Principles for a Free Society HUMAN RIGHTS By Nigel Ashford

[William M. Finley]

Human rights

“We hold these truths to be self-evident, that all men are created equal, that
they are endowed by their creator with certain inalienable rights, that
amongst these are life, liberty and the pursuit of happiness.”
Thomas Jefferson
What are human rights?
Human rights are rights that belong to every human being. A right is
something someone ought to have, that is a moral entitlement, and is
much more than a want or desire. Human rights are moral rights,
different from those rights that are recognised by the state, known as
‘positive’ or ‘legal rights’, which may or may not be human rights. One
of the major goals of the human rights movement is to turn human
rights into legally recognised rights. ‘Human’ means that these rights
belong to all human beings, regardless of nationality, religion, gender,
ethnic group, or sexual orientation. This means not only that they apply
to every person throughout the world, but that they belonged to every
human being that has ever existed and will exist.
Widely recognised as human rights are the right of life (not be killed,
tortured or crippled), freedom of expression, freedom to own justly
acquired property, freedom of movement, and freedom of religion.
Slavery, torture and arbitrary detention are all denials of human rights.
These are best viewed primarily as limits upon the state, that the state
shall not interfere with the rights of individuals within their territory.
The state’s role is to ensure that these rights are embodied in their laws,
that is become ‘legal rights’. The concept of human rights also creates an
obligation by all not to interfere with the rights of others, the principle
of reciprocity.
Any human right has to meet three criteria. First, it must be universal,
belonging to everyone throughout time. There can be no special rights
attributable to only some. Second, it must be absolute. It cannot be legitimately
limited by calls of public interest or cost. Only when human rights
come into conflict with each other can those rights be limited. For exam-
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ple, a terrorist, who kills others and thus denies them their right to life,
may be denied his right to life through capital punishment or his freedom
by time in prison. Third, it is inalienable. It is not possible to surrender
that right; for example, it is not possible to sell yourself into slavery.
Natural rights
An early identification of the existence of these rights came in Antigone
by the Greek playwright Sophocles, in which Antigone buried her dead
brother against the orders of King Creon, and justified her actions on
the grounds that the laws of the Gods were higher than the laws of
Kings. This idea was advocated by the Greek Stoics who believed these
laws were to found in nature and by the use of reason, and echoed by
the Roman orator Cicero. “There is a true law, right reason, in accordance
with nature; it is unalterable law.” Christianity proclaimed God’s
law as superior to that of the secular rulers, notably expressed in the
work of St. Thomas Aquinas. These natural rights could be discovered
either by revelation from God, or through reason, “ the laws of nature
and of nature’s God.”
The English philosopher John Locke had the greatest influence on
modern thinking in this area. He proclaimed as a fundamental law of
nature that “no one ought to harm another in his life, health, liberty
or possessions.” These rights to life, liberty and property implied the
duties not to harm the life, liberty and property of others. These rights
and duties existed in nature and were not granted by rulers. Government
was created in order to protect these rights. Any political regime that
failed to carry out that function could be removed and replaced with
one that did, suggesting that the people had a right of rebellion against
tyrannical regimes.
These ideas were highly influential in the Americans’ fight for independence
from Great Britain. The author of the Declaration of Independence,
Thomas Jefferson, explicitly drew from Locke with the claim that men
were born with rights, that they included life, liberty and the pursuit of
happiness, and their betrayal by King George III justified the rebellion
and independence from England. The French Declaration of the Rights
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of Man during the French Revolution asserted that “the purpose of all
political association is the conservation of the natural and inalienable
rights of man; these rights are liberty, property, security and resistance to
oppression.”
From natural rights to human rights
In the twentieth century these ideas became more commonly known as
human rights. There was, and is, an attempt to provide international
mechanisms to recognise these rights and see that they are respected
in every regime. In 1948 such rights were recognised in the UN
Declaration of Human Rights. In 1950 the Council of Europe adopted
a European Convention of Human Rights in which member states could
be taken to a European Court of Human Rights in Strasbourg by their
own citizens when they felt that their rights had been abused by their
government. Trying to build on the widespread support for human
rights, some groups have sought to broaden the definition of human
rights beyond its original meaning to include economic, social and
group rights. This has been highly controversial, and served to detract
from the pursuit of natural rights.
Marxist hostility to human rights
Marxists have usually denied the existence of human rights. Karl Marx
dismissed them as “bourgeois rights,” regarding appeals to the rights of
man as another means of protecting and promoting the interests of the
propertied classes. Such rights only perpetuated class differences, he
thought, and gave additional protection to the rich and the bourgeoisie.
