Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

Are Bills of Rights immoral? A reply to @ashhirsch #auspol #auslaw

In response to an article I wrote arguing that rights legislation was ineffective and cumbersome, Asher Hirsch responded with a fairly common assertion:


The best response to this assertion was from one of the drafters of the Australian Constitution, Alexander Cockburn:

Why should these words be inserted? They would be a reflection on our civilization. Have any of the colonies of Australia ever attempted to deprive any person of life, liberty, or property without due process of law? I repeat that the insertion of these words would be a reflection on our civilization. People would say-“Pretty things these states of Australia; they have to be prevented by a provision in the Constitution from doing the grossest injustice.” [Source]

It’s sometimes been said that Australia has a ‘she’ll be right‘ attitude towards legislated rights.  In a sense, that’s correct.  For the most part, we expect Parliament to share our moral intuitions and not to pass laws which are repugnant to those intuitions.

Let’s say you’re like Asher and you ignored my article which outlines why Bills of Rights are ineffective (US had the First Amendment and McCarthyism), erratic (right to protest funeral protected; right to bury loved ones not), and cumbersome (plain packaging of tobacco isn’t possible in other jurisdictions).  You still really, really feel that we should have a Bill of Rights in Australia even though they’re ineffective, erratic, and cumbersome.

Are Bills of Rights immoral?

When I ask this question of people, their immediate reaction is disbelief and shock: how could we even entertain this question?  We are indoctrinated from such a young age to believe that it’s ispo facto a true statement that Bills of Rights are the cornerstone of all that is good and wonderful in the world.

Let’s assume that human rights are inalienable to the person (magical fairies bestow them upon children at some point between conception and their 18th birthday).  Even if we take this position which is most prejudicial to my argument, we still don’t have a reason to believe that we can express these rights definitively or accurately in language.

Indeed, there’s no reason to believe that one of these magical, inalienable human rights corresponds directly with an utterance in any human language.  Take something like ‘The Freedom of Speech’.  Is it speech or expression that we’re talking about?  Are winks and nods speech?  Does ‘speech’ include every transmission of every kind of symbol?  What about defamatory speech, hate speech, and speech which impacts on the ability (actual or perceived) of others to participate equally (or equitably, perhaps) in society?  Is ‘The Freedom of Speech’ the freedom to lie?  The freedom to harass?  The freedom to be obscene?

Yes to this ‘speech’.  No to that ‘speech’.  Maybe something like another ‘speech’.

Generally, human rights activists don’t get down and dirty on this level of theory because they’re pragmatic people who are interested in stopping the most horribly ghastly things from happening around the world.  Fair enough.  But Australia isn’t even three skipped meals away from being one of the places where the worst of the worst atrocities occur, and so we have the luxury of making sure our legal systems are defensible rather than just useful.

Which is why most human rights activists ignore the distinction between the sign and the signified.  The expression ‘The Freedom of Speech’ is the right and the symbol in language representing the right.

But this is dumb.  That’s like saying the word ‘cat’ actually is a cat.  It’s not.  The word ‘cat’ is what we use in language to represent the meowing thing that we think exists beyond the wall of language.  This is why, in ethics, we keep language claims in the realm of contestability.  I don’t get an automatic right to control the language in which we discuss the events beyond the wall of language.

But a Bill of Rights does something unusual: it takes the expression of the thing we think exists magically beyond the wall of language and makes in incontestable.  The expression is carved into legislation and put beyond debate.  It’s not, mind, put beyond judicial interpretation.  So we exclude the deliberative power of the people who are supposed to be sovereign in a democracy, denying them the ability to contest the expression of their own rights (which, for the sake of this post, we are considering to be Real Things).

Look at the way some people (including some excellent people) approached the s18C and s18D of the Racial Discrimination Act discussion.  The relevant right was the one expressed in language in the Universal Declaration of Human Rights.  Because that expression didn’t go so far as to include protection from ‘ridicule’ and ‘insult’, the only conclusion available to them was that 18C was an unjustifiable curtailing of ‘Freedom of Speech’ (simpliciter, rather than as a right qua the expression).

First article of the Universal Declaration of ...
First article of the Universal Declaration of Human Rights in English, written with a spelling-based pointed mode of tengwar. (Photo credit: Wikipedia)

People who want a Bill of Rights think that every right-thinking, moral person agrees with them that the expressions in their proposed Bill of Rights are defensibly true.  At the same time, they think that these rights should not be open to contest.  It is an inherently absurd position.  ‘All good folk agree with us; but we are limiting your ability to disagree just in case you’re not good folk.’  Worse: ‘I am right and I refuse to allow anybody to disagree with me.’  Importantly, it’s an immoral position: if the moral standard is that we are collectively supposed to self govern, denying the ability to contest the expressions which govern us is a breach of that moral standard.

Just in case anybody’s thinking of accusing me of some hypocrisy or rose-coloured view of the Constitution, I think the State preservation of power in the Australian Constitution is fundamentally abhorrent.  The power of the Commonwealth is not limited by individual rights (as it would be with a Bill of Rights) but by State rights (the Commonwealth only has powers conceded to it by the States).  It’s batty and just creates a hurdle to abolishing the States once and for all.  Just because some dingleberry in the late 19th Century wanted to protect his power base, I have to tolerate State parliaments.

A Bill of Rights is not the answer.  A morally engaged community, on the other hand, is.  Instead of reducing moral questions to Constitutional whirligigs, we should be ensuring that Parliament is the best possible expression of our collective moral intuitions.  But because we keep adopting the rhetoric of ‘The Government Exists To Be An Economic Manager And Nothing Else’, we’re poorly equipped to discuss Parliament’s role as a moral institution.

Australia should aspire to be the country that shows the rest of the world that Bills of Rights are superfluous.

4 responses to “Are Bills of Rights immoral? A reply to @ashhirsch #auspol #auslaw”

  1. Thrilled to see my article featured in one of your pieces! Have been an avid reader an admirer of your work for a few months! Thanks again.
    – PIK

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