Tuesday, 9 August 2011

The Landscape of Rights - Are Rights Wrong?

The concept of rights, human or otherwise is an innately strange topic. At once uncontroversially universal-- enshrined in the universal declaration of human rights, the US bill of rights, the european convention on human rights and many more documents worldwide-- and resolutely controversial-- rights of prisoners, the second amendment etc. They are also judicially difficult, as they are almost invariably qualified. The rights of privacy and free speech were almost made to exist as two great deities of the law locked in eternal combat.

And there is some dispute as to where they come from. Are they ‘self evident’ to borrow a term from the declaration of independence? Are they forged from moral philosophy, or from self interest? Certainly history provides some useful context here. Moving backwards from the Human Rights Act 1998 with its ECHR protections against torture, of life and of freedom of association and privacy, the US bill of rights contains slightly more practical components concerning billeting of troops and maintaining militia, and the English bill of rights 1689 and the Act of Settlement 1701 together provide an essentially political and constitutional settlement, setting out powers and restrictions, particularly concerning the independence of the courts.

The concept of a right as we imagine it today is evidently an umbrella term. This stems in part from the linguistic character of a statement of right as recognised in Hart’s theory of law. A word may have a ‘core’ meaning, and a penumbra of less clear possible meanings. The right to life clearly means the right not to be murdered, but what about turning off life support to a brain dead person? What about an embryo early in its development? Even this relatively clear-cut concept has its areas of dispute.

Even with the simple protection from killing we run into some difficulty. We have the right not to be killed, but can the state execute us? Can a right ‘protect’ us from murder, or merely punish those who murder us? Do we have a right not to be struck by lightning? Do we have a right to the best medical treatment possible, no matter how expensive, if there is some chance it will preserve our life?

This difficulty stems from the word itself. A right is an entitlement or a protection. It is a claim to some benefit under law. You may have rights arising from a contract, or rights which are constitutionally granted. You may even have rights which arise from custom or ordinary and expected behaviour. This suggestion of entitlement provokes a cultural effect, and it affects how the population understands the meaning and role of ‘rights’ within society.


There is of course another framework for investigating rights: that of duties. It has often been suggested that each right has a corollary duty which it imposes upon society, and we may understand each right as in fact resolving a cluster of duties within society. The right to life may invoke the duty of the state to always punish murderers-- and those who through negligence cause death. It may involve a duty to ensure that workplaces are sufficiently safe, or that healthcare is provided to all. In some jurisdictions it may incorporate a positive duty of citizens to intervene to save those in peril, or it may, as in english law, refuse to punish a citizen who, seeing a drowning man, simply keeps walking.

It cannot be without limit, the state may resolve that it has a duty to provide all citizens with necessary and sufficient care, but not with all possible care. The NICE group in the UK evaluates the months of life and quality of life saved by each treatment, relative to its cost, and they do this so as to achieve the greatest good possible for a given budget. In all healthcare systems near limitless demands are placed on finite resources, and healthcare decisions may be made by markets-- where those with the greatest wealth secure the best treatment-- or on a cost-benefit analysis as conducted by groups such as NICE.

The state may assert that women have a duty not to abort embryos after they have reached a certain point in their development, but equally they may not assert any such duty prior to that time under law, thus permitting the negative liberty to have an abortion. They may also mandate a duty for the healthcare system to assist any mother who makes such a decision. No duty can arise which defends the citizen against a lightning strike, but a duty may exist for the police to do all they can to prevent a murder, as was seen in the yorkshire ripper cases.

The Rights of Murderers

In light of the necessary complexity of even simple rights challenging social problems can ensue. One prominent example is that of victims rights vs the rights of the accused. As in the adversarial system of justice practiced in the west the family of a victim may be aggressive cross examined there is a legitimate outcry among many in the public that the rights of victims are sacrificed in favour of the rights of the guilty. The primary duty of the justice system however, is to cause no injustice by its action. The example earlier this year of the landlord of a murder victim whose name and reputation was destroyed in the press before turning out to be completely innocent is a good example and an important warning.

This balancing act between our collective duty to ensure fair trials and protection to the falsely accused, and our need to prevent further suffering to victims is a frustrating and agonising one. Although it often comes up in murder trials it is far more routine in rape trials, where the only evidence may be the testimony of the victim, who is inevitably forced to relive the ordeal and face their attackers.

