Looking at rights

Chapter 1
Looking at rights

These days it is usually not long before a problem is expressed as a human rights issue. This book looks at where the concept of human rights came from and how the human rights movement has developed a set of obligations that apply worldwide. We will consider the trajectory of the idea of human rights and the role that human rights play (and might come to play) in our world.

One theme of this introductory book is that different people currently see human rights in different ways. For some, invoking human rights is a heartfelt, morally justified demand to rectify all sorts of injustice; for others, it is no more than a slogan to be treated with suspicion, or even hostility. Lawyers sometimes consider that human rights represent almost a term of art, referring to the details of accepted national and international human rights law. Yet the application of human rights law is almost always contested, with both parties to a dispute demanding that human rights law be applied in their favour. Human rights law is special as it often suggests that other law is inadequate or unjust. The language of human rights is deployed to criticize, defend, and reform all sorts of behaviour. Playing the ‘human rights card’ can be persuasive, sometimes even conclusive, in contemporary decision making; this is one aspect of what makes the moral force of human rights so attractive – they help you to win arguments and, sometimes, to change the way things are done.

The concept of a ‘human rights culture’ also means different things to different people. To some, it means ensuring that everyone is treated with respect for their inherent dignity and human worth. To others, it means that judges, the police, and immigration officials are required to protect the interests of terrorists, criminals, and other undesirable elements at the expense of the security of the population. This tension recently came to a head in the United Kingdom with popular newspapers ridiculing the application of the new Human Rights Act (see Box 1). The tension is, in a way, inherent in the operation of human rights protections. Human rights come into play to stop governments and other actors from pursuing expedient policies at the expense of the well-being of certain individuals and the proper functioning of a democratic society under the rule of law. At times, human rights protections may seem to be anti-majoritarian; indeed, human rights may serve to protect people from the ‘tyranny’ of the majority. But, as we shall see, with the exception of the absolute ban on torture, human rights law does allow for security needs to be taken into consideration.

On closer inspection, much of the apparent British backlash against the ‘human rights culture’ in decision making turns out to be based on false information concerning the supposed effects of the new Human Rights Act. First, the judges cannot strike down laws as incompatible with human rights; Parliament retains complete sovereignty over which laws to pass or repeal. (This is not the case in other countries with an entrenched constitution, such as the United States or South Africa, where constitutional rights may rank supreme.) Second, the Government’s review of the implementation of the Human Rights Act has highlighted a series of ‘myths and misperceptions’ about the Act. Stories, such as the prisoner who claimed that denial of access to certain magazines amounted to inhuman and degrading treatment, have been retold until they start to become synonymous with the very concept of respect for human rights. This prisoner’s claim concerning his human right to magazines was never accepted by decision makers and was simply rejected by the courts. Stories that present the Human Rights Act as ‘a nutters’ charter’, ‘crazy legislation’, or ‘barmy laws’ on closer inspection turn out to be sensationalist. Attempts to paint human rights protection as madness remind us that the human rights project is often about securing rights for those who have been marginalized and made vulnerable. Those who conceived the idea of human rights centuries ago considered this was the outcome of rational thought, rather than neurosis, but they too were often seen as suffering from a delusion that such rights exist at all. We shall meet ‘Mad Tom’ Paine in a few pages. Let us now turn to consider the history of the concept of human rights.

Box 1: Human rights in the UK press

The Sun (online): Oliver Harvey and Michael Lea,* ‘THOUSANDS of Sun readers have voted to scrap the Human Rights Act.’

Nearly 35,000 rang our You The Jury hotline within 24 hours to back our call for an end to the interests of killers, rapists and paedophiles coming ABOVE those of victims. The crazy legislation has led to many dangerous criminals being freed to re-offend. Others have used the barmy laws to gain perks and pay-outs.

The Sunday Telegraph: Give us back our rights

The Afghans who hijacked a civilian airliner are rewarded with a judgment that they are entitled to stay in Britain at the taxpayer’s expense. Foreign terrorists who reportedly plot the murder of hundreds of British civilians cannot be deported back to their countries of origin, nor may they be detained here. Murderers and rapists are entitled to have any decision to keep them in prison reviewed by a judicial hearing, at which they must be represented by a lawyer – and as a result, an intimidated Probation Service frees killers who go on to murder fresh victims. The British public is increasingly worried by judgments whose effect is to rank the ‘rights’ of criminals higher than those of law-abiding citizens. As a result, the whole notion of human rights is becoming discredited. Rather than basic protections against arbitrary power, ‘human rights’ are now seen as legal fictions that prevent the police, the intelligence services and other government agencies from doing what they believe needs to be done in order to safeguard the nation.

We first need to understand that human rights are considered a special, narrow category of rights. William Edmundson’s introductory book on rights distinguishes human rights from other rights by suggesting that: ‘Human rights recognize extraordinarily special, basic interests, and this sets them apart from rights, even moral rights, generally.’ Richard Falk suggests that human rights are a ‘new type of rights’ achieving prominence as a result of the adoption of the Universal Declaration of Human Rights by the United Nations in 1948. This point is worth remembering throughout the book: we are not talking about all the rights that human beings may have – we are considering a rather special category of rights.


