Who's Right about Rights?
A (reposted) Critique on the Universality of Human Rights
What is up party people? I know it’s been a while since I’ve posted anything here. I haven’t been seeing other newsletter sites, I swear. I’ve just been suuuuuper busy.
Anyway I have other original article drafts in various states of completion on my desk, but it might be a little while before I can get to them. In the meantime, I realized a little while ago that one of my works that had been published online was quietly taken down, and I got a little paranoid about other things I’ve written.
I enjoy sharing my work, as you may be able to tell, and it pains me when something I’ve written is no longer discoverable. So I’m going to start reposting some of my previous short-form publications here directly, where they can live forever more.
Some years ago, I wrote a brief critique on the idea of universal human rights. “Nonsense upon stilts”, Bentham called them. I wonder what he’d think about the current online discourse on rights.
Anyway, I’m not going to keep you here much longer. Please find below the original text of my essay, as well as a link to its abridged published version where it’s still (as at time of writing) discoverable online.
I will be publishing new essays shortly. Standby for more. In the meantime, enjoy.
Who’s Right about Rights? A Critique on the Universality of Human Rights
Originally published online by Cogito Magazine, Issue 1 (May 12, 2019)
The idea of inalienable and hence supreme rights being an objective, and consequently indisputable truth, is alluring. It would mean that we are entitled to benefits or welfare by virtue of our very existence,[1] and that we hold the moral high ground when we defend this entitlement. To be entitled, and believe in that entitlement, is moral, which in turn means it should be encouraged.
But something cannot come from nothing; to say that rights exist simply because we exist is fallacious and leaves unclear a number of other issues. For example, if rights are natural, do they exist in a vacuum? Do they still carry meaning when there are no people to enjoy them or agree with them? Are they equal to one another or are there hierarchies of rights? And most importantly, how can we be certain that one narrow understanding of what ought to constitute man’s natural rights is correct over another?
That there are no simple and satisfactory answers to any of these questions, and that there are still disagreements over basic matters such as the absolute right to life, is very telling. Occam’s razor requires that the simplest solution be the correct one, and the simple answer is this: rights exist, not as inviolable stalwarts, but as competing claims[2] in an age-old melee. This is not to say that there isn’t an ideal state of how things ought to be, but unless someone is fighting for that state,[3] it doesn’t matter because all the wishful thinking in the world will not bring about a course of action.
Objectivity
“[A] reason for wishing that a certain right were established, is not that right – want is not supply – hunger is not bread...That which has no existence cannot be destroyed — that which cannot be destroyed cannot require anything to preserve it from destruction. Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense — nonsense upon stilts.”
- Jeremy Bentham, ‘Anarchical Fallacies’ (1796).
The analogy that Bentham uses, that claiming objective, inalienable rights exist is “nonsense upon stilts”[4] is particularly fitting because it implies a line of logic that attempts to invalidate opposition or alternative points of view[5] by claiming the moral high ground. The position propounding natural rights must necessarily be correct because to disagree with these utopian[6] ideals would be immoral, evil even.
But rights are not natural, and they do not exist in isolation of the law. The Romans who advocated living virtuous, stoic lives in accordance with ‘nature’ also kept slaves, because even ancient concepts of natural law recognised that rights are not inherent to humanity.[7] These were Bentham’s primary criticisms in relation to the French Declaration of the Rights of Man and of the Citizen, and by extension all concepts of natural rights: they do not exist without anyone to make a claim to them, nor do they exist without the means by which to enforce such a claim, and those who advocate this concept use grand language to say a lot about nothing at all.
The claim that rights exist naturally is to make a claim that the existence of such natural rights is an objective fact, but any claim of such objectivity should be questioned simply because of how hard it is for one limited perspective to ever know the whole truth. The Chinese fable of the frog in the well springs to mind. The importance of cultural relativism lies in its ability for proponents to recognise that their own limited experience might prevent them from understanding cultures or behaviours beyond their comprehension. It is not a concession but rather an admission of our own ignorance that we might not know the correct answer. This in itself is proof enough that natural rights and an objective truth about them cannot exist, at least not at present, because there are far too many views on what does or does not constitute a right. It makes more sense to see rights as claims in this regard.
The counter-argument to this is the moderated relativist approach, which states that there are a core group of rights that ought to be universal, regardless of culture.[8] This core group could conceivably be ‘natural’, such as the right to life or the right to not be subjected to cruel, inhumane, or degrading treatment.[9] In which case, who is to say that one interpretation is correct over another’s? What is understood to be a core, natural right will inevitably be influenced by one’s own belief system, which renders it a subjective assessment and hence unnatural insofar as it cannot take place without a human being’s input, typically manifested as the creation of a law.
