Law

The Idea of Human Rights in a Civil Society

My topic is the idea of human rights in civil society. But I want to approach that subject in a rather indirect, Alistair Cooke-like way. I want to start by pointing out that people often argue over concepts and terms and what they mean. This is especially true of concepts that carry a big emotive wallop, where just having the word or phrase on your side is a big plus. These are phrases that send a shiver of delight down the spine just on hearing them. They are rhetorical trump cards—think, say, of the phrase rule of law or the word democracy.

Now everyone wants to employ these concepts to advance their own side of an argument but not everyone agrees about their content. Think of them as “essentially contested concepts”, as the British philosopher W.B. Gallie put it. And when it comes to what is actually meant by “democracy” and “the rule of law”, people disagree. And I mean that smart, well-informed, reasonable, nice people disagree.

And as an aside, albeit quite an important aside, acknowledging this reality that differences of opinion and disagreement can be, and are, between sides where both are well-intentioned and smart and well-informed is not the most notable virtue of our publicly financed broadcaster the ABC. Often the default position there, to explain disagreement over, say, carbon dioxide taxes or republicanism or Keynesian economics, seems to be to paint one side of the argument (I leave you to fill in which for yourselves) as being superbly well-informed, altruistic, and pretty much having some sort of mystical and ineffable pipeline to God while the other side is best understood as being motivated by reactionary, possibly racist, and certainly stupid sentiments that could do with a few months in a re-education camp.

But the truth is that almost all disagreements cannot be explained away using this “I’m morally superior and smarter than everyone who disagrees with me” template, with its concomitant claims that everyone who disagrees is defective, dumb or evil. The truth, the reality, the best description of the way the world is, almost always, is that disagreement is just a fact of life in a country where tens of millions of people live. And neither side of these debates—at least to the disinterested observer—necessarily has higher levels of moral perspicacity or personal probity or greater access to eternal truths.

People just disagree, no doubt linked in part to their upbringings and circumstances and sentiments. But what’s relevant to us here is that they disagree not just about these first-order issues but also about the meaning of important concepts and terms. And that means that sometimes you can win a debate by capturing a word, when you might struggle mightily to win the debate on its merits.

Take this example. Let’s suppose you don’t have much confidence in the views, beliefs and sentiments of your fellow citizens. You don’t think much of the political and moral choices of the plumbers, secretaries, teachers and even derivatives traders who make up the majority. But of course you don’t want to come out of the closet and say you’re against democracy, the idea of counting all of us voters as equal and then letting the numbers count. Just a bit too hard in today’s world to admit openly that you’re a latter-day aristocrat, and prefer top judges and overseas committee members of United Nations agencies to have more say on a host of debatable social policy issues than your fellow citizens.

Here’s what you do. You redefine the concept of “democracy”. You take the core idea related to how decisions ought to be made and you stuff it full of moral abstractions; you make it more morally pregnant. So democracy now means not just “how” decisions are taken. It also includes a judgment related to “what” those decisions were and whether they are acceptable ones (to some kept-from-view aristocratic group or other).

You now get to assess how rights-respecting some statute passed by the elected legislature was, or whether it was unduly illiberal. And if was too illiberal, well on this new understanding it just doesn’t count as democratic, despite it being a product of the majority’s legislature.

Of course left wholly out of sight are two things. First off, people simply disagree about what is and isn’t rights-respecting. And second, the judges and internationalists who will now get to make some of the authoritative calls do not have a pipeline to God on these issues.

It’s a neat trick. All of a sudden, presto, our redefined notion of democracy builds in a role for an exclusive group of people, a role that lets them gainsay and second-guess the majority. And it still gets to be called “democracy”.

That’s one example of what I mean. It may sound familiar to some of you because precisely that attempt to redefine the concept of “democracy” has taken place, and is taking place right now in the West. 

A similar thing is happening with the debate about “multiculturalism”. Now the notion of multiculturalism is by no means an old one. Most people trace it back to my native Canada, from maybe three decades ago at most. As part of the English–French tussles there it was thought that biculturalism might be strengthened by throwing in a few more cultures. Maybe move from “bi” to “tri” to “multi”, the way the owner of a cinema complex might try to do.