Communist regimes refused to accept there was any universal standard
to apply to their regimes. Their denial was based on the claim of ‘no
interference in the domestic affairs of another state’, which they interpreted
as meaning that no one should criticise any communist regime.
The Soviet Union refused to sign the Declaration of Human Rights in
1946. Communists were right to be reluctant to accept the principle of
human rights, because when they did so in the Helsinki Declaration in
1975 it was effectively used against them by human rights activists such
as Orlov.
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The right to life
Every human being has a right to live. This means, above all, that one
should not be killed either by other people or by the state. Indeed it is
the primary responsibility of the state to protect its citizens from the
foreign invader and the criminal. Some base this right to life on the
concept of self-ownership, that each individual owns his own body and
therefore it should be not be interfered with by others without their permission.
So the right to life extends beyond not being killed to a right
not to be tortured or physically abused. These are recognised in the UN
Declaration in Article 3 that “Everyone has the right to life, liberty and
the security of person,” and in Article 5 that “No one should be subjected
to torture or to cruel, inhuman or degrading treatment or punishment.”
Self-ownership also is incompatible with slavery, the ownership
of one person by another (Article 4).
The right to liberty
The right to liberty means that one should be able to live one’s life as
one chooses, subject only to respecting that right in others. The French
Declaration of the Rights of Man of 1789 stated: “Political liberty consists
in the power of doing whatever does not injure another. The exercise of
the natural rights of every man has no other limits than those which are
necessary to secure every other man the free exercise of the same rights.”
Because freedom involves doing whatever one wishes subject to that limitation,
it is impossible to enumerate ever right that exists. The UN
Declaration identifies some that it considers particularly important, such
as the free movement of people within and beyond their country (13), the
right to marry and have a family (16), the right to freedom of thought,
conscience and religion (18), freedom of expression and opinion (19) and
the right of peaceful assembly and association, and non-association (20).
The right to property
The ability to live one’s own life in freedom, to pursue happiness in
one’s own way, requires property. David Boaz explains, “Property is anything
that people can use, control or dispose of. A property right means
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the freedom to use, control or dispose of an object or entity.” Without
that right, it would be impossible to live, to occupy land, to produce
goods and services, to trade with others. Socialist attempts to abolish
property has simply meant the transfer of control from the person who
justly acquired it to a government official who decides to whom that
property should be allocated.
Article 17 of the UN Declaration recognises that “Everyone has the
right to own property alone as well as in association with others. No one
shall be arbitrarily deprived of this property.” However it has neglected
any provision for the protection of that right, preferring to allow governments
to arbitrarily allocate property as the rulers see fit. The US Bill of
Rights provides for a ‘takings’ clause (5th amendment), that property
can only be taken by government for just cause and with full compensation.
Even in the USA this has been neglected.
Protecting rights
Many so-called human rights are really mechanisms to protect rights,
rather than human rights themselves. The UN Declaration recognises
the rights to legal recognition (6), the prevention of arbitrary arrest and
detention (9), effective remedies when their rights are abridged, a fair
trial, a presumption of innocence (11), asylum (14), and nationality (15).
One political right that is frequently presented as a human right is the
right to vote. Article 21 declares the right to participate “in periodic and
genuine elections...by universal and equal suffrage.” However, democracy
should be seen as one means of protecting those rights, but is not
such a right itself. It would be nonsense to talk of democracy for a prehistoric
man. The case for representative democracy is empirical rather
than moral: the historical evidence suggests that liberal democracies are
more likely to protect those rights than dictatorships. However, democracies
themselves are also great deniers of those rights, especially when
democracy becomes the tyranny of the majority. It is possible to have an
illiberal democracy which mistreats and denies human rights to individuals
and groups within that democracy.
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Social and economic rights are not human rights
Articles 21 to 30 are ‘economic, social and cultural rights’ and have
characteristics totally different from the liberty rights traditionally
recognised as natural. The worst example is Article 24, ‘the right to rest
and leisure, including...periodic holidays with pay’! Other so called
‘rights’ include those to social security, work, just and favour able conditions
of employment, equal pay for equal work, just and fair remuneration,
an adequate standard of living, housing and medical care, education,
and the right to enjoy the arts. These are also enshrined in the
1966 UN Covenant on Economic, Social and Cultural Rights. It is also
behind the EU Charter of Fundamental Human Rights.
These may or may not be desirable, but they are not human rights. They
are claims to ‘welfare rights’ rather than ‘liberty rights’. They were
included in the UN Declaration at the insistence of the Soviet Union
who hoped to use them against the West. The West accepted them in
the hope that the Soviet Union would sign the declaration, although in
the end it abstained.
