The state does not give us rights and I don't believe in human rights because they do not exist. There, I said it. This might cause outrage amongst some people. In fact for some I imagine it will be taken as evidence of my crypto-fascism. This is an unfortunate by-product of the intellectual atmosphere in which we now live (certainly in the UK) when the subject of those ever so emotional human rights are discussed.
To say you don't believe in human rights, so the argument goes, is to say that you don't believe in humanity and that you want to take people's rights away. Whilst this argument is played out though, the philosophical contradictions of the human rights agenda is ignored by deference to the emotive pull of their very conception.
But if we stop, and take pause to think about it for just a moment, it becomes clear that rights and human rights are, as Jeremy Bentham said, "nonsense on stilts". This is not to say that I’m advocating a Benthamite approach to politics based on utilty you understand, but when he said what he said he hit the mark of a hidden truth which, thanks largely to people not thinking too deeply about it, has caused a proverbial “shit storm” for us today.
To see this there are a few questions you have to ask yourself. Firstly, when it comes to political sovereignty where does sovereignty lie? It lies with the people who come together to form the state through the use of the ballot box. That is sovereignty's ultimate and collective end. We - as free men (and women) - under no power other than own, enter into contract with each other to form a collective power upon which we, not it, confer rights for the soul purpose of maintaining some sort of order. What are the rights that we confer onto it?
Well it can be expressed in one simple sentence: The power to take away aspects of our freedom and our liberty in order to maintain the order that we so desire and express towards through our collective action at the ballot box. We enter as totally free men and we say, collectively, that the state can make us less free. The state can never make us freer than we are when we enter, unless we enter as slaves, in which case we have no political sovereignty to give it in the first place. As we are as free as can ever be possible when we enter the state, the idea of giving us the right too, for example, "family life" becomes nonsense because unless we’ve told the state to take it away already it is impossible to give.
The only way it is possible to accept that the state can confer these rights is to equally accept that the state exists not because of, but despite of man. That the state is a thing in and of itself, upon which its existence is not brought about by the individuals that make it up, but by some other, ethereal form. If this were true though, then why is it that man can bring down the state through revolution? If the state exists outside of our collective action as individuals, then its destruction could so easily be brought about, and yet history and contemporary events tell us otherwise.
Secondly, if human rights exist, then do so thanks to one holding the value of being human. If that is true then where do they come from? Where do they exist before they are defined by man? By implication, if a right exists as a result of being human then they equally exist somewhere separate from our collective individual action that forms the state. They are, as Jefferson would say, "inalienable". If this were true, if they existed in some sort of Platonic form, then why does it require men to create them?
Thirdly under what sovereignty can human rights operate? What place can the state have if it creates rights that it has no power to create, but which undermine its very existence, and are placed above the political sovereignty it has had conferred on it by the individuals that come together and create it?
For the more perceptive amongst you, this last point elegantly illustrates the inherent philosophical contradiction that exists within the advocation of human rights. For what we end up with is an approach to rights that places the state externally of its constituent parts, then it creates a higher political sovereignty in the form of non-existent human rights that it has no sovereignty to create or confer, but which bring into the question the very ability that the state can exist separately from the individuals that created it.
The bottom line is this. The state cannot give us the right to something that it has not already removed from our liberty to do. Nor can it create rights that undermine the political sovereignty that we have conferred on it as individuals but which remains in our control. This is why rights and in particular human rights are nonsense on stilts. Rather than giving us anything, they actually take away our political sovereignty as individuals by creating that which we no longer have control over.
Human rights, and in Britain the Human Rights Act, has actually achieved the reverse of what it claims to set out to do. It comes in the name of liberty and freedom, but takes away our political sovereignty to act freely as individuals through our collective action as a state.
Update: I should like to make an addendum to this post. It occurs to me that a knee-jerk reaction to what I've written may very well be that I'm letting the state have the power to torture people. In fact, what I'm saying is, rather than the state giving us the right not to be tortured, we in fact should not confer the right on the state to torture us instead if we wish to stop it happening (assuming it does). For those that might see human rights as doing just that though there is actually a difference between the two positions.
The former assumes that the state has the right to do it if it does not explicitly give us the right to be free from it; the latter says we are free from it already and only we can give or restrict it, from doing it. I am saying that we are the ultimate holders of sovereignty, whilst the human rights argument assumes - wrongly - that the state is.
21 comments:
Surely the Human Rights Act can be seen as the State reminding itself that the rights *are* inalienable (and it was Thomas Jefferson, not George Washington). Are you of the view that the US declaration of independence and constitution are unecessary? They serve a similar purpose i.e. defining the limits of the state.
As human sociey has grown more complex due, in the main, to population growth and technological advancement, then governments of every stripe have attempted to alienate the rights that were not arrogated to it in the social contract (which is only a philisophical construct - you speak as if you have to sign it as you come out of the uterus).
