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Can Human Rights Hurt How We Think About Freedom?

Featured Philosophy Rantish

This article from the Guardian of all places by Eric Posner was definitely worth reading.  I first encountered Posner in my undergrad in a human rights course for PAPM students taught by a wonderful NPSIA PhD candidate  (as opposed to the human rights course I took from Carleton’s undergraduate human rights program, which was… questionable).  This is going to deal with some of my thoughts on the article, so if you don’t get my drift don’t blame me if you haven’t read it.

Posner’s core argument is that human rights law has not been nearly as successful as it’s purported to have been because it relies both on weak standards and weak institutions.  States continue to behave in the way states customarily behave despite many autocracies signing human rights treaties.

What interested me most was Posner’s comment that states can claim to be champions of human rights simply by expanding the definition of rights to include many entitlements it provides (such as low-cost petroleum) while actively repressing political rights.

It’s important to first clear some things up about how we think and talk about human rights.  Human rights are the result of a dialogue based on securing human dignity, not a set of philosophical conclusions drawn from first principles.  This is deliberate and meant to be a strength: using a strictly philosophical approach would limit the uptake of human rights by communities which don’t share a common philosophical base.  This also becomes one of its greatest weaknesses as without a philosophical foundation, what is and is not a right (or even what “right” means) is ambiguous.  The goal is to get communities and states to embrace a set of shared goals while not defining a set of logical means to arrive at those goals.

why is something a right?  Who decides this?

We arrive at my first problem with the idea of human rights* immediately: why is something a right?  Who decides this?  Does the consensus arrived at through dialogue construct rights (as constructivists would assert), or do they confirm pre-existing rights?  As a libertarian, I’ve already accepted a conflicting definition of what makes something a right: humans have rights that are derived from the principle of non-aggression.  These rights are absolute, exclusive, and have no necessary logical conflicts**.  In the business, this is referred to as negative liberty (i.e. the freedom to be free from interference, coercion, the threat of or use of force) and includes such popular values as freedom of speech, movement, association, and conscience.  Many human rights, as concepts that were consensus-driven instead of philosophically-grounded, are positive liberties (the freedom gained through a claim on something to be provided by others, such as health or education).  Unlike with negative liberties, positive liberties may conflict.  These conflicts can be with negative liberties (i.e. one’s positive right to health at the taxpayer’s expense with another’s negative right to property) or positive liberties (one’s right to education and one’s right to health both draw on the same resources and improving one often comes at a cost to the other).  Positive liberties have a much broader scope than negative liberties, and proponents embrace some shakier ideas (i.e. the right to be free from offense, rights to a specific policy such as free tuition).

Many negative liberties are human rights, but so are many positive liberties.  This lack of philosophical consistency reduces rights to the status of privileges.  Why? After all, the point of a right is to have an absolute claim to it.  Because negative liberties are animated by the non-aggression principle, they can’t conflict. There’s a simple test to determine if something is or is not a right: does it use force, the threat of force, fraud, or coercion against another person?  Because all negative rights are derived from the one essential right of freedom from coercion, there can’t be a conflict.  That right contains clear logical rules for the settlement of debate.  Positive liberties have no such distinction and are often resolved through courts.  Thus, there becomes a hierarchy of rights where some take precedence over others (i.e. freedom from hate (positive) over freedom of speech (negative)).  This court-made distinction renders the point of a right moot – it becomes a privilege granted by the state: usually the very organization which negative rights are meant to constrain.  States then may manipulate positive rights for their own ends.  States may also establish positive rights within their borders without claiming that it is universal, undermining the idea of human equality.

Positive rights can also be downright ridiculous because there isn’t a consistent test applied to them.  For example, there is discussion of a positive right to water.  Those who have a background in economics will immediately notice the problem with this.  There is a finite amount of water, but an infinite potential demand for water.  The result is shortage.  If water were a commodity on the market, prices might promote its conservation and efficient use but if it is a right then no one may justly be denied their due.  Thus, the claim to a right to water isn’t even internally sound.  By adopting policies in line with that right, you impair access to it for all (and as scarcity emerges, often the least well-off are hit worst).  We can say that water is not a right while saying that access to clean drinking water is a good thing.  Unfortunately, the fuzziness of positive liberty has dulled this distinction so that you may find someone, somewhere calling for almost every good thing to be an unalienable right.

Because this concept pretends to stand without basic logical values, it debases our ability to empathize with and understand each other.

Most importantly, using human rights as a crutch concept allows us to avoid talking about our principles.  Dignity is an entirely subjective test for what constitutes a right and, when push comes to shove, it can’t play any serious role in actually determining the allocation of our resources.  Rights are something we have in respect to our fellow humans and thus must reflect that they must be entirely and completely universal.  What brings dignity for one might bring shame for another, and some might demand infinite amounts of dignity (analogous to utilitarianism’s bane, the utility monster).  If we do not discuss our core values, we should not be surprised that everyone calls everyone else who disagrees about their idea of religious liberty/discrimination/economic rights/etc a tyrant and a hater of freedom.  Because this concept pretends to stand without basic logical values, it debases our ability to empathize with and understand each other.

Ultimately, if we can’t talk to each other about our most basic values, we might lose the ability to function as a cohesive society.  That’s why we need to break from this idea of free-floating goals and talk about what makes us value them.

* for this discussion when I use human rights I use it exclusively in the dialogue-goals-dignity way, not in the broader sense of talking about rights that humans have or should have.
** this is a lie.  I can think of only one: whether or not abortion is a right with no extenuating circumstances.  Walter Block, a thoroughly interesting philosopher, broke this down helpfully by describing it as a conflict between the negative right to bodily autonomy of the mother and the right to life of the child.  But even this classification of it as a conflict is debatable.
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