16 June 2014

Bentham on sticks

The spirited 'The idea of human rights' by James F. P. Allan in (2013) 25(1) Bond Law Review 1 comments
My brief for this piece was to write on human rights. That left two main options. I could undertake a fairly specific black letter critique of bills of rights. I am a strong opponent of these instruments, in either their entrenched, constitutionalised form or in their statutory, enacted form. The former you see in Canada and the United States of America; the latter you see in New Zealand, the United Kingdom and in Victoria. In my view both forms are pernicious; both forms undermine democratic decision- making; both forms unduly enhance the point-of-application power of unelected judges on a host of issues that are in effect moral and political ones – ones over which judges (committees of ex-lawyers as Jeremy Waldron continually reminds us) have no greater expertise, no superior moral perspicacity, no better pipeline to God than the rest of us non-judges, otherwise known as voters. I could go through the problems with bills of rights in some detail if I were to choose this option. I have written fairly extensively along these lines. 
Here I have chosen the other option, writing about human rights more generally – what they are; where they come from; what people presumably mean when they invoke this abstraction of ‘human rights’ and when they intone, rhetorically, ‘Don’t you want your rights protected?’ My topic is the idea of human rights. But I approach that subject in a rather indirect, Alistair Cooke-like way. 
I start by pointing out that people often fight and argue over concepts and terms and what they mean. This is especially true of concepts or notions that carry with them a big emotive punch, where just having the word or phrase on your side is an advantage. They are rhetorical trump cards – such as the phrase ‘Rule of Law’ or the word ‘democracy’. 
Everyone wants to employ these concepts to advance their side of an argument but not everyone agrees about their content. They are ‘essentially contested concepts’, as the British philosopher W.B. Gallie put it.  People disagree as to what is actually meant by ‘democracy’ or by ‘the Rule of Law’. 
Acknowledging this reality that differences of opinion and disagreement can be, and are, between sides where both parties are well-intentioned, smart and well-informed is not the most notable virtue of many bill of rights proponents. Often their default position is simply to assume that the proponent’s own first order preferences and moral evaluations are, by some unexplained and wholly mysterious process, the self- evidently morally correct and right ones. These evaluations are employed when it comes to, say, where to draw the line on free speech issues, or refugee issues, or cross-examining rape complainant issues, or same sex marriage issues, or abortion issues, or euthanasia issues, or shooting Osama Bin Laden issues, and so on to extend to any contested rights-related issue. 
These proponents often talk about human rights and their side of an issue as though they are the superbly well-informed, altruistic side with a mystical and ineffable pipeline to God while the other side is best understood as being motivated by reactionary, borderline racist, and certainly stupid sentiments that could do with a few months in a re-education camp. 
However, almost all disagreements in societies of 22 million or 65 million or 330 million cannot be explained away using this ‘I’m morally superior and smarter than everyone who disagrees with me’ template, with its concomitant claims that everyone who disagrees is defective, dumb or evil. The truth, the reality, the best description of the way the world is, almost always is that disagreement is just a fact of social life in a country where tens of millions of people live. Neither side of these debates – at least to the disinterested observer – has higher levels of moral perspicacity or personal probity or greater access to eternal truths. 
People just disagree, no doubt linked in part to their upbringings and circumstances and sentiments. What is relevant here is that they disagree not just about these first- order issues but also about the meaning of important concepts and terms. That means that sometimes a debate can be won by capturing a word, even though there may be a struggle to win the debate on its merits. 
Take this example. Suppose you do not have much confidence in the views, beliefs and sentiments of your fellow citizens. You do not think much of the political and moral choices of the majority, the plumbers, secretaries, teachers and even derivatives traders who make up that majority. 
But of course you do not want to come out of the closet and say you are against democracy, the idea of counting all voters as equal and then letting the numbers count. It is too hard in today’s world to admit openly that you are a latter day aristocrat, and prefer top judges and overseas committee members of United Nations agencies to have considerably more say on a host of debatable social policy issues than your fellow citizens. 
Instead, you redefine the concept of ‘democracy’. You take the core idea related to how decisions ought to be made and stuff it full of moral abstractions; you make it more morally pregnant. Democracy now means not just ‘how’ decisions are taken. It also includes a judgment related to ‘what’ those decisions were and whether they are acceptable (to some kept-from-view aristocratic group or other). 
You now get to assess how rights-respecting some statute passed by the elected legislature was, or whether it was unduly illiberal. If it was too illiberal, then on this new understanding it does not count as democratic, despite it being a product of the majority’s legislature. Of course left wholly out of sight are two things. Firstly, people disagree about what is and is not rights-respecting. Secondly, the judges and internationalists, who will now get to make some of the authoritative calls, do not have a pipeline to God on these issues. It is a neat trick. All of a sudden, our redefined notion of democracy builds in a role for an exclusive group of people, a role that lets them gainsay and second-guess the majority. Yet it still gets to be called ‘democracy’. 