As the governments of Iran, North Korea etc etc show, unless there is a firm practical basis for being able to draw a line over which government cannot cross, then anything goes. The sheer number of actions which the Blair government were found to have taken in contravention of the HRA is also good evidence of this.
Nonsense on stilts indeed.
It's always worth reading what Bastiat had to say about these matters. He pointed out that people have three basic expectations that pre-date codified laws: to live, to be free and to use their property as they see fit. Governments should exist to do collectively what people can't or don't want to do individually.
In practice, of course, governments don't act like this. They do things which would be illegal and immoral if done by an individual - would you accept it if I forced you to give me your money, even if I told you what I was going to do with it?
As you said, governments can't confer rights because rights, to the extent they exist, are held by individuals. Governments can only take them away and pretend to give other "rights" in return.
As I said in my update. Defining the limits of the state is done by us restrciting its right through laws which express our sovereignty over it. Human Rights don;t do that. They do not express the limitations of the state. They actually start from the assumption that the state is limitless and separate of the individuals that make it, and that the state is "giving" us rights. Put simply it has no sovieregnty to give us those "rights" because it has not been given the power over those rights by us in the first place.
I don;t believ we sign a contract when we come out of the uterus. I do however beleive that we make the state and the state does not exist separate of us. We are sovereign over it. It is not sovereign over us.
Oh yes, when I typed Washington on the train I thought it might be wrong. Forgot to check it.
Okay then, I do not give my permission for the state to take any action on my behalf on anything - i.e. I want to withdraw from the social contract - what am I going to do about it?
If your argument is taken to its conclusion, then we should let out of prison all those who say they did not consent to the law under which they were jailed (this would include anyone who did not vote for the parliament in which the relevant law was passed).
The Theft Act dates from 1968, the Offences against the Person Act from 1861 and murder has no statutory definition, instead it is defined by unelected judges. I do not consent to these laws, indeed I cannot have consented to them as they were passed before I existed. What do I do about it?
By the way, I agree with you, but your logic could be more rigourous.
I'm going to just quote your last sentence because that seems to be the general thrust of the rest of your comments, although if you think otherwise just say:
I do not consent to these laws, indeed I cannot have consented to them as they were passed before I existed. What do I do about it?
Vote.
Just out of curiousity, can you let me know why and how rights exist?
The notion of human rights as expressed by the ECHR et al is very much in the tradition of postive liberty, which is prevalent on the continent.
The UK holds to a tradition of negative liberty, which is why conlict arises; the ECHR is simply not compatible with this country's political set up and traditions.
So I vote. Who represents my position - no one. So I stand for election myself. Who votes for me -no one. So I am elected, what influence do I have in parliament - none. Not much of an answer is it?
I absolutely agree with you that, as you say, "we make the state and the state does not exist separate of us. We are sovereign over it. It is not sovereign over us."
It is just that the modern democratic nation state is a long way from the ideals of Rousseau in the Social Contract. The rights *are* inalienable, we do allow the government only as much sovereignty as we are prepared to concede, but in a nation of 60 million people individual consent is a fallacy, and government is so complex, that we require the legal ability to hold it to account when it strays from its mandate. The HRA is not perfect. It was however part of the Labour Party's manifesto in 1997 and so, as they were elected on the basis of that manifesto, we the people have arrogated to the government the right to state our freedoms in its own terms.
Statements of human rights are not without value. The Universal Declaration of Human Rights has been a beacon to those suffering from oppression, and puts their case for the freedom they were born with absolutely beyond reproach.
"By the way, I agree with you, but your logic could be more rigourous."
I'm not sure I agree with that because history shows changes to law occurs through either revolution or the ballot box, which is an expression of political sovereignty is it not? (although in the case of "proletariat revoultion" it tends to replace one falwed conception fo the state with another)
I had to re-read this post a couple of times to figure out where you're coming from. I think I've got it now. The difficulty was, I think, simply a difference in the use of "human rights".
For me, "human rights" is the collective name for those, erm, rights which are mine owing to the nature of my humanity. As a human being, I am sovereign.
What you're talking about, I think, is the difference between what is sometimes called "positive rights" and "negative rights". The US Constitution is a good example of the approach of "negative rights". A defined list of powers is granted to the government. Everything else is assumed to be in the realm of the individual. Essentially, one can do what one wants unless it is specifically proscribed.
The approach of various Continental contries is the opposite - one has the "right" (in reality one is granted the permission) to do only what is specifically permitted by the government. Everthing else is assumed to be proscribed.
A great post, Dizzy. This is the sort of stuff that is so little understood in Britain. It deserves to be discussed far more often.
So I vote. Who represents my position - no one. So I stand for election myself. Who votes for me -no one. So I am elected, what influence do I have in parliament - none. Not much of an answer is it?
