of liberalism. (Obviously limits on the choice need to be made.)
3) Which in a roundabout way leads to your second point: that in our case human rights are a product of our own tradition, rather than having been imposed externally. I have no quibbles with your historical analysis so far as it goes, but I think you miss the importance of the ECHR to the Anti’s argument. The ECHR have developed the basic rights into a highly complex series of rules through their case law.
4) No one really is going to disagree that freedom of speech per se is a good thing. Where people disagree is in precisely what that means. The anti argument can be construed as saying that it is at this level that rights should be decided locally.
5) One of the most respected Law Lords of recent years, Lord Hoffmann, argued this in a lecture given shortly before his retirement. The relevant strand of his argument is nicely summarised by the Guardian:
“Second, Hoffmann went for the legitimacy of the [ECHR]. His particular line of attack was that if the court is to apply the European convention on human rights – which in his argument is an abstract document – to the tangible social context of the United Kingdom, each member of the Council of Europe needs a wide discretion – or a “margin of appreciation” to interpret the principles for itself.
Instead of following this logic, he argues, the court has “been unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on member states”.
http://www.jsboard.co.uk/aboutus/annuallectures.htm
6) If one conceives of Human Rights as a basic framework which constitutes the boundary of the set of permissible choices of the good, then the idea of local interpretations of these rights within the local cultural and factual matrix makes a certain amount of sense.
7) There is obviously the need for an arbiter who rules on whether a given interpretation is consistent with the boundary conditions, but this is rather more restrictive than the current de facto remit of the ECHR. Though this isn’t precisely what the article on Conservative Home argues for there is certainly a fair degree of similarity. What that article really argues for, I think, is that human rights be allowed a fair degree of local interpretation (and given a name change) – not that they be wholesale abolished. For, as you rightly point out, part of the original source of Human Rights documents was our own tradition; therefore any body of rights derived from our own tradition is likely to look pretty similar.
Parallel to the culture argument, there’s a case that what it is to be human is fuzzy and becoming fuzzier by the year and that actually human rights could become a way of discriminating against sentient beings (not least the great apes) not fitting a certain definition of human. What if one day we find out that a certain part of humanity has been isolated somewhere so long they can’t breed with us to create viable offspring – do they lose their rights?
Damn good article, but we should recognise that the “fuzzy” part of human rights will always throw up innumerable points of debate; which is no bad thing in itself.
On my blog, I list my favourite book as: To Kill a Mocking Bird. While this book has many subtleties, it’s main theme is very easy to understand: always try an stand in the other person’s shoes and look at life as they would.
It’s not an easy opertion to perform, and probably says more about myself that I continuously have to remember to perform this simple operation; and too often forget. Of course the Christian doctrine has the same concept embedded through treating your neighbor as you would have them treat you. This narrative in any aspect is fundamental to human rights; making trivialities of the superficial differences of humanity (colour, e.g.). Of course, there is a greater and somewhat fuzzier struggle to overcome with regards to the political economy. For the life of me, I can’t see a business owners and their enablers ever coming to the conclusion that labour, being the reason for industry and the producers of industry (industry used in the broadest of terms) should share in equal measure by their inputs. If Ireland is anything to go by, you won’t be able to stand in labour’s shoes because labour won’t be able to afford shoes one of these days.
If we import the concept of standing in the other’s shoes directly into political economy, surely we have a problem straight away. Everyone wants more of everything – human wants are, apparently, insatiable. Given the finitude of resources there is no way we can treat people according to this principle in the sphere of political economy.
So instead of standing in the others actual shoes, one must stand in their hypothetical shoes, the shoes they wear when they are acting according to that principle. Which gives us equal distribution or a distribution adjusted to yeild equality of utility – whichever one’s political theory deems correct.
The problem is that most people do not think this is how resources should be allocated. So it must be imposed by the coercive power of the state: human autonomy is therefore limited to a certain degree.
Now it is for debate wherever the degree of limitation of human freedom is greater in this system than in the current system, but one should not blind oneself to the fact that both ultimately involve coercion and incomplete human freedom.