No one imagined at the time that any core Western notions of the equal status of women or the importance of free speech or the underlying importance of letting-the-numbers-count democracy or the ability and freedom to question and doubt and even mock religious doctrines were somehow up for grabs under this new concept of multiculturalism.

The idea was founded on individualist and liberal pre-suppositions. Go and enjoy Greek and Indian food by all means. Yes, broaden your horizons by understanding how things are done in Indonesian households or how the Estonian language is related to Hungarian. But on the core question of whether all cultures are equal in their effects, well that was a non-starter. The cultural-relativist pretension that all cultures are equally good and have been equally successful in, say, inventing jet aeroplanes and discovering antibiotics and advancing the position of women and doubling expected life spans in under a century, well that pretension is so obviously false that you can’t really state it out loud with a straight face.

But over time that sort of pretension has made its way into the understanding of “multiculturalism”, through the back door as it were. You start by eliding the notion of “multiculturalism” with “multiethnicism” or “having a multi-racial society”. However, those are very different ideas. No one can affect the great genetic lottery that produces you. But cultures are created and can be changed.

It is simply racist (not to mention ignorant about the lack of genetic diversity among Homo sapiens) to think one race is better than another. It is not racist in any way at all, though, to judge some cultures as better than others on a host of criteria. In fact, whenever push comes to shove that is precisely what happens. Even the most committed Australian multiculturalists say, “Well, of course there are things that just have to be accepted by those choosing to come to this country, things like democracy and free speech.”

In other words, they use core precepts in our Western culture to judge other cultures. That’s precisely what British Prime Minister David Cameron recently did in his speech saying that multiculturalism had failed. He said we need a “muscular liberalism” and we need to defend core cultural values “because we have allowed the weakening of our collective identity”. Cameron clearly thinks today’s understanding of “multiculturalism” has moved from a tolerance of other cultures (up to a point), towards a tolerance of other value systems (thereby paralysing the ability to say “in some ways our Western values are better and they are the ones you have to sign up to”).

That’s one of the problems with all the debates about multiculturalism. Some people mean by it the rather bland, old-fashioned notion of keeping an open mind about other cultures (and maybe trying their cuisines). No one I know is against multiculturalism in that sense.

But others, people who could never come out of the closet and say so openly, take the notion of multiculturalism and revise it to mean a much more paralysing and “who am I to judge others” sort of nihilistic or sophomoric cultural relativism under which all cultures really are thought to be equally valid or acceptable or worthy—even in their diverging views on democracy, the treatment of women, child marriages, you name it.

And if you don’t think that latter cultural-relativist understanding of “multiculturalism” is widespread then you haven’t got kids in the Australian school system being fed a steady diet of this tripe.

So that’s a second example for my claim that sometimes you can win a debate by capturing a word. (And by the way, in its more recent understanding I am not a multiculturalist. I don’t think many nice, tolerant, liberal voters would be either, not if the revised concept were spelled out explicitly.)

And this clarification may, or may not, be useful in responding to those members of the Labor and Coalition parties who toss around this term “multiculturalism” with unrestrained abandon and try to beat down every-one else by suggesting opposition somehow equates to racism. Before that claim can stick, how about they actually tell the rest of us what they mean by the term?

Here’s my bet. Either it will be a bland, wholly unobjectionable understanding that no one disagrees with, or it will involve such toxic cultural-relativist presuppositions that they would be too embarrassed to do it openly.

I could make much the same sort of point as regards “the rule of law”. There are two main competing notions as to what this phrase encompasses. One is a morally Spartan one about the good consequences that flow from having a legal system with general rules, known in advance, able to be complied with, and applying to everyone. But this “thin” notion is compatible with having laws you judge to be morally bad ones. A newer understanding is massively more morally pregnant and basically builds in a “these laws must be morally good ones, or at least not morally terrible ones” (according to me, the speaker) before giving them the “rule of law” tick. But in the interests of moving on I say no more about that example. 

