He coughed and shook his crumpled wings… The human rights fantasy

The folks at Five Books interviewed John Tasioulas for his best five books on human rights.  His selection, to my mind, revealed that the human rights crowd isn’t much into reading.  I had suspected this for some time, but it was odd to have it confirmed that the ‘best’ five books on human rights are lightweight.

It was his views on Bentham that stood out the most for me, but perhaps it’s worth visiting why the human rights fantasy is still so beloved.

The only plausible account of human rights is that they come from God.  This is a problem if, like me, you’re an atheist, or if you think that the legal system should be secular (for whatever definition of ‘secular’ you might give).  It was on the theory that God was the origin of all true law that the (contemporary) theory of human rights developed.  If you had a soul, you were bestowed with a bundle of rights which signified to the legal order that you were to be treated in some particular way.  Then there were great theological arguments about who was in possession of these rights.  Land-owning white men definitely had rights, women might have had rights, black people definitely didn’t.  The theory mirrored — in important respects — theological theories about consciousness and rationality.  What separated men from the beasts was logos and it was the ground for being conscious, being rational, being a rights-holder, and being fully human.

It’s for this reason that all of the early rhetoric in support of ‘rights’ was invariably for an ignoble purpose.  John Locke and Thomas Jefferson were both deeply involved in the slave trade; Locke himself wrote a bill of rights for the Californian Constitution that included prohibiting the State from interfering with property rights, specifically that of a master to own slaves.

We romanticise the development of rights-based political theory.  For all the recent jingoistic championing of the Magna Carta recently, there were very few critiques of its flaws (particularly is antisemitism).  We ignore that those rights which privileged land-owners and the economically powerful mysteriously transformed into ‘universal’ human rights while rights which would benefit outsiders never made it off the butcher’s paper.  And we happily swallow the asserted connection between ‘rights’ and ‘rationality’ without ever stopping to think who was defining that link (cough… white guys… cough).

It should seem really, really weird to everybody that God would bestow rights that just happen to privilege the powerful.  Then again, He did state that the meek would inherit the earth rather than getting a fair slice of it in the here and now.

The language of rights has more in common with justifying colonial conquest than it has with championing progressive social movements.

Over the last few decades, human rights theorists have been trying to rehabilitate the unfortunate genesis of human rights rhetoric and couch it in secularism.  Some people have emphasised its Roman origins in republicanism, the idea that civic equality demanded a recognition of particular rights.  Others have tried a secular Kantian approach again based on rationality but without reference to the economic structure of human rights.  Nobody has a persuasive argument.

The fundamental problem is its irrationality.  Just as I can imagine a creature who acts as if they are conscious without being conscious, it is not clear that I can understand what a creature without rights looks like.  The p-zombie might still have rights, for all we know.  When the alien arrives from the distant planet, what rights would she have?

And even then, I haven’t really scratched the surface of the content of the rights.  Most modern human rights theorists pooh-pooh the ‘right to bear arms’, but get quite anxious about the formulation of ‘the right to free speech’.  Are the rights numerable?  How do they function when they clash?  Can ‘real’ rights ever clash?  Can rights be described in language?  Do they only exist when they’re described?  Do we have rights that we cannot express?  Do we have rights of which we can never avail ourselves (for example: do I have the right to phrebonticate but I simply cannot because I lack a phrebontication gland)?  Did people living in the Age Before The Internet have digital rights?

Most human rights theorists tap out at this point and wave generally in the direction of the Universal Declaration and other human rights treaties.  The philosophy is too difficult so they will concern themselves only with the black and white text — but they’re really all-white documents — of the treaties, and not get too worried about the complex politics and economics involved in their creation.  Or they fall back on tired consequentialism: ‘Here is a picture of a person who suffered some terrible legal fate; you tell them that human rights aren’t real.’  The inalienable human right is the Santa Claus for adults.

And this swings me back to Tasioulas’ account of Bentham.  Tasioulas makes a lot of strange claims about human rights throughout that interview, but this struck me as so bafflingly weird that I kept wondering how any reasonable person could argue it.

Here’s the claim:

What would you say to Jeremy Bentham’s thought that the idea of natural rights—naturally occurring rights—is ‘nonsense on stilts’?