You’re arguing a simple concept into complexity it doesn’t deserve nor inherently claim. It is, if one likes, an a priori concept. One takes a wee breather before making judgements, especially superifically emotive ones, by visualising why the other person, who may have a diametrically opposed viewpoints, has come to their particular stance. The concept doesn’t impose a methodology beyond this point, and provides no means to measure fairness, justice, equality and so on. It is merely a means to allow ratonality to intercede and juxtaspose itself against quite often initial superficial evaluations.
It is a good instrument for informing, especially about one about oneself, and often is used as a means to compromise. Of course, even when one feels one has gained a better understanding of some else’s position but you still have diametrically opposed viewpoints, one should be able to hive off the initial superficial judgements and stand the two opposing positions against each other with more clarity and with less emotive evaluations. Often it is then just a battle of which position is fairer, more just and creates better opportunities of equalisation.
Tgmac, I must disagree with your method, though I don’t agree with Barney either.
The ‘battle of which position is fairer’ is an idea, not an actuality, because ‘fairer’ can mean ten different things to ten different people. And in any case there are other things prejudicing the outcome of any argument, beyond the factors the participants bear in themselves: which side is stronger, materially. Persuasion also need not be related to fairness.
The other thing is that politics doesn’t and will never exist separate from emotions. I’ve always believed that to be fine, as really ‘rationality’ is just a way of saying “the sum of our individual experience and the way it informs how we think” – and this includes our emotions, because everyone has emotional responses to many things. Even if we’re not shouting, or crying, or laughing, our emotions are still informing our judgment.
Sorry, been travelling so cut off from internet. With it being Christmas I won’t have time for the full length reply, so I’m going to pick up a few of your most pertinent points, Barney.
2.(what happened to 1?) I have no problem with the idea that every man should be able to choose his own good. But, firstly even the most liberal system imaginable allows this only within certain prescribed limits. Secondly, the fact that almost everywhere falls short of the liberal ideal and that structural inequalities of power or opportunity prevent people from choosing their own good makes the issue contingent. That is, are “human rights” more or less likely to result in a situation where every man can choose his own good?
Frankly it doesn’t matter what the answer is – that the question is a valid question means that every situation (of HR vs what’s local) needs to be examined on a case by case basis. But the anti-HR argument assumes HR to be monolithic, which is in any case mistaken.
3. I agree with you, but I don’t think this misses the point.
The partial supercession of the nation-state is inherent to the concept of human rights. This supercession has been envisioned in English culture dating back to the English Revolution. That from this partial supercession, i.e. our adherence to the ECHR, further rules have been derived is surely to be regarded as part of the normal working of any legal system?
We can argue that the ECHR and such rules as can be derived from its case law are not the best way to protect human rights, that we need some other way. But we can’t counterpose the principles enshrined in the ECHR to English culture or constitution, as the article in question attempts to do.
4, 5 and 6. It is decided locally. Parliament is sovereign. It voted to cede some powers to the system of European courts, it can vote to overturn that cession. And it may indeed be the case that the ECHR has developed a momentum of its own – but the particular manner in which we legislate human rights, and develop their codicils through case law, doesn’t concern me here. What concerns me is the fundamental attack on the concept of human rights, that they are illiberal, and the idea that they are opposed to British/English culture.
7. I’m all for a British bill of rights – but this local vs. ECHR argument is a smokescreen. What the conservative writing the article really wants is the power to overturn the liberties provided by the ECHR and its derived rules for particular things – e.g. being gay, having an abortion or earning a decent wage. You can see it between the lines of what he says, and why he draws such attention to the social issues which often provoke (misplaced) tabloid ire.
tgmac – I agree with your charaterisation of the principle – I was merely saying that it doesn’t fit well into questions of political economy, which is what I though you were at least implicitly suggesting. Apologies for over-analysing.