Another ideology famous for proclaiming its understanding of the objective truth is Objectivism.[10] Much like the argument for universality, Rand claims to have the correct answer, and a number of her views even align with natural rights theorists. Her belief in the tyranny of the majority and inviolability of individual liberties would be right at home amongst them. Except what she believes to be core rights are almost entirely different: she propounds selfishness, self-interest, and greed as mankind’s highest ideals. And yet, there is no logical way to discredit her interpretation of what natural human rights ought to be without resort to a subjective moral argument. The existence of competing interpretations, which are arguably just as valid, is enough to disprove the idea that there is an objective and universal truth about rights. Accepting that all interpretations are merely claims, and that these claims compete for dominance based on their subjective appeals, is the only way to reconcile this conflict.
“I would like to begin by conducting a thought experiment. Try to imagine Nowheresville - a world very much like our own except that no one, or hardly any one (the qualification is not important), has rights. If this flaw makes Nowheresville too ugly to hold very long in contemplation, we can make it as pretty as we wish in other moral respects. We can, for example, make the human beings in it as attractive and virtuous as possible without taxing our conceptions of the limits of human nature. In particular, let the virtues of moral sensibility flourish. Fill this imagined world with as much benevolence, compassion, sympathy, and pity as it will conveniently hold without strain.”
- Joel Feinberg, ‘The Nature and Value of Rights’ (1970).
Feinberg’s ‘Nowheresville’[11] illustrates this best. Would we be content to simply coast by and enjoy the utopian state of things as they were, or would we still seek guarantees to insure ourselves against changes detrimental to our interests? If in a world where everyone lived in accordance with these natural rights we still felt the need to lay claim to them, then that indicates that the core of the concept of rights lies in the act of claiming them, rather than in the normative content of the rights themselves.
Practical Disagreements
Cultural relativism often imagines Western ideals as a monolithic construct, which stands in contrast to the varied belief systems of the world.[12] This view could lend credence to the notion that there is an objective truth that the West has figured out, hence why the entirety of the West has united behind it, and relativists are simply waiting for the rest of the world to catch up. Except that this isn’t true, and fundamental disagreements still exist amongst the strongest exponents of universality regarding even the most basic rights.
For example, the absolute right to life is far from a settled debate in the American states where capital punishment is still practiced.[13] In practice, true universality is hard to effect, and the nature of the law and governance requires that there be hierarchies in society where rights are made subordinate. Individual liberties are curtailed by imprisonment. The right to a fair trial is sometimes less important than the security of the nation.[14] Bentham’s second point, that inalienable and universal rights can never truly be achieved because they are self-limiting and self-defeating, is the crux of this argument. The nature of governance requires that some abrogation of some rights be allowed some times, and to expressly deny this is to deny the ability to defend any rights at all.
The paradox of tolerance[15] illustrates this conflict well. Absolute tolerance, taken to its extreme, will inevitably result in its destruction at the hands of the intolerant. The extension of universal rights to people who do not believe in them or wish to claim them, and who will hence not abide or respect them, is an invitation for disaster.
A Case Study of Singapore
Singapore’s approach largely subscribes to Bentham’s utilitarian criticisms in two ways: first, the State is more interested in actionable and feasible claims than aspirational rights; and second, the State recognises the problems inherent to a concept of inalienable rights and hence rejects it.
The Singaporean approach places a premium on pragmatic solutions. In a nutshell, Singapore would prefer to give citizens houses, rather than the mere right to housing.[16] This implies a hierarchy of rights that features economic rights at its head. As former Minister of Foreign Affairs Wong Kan Seng put it, “poverty is an obscene violation of the most basic of individual rights.”[17] Singapore’s recognition of this implies that economic rights form the foundational bedrock upon which the enjoyment of all other rights is predicated. This is in itself refutes the idea that rights are universal and equal.
Literature advocating the human right to health[18] as a foundational interest seems to inadvertently support this position as well.[19] Underlying most suggested approaches to actualising a human right to health is an admission that some form of economic stability is first required.[20] In that respect, it appears that Singapore has its priorities straight.
Bentham’s criticism that inalienable rights will result in governmental paralysis and an inability to defend any rights at all is a narrative familiar to Singapore. The State has expressly qualified the right to freedom of expression, allowing it insofar as it does not encroach upon or injure the racial or religious feelings of others. Singapore’s Constitution also excludes ‘legislation against subversion’, such as the Internal Security Act,[21] from judicial review.[22] This places State action that interferes with individual rights and liberties in response to threats to the wellbeing of the nation beyond the purview of the courts.