That is one example of what I mean by an essentially contested concept. It may sound familiar because precisely that attempt to redefine the concept of ‘democracy’ has taken, and is taking, place right now in the West. 
I could make much the same sort of point as regards ‘the Rule of Law’, that there are two main competing notions as to what this phrase encompasses. One is a morally Spartan one about the good consequences that flow from having a legal system with general rules, known in advance, able to be complied with, and applying to everyone. But this ‘thin’ notion is compatible with having laws you judge to be morally bad. A newer understanding of this concept is more morally pregnant and basically builds in a ‘these laws must be morally good ones, or at least not morally terrible ones’ (according to me) before giving them the ‘Rule of Law’ tick or label. … Up in the Olympian heights of moral abstractions – where we talk of the right to free speech or to freedom of religion and where disagreement tends to be finessed and glossed over – you can achieve almost universal agreement. But down in the quagmire of day-to-day social policy decision-making you never have that sort of consensus. 
That means that the language of human rights can achieve a sort of bogus consensus because it deals in moral abstractions so abstract and so couched in emotively appealing connotations and generalisations that almost everyone can sign up to it. That is the power of the language of human rights. 
But underneath that finessed, very abstract notion, what actions are and are not on the side of ‘human rights’ is not something that defines itself. It is contestable, and contested. Just because someone proclaims himself or herself to be on the side of human rights it does not necessarily follow that others – on hearing that person’s views on specific issues – will agree with those views. Nor does it follow that they will concede that this proclaimer – him or her not them – is the one on the side of human rights. 
One of the great tricks – I would say fallacies even – of those who campaign for a bill of rights in Australia is to exclaim ‘Don’t you want your rights protected?’ As if Australians do not right now have more scope to speak their minds than Canadians do (as regards, say, potentially defamatory words, or hate speech or words related to election campaigns and the rules that finance them). You see even though Canada has a super potent, constitutionally entrenched bill of rights, and Australia has none, it turns out Australians in fact have greater scope to speak our minds. 
And as if in any political system known to man you (or anyone else) will always be on the winning side of every line-drawing exercise about such things as whether women ought to be able to wear headscarves in schools or people claiming refugee status ought to be virtually unhindered in arriving in a country or whether women who allege they have been raped ought not to be subjected to the full panoply of cross-examination questions during the accused’s criminal trial. 
Take that last example, not least because it turns the tables on the pro-bill of rights brigade which tends to assume, unwarrantedly, that these instruments are a guarantee of nice progressive outcomes. In the United Kingdom the legislature passed a statute restricting somewhat what a defence barrister could ask a woman who was a complainant in a rape trial about her own past sexual activity. However, the highest court in the United Kingdom, under the United Kingdom’s statutory bill of rights, said this law was a breach of people’s timeless, fundamental human rights, specifically the ‘right to a fair trial’. 
My point is that that is a debatable call, either way. The real issue is not who is and is not on the side of human rights. The real issue is which institution should be making these debatable line-drawing decisions, the elected Parliament or the unelected judiciary (because remember, when you buy a bill of rights what you are really buying is a much enhanced decision-making role for judges, whether the bill of rights be of the statutory or constitutionalised variety). No institution will produce outcomes with which you agree 100 percent of the time. It is about which has the best hit rate on average over time. Is it the one that is accountable to the voters and can be tossed out after making calls on these moral and political issues? Or is it the one that takes these moral and political issues, translates them into pseudo-legal ones, and issues absolutist sounding claims – even when the outcome in court was 4-3 or 5-4, where if one judge had changed his or her mind your timeless, fundamental rights would magically and mysteriously be the exact opposite of what they ended up being declared to be?
Allan concludes
Let me simply finish by reiterating that behind the finessing abstractions of the language of human rights is this reality. A right is a rule. That right can be a legal one whose origin and source is clear (namely a statute, judge-made ruling, constitutional provision), though its desirability is contested. Alternatively, that right can be a moral claim, the source of which is highly contestable and contested, along with its desirability. The language of human rights conflates those two sorts of rights or rules. Jeremy Bentham some two centuries ago insisted on keeping the two separate, the legal ‘is’ claim and the non-legal ‘ought’ claim. The language and absolutist inclinations of human rights thinking prefers to conflate and blend together the two. Bentham said separating the two led to better consequences in terms of human welfare than this natural law type conflation.
I am very much of Bentham’s point of view.
Readers of this blog will recognise that I am not of Mr Bentham's point of view