I think I’ve now said enough, after embarking on this circuitous route, to arrive at the topic of human rights. And here again we see that this notion of human rights does not define itself. It, too, is an essentially contested concept. People disagree about what will and will not fall under the aegis of this broad notion, just as they do about any particular enumerated claim to a human right, say the “right to free speech”.

When I was travelling around Australia debating about bills of rights—and I am very much an opponent of these instruments—I often started by asking the audience if anyone was in favour of the right to free speech. In every audience, every time, every single person raised his or her hand as being in favour. Heck, once in Adelaide I was told there was a Holocaust denier in the audience and even he raised his hand.

But when you forswear the moral abstractions and ask if people are in favour of tobacco advertising on billboards outside schools, or whether they want unlimited campaign finance rules that allow billionaires to buy up television time galore to push their favoured political views, or if they want defamation laws that put a fair bit of weight on reputational concerns, or if they want to stop any speech that might be characterised as hateful by any groups at all, you immediately find that there are all sorts of disagreements in society. And all sides have smart, well-informed spokesmen and women.

Up in the Olympian heights of moral abstractions—where we talk of the right to free speech or to freedom of religion and where disagreement tends to be finessed and glossed over—you can achieve near on universal agreement. But down in the quagmire of day-to-day social policy decision-making you never have that sort of consensus. Not ever.

The language of human rights can achieve a sort of bogus consensus because it deals in moral abstractions so abstract and so couched in emotively appealing connotations and generalisations that almost everyone can sign up to it. But underneath that finessing, very abstract notion, you must realise that what actions are and are not on the side of “human rights” is not something that defines itself. It is contestable, and contested—every day, all the time. Just because someone proclaims himself to be on the side of human rights it doesn’t necessarily follow that others—on hearing that person’s views on specific issues—will agree with those views. Nor does it follow that they’ll concede that this proclaimer is the one on the side of human rights.

One of the great tricks—I would say fallacies even—of those who campaign for a bill of rights in Australia is to exclaim, “Don’t you want your rights protected?” again and again and again. As if Australians don’t already have more scope to speak their minds than Canadians do (as regards, say, potentially defamatory words, or hate speech or words related to election campaigns and the rules that finance them). Because even though Canada has a super-potent bill of rights, and we have none, it turns out we Australians in fact have more such scope to speak our minds. (You don’t hear that from bill-of-rights advocates, do you?)

And as if in any political system known to man you (or anyone else) will always be on the winning side of every line-drawing exercise about such things as whether women ought to be able to wear headscarves in schools or people claiming refugee status ought to be virtually unhindered in arriving in a country or whether women who allege they’ve been raped ought not to be subjected to the full panoply of cross-examination questions during the accused’s criminal trial.

Take that last example, not least because it turns the tables on the pro-bill-of-rights brigade which tends to assume, unwarrantedly, that these instruments are a guarantee of nice progressive outcomes. In the UK not too long ago the legislature passed a statute restricting somewhat what a defence barrister could ask a woman who was a complainant in a rape trial about her own past sexual activity. However, the highest UK court, under their statutory bill of rights, said this law was a breach of people’s timeless, fundamental human rights. Any guesses which one? (Yes, it was the “right to a fair trial”.)

The real issue is not who is and is not on the side of human rights. The real issue is which institution we want making these debatable line-drawing decisions: the elected parliament or the unelected judiciary (because remember, when you buy a bill of rights, what you are really buying is a much enhanced decision-making role for judges, full stop, whether the bill of rights be of the statutory or constitutionalised varieties). And in making that call between the elected legislature and the unelected judges you know going in that no institution will produce outcomes with which you agree 100 per cent of the time. It’s about which has the best hit rate, on average, over time. Is it the one that is accountable to the voters and can be tossed out after making calls on these moral and political issues? Or the one that takes these moral and political issues, translates them into pseudo-legal ones, issues absolutist-sounding claims—even when the outcome in court was a 4–3 or 5–4 one where if one judge had changed her mind or had a car crash your timeless, fundamental rights would magically and mysteriously be the exact opposite of what they ended up being declared to be?

I think the least-bad option—not the perfect, unfailing option, but the least-bad one—is the legislature. Call it democracy if you mean it in the thin, letting-the-numbers-count sense.