The case against these ‘welfare rights’ as human rights is first, that they
are not universal. For example, ‘holidays with pay’ can only belong to
employed workers, and excludes the self-employed, the unemployed and
homemakers. Second, they are not absolute, because they depend on relativities,
such as the vast differences that exist with regard to an adequate
standard of living from country to country and historical era to era. The
ability to satisfy those so-called rights vary greatly from state to state.
This is acknowledged in Article 22 on the right to social security, which
is qualified by “in accordance with the organisation and resources of
each State.” Third, they are not inalienable. For example, someone may
wish to surrender his ‘right’ to rest and leisure in order to increase his
income. People make trade-offs between desirable but conflicting goals.
So such claims fail to meet the necessary three criteria. A fourth argument
is that an ‘ought’ must involve a ‘can’, but these ‘welfare rights’ are
dependent on available resources, with most societies now and throughout
history lacking the necessary means to satisfy these aspirations.
Fifth, they demean natural rights: human rights are moral imperatives
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that can be respected now, not economic and social aspirations that
might be satisfied in the future. Sixth, economic rights are an attack on
liberty rights in order to achieve these welfare rights. A meaningful right
to medical care would create an obligation on the medical profession to
provide that care, regardless of the wishes of doctors and nurses, thus
denying them freedom. Welfare demands are not human rights.
Group rights are not human rights
The UN Covenant of Economic, Social and Cultural Rights began in
Article 1 with the statement that “all peoples have the right to selfdetermination.”
Article 25 declared “the right of all peoples to natural
wealth and resources.” This was echoed in the Organisation of African
Unity’s Charter on Human and People’s Rights in 1981 that “all people’s
have a right be equal.” UNESCO declared “the right of all...people’s to
preserve their cultures.” The 1957 UN Convention on Indigenous and
Tribal Populations declared that “special measures shall be adopted for
the protection of the institutions, persons, property and labour of these
populations.” UN Conferences on Human Rights are usually dominated
by the assertion of these group rights.
The case against group rights begins when they fail to meet the three
necessary criteria. First, they are not universal because they are claims by
particular groups such as women or aboriginals, which means by definition
that they cannot belong to all humans. Second, they are not
absolute as one group is pitched against another, as in the right of selfdetermination
in Bosnia, and ethnic cleansing is encouraged with the
emphasis on group or cultural identity instead of respect for the rights of
others. Third, they are not inalienable, as immigrants frequently prove
when they willingly surrender their former identity in order to embrace
something new, as thousands of new American citizens do every day, as
do black British and integrated Jews. Fourth, the natural rights tradition
holds that human rights must belong to individual human beings and
cannot belong to any collective. Cultures, languages, tribes, and nations
are not rights-bearing entities. Fifth, cultural rights deny the equal rights
of every human being, but become an instrument for the special treatment
of certain groups, for example in positive discrimination.
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It is important to recognise that certain groups within society such as
ethnic minorities, women and gays have been denied their human
rights, but the goal is to ensure that everyone has the same rights
respected, not that certain groups are entitled to special rights because
of their mistreatment in history.
For real human rights
We should believe in the protection and promotion of human rights,
but we should be concerned at the way the idea has become abused and
at the lack of sensitivity in its application to varied conditions. First, the
concept should not come to embrace every demand, every wish and
every desire. Human rights are so precious they deserve special consideration
and priority. Second, the promotion of human rights should show
some respect for different cultures, histories and conditions. The way in
which these rights should be respected may vary from society to society
and one should not assume that what is appropriate for America, or
Sweden, or Germany, can and should be transplanted to Belarus,
Estonia, Argentina, or Nigeria.
A clear understanding of the concept of human rights is vital for their
protection and promotion, especially for all those who are denied them
daily. Not all that is desirable is a right. Not all rights are human rights.
It is an obscenity to equate torture- such as giving electric shocks
through a person’s genitals- with not having a paid holiday. Every government
should be held accountable for its failures in protecting genuine
human rights.
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Reading
Norman Barry, An Introduction to Modern Political Theory, London,
Macmillan, 2000, chapter 9.
David Boaz, Libertarianism, New York, Free Press, 1997, chapter 3.
Maurice Cranston, What are Human Rights?, London, Bodley Head,
1962.
Walter Laqueur & Barry Rubin eds., The Human Rights Reader, New
York, Meridian, 1990, essays by Kenneth Minogue & Maurice
Cranston.
John Locke, A Second Treatise on Government, Cambridge, Cambridge
University Press, 1960 (1690).
Questions for thought
1. Does the right to life include the right to be fed?
2. Do national minorities have rights, or only individuals?
3. How can we protect genuine human rights?
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