Saudi Arabia, China and Vietnam have been appointed to the United Nations Council on Human Rights. All three countries forbid free speech and harshly punish criticism of the regime. None respects religious freedom or freedom of conscience. None has a transparent system of law, and – to put it mildly – none has an immigration problem. So what does this tell us about the idea of human rights?
During the 17th century England was torn apart by civil war. This war came to an end in the ‘Glorious Revolution’ of 1688, when James II was expelled from the country and William of Orange welcomed in his stead. At one level this represented the popular desire for a Protestant rather than a Roman Catholic dynasty on the throne. At another level it meant the final victory of a centuries-long struggle for a form of government that would see individual freedom rather than collective submission as its goal.
Henceforth individuals were to enjoy freedoms that protected them, their property and their way of life from arbitrary invasion, be it from their neighbours or from the officers of the crown. Such was affirmed next year in the 1689 Bill of Rights, which guaranteed freedom from arbitrary arrest and imprisonment, the protection of free speech in Parliament, and the abolition of the Royal prerogative to appoint judges or to act as judge. The overall effect was to make the monarch as much subject to the law as the ordinary citizen.
The Bill of Rights was regarded, at the time, as reaffirming the ancient liberties of the English people, embodied in the centuries-long jurisdiction of the common-law courts. It was a weapon in the hand of the individual, against all those who sought to control him, whatever their power and whatever the interests that they represented. The philosopher John Locke, in his Second Treatise on Civil Government, published in the following year, put the point rather differently: human beings, he argued, have natural rights, and these cannot legitimately be taken away or qualified. The right to proceed about one’s business without threat to life, limb and property was, he regarded, sanctified by the English law because sanctified by Reason, and therefore by God.
It was no easy matter to define what these ‘natural rights’ amount to, and when Locke’s arguments were taken up in the American Declaration of Independence, and subsequently in the Constitutional ‘Bill of Rights’, rather more provisions were included than would have occurred to a philosopher writing at the end of the English civil war.
Nevertheless, the basic thought remained the same, and was at the root of all those claims for ‘human rights’ that carried conviction in the wake of theEnlightenment. There are rights that we do not obtain from the government but which belong to us as human beings, rather than as citizens. These rights are freedoms. They guarantee that we can take charge of what most concerns us, express our opinions freely, and proceed about our business without threat from those in power.
There is another of putting this point: human rights protect the sovereignty of individuals against whoever might wish to enslave, silence or confine them.
Subsequent philosophers justified human rights by other arguments than those used by Locke – Kant argued one way, Hegel another, John Stuart Mill another. But the shared assumption was that rights are liberties. They are there to protect the individual against oppression, and especially oppression wielded by the clergy, the sovereign or the state. Their existence is fundamental to anything that we could call government by consent, and they capture the essence of the political process as we, in the West, have since conceived it – namely as a device for protecting the individual against the group. True, Jeremy Bentham dismissed the idea of natural rights as ‘nonsense upon stilts’. But we can perhaps agree with what he meant, which is that, however rights are defined, it needs a government to enforce them.
When Eleanor Roosevelt and her advisers framed the United Nations Universal Declaration of Human Rights in 1945, they were seeking an impartial standpoint from which the various regimes and legal systems could be judged. The UN Declaration was to lay down a universal standard, which would be acceptable to everyone since it was founded in human nature alone. And the Declaration begins with a list of freedoms, in the manner of its predecessors, emphasizing that rights are limits to the power of the state and guarantees offered to each of us that we can be both governed and free.
By article 22, however, the emphasis has changed from freedoms to claims, and among the rights supposedly guaranteed by the Charter are radical claims against the State – claims that can be satisfied only by positive action from government. Here is article 22:
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
Contained within this right is an unspecified list of other rights called ‘economic, social and cultural’, which are held to be indispensable not for freedom but for ‘dignity’ and the ‘free development of personality’. Whatever this means in practice, it is quite clear that such alleged ‘rights’ can be guaranteed not by limiting the power of the state but by increasing it, and also by empowering the state to take as much of the property of its citizens as would be necessary to guarantee the ‘dignity’ of those who need a slice of it. The agenda has shifted from liberalism to socialism, without any indication of why or how.
Maybe this would not in itself be harmful. But subsequent uses of the concept must surely lead us to wonder where it is leading us. Take the European Convention of Human Rights, which was also adopted after the Second World War. This too begins from the traditional freedoms. And this too quickly wanders off into the realm of wish fulfillment. It is now applied by an activist court (the European Court of Human Rights) which aims to upset any piece of legislation that might have got up the nose of its far from impartial, and in any case highly politicized, judges. For example, the ‘right to a family life’ declared by the European Convention has been used to prevent the deportation of a convicted (and dangerous) criminals; the right to the traditional life style of one’s ethnic community, declared by the ECHR, has been used to install a park of mobile homes in defiance of planning law, so destroying property values all around; the right to non-discrimination on grounds of sexual orientation has been used to force an old-fashioned Christian couple who live by taking in lodgers to close down their business. Bankers have even claimed their outrageous bonuses as a human right.
All those claims can of course be argued. No doubt there are reasons in favor as well as reasons against. But they all suggest that the human rights idea has been cast loose from its philosophical moorings, and that it can be applied by lawyers and legislators to turn any grievance into an enforceable claim without reference to the wider issues of public interest. (Rights, remember, belong toindividuals, and can therefore be wielded against the state, regardless of the interests that conflict with them.) The concept that was introduced in order to guarantee individual freedom is now being used to constrain it. In the name of human rights activist courts are enforcing orthodoxies that could never be imposed on us by an elected legislature.
But that brings me back to the United Nations Human Rights Council. The Saudis have already complained that Norway violates the human rights of Muslims by permitting ‘hate speech’ against them – in other words by refraining from silencing open criticism of the Koran. This from a country in which Christians are forced to conceal their faith, in which apostates are whipped or executed, in which women are maintained in a state of domestic subjection, and in which those brave enough to criticize either the regime or its fanatical clergy are either dead or in jail. The Saudis are calling for all criticism of religion and the Prophet Muhammad to be made illegal in Norway. And to illustrate their impartiality they accuse Norway of ‘increasing cases of domestic violence, rape crimes and inequality in riches’ – failing to mention that a disproportionate numbers of those ‘rape crimes’ have been committed by immigrant Muslims.
The freedoms granted to the Muslim faith in Norway are not granted to any faith other than Sunni Islam in Saudi Arabia. Nevertheless, it seems, Muslims have a ‘human right’ to be protected from the criticisms which their religion naturally invites. Clearly, whatever human rights are about, in the mind of the Saudi government, it is not the freedom of the individual. The doctrine of human rights, which was introduced to guarantee our freedom, is now being used to remove it. Religious fanatics and Leftist utopians have combined to subvert the only weapon that has until now been effective against them: the only weapon that could be used by the dissenting individual, but not by those who wished to silence him.
What is the solution? More philosophy or less? An attempt to return to the root idea of rights as freedoms, or a rejection of the whole idea as a costly mistake? Take your pick.