The obverse of much of what I’ve just said is that you can’t, or shouldn’t, argue for a bill of rights (or think about human rights) in terms that amount to blithely asking: “Don’t you want your rights protected?” Of course you want that. But you and I and he and she and that group over there are going to disagree about which actions will and will not amount to protecting those rights and how best to go about structuring our institutions to do so. You simply cannot just assume that your take on when prisoners ought to be allowed to vote or your take on when speech that some in society see as hateful ought to be suppressed—your take on these sorts of things somehow just is the view that is the rights-respecting one. No more than some top judge who was previously a commercial barrister on a million dollars a year for a couple of decades or a bureaucrat appointed to a human rights commission who likes to speak out on contested social policy issues, no more than their views is your view somehow the self-evidently correct view. You think yours is. They think theirs is. But the person who disagrees with you about the rights-respectingness of euthanasia or abortion or headscarves in schools or cross-examining rape complainants, well that person also thinks his or her views are the morally correct ones.

And so you need a procedural rule to resolve these differences and disagreements in society. It’s not resolved by who shouts the loudest about his attachment to human rights, in the abstract—or let’s hope it’s not. And it can never be resolved by adopting some substantive test, say a Spike Lee-like “Do the Right Thing” test—that won’t work because, as I hope by now I’ve made clear, people simply disagree about what the substantive right answers are and there is no scientific method for resolving such disagreements, some double-blind drug trial just waiting for us out there.

Even when you hand such decisions off to the courts the decision-making rule there is also a wholly procedural one, however much that might be disguised. Here’s the decision-making rule in the High Court: you count heads. Four votes beat three, full stop. It doesn’t matter if the dissenting three have crafted morally uplifting judgments chock full of references to John Stuart Mill and the International Covenant on Civil and Political Rights and the majority judges have written callow, insipid judgments, largely crafted by their law student clerks—and I take no position on whether any disinterested person might, on occasion, get that impression from reading some recent High Court decisions such as Roach and Rowe. No, my point is that it’s a procedural test there too; it’s just that the size of the franchise is somewhat more limited than when 22 million Australians vote to choose a legislature to decide such matters. 

And so perhaps it’s worth my while to retreat a bit further at this point and say a word or two about rights themselves. When I ask my first-year law students at the University of Queensland what rights are, these students with by and large the best high school marks in the state struggle to give an answer. Eventually you might get from someone that rights are entitlements, or protections, or guarantees of a sort. But never will they tell you that analytically speaking a right amounts to an “others must” claim. If I have a right to free speech then others must let me speak. Similarly, if you have a right to be free of unreasonable searches then someone must avoid unreasonably searching your property. And those rights, those “others must” claims, are linked—they’re correlated—to duties. A duty is an “I must” claim. My duty to visit my sick grandmother in the hospital is an “I must” claim. So her right (“others must”) is my duty (“I must”).

Wherever there are rights, there are correlated duties. You can’t have one without the other, or at least you can’t have rights without duties. On very rare occasions you might have duties without rights—for example, saying that I have a duty not to cut down that 2000-year-old tree does not correlate to the tree having a right not to be cut down, at least most people outside the Greens don’t see it that way.

And here’s the thing, when we look at rights analytically. Not only are rights always connected to duties (which may explain the rather pathetic attempt to label the State of Victoria’s egregious little statutory bill of rights The Charter of Human Rights and Responsibilities—the lack of any obvious responsibilities having been listed notwithstanding). Not only that. But the rights and duties themselves are always and everywhere tied together by the concept of rules. So any right you care to mention I can transliterate into the form of a rule: “She has the right to free speech” becomes “There is a rule that allows her to speak her mind in the following circumstances”. You can do it for any rights. Of course the language of rules hasn’t got anywhere near the same emotive punch or oomph, but regardless of that, the language of rules does not provoke that frisson of self-entitled excitement the way the language of rights does. You don’t get the same shivers down the spine. But analytically speaking they’re exactly the same. A right is a rule.

