Nonsense on Stilts

Human Rights are back in the news again, with the government proposing a yet another bill protecting a new assortment of them which have been made, as usual, from whole cloth.

I don’t hold with the concept of Human Rights, which is the new name for the classical liberal idea of Natural Rights. These days, the acceptance of Natural or Human rights is almost universal in the West. The concept is enshrined in the Declaration of Independence, the European Convention on Human Rights, and the United Nations Declaration on Human Rights. However, as much as I admire Locke, Jefferson, and the drafters of the Declaration of the Rights of Man and the Citizen (whose silly French names I am not even going to attempt), and feel an affinity with classical liberal theory in general, I cannot accept the concept of Human Rights. I am a firm believer in Civil Liberties, but not Human Rights.

The difference between the two is subtle but important. Human Rights, unlike Civil Rights or Liberties, are presumed to belong to every human purely because he is human. They exist independent of any state or social contract. Take as a setting what is one of the contenders for the most lawless place on Earth, Somalia. Suppose that a Somali warlord in Mogadishu shoots a man in the street as a show of power. Under Human Rights theory, he has not only committed an immoral act by killing an innocent, but he has also violated the victim’s Human Rights, specifically the Right to life (although presumably he has also violated his Right to liberty). Since Human Rights are a legal concept, it must be assumed that there is or should be a court of (Human Rights) law which will hold him accountable. But such a court would have to claim jurisdiction over all humanity, so where would its authority derive from? Remember, Human Rights theory sees these rights as applying to all humans, not just citizens of or residents in countries signatory to treaties affirming the Human Rights principle. If a government can opt its people out of Human Rights, they are not exactly universal, are they?

Approaching the concept by using the term 'Inalienable Rights' is also suspect, although I am as sentimental as the next American about the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness (the pursuit of happiness being Jefferson’s qualified version of Locke’s ‘property’)” Yet clearly these Rights are not, nor should they be, inalienable. A person can be deprived of the Right to life by being found guilty in a court of law of a capital offence. European Union countries do not have capital punishment, but in them as well as in America, Canada, Australia, Israel, South Africa, India, and other countries which can be considered heirs of the Enlightenment Rights tradition, people are alienated from their right to life on a daily basis, as can be seen below.

When the United States, a country proclaiming that all men are endowed by their Creator with the inalienable Right to life, fought against itself in the American Civil War, there was no sense that the killing of members of the opposing army, although taking place on American soil under the jurisdiction of US courts, was in any way a litigable violation of the 'inalienable' Right to life. It was clearly alienable if the person was a member of the opposing army. It was not a matter of the victors protecting their own either, as it applied to the losing side as well. This is important because it is a war which took place entirely on soil (or in territorial waters) clearly under the jurisdiction of US courts, but zooming out it can be seen that to this day that no country on Earth holds the killing of enemy soldiers in battle to be a violation of Human Rights, despite the fact that the Right to life is supposedly ‘inalienable.’ It may seem an obvious point, but it serves to demonstrate that the right to life is not treated as inalienable by any country, and that it seems ludicrous to treat it as such, now or ever. Could you imagine Enlightenment era soldiers, lining up in big, pretty, colourful ranks and shooting each other, and then being prosecuted because they have violated the other soldiers’ inalienable Right to life?

The word ‘prosecution,’ tossed around above, also presents a problem for the concept of inalienable Rights. What are the results of a successful prosecution? The big three are execution (void where prohibited), imprisonment, or a fine, although there are now a host of other minor penalties such as curfew, house arrest, or community service. All of these punishments, from execution to community service, alienate one or more ‘inalienable’ Rights. Execution alienates the Rights to life and liberty, imprisonment, curfew, house arrest, and community service alienate the Right to liberty, and a fine alienates the Right to property. Even arrest without a conviction alienates the Right to liberty, as you can (in the States at least) be held for up to 24 hours before you must be charged or released. Similar systems operate in all Western countries.

One Right that might be held up as truly inalienable in a way that none of the aforementioned Rights are is the Right to be free from torture. I will not get into a discussion of Guantanamo/Abu Ghiraib/rendition, as it is irrelevant to the point I intend to prove, to the extent that we can assume, if only for the sake of argument, that any torture related to those places and practices is morally wrong and should be stopped. I intend to rely on a different example. Consider that an attacker has surprised you in an alleyway and put you in a headlock. Would anyone dispute that it is morally acceptable to deliberately cause the attacker extreme pain in order to secure your release? The Right to not be put in extreme pain by another individual should be alienable. There should not even be a right not to be intentionally permanently crippled. If a man is pointing a gun at your loved one, would anyone say that it is a violation of his inalienable Right to sever his arm (assuming that you have the means to do so)? This despite the fact that the Declaration of the Rights of Man holds up health as an inalienable right.

The conclusion that can be drawn from this is that it is absolutely absurd to treat any of these classical liberal Rights as ‘inalienable.’ It is even problematic to describe these Rights as inalienable without due process of law, as there is no due process of law when one soldier on the battlefield deprives another of life, nor when a man in an alleyway defends himself from an attacker. Any statement of these Rights must be heavily qualified. Unfortunately, any true attempt at codifying them will not have the eloquence of the Declaration of Independence, nor even the blunt simplicity of the European Convention on Human Rights. For example, if you were to state the circumstances under which men cannot be deprived of life, you would have to exclude: After due process of law, on the field of battle by a uniformed enemy, by someone acting in reasonable self-defence or reasonably in prevention of crime, by a doctor making a medical decision (in the case of PVS, Siamese twins, etc). There may be still other exceptions.

It should be clear by now that the protection and, more importantly, definition of these ‘Rights’ cannot be divorced from the law. They do not exist in a vacuum. They only exist when set within the context of a legal relationship between people and between the authority tasked with enforcing the Rights and punishing infringements upon them. The only recourse for Human Rights theorists is thus to claim that there is indeed a court of universal jurisdiction. But the only court that could possibly have jurisdiction over all humans just by virtue of them being human is the court of God. Many godless leftists who worship Human Rights in lieu of the Almighty seem strangely averse to acknowledging this. I, for one, have no problem agreeing that God is the ultimate Judge and that his writ is the ultimate Law. The problem begins when humans start attempting to dispense this divine justice themselves without a properly constituted legal framework. If the International Criminal Court claimed that it was excercising divine justice on people, people might realise how ridiculous the concept of any group of humans claiming to exercise this type of judgement over all others--willing and unwilling--is. No, the only judgement that a human court can make is that the defendant has or has not broken the law, created by humans within the framework of a particular legal order. The concept of Human Rights--enforceable in human law but definable by definition only by the Almighty, is patently ridiculous.