Jonathan Clark: What's Wrong with Rights?
How rational are we! Once, people believed in angels, but we swept aside that outdated superstition. We replaced them with universal human rights, those metaphysical entities that hover over the head of each of us, shielding us from harm and directing us in the right path. The moral status and worldwide applicability of such beings was unquestionable after the United Nations’ Universal Declaration of Human Rights of 1948. The skies are now crowded with them, often (since they are usually just personified demands for finite resources) jostling each other aside.
Western history was rewritten to be the long march, if not of everyman, at least of everyman’s natural rights. With the US’s growing willingness to export its claimed values around the world, these universal human rights became a doctrine in arms as
Jonathan Clark is an historian. His next book is a history of the Enlightenment
much as Jacobinism had been. The temporary survival of tyrants and butchers was merely evidence that such rights were more urgently to be promoted. Proactive international lawyers needed a universally applicable and overriding code, and found it (or created it) in human rights. Such rights became so ubiquitous that their origins were forgotten.
Recently this scenario, taken to extremes, has provoked reconsideration. The tyrants and butchers, themselves invoking rights, proved inexplicably popular. Religions, demanding toleration, became a major source of armed conflict. The US government itself became mired in opprobrium. From the 1990s, some intellectuals in the Third World argued that “universal human rights” were merely Western values, projected in a new imperialism. What is now called rights fundamentalism had not solved these problems. Instead, it created others.
Academics noticed. In 2010 Samuel Moyn published The Last Utopia, arguing that human rights ideas had proliferated only from the 1970s. In 2016 Stefan-Ludwig Hoffmann published an article postponing the huge predominance of human rights discourse to the 1990s. Now Nigel Biggar, Regius Professor of Moral and Pastoral Theology at Oxford, has produced an analysis that reveals how few of these
successors to the angels have wings.
As a “Christian ethicist”, he deals chiefly with theology, ethics, philosophy, and their interactions with law. His sympathies are with the existence, in Christian theology down the centuries, of ideas of natural right. But he carefully unpacks the implications of rights fundamentalism; indeed, in this emotive subject his caution makes his critique even more telling.
Are rights “natural”? In the sense of obligations that inhere in all human beings, independent of the laws of sovereigns (God, or the state), this is an idea that does not occur to everyone at all times. Even within the British Isles, Edmund Burke, Jeremy Bentham, the Oxford philosopher David Ritchie (18531903) and our contemporary Onora O’Neill set out cogent cases for doubting the absoluteness of natural rights and the conflation of legal rights with moral rights; instead, they assert that, as Biggar phrases it, “rights are contingent on the circumstances of feasibility and capability”.
His conclusion is that the paradigm of a right is a legal right; natural rights are rights only by analogy with legal rights, unless part of Christian natural law. It follows that “rights are not ethically basic, but contingent on a process of wider ethical deliberation”, which brings us back to Burke.
Although rights fundamentalism has been challenged in recent years it still has appeal, and Biggar recognises that neither of these main senses of rights (specific legal entitlements and timeless, stateless entitlements) has erased the other. Rights talk can also include duties; it can sometimes promote “virtue and the common good”. Some rights do “have strong prima facie claim to be natural in the sense of ‘universal’, and not merely tautologous but sufficiently concrete to guide judgment”. But not all.
Are human rights, then, “universal”? Biggar’s answer is that some goods, values or rights recognised in the West have indeed been echoed more widely. But others have not. Universal recognition is a test that they collectively fail. Whether certain rights can be suspended or denied is therefore subject to “careful empirical assessment” in each case. But what counts as careful and empirical? Does this problem compel our reliance on Bentham’s flawed notion of a felicific calculus? Does Biggar assume that his own virtues of caution and precision will solve the problem?
“Sometimes a right equivocates between being absolute but absurdly indeterminate, and being determinate but not absolute.” This form of rights doctrine undermines many other good things now undervalued: charity, mercy, gratitude, duty, and virtue. One might add that people invoking “universal human rights” can sometimes seem little different from people making self-interested demands.
Biggar’s comparison of the situation in the (ex?) Christian West with the societies of China or Islam highlights some difficulties. The famous declarations of rights came from Christian, or recently Christian, societies, and were permeated with the assumptions of that religion; what happens if the geopolitical balance tilts another way? For Biggar, there are legal rights and “there is natural right or law or morality”, evidently indebted to Christianity, “but there are no natural rights”. But what about believers in other religions? What about secularists, for whom rights are their new religion?
The wider problem is that rights absolutism is an implicit call to revolution, the redistribution of sovereignty, property, values, or customs. Ritchie accepted that a grandiose declaration of rights “has a very important moral effect in restraining the prejudices or the passions of the multitude”; but what if it does not? What if abstract rights rhetoric shuts down debate and inflates expectations without delivering good things, so leading to anarchy and facilitating tyranny?
What if it leads to a “new form of judicial imperialism”? Today, proliferating rights talk, instead of healing social divisions by rewarding dissatisfied interest groups, stokes their demands. Courts are increasingly pitted against legislatures, oligarchical judges against elected politicians. Legislators commonly capitulate to these pressures, eroding democracy. Conimagined
The human rights announced in grand documents are unspecified, truisms, undeliverable or merely aspirational
stitutions are discredited. Instead, human rights lawyers become celebrities.
The rights announced in such grandiloquent documents as the US Declaration of Independence or the French Declaration of the Rights of Man and of Citizens are so general that they can each be construed in opposite ways: “sensible” and “lunatic”. Biggar applies the same critique to the UN Declaration of Human Rights (1948) and its two successor Covenants (1966): by being unspecified, certain rights are “merely truisms”, or undeliverable, or merely aspirational.
This has hitherto been an academic debate; now it is in the public arena. Quietly, cautiously, and with careful scholarly integrity, Professor Biggar has derailed a gravy train. Should the UK withdraw from the jurisdiction of the European Court of Human Rights (convicted here of the “expansionary gospel” of “rights-fundamentalism”)? Should it repeal or redraft the Human Rights Act 1998 and the Equality Act 2010?
The result would surely be petitions, denunciations, hostile crowds, the toppling of statues, the banning of speakers, self-righteous lawyers. But all this happens already; what is there to lose? Thanks to Biggar, we see how much there is to gain. It is time for philosophical arguments, won in the pages of this important book, to be translated into legislation.