That parts of the pay off in our relationship as individuals to the state we create.
It is just that the modern democratic nation state is a long way from the ideals of Rousseau in the Social Contract.
I;m not expressing a Rousseauian view of Social Contract. Rousseau believed that the General Will was what gave people their freedoms and rights. He believed that man was essentially good and that we enter into Social Contract in order to be all fluffy with each other. I don't take that view about man, I think he is a bastard.
The rights *are* inalienable
If rights are "inalienable" then it implies they existence external of man in some ethereal world of the ideal. I don't accept that rationalist view.
The HRA is not perfect. It was however part of the Labour Party's manifesto in 1997 and so, as they were elected on the basis of that manifesto, we the people have arrogated to the government the right to state our freedoms in its own terms.
Yes, but that doesn't change the point I was making that such arrogation is philosophically contradictory. It's also why I didn;t vote for them and I;m not a memebr of a Labour Party. I do however accept that sometime people are, more often than not, stupid.
Statements of human rights are not without value. The Universal Declaration of Human Rights has been a beacon to those suffering from oppression, and puts their case for the freedom they were born with absolutely beyond reproach.
Statements of ideals are not the same as Acts of law which fundamnetally change the relationship between the state and the individuals though. The UNiversal Declaration fo Human Rights is a flffuy statement of how we should all have a group hug but it negates the fundamental reality of human nature that man is a complete vicious bastard.
Ludington, I considred talking about the different conceptions of liberty, but decided againt it.
This is all dangerous left-wing rubbish!
We are subjects of her gracious Majesty Queen Elizabeth. Our rights and duties come from God and are mediated through her, his Vicegerent here on earth. She, the SOVEREIGN, is the ultimate holder of sovereignty.
You and your commenters, with your talk of free individuals entering into social contracts (now that really is nonsense on stilts - who ever signed a social contract?), despite your claims to "conservatism" and your usurpation of the word Tory, are just disguised liberals, communists et al.
Lefty pinkoes all of you!!
That parts of the pay off in our relationship as individuals to the state we create.
Which I think is my point. There is a huge degree of practicability involved in being a member of modern human society. So you hate the HRA and feel it unnecessary, (although in my view it does nothing more than give us formal legal redress when the state has strayed too far) but it is the law of the land and you have to accept it, and the decisions (unelected but impliedly consented to)courts produce in interpreting it.
I don't take that view about man, I think he is a bastard.
Excellent, a Hobbesian. I am indeed nasty, brutish and short!
It's also why I didn;t vote for them and I;m not a memebr of a Labour Party.
Yes, but its that danged practicability point again. You did not vote for the law and, in the absence of anyone getting rid of it, you are forced to abide by it. Others have chosen to change your relationship with the state and other than vote and hope that the Conservatives win the next election there is squat you can do about it. Some freedom.
Statements of ideals are not the same as Acts of law which fundamnetally change the relationship
Philosphically contradictory it may be but a majority (of some description) have chosen to elect a government which promised to enact such a law, clearly the state is now in a position to *give* us the rights which you claim are ours of, erm, right. Our relationship with the state has been changed, whether we like it or not.
Anyone for armed insurrection?
They took away my right to bear arms! ;)
Natch. The first priority of the state is to protect the state.
Dizzy
It's true that human rights do not exist in any tangible sense. I've always seen them existing as constructs which reasonable people have invented to assist the living of a reasonably good life, which respects life and recognises other people live here too. In other words, they are part of a kind of social contract we sign with other citizens. Whether human rights laws can become self defeating is quite possible however.
Dizzy, it's true the socialists took away your right to protect yourself, and then arrogated unto themselves this right. Now you barely have the right to eject a burglar from your house without saying, "Thank you and have a nice evening".
Your dilemma is interesting. The state has no right to confer rights. The EU, for which no one in Britain voted (or voted against) because we have not had the opportunity,does not have the power to confer rights over freeborn Britons.
Now, can a government -- oh, let's say a Trotskyite government like Blair's/Brown's Labour -- hand over your right to determine your rights to an (in truth) non-legitimate body like the EU?
Dizzy is a Roundhead?
Spot the philosophical difference:
EU Reform Treaty:
http://www.consilium.europa.eu/uedocs/cmsUpload/cg00003.en07.pdf
scroll down to around page 10 where it starts about "rights"
who is conferring these "rights" onto us? why the European Union is.
now contrast with the U.S. constitution where human freedom is self-evident - the amendments are restrictions on the what the STATE can do to the invididual:
http://www.usconstitution.net/const.html#Preamble
amendment 1:
"Congress shall make no law respecting an establishment of religion...."
amendment 2:
"the right of the people to keep and bear Arms, shall not be infringed...."
4th amendment:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."
see how this is completely the opposite way around to the EU "human rights" way of doing it.
flashgordonzz... it's called a nobhead in these parts.
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