Wednesday 25 January 2006

Rights and absurdity.

In response to my post about written consitutions, Larry has kicked up a stink in the comments. You may read them if you wish to know what brought this on, or not. The short version is that I incline to P. J. O'Rourke's famous line:

There is only one human right: the right to do as you damn well please. And with it comes the one human responsibility: the responsibility to accept the consequences.

Larry objects to that, as, I'm sure, do a hell of a lot of other people.

So here are my somewhat disjointed thoughts on what rights actually are and how they work.

Rights are odd. As defined in the defunct EU Constitution, rights are something graciously bestowed upon us by our governments. A lot of people seem to incline to this view, but it strikes me as fundamentally wrong, as it relies on the government to tell us what we may or may not do. That approach has led to the new British Freedom of Speech As Long As You Don't Say The Wrong Thing.

So I incline to the view of rights as expressed in the American Constitution: rights reside in we the people, independently of government. Constitutions, when taken seriously, are particularly odd bits of politics, in that they require the government to enforce them in order for them to limit the power of the government. It's so circular it's practically magical. And that circularity is why any argument about rights is bound to tie itself in apparently contradictory knots: rights are contradictory, in many ways.

Anyway, in pretty much every country except the US, rights are defined by the government and are therefore a matter of law. The right to freedom of speech exists only because there are no speech-restricting laws; introduce a new anti-speech law and you effectively destroy freedom of speech, as has happened in the UK lately. In the UK, we don't have the right to do anything except what the law says we can do. Personally, I think that's an appalling state of affairs.

In the US, things are very different. Because the Constitution specifies that rights abide in the people regardless of government, if you introduce a new anti-speech law, you don't destroy the right to freedom of speech; instead, your law will, sooner or later, be struck down, because it is superceded by people's rights. The law is unenforceable, because anyone in court for breaking it cannot be prosecuted for doing something that the Constitution says they have the right to do. (In theory. Of course this doesn't always work; no system does.)

The good thing about the US system is that people's rights cannot be taken away by the government. The odd thing about it is that, if rights reside in the individual and are independent of the law, then what is or is not illegal is not necessarilly indicative of rights. A law that bans a certain book does not — can not — change the fact that people have the right to read that book.

The courts are there to get involved when the rights of more than one person clash. So, for instance, the right of a known psychopath to bear arms is superceded by the rights of everyone around him not to get hurt. At its most extreme, your right to kill a man is usually trumped by his right not to be killed by you. It doesn't really matter whether you say that we have the right to do anything we like as long as we don't harm others or that we have the right to do literally anything but that everyone else's right not to be harmed by us is greater than our right to harm them: the practical results are exactly the same either way. But, to my mind, the latter view implies that we all have a responsibility to everyone else. That's got to be a good thing.

A lot of confusion is avoided if we simply say that people have different rights in different countries — as I did above, in fact. The Universal Declaration kind of scuppers that, though, with its insistence that all humans have certain rights. You can reject that, of course, but I don't: human rights are a Good Thing. So my view now is that we all have inherent rights as human beings but that we aren't all lucky enough to live in states in which those rights may be realised. Without state backing, the rights exist merely in potentia. The right bunch of politicos come along and our rights pop into a real-world existence. Or something like that.

Sure, my definition's full of contradictions. So's everyone else's. Some people are entirely sensible to believe that rights don't exist at all: the most basic rule of logic is that anything that leads inevitably to self-contradiction is not true. But there's more to life than logic, and I reckon there's a lot more to be gained by humanity from believing in and trying to realise human rights than not.

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