I think he’s on dangerous ground, personally. The implication seems to be that you can’t have any rights unless they’re the creations of law, that only law can confer rights. There can’t be rights simply as a matter of morality. But then the question is: Why not? Bentham himself affirms a moral principle independent of law, that is, the principle of utility, that you should maximize happiness. Well, if you can have one normative principle independent of law, why can’t we have another that confers rights? I guess Bentham’s answer would be that the principle of rights won’t fit under his overarching principle of utility. At this point, one needs to engage in substantive ethical argument. It’s not going to be enough to say that the only real rights will be those that are embodied in the law. So, I agree with HLA Hart, himself no mean Bentham scholar, who wrote that “the whole idea that there could be rights which were not creatures of positive law seems to have filled him with a kind of unreasoning fury, possibly because this idea threatened to bring into question utilitarianism as an adequate moral theory.” [Source]

In fairness to Tasioulas, it’s a bit of a dumbo question.  Bentham is a proto-positivist who said that ‘rights’ were a creation of law, but he’s using the concept of ‘rights’ differently to Tasioulas.  For Bentham, law doesn’t have to be moral (an immoral law can still be law), and a ‘right’ is something that somebody can assert over another (or over an object) as a matter of law.  To say that ‘rights’ existed outside of the legal system to be enforced within the legal system was ‘sentimental’ and ‘rhetorical nonsense — nonsense on stilts’.  His target is deontological accounts of morality and law.

But Tasioulas’ account of Bentham is bananas.  To ask ‘why not?’ in response to Bentham’s rejection of legal rights existing outside of a legal framework is to misunderstand Bentham.  It would be like asking why a p-zombie can’t really experience the colour blue: the question itself shows that you’ve misunderstood what’s going on.

For Bentham, all moral principles are independent of law.  Law and morality are not necessarily connected (only accidentally through the Sovereign).  Bentham’s criticism is that you can’t have a moral principle doing legal work, only legal principles do legal work and the rights that people express (such as the ‘right to property’, ‘right to liberty’, &c., &c., &c.) are only functional if they do legal work.  Therefore, they must be creatures of law and fit within the legal system.

Tasioulas suggests that Bentham thinks that the principle of utility is inconsistent with Bentham’s account of rights: ‘if you can have one normative principle independent of law, why can’t we have another that confers rights?’  But Bentham doesn’t think that only laws that maximise happiness are actually law, while Tasioulas does think that laws which breach human rights aren’t actually law.

And then Tasioulas jumps to the weird position: ‘I guess Bentham’s answer would be that the principle of rights won’t fit under his overarching principle of utility.’  On the contrary, Bentham’s answer is that the principle of natural rights is inconsistent with his account of legality, as a system which is not necessarily connected to morality.

Finally, Tasioulas jumps to HLA Hart as authority for his position on Bentham, but Hart also denies human rights in a broad sense, reducing them all to an ‘equal right of all men to be free’:

But though our use in moral discourse of ‘a right’ does presuppose the recognition that interference with another’s freedom requires a moral justification, this would not itself suffice to establish, except in a sense easily trivialised, that in the recognition of moral rights there is implied the recognition that all men have a right to equal freedom; for unless there is some restriction inherent in the meaning of ‘a right’ on the type of moral justification for interference which can constitute a right, the principle could be made wholly vacuous.  [HLA Hart ‘Are There Any Natural Rights?’ (1955) 64 The Philosophical Review 175, 189.

It’s notable that this is a weak claim and doesn’t get us anywhere near ‘absolute’ rights.  So invoking Hart in this discussion is a bit weird.  It would be like citing Gramsci to rebut Marx as part of an argument about why communism is wrong.

Human rights are the phlogiston of contemporary legal theory.  There are no good arguments in its favour, it causes a lot more harm than good, and people are desperately trying to patch up the gaps.  In some accounts, such as Nickel’s, they simply put the philosophical questions to the side and proceed from the basis that human rights exist.  But we’re adults.  We should put away with childish things and establish what it is that we’re trying to do when we invoke ‘human rights’.  Are we afraid of democracy?  Are we trying to prevent the majority from squeezing out the minority?  Are we trying to create a new individual who can isolate himself away on a little island of rights where nobody will tax him or try to redistribute his income?  Are we trying to bring about some particular society where people are entitled to a wide range of goods and services just by virtue of being born a citizen?  Perhaps there are better ways of obtaining that outcome without subscribing to magical theories about pixies, goblins, unicorns, and human rights.



Author: Mark Fletcher

Mark Fletcher is a Canberra-based blogger and policy wonk who writes about conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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