And once you see that, you can see that rights, broadly speaking, are of two sorts. There are rights (or rules) where we all can see the basis of the claim. These are legal rights (or rules). So habeas corpus is a legal right. Or in some circumstances having recourse to being tried by a jury is a legal right (or rule). Or what you can expect as a residential tenant. And if someone asked where these sorts of rights come from, you can point them to a statute, or maybe to a series of cases from the highest courts. Whether you like the substance of the right or not, its source is clear.

But in other circumstances it is evident we are not talking about legal rights, but rather non-legal or moral rights. The claim that “everyone has the right to free speech in China” might be a most laudable one. But it is not a claim about the legal system now in existence in China. It is a moral claim about the way someone thinks the world ought to be.

On top of that, moral claims, and whether they actually exist with this content or that, are highly debatable claims in a way that is not true about whether most legal rights and rules actually exist and what their content is (leave aside their desirability).

One of the things that the idea of human rights in civil society does is to blur this divide between legal rules and entitlements and moral rules and entitlements. When human rights language is being used, often it is used to make a moral assertion—that people ought to have scope to speak their minds in China. Other times, though, these claims are being made at the intersection between law and morality, and these are ones that typically gloss over the highly contestable nature of moral claims. To see that, leave claims about scope to speak your mind in China and park yourself in a nice liberal democracy and start making claims about there being rights to (or moral rules laying down that one can) get married to whomever one wishes, or to end the lives of foetuses when one wants, or to all the sorts of divisive issues over which people in Western nations—the most free, most liberal, and most desirable ones to live in on the planet today—argue about incessantly.

The language of human rights finesses those disagreements and it helps those making rather more specific—but disguised—claims; it helps them to position themselves as though they were speaking from on high, on the mount as it were, with some sort of pipeline to God about the right side to be on such specific, debatable, contested issues. If it were translated into the form of “I think there is a moral rule mandating that my position on same-sex marriage and euthanasia and cross-examining rape complainants is the correct one, and that it ought to be made legally enforceable because it’s me making that claim—and lord knows I have exceptionally refined moral sentiments and world renowned moral perspicacity”, you might find fewer people would be cowed. And that would be true even if the speaker were a well-known human rights barrister or human rights commissioner or person working for an NGO, even one like Amnesty International that recently spent over £860,000 paying off its two most senior officials—payments equivalent to about 4 per cent of the charity’s annual budget.

The philosopher and social reformer and utilitarian Jeremy Bentham (very much a man of the political Left) got at this idea of how the language of human rights can work in a much more devastating and concise way back two centuries ago when critiquing the French Declaration of the Rights of Man (an older Bill of Rights than the US one, by the way). He went through each of the claims made in that French instrument. “All men are created equal,” Bentham mused. Really? In what sense? Is the illegitimate daughter of the charlady born with equal life chances to the eldest son of the Earl of Hampshire? No. No one can think that. What they can think, and what they should think, is that we ought to be working towards a world where there are more equal opportunities and where people are seen as equal before the law.

What the language of human rights sometimes does is to elide these two ideas, the present “is” and the desired future “ought”. It’s that elision that can cause problems. Or as Bentham rather devastatingly put it, “Hunger is not Bread.” Your oughts don’t somehow magically become ises just by loudly asserting something is true, such as that everyone has the right to free speech in China. And if you’re not careful you won’t go about reform in the correct way.

So the idea of human rights can be potent and powerful and a clear force for good. Or it can obscure clear thinking, impede needed reforms, and constrain democratic decision-making in favour of a sort of aristocratic decision-making where the lords of yesterday are replaced by a judicial elite of today. It all depends on how you’re using that idea. But if you remember and never forget that today in Western liberal democracies people disagree about almost any important social policy issue down in the quagmire of detail and specifics, and that translating such disputes into the language of human rights does not remove that underlying disagreement, however much it may hide it and finesse it, then we will all be better off. At least in my view. 

Now it is customary to finish with a joke. When I was in practice at a big law firm in Toronto, clients always enjoyed a joke about lawyers. What’s the difference between a dead lawyer on the highway and a dead snake? Skid marks in front of the snake. They enjoyed these little jokes, at any rate until they got our bill. So I thought I’d try to provide you with a joke or two to end, that related to the idea of human rights in the world at large.