1. Headline from The Sunday Telegraph, 14 May 2006: branding the Human Rights Act ‘the refuge of terrorists and scoundrels’

Many who approach the subject of human rights turn to early religious and philosophical writings. In their vision of human rights, human beings are endowed, by reason of their humanity, with certain fundamental and inalienable rights. This conclusion has existed in various forms in various societies. The historic development of the concept of human rights is often associated with the evolution of Western philosophical and political principles, yet a different perspective could find reference to similar principles concerning mass education, self-fulfilment, respect for others, and the quest to contribute to others’ well-being in Confucian, Hindu, or Buddhist traditions. Religious texts such as the Bible and the Koran can be read as creating not only duties but also rights. Recognition of the need to protect human freedom and human dignity is alluded to in some of the earliest codes, from Hammurabi’s Code in ancient Babylon (around 1780 BCE), right through to the natural law traditions of the West, which built on the Greek Stoics and the Roman law notions of jus gentium (law for all peoples). Common to each of these codes is the recognition of certain universally valid principles and standards of behaviour. These behavioural standards arguably inspire human rights thinking, and may be seen as precursors to, or different expressions of, the idea of human rights – but the lineage is not as obvious as is sometimes suggested. Let us now look at some early historical invocations of the actual concept of rights (as opposed to decent behaviour) and the sceptical responses they evoked.

The Rights of Man and their Discontents

The standard Western account of the tradition of human rights is somewhat problematic. Early legal developments in the area of human rights are said to have emerged from the Magna Carta of 1215, a contract between the English King John and the Barons who were dissatisfied with the taxes being levied by the monarch. But, although this agreement guaranteed rights for a freeman not to be ‘arrested, or detained in prison, or deprived of his freehold, or outlawed, or banished, or in any way molested … unless by lawful judgment of his peers and the law of the land’, this guarantee was simply a right to trial by jury granted exclusively to property-owning men. The rights contained in the Magna Carta were not human rights, but rather political settlements. Human rights belong to all human beings and therefore cannot be restricted to a select group of privileged men. From a contemporary perspective, the Magna Carta turns out to be a rather unfortunate example of a human rights declaration. Suffice it to cite one sentence, clause 54 of the Magna Carta reads: ‘No one shall be arrested or imprisoned on the appeal of a woman for the death of any person except her husband.’

The English Bill of Rights of 1689 is similarly sometimes considered a stepping stone to today’s texts. Parliament declared that ‘no excessive fine be imposed; nor cruel and unusual punishment [be] inflicted’. It also stated, however, ‘That the subjects which are Protestants, may have arms for their defence suitable to their conditions, and as allowed by law.’ Like the Magna Carta, the Bill of Rights was in fact a political settlement; this time between a Parliament and the King (who had abused the rights of Protestants), in order to vindicate ‘ancient rights and liberties’.

At the same time, the work of a number of philosophers had a very concrete influence on the articulation of demands in the form of ‘natural rights’ or the ‘rights of man’. John Locke’s Second Treatise of Government, published in 1690, considered men in a ‘state of nature’ where they enjoyed ‘a state of liberty’, yet it was not ‘a state of licence’. Locke reasoned that everyone ‘is bound to preserve himself’ so when his own preservation is not threatened everyone should ‘as much as he can … preserve the rest of mankind’, and no one may ‘take away or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another’. In this way, ‘men may be restrained from invading others’ rights and from doing hurt to one another’. For Locke, ‘every man has a right to punish the offender and be executioner of the law of nature’. Locke saw that this ‘strange doctrine’ was unworkable but argued that men remain in this state of nature until they consent to become members of ‘some politic society’. Locke saw civil government as the remedy for men acting as their own judges to enforce the law of nature. He considered that this social contract, freely entered into, entitled the government to enforce laws for as long as the government respected the trust placed in it. Should the people be subject to the exercise by the government of arbitrary or absolute power over their ‘lives, liberties, and estates’ then, according to Locke, governmental power would be forfeited and devolve back to the people.

The Social Contract of Jean-Jacques Rousseau developed the idea that an individual may have a private will (volonté particulière) and that his private interest (intérêt particulier) ‘may dictate to him very differently from the common interest’. Rousseau considered that ‘whoever refuses to obey the general will shall be compelled to it by the whole body: this in fact only forces him to be free’. For Rousseau: ‘Man loses by the social contract his natural liberty, and an unlimited right to all which tempts him, and which he can obtain; in return he acquires civil liberty, and proprietorship of all he possess.’ Published in 1762, The Social Contract was a precursor to the French Revolution of 1789 and the ideas it expressed have had considerable influence around the world as people have sought to articulate the rights of the governors and the governed.

Thomas Paine was a radical English writer who participated in the revolutionary changes affecting America. He emigrated to America in 1774, and in 1776 produced a widely read pamphlet called Common Sense which attacked the idea of rule by monarchy and called for republican government and equal rights among citizens. He also worked on the 1776 Constitution of Pennsylvania and for the subsequent abolition of slavery in that state. Paine’s publication, entitled Rights of Man, appeared in 1791 as a defence of the French Revolution in response to Edmund Burke’s Reflections on the Revolution in France. Paine was popular with the people (one estimate suggests that various versions of Rights of Man