To say that we live in unusual times is something of an understatement.  We are under attack by a very large, mindless, molecule which, despite its ignorance of its own existence, is multiplying at an alarming rate and, in the process, doing considerable damage to us.

The damage, however, is not only physical, but also political. Not only have we, at least temporarily, lost our Prime Minister, but he has been replaced by his deputy, the Karate Kid – the rabid right-wing Dominic Raab.  Let’s hope that he doesn’t get to make any significant decisions.  In fact, BoJ is looking like a safe pair of hands in contrast to the man now in charge.

But our political difficulties are as nothing compared to what is going on in other parts of the world.  In Brazil, they have a populist president who doesn’t believe either in global warming or in the coronavirus and in Belarus the president for life has also gone against normal medical advice, recommending vodka and saunas as a way to stay safe. I wonder if wine would be just as effective? In America, although they don’t actually have a dictator, they have a democratically elected madman running things.

Hungary – a supposed democracy and member of the EU – is now run by Victor Orban the prime minister, but a prime minister who, ostensibly in order to protect its citizens from the coronavirus, has now assumed, indefinitely, the powers of a dictator. He is limiting the rights of ordinary citizens granted by the European Convention on Human Rights not just in the ways we have accepted, but also limiting them in ways such that ordinary political opposition cannot function.

All democratic countries have accepted a suspension of our normal human rights in order to impose lockdowns, but some have obviously been tempted not to waste a good crisis in a bid for power. Our own legislation has a 6 month sunset clause, but the government’s original proposal was that it should last for 2 years. There is always a temptation to go too far in such times, which is why a healthy opposition grouping is required in order to rein in excesses.

We are relatively recent converts to the idea of human rights, but the American constitution regards as axiomatic that we have certain ‘god-given’, ‘inalienable’ rights, ‘amongst which are the right to life, liberty and the pursuit of happiness’.
 
The normal definition of inalienable is that it cannot be given up, sold off or taken from us except as punishment for a crime. But of course, in order to combat our self-replicating chemical foe, we have all given up our right to liberty and freedom of association.  So then, what does this tell us about the nature of our human rights? Do they really occupy some position above ordinary laws as their fans would say? Are they rights which exist untouchable in a kind of separate moral or ethical world?

Obviously, there are many who would in any event disagree with the American statement that such rights are god-given. This is for two reasons – firstly, they don’t believe in god and, secondly, it’s difficult to see the basis for such a suggestion. The gods of olden days, far from conferring human rights on everyone, used to encourage vicious, vengeful actions.  The one true god of the Old Testament was one who encouraged genocide, a definite no-no in the world of human rights law today. 

Some though would substitute human nature for god and so as a moral source for absolute human rights. Others would take a more philosophical line, invoking the golden rule: “do as you would be done by”, or some variant of it as their basis. But none of these ideas really take us to an inalienable set of rights. And of course, as we have now seen, criminal activity is not the only justification for the loss of one’s liberty, despite its supposed inalienability.
 
Others would take a different line and say that it is all based on Locke’s idea of a social contract, which means that in consideration of our submitting to the laws of the state, the state is in turn responsible for ensuring that we each have what is required to live good lives, lives which, they would say, by definition, require the sort of absolute requirement for human rights now contained in the Universal Declaration and its numerous variants around the globe.

Again, though, this concept does not sit easily with the idea of inalienable rights which can nonetheless be suspended. If they can be suspended, then they don’t look very much different to the other laws which govern our lives. And a social contract is just that, a contract, and a contract is a man-made arrangement which can be varied by agreement.

By coincidence the latest edition of Philosophy Now devotes several pages to the nature of human rights. For each edition a request goes out for readers’ ideas about a particular topic. The last time for thoughts on the topic “What & Why Are Our Human Rights?”.

The ideas I have just mentioned of course feature, but there was one contributor who decided to criticise the whole idea of human rights as a system of law apart, preferring instead to see it as a pragmatic self-protective response to previous horrendous conduct, whether that of the aristos of 18th century France or, the example actually chosen for the contribution, that of the Nazi Party in WWII.

Strangely, although the contributor gave an Annecy address, it was written in excellent English:

“Even where human rights conventions are incorporated into national law they’re easily ignored by dictators or by short-sighted electorates exercising their rights to vote for parties which consider rights to have ‘gone too far’. So unfortunately, the fight for international standards of behaviour is far from over.

As a consequence, we have to be very careful how we frame the justification for human rights law. We should not play into the hands of those opposing human rights by our pretending that these rights have some (easily ridiculed) justification arising from nature, human or otherwise. We should instead be very clear that the need for such rights is a pragmatic response to the wish to avoid seeing a revival of the horrors of our past.

Sir Hersch Lauterpacht QC, British lawyer and a leading figure in the drive to create a post-war charter of human rights, based human rights on ‘natural law’. He wrote: “In a wider sense, the binding force… of international law… is based on the law of nature as expressive of the social nature of man.”

But the obvious counter to that is that the appalling conduct in Nazi Germany, (which had driven the wish to codify and adopt a universal set of human rights), is just as, or even more expressive of ‘the social nature of man’. It is one which feeds off resentment. So then we cannot logically rely on ‘natural law’ as justification for the supremacy of human rights. Instead, it seems to me that we rely on them for simple self-protection.

The Nazi party had altered the law to enable their horrors to be carried out lawfully. And so, after WWII there was a desire to say that complying with the law of a state could not be used to justify barbaric acts. State law itself had to be judged against an internationally recognised standard, which would definedthe limits on state actions to try to prevent any repeat of those dreadful things.

Their genesis means, however, that human rights are not really any different in kind to the other laws we choose to accept, although we may like to think otherwise. They do not have a ‘sacred source’, but are the expression of a wish for self-protection.”

I couldn’t have put it better myself...

Paul Buckingham

7 April 2020