Here are my two concluding jokes. The first is known as the United Nations Human Rights Council or UNHRC, which is the successor to the United Nations Commission on Human Rights or UNCHR. The earlier Commission was considered to be so biased and so ineffective and so politicised that it was disbanded and the UNHRC put in its place. Who would have guessed that the new body would be at least as bad as its predecessor, and probably worse?

Let me tell you a bit about the UNHRC, so that the next time someone tries to win a rights-based argument by appealing to international law or to international norms you have some better idea of the facts. This is the UN Human Rights Council that includes Cuba, China and Saudi Arabia as member states, all places whose views on the rights of women and of minority religions and of when to drive tanks into crowds or put opposition politicians into psychiatric wards you’d be keen to take very seriously indeed. Oh, and until last week Libya was a member of the UNHRC. Did I forget to mention that? Not any more. Having jet planes strafe and bomb its own citizens was too much even for the UNHRC, though not right away.

And it is the UNHRC that seemingly protects or at least has nothing much to say about Burma and China and Sri Lanka and Zimbabwe. True, this new body has passed twelve resolutions since being formed. Three of those were non-condemnatory ones about Sudan and the killings in Darfur. But of course you don’t want to jump to any condemnatory conclusions about that do you. Well, that’s not exactly true. You see the other nine resolutions made by the UNHRC were all very condemning. And wouldn’t you know it, they were all about one single country. So which was it? Which country in the world has such awful human rights tendencies that it, and it alone, receives the only censure from the world’s top human rights body? Surely it must be a dictatorship with thousands and thousands of deaths on its hands? Iran maybe, or Burma or Zimbabwe or Syria perhaps. Well, no. Okay, at least it won’t be a democracy then, right? Alas, wrong again. I think you all know which country is the single-minded focus of the UNHRC—or at least you’ve narrowed it down to two candidates. The winner, as it happens and if that’s the way to put it, is Israel. And this from the very same UNHRC that passed a resolution urging UN states to adopt laws outlawing the criticism of religion—anti-blasphemy laws. That one was proposed by Pakistan, another model human rights nation. How many people who see themselves as being in favour of the right to free speech thought that the top human rights body in the world sees free speech as encompassing and being limited by anti-blasphemy laws?

My second joke comes from my native Canada. I’ll assume some of you know about the Mark Steyn saga. Instead, let me tell you about some of the so-called “human rights tribunals” in Canada, the names there being Orwellian inversions of reality where complainants have their legal costs wholly picked up by the taxpayers while defendants pay their own legal costs and can be fined big sums of money for supposedly hurting the feelings of others—even if the statements made were factually true, as in the Steyn case.

Consider the case of Guy Earle in the province of British Columbia. Mr Earle had to stand trial (so to speak) before the BC Human Rights Tribunal. Mr Earle is, or was, a stand-up comedian. He was working one evening and two lesbians came to his show, got drunk, and started making out in front of the stage. He ridiculed them, including jokes about their sexual preference. But in the British Columbia world of human rights tribunals it turns out there’s no assumption that people going to hear a stand-up comedian need to have a thick skin or that they needn’t go at all. No, one of the women complained. And the application to have this complaint dismissed was heard by the same tribunal member who chaired Mark Steyn’s BC human rights tribunal hearing. No prizes at all for guessing that she did not dismiss the claim against the stand-up comedian but let it proceed.

I bet few people who feel a strong attachment to the idea of human rights in civil society think this concept or idea is one that can be, and ought to be, used to censor people whose views you simply don’t like. No, that’s putting it far too weakly. Try this. I bet you didn’t think the idea could be used to censor professional comedians whose shows you choose to go to, and this can be done because you happen to think they’re not funny. If the facts were in any way different I’d be tempted to say the whole thing leaves a bad taste in the mouth. Instead, it’s a joke. I’m just sorry it wasn’t a funny one on which to end.

James Allan gave this address to the Centre for Independent Studies at the Macquarie Bank Auditorium, Sydney, on March 17. 



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