Speaking clearly and most severely,
Law is as I've told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.
Yet law-abiding scholars write:
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Law is Good morning and Good night...
- By W.H. Auden
David Cameron has just restated his determination to tackle the ‘growing sense that individual rights come before anything else’. This, of course, was the Prime Minister’s reaction to the recent riots throughout the country, which he saw as being (partly?) a result of the ‘twisting and misrepresenting of human rights’ in what has been called our ‘rights culture’.
Everyone believes in human rights, don’t they? The more human rights the better?
It may seem churlish to be against human rights. I mean, only a nasty person can be against human rights. But is that necessarily the case? Take this possibility. Say that our obsession with rights, as well as their implementation, actually caused more nastiness or wrongdoing than not having those rights.
Rights Given: Rights Taken
It is often the case that if a state adopts one human right, then the consequence of this will be that other citizens or subjects will loose one or more human rights.
For example, take the sanctuary we have often given to terrorist suspects like Abu Hamza. Such leniency and liberality may have ended up with foreign terrorists bombing the mainland, or even just planning such acts. Thus innocent civilians have paid, with their lives, for the human rights of terrorist suspects to continue their lives unimpeded by law or by anything else.
There is another way we can look at the terrorist case. If a terrorist is given sanctuary in the UK, it may be that we have thus denied his host country, which has been a victim of his terrorist attacks, the right to deal with a terrorist as they so wish. That is, quite often this is done legally - within the laws of the land the terrorist came from. Who are we to deny state X the right to punish a subject who has killed many people in that state?
Take voting rights for prisoners. Yes, we are conceding a ‘human right’ to a criminal in prison. But shouldn’t imprisonment be - at least partly - about punishment? And what about the feelings of those who were the victims of these imprisoned criminals? What do the victims think about the rights of the people who burgled their house or who shot their son? What about their right to be listened to or their right to be free from criminal activity or crime?
Similarly with the right of paedophiles to live next to children’s play areas (even if after their release from prison). So what now of the parents’ right not to live in fear - fear that their children may be harmed by the man who lives across the road from the play area?
Firstly we talked about the parallel rights of criminals and their victims. What about the parallel rights of individuals (criminal or otherwise) and the state itself? These rights may come into conflict or even result in contradictory situations.
For example, the individual’s ‘right to smoke’ may be at odds with society’s right to be free from noxious fumes. Alternatively, the right of an individual not to become part of the armed services (in countries with conscription) will come into conflict with the state’s ‘right to protect itself from foreign aggressors’.
A Bill of Rights?
A British Bill of Rights may be a good alternative to human rights for the simple reason that they are seen as 'traditional’ and not, therefore, absolute, unlike human rights which are often - or always - seen as universal, absolute and not specific to time or place. That means that, at least in principle, universal rights can’t really be denied or negated. Perhaps some of them are seen as not even being susceptible to change. This means that it may at times be like cracking a nut with a tank in the case of implementing or acting upon certain 'universal' human rights.
Because human riots are regarded as fully determinate and set in stone, as the universalists do, then it will be no surprise that the Liberal Democrats, amongst others, have indeed warned David Cameron about ‘watering them down’.
Human rights are not like the Ten Commandments, which are seen as God-given and unchangeable. They are not a determinate group of timeless entities like platonic universals.
For example, it is possible, but highly unlikely, that the unemployed be given the ‘right to have free booze and drugs’ or that all 11-year-olds are given ‘the right to at least £3.00 of sweets every day’. We wouldn’t be critical or upset about human rights like these being watered down or even jettisoned altogether. The same is true of actually-existing human rights, but, obviously, to a lesser degree. That is, they may be rational in nature, but they are still contingent and largely relative (or ‘traditional’).
So even the human rights which are set in stone (or set in various statute books) are not, in fact, set in stone (as it were).
Human Rights Ain’t All Natural
Not all human rights are natural rights. (Indeed some argue against the existence of natural rights as well.) Put simply. We weren’t born with all - or any - human rights. Nor did we discover human rights simply by intuiting them or by plucking them out of the heavens.
Thus human rights are artificial - not natural. If they are artificial, then they are contingent and the product of persons, institutions and other peripheral bodies. And if they are contingent and ‘all too human’, then we can expect them to be wrong at times or simply misplaced to some degree. Fallible people and institutions have concocted these human rights. Politicians, organisations, bodies, the United Nation, etc. have created them. Thus they aren’t set in stone. In addition, they are also the product of ideology or even of plain bias.
We see similar problems in the area of law. We see the same contingency and variability. Take the Palestinians. They are always claiming that this or that action by the Israeli state is ‘illegal’. All sorts of Israeli actions are deemed to be ‘illegal’ by the Palestinian authorities and their supporters throughout the world. But what do they mean by ‘illegal’? Do they mean that it is illegal according to the United Nations or, say, according to European Law? If that’s the case, they we must immediately ask if we respect UN law or European law. Or we can at least question the legitimacy and ideological motivations of such laws which render so many Israeli actions illegal. In any case, it often comes to pass that what the Palestinians mean by an action being 'illegal’ is: we don’t like that action.
What is happening here is a proliferation of laws which can parallel, to some extent, the proliferation of human rights. So just as various Palestinian authorities can say that Israel’s ‘wall’ between the West Bank and Israel is ‘illegal’ (or that denying the Palestinians the ‘right to armed forces’ is ‘illegal’), so we could have laws, such as the earlier ‘right to free alcohol and drugs for the unemployed’ (or the more likely ‘prisoners right to vote’) which are superfluous or simply wrong.
All this points to the fact that rights, like laws, are not set in stone. Or, more correctly, that we should never see human rights, or any rights, as being set in stone - even the ones which seem to be intuitively reasonable or, indeed, humane.