These are difficult situations. The law of evidence is complex, and even it has roundly failed to keep up with research into the reliability of witness and memory evidence. It is impossible to expect the ordinary person to appreciate the role of the judge in deciding which lines of questioning are acceptable or even necessary. As a result we get involved, not in procedural questions about the law of evidence, but in debates about who has more rights, criminals or victims.

For this reason the language of duties has a tremendous benefit to offer us. Our rights can only survive while others in society maintain their duty to respect our rights. Emphasising our duty to our common man is vital if we are not to lose sight of the source of our own rights. Assuming rights as static and inherent allows us to make claims without considering the costs.

Self-Evident Rights

Nonetheless rights do have a defence and a justification. They are and will always be an important concept and tool. We may speak of the duty of a foreign government not to oppress its people, but the phase human rights reminds us of our own rights, and encourages us to imagine ourselves in the situation of those who do not enjoy them.

Rights themselves are effectively bundles of social practices and customs developed over millennia, some of which are necessary for a society’s survival, and some of which are even evolved. The logic of evolution tells us that a creature which is incapable of surviving to breeding age will not pass on its genes. A similar logic informs us that a society whose rules must inexorably lead to its destruction will not survive to pass on its rules and customs.

In this sense there is something intrinsic and objective to many rights. Our abhorrence of murder is absolutely necessary to a functioning society. Otherwise we would live in a society of sociopaths, where killing was justified if it provided a benefit to you.

Even so, this idea of rights as objective or natural can only take us so far. We may not sanction murder but we do still undertake actions in the name of self interest which are ultimately self destructive. The tragedy of the commons describes a community who, having no rules between them, collectively over-graze, each trying to get the most for themselves, until the land is destroyed and their livestock die. This exact tragedy has happened on a small scale a number of times in world history, but to most readers the immediate parallel will be that of global fishing policy, which year on year sees devastating and potentially irreversible declines in total stocks.

Climate change, grazing and fishing, the treatment of arable land. These are all obvious examples, and they show us that rights generally exist within a society, and do not extend to those outside of it. We would even say there is a duty on our government to achieve the best deal in the interests of our nation in any given situation-- to act in a self interested way. Clearly, as in the two bills of rights mentioned earlier, rights are often political compromises arrived at by parties to a negotiation, whether their power derives from a democratic mandate, financial clout or military capabilities.

For this reason many rights, once enshrined in law, become artifacts of a historical reality long since evaporated. The US constitution has been amended many times since its inception, and while many elements of the english bill of rights remain central to british politics, the act itself reflects a preoccupation with catholics and protestants which clearly is not germane to current policy.

In fact rights which become part of the structure of a society in this way may not survive at all in their original form. The bundle of duties and obligations associated with them may change markedly. The general ‘concept’ of any given right will morph and shift as public attitudes and understandings do. This provides a certain flexibility, though, as perhaps seen in Roe v Wade, there are limits to how far a right can be credibly expanded by creative interpretation.

Interpretation is a key word. The ‘general concept’ of a right allows the courts to map out that larger bundle of duties, deciding whether a local government decision to take aware social housing could have violated a ‘right to family life’, or whether a doctor should or should not be allowed to separate conjoined twins, if it means that one will die, but if doing nothing would lead both to die. This space allows judges room in which to circumscribe the geography of social expectations and norms.

The flip-side of this is that we must be wary of ambiguity. The American Second Amendment has led to a centuries old dispute over gun rights that may never be resolved. These difficulties can divide society without providing any clear benefit whatsoever, and it is important that rules such as these can be cleared up, changed or removed as required by the times.

The Landscape of Rights

Rights once adopted can become central to how a society operates. Property rights and rights under contract are central to a capitalist system. A right to housing or to health might be characteristic of a welfare state. Yet rights are not necessarily moral norms. Property rights might appear to be moral norms to some in a society, but if a particular section is sufficiently disenfranchised, they may come to view these rights as carrying little moral force. To take the jean valjean example, your property rights carry little moral force if I need to steal to feed my family.

So rights not only involve changing configurations of duties, but the way they are perceived and the moral force they carry can change as well. The right to property may exclude income taxes, and the degree to which those taxes are progressive in a society will affect the attitudes of citizens.

The landscape of rights in societies will therefore be very different, even if they have those same core rights: The right to life, right not to be tortured, a right to privacy, and so on. And rights cannot operate successfully if they do not achieve legitimacy, as they cannot survive if the duties which underpin them are not taken seriously by the majority of the populace. It may be reasonable to assume that this will affect the character of communities in those cultures.

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