Dave – The problem is that he doesn’t acutally argue for any of the things you attribute to him – denial of gay rights, abortion or fair wages. You can read that between the lines if you want – but not without bending the article a fair old way: in the article he is specifically talking about freedom of expression with regards to homosexuality, abortion etc. The fact he is a Conservative doesn’t imply any of what you attribute to him.
The article doesn’t attack the individual rights as stated by the Convention. It attacks there claim to universality. I believe this is probably in part motivated by the current use of human rights, which is driven by the European Court of Human Rights. Hence the example of control orders he uses, which is by no means necessarily enshrined within the Convention, but is the product of the ECHR’s interpretation of the Convention.
The “choosing ones own good” point is empirical, yes. But I suppose the argument is that universal human rights are more likely to impose certain values on a people who do not share them – hence the examples he gives of the matriarchal and collectivist societies. Besides, it wasn’t in the original article, my point was only that it wasn’t necessarily an assumption he was making.
I think the original article runs on two levels: a macro-theoretical level and a micro-UK-centric level. With regards to the former the ECHR point is irrelevant, but to the latter it isn’t. Human rights are not just protected by ECHR case law: their normative content [in practice] is defined by that case law. Thus on the micro level you can counterpose human rights and the English tradition. The supercession point, and the ceding of soverignity are, with the greatest respect, irrelevant. The point is that the normative content differs.
No one will seriously claim that freedom of speech (for example) is fundamentally un-British. The point that I belive the article makes is that freedom of speech, as interpreted by the ECHR, is not necessarily consistent with the British tradition of free speech. Insofar as there is such an inconsistency, the universalist application of human rights is illiberal as it imposes values upon a polity which does not share them.
Barney, the reason I regard the local vs HR as a smokescreen is because nowhere does the ECHR or its application restrict the right of individuals to talk about the issues the article mentions. Thus one must suspect that it is not the right to talk about these liberties that is at issue, but the right to change them – to restrict the liberties of these groups.
Which is consistent with the view of various right-wingers, both paid up commentators, bloggers and politicians, that things like gay rights have gone “too far”. If I extrapolate wrong, then I’m wrong – but I don’t believe I am, and we can’t finally settle the question until we see something of the legislative agenda of a Tory government.
Continuing on this theme, the article doesn’t outline in what way the ECHR interpretation or application of freedom of speech, presumably under Article 10, runs contrary to a ‘British’ understanding of freedom of speech. Moreover, I don’t accept the British ‘polity’ as having a unified opinion on the subject. ECHR case law may (or may not) be at odds with how we’ve traditionally done things (though again the article doesn’t specify), but even then every nation-state contains multiple cultures. I would not be among those to suggest that only the culture which controls the State should be regarded as legitimate.
If we extend this to Control Orders, since the article mentioned those, I find my logic above strengthened.
These are inventions of the British government under British law. We may disagree with them, and I strongly do, but actually they replace much less liberal measures – such as internment or Diplock courts – which have been used by successive British governments without reference to the ECHR. It seems a bit odd that anyone could rant about Control Orders as though they are some derivative of that document.
The article’s logic suggests that because the ECHR demands that people in the UK be treated the same, thus UK citizens are now subject to the same detention as immigrants, that this is somehow an argument against universality, or that it is contrary to British ‘culture’. Who is he kidding? Plenty of British citizens have been subjected to similar measures long before the current controversy of Control Orders and tagging and so forth.
Perhaps the writer of the article would prefer that immigrants weren’t given the rights to due process, legal assistance etc, and sees the ECHR as a barrier to depriving them of those rights. But instead of this convoluted argument against human rights per se, the article could simply say that. Again, as with the spiel about freedom of speech, when put in such plain terms, I suspect not a huge number of people would be willing to listen.
On reflection and reading your comment I’d probably agree that perhaps the author of article goes further than merely expression of opinion. It is indeed difficult to see precisely which rights and liberties he is talking about, and your interpretation is by no means invalid.
On the more general theoretical point about the problems with treating human rights as universals I would still hold his argument holds water. I would perhaps go further and defend examples we could extrapolate from the article – but that is for another time.
Merry Christmas all
Merry Christmas to you as well Barney!