(or, “Why human rights are a bullshit basis for a legal system”)
Disclaimer: this article is not about human rights violations by any particular person or group and is not right wing propaganda aimed at justifying torture, terrorism, genocide or other evils in our world. This is about scrapping human rights as a basis for ethics and law in favor of something more effective.
Many countries have a bill of rights or equivalent legal document that sets out the rights and freedoms of citizens. See, for example:
- Charter of Fundamental Rights of the European Union (2006)
- Human Rights Act 1998 (United Kingdom)
- Canadian Charter of Rights and Freedoms (1982)
- Universal Declaration of Human Rights (1948)
- United States Bill of Rights to the United States Constitution (Completed in 1789, ratified in 1791)
Here are some examples of rights:
- Everyone has the right to life, liberty and security of person (Universal Declaration of Human Rights).
- No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment (Universal Declaration of Human Rights).
- Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability (Canada).
- A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. (United States)
Here are six reasons why basing a legal or ethical system on rights is a really bad idea.
1. Inter-Rights Conflict
The primary reason that any rights-centered ethical system is doomed to abuse or impotence is that practically all of the rights are in conflict with each other. For example, freedom of religion is clearly in conflict with freedom from discrimination based on gender, race and sexual orientation, because of the racism, sexism and homophobia ingrained in some religions. Said Rajaie-Khorassani, the Iranian representative to the United Nations said in 1981 that the UDHR was “a secular understanding of the Judeo-Christian tradition”, which conflicted with Islamic law. 
It is easy to contrive situations where freedom from torture conflicts with right to life, or where the right to trial by jury conflicts with the right to security. Just pick a few rights and use your imagination. I’m sure you won’t have too much trouble finding the conflicts.
2. General Absurdity
In the novel Starship Troopers, Robert Heinlein criticizes the U.S. Declaration of Independence and 20th century democracy in general as unrealistic, idealistic fantasies in which “people had been led to believe that they could simply vote for whatever they wanted… and get it, without toil, without sweat, without tears.” (p. 93). What good is the right to work when you can’t find a job? What does your right to life mean when a man with a gun threatens your family? What does the right to liberty mean in a country full of jails? What good is the right to asylum when some psycho in Guantanamo Bay is shoving a taser up your ass? Some people have this notion that they have a right to the things that make life worth living. This is nuts. Family, career and hobbies all require work and sacrifice, and sometimes shit happens and your rights don’t mean squat.
3. Judges’ Pragmatic Misapplications of Rights
The next problem is that judges tend to interpret rights in a social context, rendering them impotent. This is why, for instance, free speech does not apply to children in school. If all people have a right to free speech and are entitled to freedom of discrimination based on age, and elementary education is mandatory, it clearly follows that children have the the right to free speech in school. However, the judges who’ve ruled on this thought for a few minutes about the problems it would cause and shut it down. As far as I know, there are no bills of rights that say, “you are entitled to the following rights as long as it’s not too difficult;” yet, this is how judges interpret rights, time after time.
4. Pragmatic Rights
When government officials sit down to write a bill of rights, they do so in a particular social and historical context; they’re human too, with all the biases and irrationalities that may imply. Some rights, like the right to a name, may be timeless. Others, like the right to bear arms, are included for reasons that make sense in a particular historical context. The problem is, once rights are granted, it can be prohibitively difficult to remove them, even when the world changes such that they no longer make sense.
In the U.S., the second amendment reads: “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Of course, a militia is no longer necessary to national security in the United States. At first glance, then, the second amendment should be repealed (unless another justification is found). This has proven incredibly difficult. Arguments of the form, “you can’t introduce gun control because it’s against the constitution” miss the point that a constitution should be regularly updated to keep pace with the changing social context. But I digress (I’ll return to gun control in a later post).
5. Layman’s Misunderstandings of Rights
Ever hear someone claim they have the right to smoke? To hurt themselves? To eat badly? To punish their children how they see fit? To be rude? To drive?
Many people succumb to the delusion that they have a right to do whatever they want, as long as it is not illegal. This is simply untrue. A person’s rights are explicitly granted by national legislation such as a bill of rights. If no legal document confers a right (e.g. to smoke) then no such right exists.
Some people make a philosophical argument that certain human rights are innate (see the preamble to the UDHR). Practically speaking, however, your rights are those your country decides to give you.
6. Promotes Egocentrism
I don’t know about anyone else, but I am sick and tired of people whining about their rights. What ever happened to responsibilities? What about honor? Depending what country you live in, you probably have the right to free speech, but that doesn’t mean you should be rude, incite fear and hate, make people uncomfortable or generally irritate the people around you. You may have the right to pursue happiness, but that doesn’t mean you can neglect your children if they get in the way.
I suggest (and this is just a conjecture, but worth considering) that the emphasis on rights in western society explains at least some of the self-centered behavior that has become ubiquitous. If our culture instead emphasized duty and honor, doesn’t it seem likely that people would treat each other better?
I hear and read constant blathering about rights without any regard to responsibility. Simultaneously, we have a dearth of intelligent debate on whether certain rights should be granted or whether right are the best basis for our ethical and legal systems.
In my next post, I will suggest an alternative basis for ethics and law in western culture.