The usage of such measures is however limited only to extreme circumstances, such as with a ‘ticking bomb’ scenario where the damage that can potentially be prevented by abrogating an individual’s rights far outweighs the costs associated with the abrogation.[23] The debate on whether any rights are absolute is far from settled, as evidenced by the academic literature published in the wake of the recent Gäfgen[24] decision where a German police officer threatened a kidnapper with torture in order to coerce him into revealing the location of the victim. A line of arguments has emerged advocating that the right to not be subjected to cruel, inhumane, or degrading treatment is in fact not absolute, has never been absolute, and although the number of scenarios in which such treatment might be justified are few, they are still conceivable.[25]
Singapore’s refutation of the idea of inalienable rights, when viewed in this light, is the most logical conclusion to arrive at. To render all rights inalienable and thus untouchable by the State is unworkable, unnecessarily restrictive, and will only serve to undermine rights protection as a whole.
Conclusion
Rights can only exist as subjective claims. Without a homogenous society, it is impossible to expect every person to subscribe to the exact same belief system such that there can be widely-accepted universality of rights. Beyond that, rights do not exist in a vacuum. They did not exist in nature before man invented the law, and will cease to exist when man is gone until another race of intelligent beings develops a similar concept. Even then, who can imagine what they will eventually come up with?
Striving toward the attainment of a universal standard of living is an admirable goal, but we must remember two things: first, the struggle exists because rights are not universal. And second, it is a struggle. Rights are not gifts; they must be claimed, and they must be protected.
[1] Hannah Arendt, The Origins of Totalitarianism (2nd Edn. Meridian 1958) at [298].
[2] John A.G. Griffith, ‘The Political Constitution’ [1979] 42(1) Modern Law Review 1.
[3] Costas Douzinas, ‘Human Rights for Martians’ (Critical Legal Thinking, 3 May 2016) <http://criticallegalthinking.com/2016/05/03/human-rights-for-martians/> accessed 24 January 2019.
[4] Jeremy Bentham, ‘Anarchical Fallacies’ [1796].
[5] David Kennedy, ‘The International Human Rights Movement: Part of the Problem’ [2001] 15 Harvard Human Rights Journal 101.
[6] Samuel Moyn, The Last Utopia: Human Rights in History (Harvard University Press, 2010).
[7] Stoicism propounds a number of ideals regarding inter-personal relationships, but its ‘discipline of action’ requires one to treat others ‘as they deserve to be treated.’ Classism is built into the system of belief, thus allowing it to rationalise slavery and castes. See Gregory Hays, Meditations of Marcus Aurelius (Modern Library, 2002).
[8] Jack Donnelly, ‘The relative universality of human rights’ [2007] 29(2) Human Rights Quarterly 400.
[9] Both rights are named respectively in Articles 2 and 3 of the European Convention of Human Rights and Articles 3 and 5 of the Universal Declaration of Human Rights.
[10] Ayn Rand, Introduction to Objectivist Epistemology (2nd Edn. Meridian 1990).
[11] Joel Feinburg, ‘The Nature and Value of Rights’ [1970] 4 Journal of Value Inquiry 243.
[12] Aristoteles Constantinides, ‘Questioning the Universal Relevance of the Universal Declaration of Human Rights’ [2008] 62 Cuadernos constitucionales de la Cátedra Fadrique Furió Ceriol 49 at [52].
[13] Campbell v Woods [1994] 18 F 3d 662 (US).
[14] Secretary of State for the Home Department v AF (No.3) [2009] UKHL 28.
[15] Karl Popper, The Open Society and Its Enemies Vol. 1 (Routledge 1945).
[16] Li-ann Thio, ‘The Indigenisation of a Westminster Import’ in Clauspeter Hill and Jörg Menzel (eds), Constitutionalism in Southeast Asia Vol. 2 (Konrad-Adenauer-Stiftung 2008) 249 at [264].
[17] Statement by Mr Wong Kan Seng, Singapore’s Foreign Affairs Minister, ‘The Real World of Human Rights,’ Singapore Government Press Release No. 20/JUN/09-1/93/06/16.
[18] Article 25 Universal Declaration of Human Rights.
[19] Paul Hunt, ‘Interpreting the International Human Right to Health in a Human Rights-Based Approach to Health’ [2016] 18(2) Health and Human Rights Journal 109.
[20] Patrick Hayden, ‘The Human Right to Health and the Struggle for Recognition’ [2012] 38 Review of International Studies 569 at [588].
[21] Cap. 143, 1985 Rev. Ed.; see also Chng Suan Tze v Minister of Home Affairs [1988] SLR 132 (Sing.), which preceded the adoption of Article 149 and arguably acted as the catalyst for the change.
[22] Article 149 Constitution of the Republic of Singapore.
[23] See: Jeremy Bentham, ‘Means of extraction for extraordinary occasions’ [1804].
[24] Gäfgen v Germany [2010] 52 EHRR 1.
[25] Steven Greer, ‘Is the Prohibition against Torture, Cruel, Inhuman and Degrading Treatment Really ‘Absolute’ in International Human Rights Law? A Reply to Graffin and Mavronicola’ [2018] 18 Human Rights Law Review 297.