The Rights Stuff

It is time for me to post about human rights. This is to a large extent in response to recent discussions, in the media and in political circles, about the Human Rights Act, culminating in David Cameron's promise to repeal it. I have been reluctant to go into too much detail thus far but I feel that it is now necessary for me to do so, in order to explain just how ill-conceived Cameron's approach really is. I am also aware that the Goldfish's excellent blog has often touched upon some of these issues in the past and so the following is also partly in response to her comments. However, I will be sure to tread carefully. I used to have quite libertarian leanings and so I have a tendency to respond to her opinions rather like an ex-smoker confronting someone who is enjoying a cigarette. With any luck, this discussion will help to explain the reasons for the altering of my stance although I have no illusions (only hopes) that it will actually change anyone else's mind.

The first thing to note is that there are two distinct philosophical schools of thought, one European, and based mainly upon the work of Kant, and one British and American, based primarily on the utilitarian philosophy of Bentham and Mill. Cameron's proposal broadly reflects this split and effectively advocates replacing the Kantian approach of the European Convention of Human Rights with the traditional utilitarian approach that existed in the UK prior to the Human Rights Act being passed. Kant claimed that morality can be reduced to a set of rules (with suitable exceptions where necessary, and exceptions within those exceptions), while the utilitarians regarded all ethical decision making as a mathematical exercise, performed by weighing up the amount of pleasure and pain caused by each possible outcome.

Both perspectives make liberal (geddit?) use words like 'freedom' and sometimes even 'rights' but they mean very different things by them. The best way to characterise this distinction is to distinguish positive from negative rights. A negative right is merely the right to do anything that is not banned - therefore, to gain more negative rights, we need to have as few laws restricting people's behaviour as possible - and hence they are beloved by libertarians and utilitarians. The archetypal example is the British tradition of free speech. A positive right is like a Kantian law that prevents people from interfering with something. Therefore, a right not to be tortured is a right enforced by actually placing restrictions on people's behaviour. Many of the most important rights in the European Convention fall into this category.

One obvious thing to note about positive rights is that, although they limit negative freedoms, it is primarily the freedom of governments that is restricted. In short, they protect individuals against people who are more powerful than themselves. The huge disadvantage of the libertarian approach is that, as well as allowing citizens to do whatever they want, the state is also given unbridled freedom, even to engage in oppressive acts. The most shocking example is a UK court case from as recently as 1980. It was ruled to be permissible for the police to bug someone without any authorisation. There was no law allowing surveillance to take place but also no law stating that it was illegal so, by the principle of negative rights, the activity was deemed to be lawful. This decision was overturned by the European Court of Human Rights and, for me, there is no better illustration of the superiority of their viewpoint over the traditional British one.

Many ethical issues can be tackled from either perspective but there is plenty of woolly thinking around this point by many commentators. For example, pro-choice campaigners rarely distinguish rights-based and utilitarian justifications for abortion even though they are often mutually contradictory. A Kantian approach genuinely gives a woman a "right to choose" and places her physical body at the core of the issue by preventing others from interfering with her decision making. The utilitarian approach allows abortion but only if it is for the "greater good". The most ludicrous extension of this idea is the claim by Peter Singer that it makes no difference whether a child is inside the womb or not, when deciding whether it can morally be killed. For him, the mother is a complete irrelevance. Should a government need women in order to breed a master race, it would be hard to see how even a complete ban on abortion could be rejected on utilitarian grounds.

It's time to bring this long entry to an end. I have only really touched upon the topic here. There is a doubtless some posting to be done on my personal bugbear, so-called "free speech", at some point in the future. But, hopefully, this gives you some idea of where I am coming from, and my inevitable future comments in this area can be placed into some sort of context. In essence, I believe that human rights are of fundamental importance, but that they can only be maintained by limiting the freedoms of those who seek to abuse them.