But the idea that the human rights we have today represent the culmination of centuries of popular struggle is nonsense. The international system of human-rights law we have today has little in common with the freedoms that were fought for by the radicals of the past. In the 17th and 18th centuries, radicals sought to assert the rights of the citizen against the power of the state. Today’s human-rights courts, by contrast, embolden unelected judges to determine the scope of our liberty.
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The human Rights Act really gives the UK very few absolute human rights that are under threat from big government – privacy, free speech, right of assembly etc – every one of them is qualified in the legislation, meaning if the state wishes to override them – and it often does and has – it can do so in primary legislation. The HRA is essentially a fraud, as such, a characteristic New Labour creation.
There is always the risk of being misinterpreted in trying to simply comparisons of events of different ages. But here goes a simplification that compares the basis for both ages.
The issue before people is the imposition of obligations.
In those former times referred to, the obligations were imposed to create or maintain privileges and status within then “Limited Access” societies. The struggle was to ameliorate or revise those obligations, creating rights.
The establishment of “Human Rights” statutes and regimes is the imposition of obligations (for the construction of a “universal” type social order) that does not arise out of recognition and acceptance (and thus become “custom” from experience and interactions) of all those on whom the obligations are imposed for those purposes.
How about this:
We – Humanity – have always treated Others – those different from us in some way – badly. That bad treatment has always only ended (when it did actually end) when We accepted that those Others weren’t so different in any truly meaningful ways.
The new model differs mainly in its proactivity. Now, instead of waiting for that cultural realization that the critical differences aren’t all that meaningful, our Thought Leaders (I do so hate that term) are deciding for us which differences ought to be considered meaningless, and mandating that acceptance which used to be gradually consensual.
Unfortunately, our Thought Leaders aren’t as wise as they assume themselves to be. They can’t seem to differentiate between immutable racial characteristics and chosen cultural characteristics. They don’t acknowledge that a society cannot be forced into a consensual acceptance – that that acceptance is only produced through the mass of individual experiences We have. And, they underestimate the resistance to that consensual acceptance that their scolding approach produces.
The worst part of it is that few seem to get the notion that humans have rights de facto. Most seem to think that rights are a gift from government or society. The religious seem convinced that rights are a gift from god and, even worse, many libertarians entertain the idea of rights merely as a useful arbitrary idea. ‘Never mind the fact that anything granted as a fiat favor from authority (government, king or god) can be just as easily arbitrarily revoked, which CONTRADICTS the meaning of both “inalienable” and “rights”.
The United Nation’s Universal Declaration of Human Rights sounds nifty until one gets into the heart of the document, at which point one will see that they’ve listed “rights” such as the right to leisure, etc.
And then there’s this ending the document.
Article 29.
(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
Yeah, you’re born with “duties” that you’ve not agreed to and you have no say-so about apparently, and your rights are de facto “limited” by the say-so of the UN. (Didn’t agree to that either, did you?). And yeah, your rights are limited by “public order”, what they consider “moral behavior”, and “general welfare”. So…taxation is fine because it serves the public welfare? (Yes, I’m aware that by welfare, they don’t mean the American welfare sys).
And you just gotta love number 3. You have right by and according to their say-so.
The truth is, the only feasible and non-contradictory system of rights is where rights are a necessary function of your existence, by the fact that you own your own life…by right.
SOMEONE owns your life, either you or some other body, be that body a person or a group.
The UN would suppose it would be them. You have “rights” by their say-so.
Monotheists would suppose it would be god and your life is on loan from god.
Socialists/Communists would suppose that we each belong to the collective.
Only Individualists would suppose that we each really and truly belong to ourselves, because ANY AND ALL other alternatives is slavery, which contradicts the very notion of individual rights.
I didn’t find Luke Gittos’ article particularly illuminating or persuasive, I’m afraid. The case for opposing the Human Rights Act, and by extension, the ECHR is that the wrong rights are protected, mostly as a result of judicial silting. The problem is not that unelected judges get the final word – that is after all how the Rule of Law is supposed to work. It’s that the rights proclaimed are extremely vague. Even an honest judge who tries to keep his own opinions out of it (stop sniggering at the back there) has no option but to make up stuff out of whole cloth.
If you seriously want a set of rights (or as I would prefer, liberties) specially baked in and privileged in the legal system, you have to limit them to something smaller than the entire field of political debate, and you have to make them very specific. If you produce wide windy phrases, that can’t possibly be entertained expansively, you’re bound to get the judges pruning them down to something less utopian. And he who wields the pruning shears determines the shape of the bush. I’m all in favour of setting a few liberties out clearly, and barricading them behind the power of the Commons to use the Parliament Act on, but only if they’re set out so clearly that the judges have limited wiggle room. Happily, the colonials have produced a couple of hundred years of case law on constitutional interpretation, so we do have a bit of guidance on the areas that need to be nailed down more clearly.
In the Middle Ages and the early modern period a “right” (and yes the term was used in old times = contrary to what was once taught) was a matter of a limitation of government power to hit individuals or private organisations.
This attitude can can be found not just in the American Bill of Rights and every American State Bill of Rights – but as far back as the Edict of Q back in 877. The King of France may not take land from one family and give it to another, nor may a King of France violate the freedom of the Church (the body corporate of the time).
