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.