This understanding of what a “right” is started to change (in some places) at the time of the French Revolution – at first glance the French “Rights of Man” looks much the same as the British or American “Bill of Rights” part of the tradition that goes back to the Great Charter of 1215 and before – but it is NOT the same.
If one reads carefully the “Rights of Man” is really about the rights of “the people” (not individual persons and private organisations) – property has to be justified for the good of the people, if not….. Also the people have a right to rule – a right to political power (as a collective). There is some good in the French Declaration also (do not mistake me) – but the signs of the modern mess are there.
Modern declarations of rights (such as the European Convention and the U.N. Declaration) may have been written by people born in Britain – but they are really in the tradition of the French Revolution. They sound good (after all Thomas Jefferson was fooled), but they are not good – as that practical lawyer John Adams might have said “I am interested in the small print of this – the exact language that is used”.
As any practicing lawyer (Jefferson was NOT one) knows – the exact language used in a legal document can have a massive effect, and the language in modern “rights” documents is really from the collectivist tradition – rights to goods and services from government, not rights as limitations on government power.
To the PMO:
Would it not be a correct view:
In the “Middle Ages” were not “Rights” (Mon Droit) really Powers.
Those who had rights had powers to enforce the obligations of others to them. (Feudal lords to serfs)(Kings to Barons)
By claim of “divine” right some were entitled (note this source of word) and others were obligated to “serve.”
The re-awakening of personal rights began with struggles for freedom from (rather than freedom to -or rights) particular obligations that provided entitlements to small groups with burdens upon many.
As societies re-coalesced into the municipalities of the late middle ages, bringing humans into “tighter” and more constant contacts, there came to be recognized and accepted obligations that individuals (and groups) had to one another if they were to be cohesive and prosper. Those obligations, mutual but not identical, between people at various levels of activities and relationships established the beginnings of socially enforced rights.
And, of course, as you note, the “collectivist” articulations called rights are really entitlements (aka “Positive Rights) which require the imposition (by use of power) of obligations on some (often many) for the amelioration of the burdens of others (often few).
ECHR doesn’t seem to be worth much even on its own terms. “Everyone has the right to freedom of expression.” Yeah, right. “…subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary…”
Hardly worth making a fuss about losing that. Not that I expect Theresa May’s British Bill of Rights to be much better. There is at least a slightly larger than infinitesimal chance of having some influence over it, I suppose.
If one examines the U S “Bill of Rights” (Amendments I-X of the Constitution)it will be seen as an interdiction to the use of the mechanisms of government that will have specified effects; thus, a limitation on power exercised via governmental facilities.
That kind of Bill of Rights creates no entitlements. In fact it does not create rights, it limits power.
What does the proposed British (or U K) form do?
But did not the original Bill of Rights act as a protection of the person and his goods against unlawful seizure. An attempt to restrain government in favour of the People, something we could do with now!
Dear Buxton:
Do not the colloquies in the U S and the wordings that followed demonstrate a recognition that humans (with motivations) use the necessary powers of governments and that “governments” are not autonomous entities.
If you speak to the Claims of 1689, the line reads:
Lee Moore @ August 30, 2016 at 7:11 am:
I suggest the opposite. “Windy phrases” will be expansively used by judges to support intrusive state action, or even to mandate such action. The broader and less definite the law, the more abusable discretion is provided to its interpreters.
One of the casus belli of the American War of Independence was people getting their property seized upon conviction for sedition against the Crown… hence Fourth Amendment. A couple hundred years of constitutional interpretation later, Americans can and do have their property seized by the state not just upon conviction of a crime, nor even upon being charged with a crime, but merely because they are suspected of a crime.
There are fraudulent “rights” that steal power from political foes and give it to supporting voters (usually, in fact, to chattering class advocates) in the same way that some taxes simply steal money from political foes to buy votes (a la Chavez). There are “constitutions” and “bills of rights” that offer rights as Government promises, not incarnated in systems of checks and balances, just as there are pensions that are simply Government promises to pay, wholly unfunded by investments.
Burke’s analysis of rights is – far too involved to detail in a comment, alas. 🙂 (And has figured in my older comments.) Government-defined rights (even real ones, never mind “rights”) replace natural rights (better defined but less-obviously armed with means to enforce them). In doing so, they, of course, degrade them – some rights are violated that others be enforced in the designed scheme. Even a well-designed scheme must violate natural rights in order to exist, or as Burke put it, people “cannot simultaneously enjoy the benefits of civil and uncivil society”. (For example, my wish to have a police force to call if I am attacked, and a court to deal with the perpetrator, is in some sense paid for at the price that I therefore risk being mistakenly convicted of a crime despite knowing I am innocent, or seeing perpetrators mistakenly acquitted despite knowing that they’re guilty.)
(Burke wrote about rights to defending the historical evolution he saw in Britain and the US, combatting the French Revolution’s ideas. Paul Marks, August 30, 2016 at 8:39 am, identifies that as the moment when a rival view became powerful – and, to intellectuals, popular.)
This idea that rights have costs (both impacts and duties) makes the abuse of ‘rights’ as a vote-grubbing exercise less likely, just as the understanding that taxes have costs makes vote-buying less likely. Sadly, those who would even listen to the discussion are rarely the one whose votes are being bought.