democracy, philosophy, what are human rights

What Are Human Rights? (44): External Constraints on Politics, Means of Politics, or Objects of Politics?

inside/outside by Ronen Berka

inside/outside by Ronen Berka

(source)

People describe and define human rights in lots of ways, but perhaps the most common definition is this: human rights are external constraints on politics. They determine the boundaries that political action – action by both authoritarian rulers and democratic majorities – should not cross. I want to use the metaphor of the ring to clarify this, because that will help us later on in this post. Political action – including legislation – is constrained by a ring of rights:

ring of rights

This definition – let’s call it definition 1 - places human rights squarely outside of and even prior to politics. This is why oppressive actions by authoritarian rulers who have not enacted human rights law can still be condemned by human rights talk. If rights were just a part of politics, this wouldn’t be possible because they would be on the same level as authoritarian politics and they would therefore lack constraining power. (Of course, it is a fact that human rights often fail to constrain, but I’m dealing here with the moral and not factual status of human rights).

The same logic applies to democratic governments that have enacted human rights law: their actions as well should, ideally, stay within a realm defined by a ring of rights. The difference with authoritarian governments is that democracies have more efficient extra-political means to keep their governments within the ring, at least some of the time (for example judicial review; in the case of authoritarian governments there are also means – such as foreign intervention, rebellion etc., but those are normally a lot less effective).

So that’s definition 1, and it’s good as far as it goes. The problem is that it doesn’t quite capture the essence of human rights in a democracy. Rights are not just or not merely outside of politics in a democracy – they are intrinsic to it. Democratic politics can’t function without human rights; rather than external constraints on politics, rights in a democracy are essential means of politics. They are the foundation on which democratic politics can function. That may be obvious in the case of some rights – no democratic politics without free speech, assembly or association rights and the right to vote – but it’s true for all rights (for example, I argued here that violations of the right not to be tortured can undo democracy).

So let’s call this definition 2 and represent it like this:

The ring has become the foundation. Now, it may look as if these two definitions are contradictory and incompatible: something is either an external constraint or a means, but never both. However, rights should be both: we need rights as foundations and means of democratic politics, but at the same time we want rights to be able to constrain democratic politics when necessary (for example when the majority wants to violate rights). I think we can have both.

Things get more complicated when we consider a third definition: rights as objects of politics. The two previous definitions assume that rights are uncontroversial, but that is untrue. Human rights are objects of frequent and reasonable disagreements. They are not self-evident, God-given or axiomatic. They need justifications and arguments, and different people will have different justifications and hence different definitions of rights. The only way to deal with these disagreements is through politics: discuss them in public, and let the majority vote. (E.g. should work be a right, should unemployment insurance be, should incitement be protected as free speech? etc.) As a result, the width and strength of the ring of rights changes over time:

One could argue that it’s not up to politics to decide these disagreements, and that instead a constitutional court should deal with them. However, we know from experience that this doesn’t work: politics will continue to interfere, either directly through legislation or indirectly by way of interference with the workings of the court.

And there’s an even more fundamental problem. Definition 3 looks like it’s incompatible with definitions 1 and 2. If rights are supposed to function as constraints on politics, then we shouldn’t place rights within the political process which they should constrain. When we allow rights to become objects of politics then majorities can easily destroy the  constraints that bind them. Similarly, when majorities are allowed to vote on the fundamental means of politics they may well decide to destroy those means.

The solution is not the removal of rights from politics – that’s both illusory and undesirable – but rather the creation of a distinction within politics: normal political decisions should be absolutely constrained by human rights and should respect rights as the fundamental means of politics; and then there is constitutional politics, which is a periodical – and not a day-to-day – form of politics that tackles society’s basic rules, including human rights. Normal majoritarian procedures don’t apply here. Special majorities are required as well as other safeguards against the destruction of rights.

More posts in this series are here.

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2 thoughts on “What Are Human Rights? (44): External Constraints on Politics, Means of Politics, or Objects of Politics?

  1. Suppose I grant you the right to eat salmon sandwiches on any day of the week. Am I helping to protect your freedom to eat whatever you want, or am I claiming the authority to dictate what you can and can’t eat?

    Obviously it is the latter. If I grant you the right to do ‘X’ I have (by definition) asserted my claim of authority over you. Claiming the authority to grant rights to other people is the same as claiming the authority to take rights away from other people. They are the same thing. By granting certain rights to you I am dictating what is or is not allowed. By taking rights away from you I am also dictating what is or is not allowed.

    Granting you the right to eat salmon sandwiches on any day of the week is THE SAME EXERCISING OF MY AUTHORITY OVER YOU as:

    - granting you the right to eat salmon sandwiches on Wednesdays
    - taking away your right to eat salmon sandwiches on any day except Wednesday
    - taking away your right to eat salmon sandwiches altogether.

    But “granting you the right to eat salmon sandwiches on any day of the week” sounds like a noble, civilised thing for me to do, right? It is not. The noble, civilised thing for me to do is to acknowledge that I do not have the right (the authority) to dictate what you eat or when you eat it. That is something totally different, yet it *almost* sounds like the same thing.

    This is how rulers enslave whole populations. They pretend to grant us rights which protect our freedoms and help to create and maintain a civilised society. But in reality what they are doing is asserting their authority over us. By ‘granting us rights’ governments claim the right (the legitimate authority) to dictate our lives and rule us.

    Of course a ‘government’ cannot really claim the right (the authority) to do anything because a ‘government’ does not exist in reality. In reality on PEOPLE exist. Therefore it is the people working in and for government who claim the right to dictate our lives, whenever they ‘grant us rights’.

    So how does this play out in the real world?

    Currently, the people working in government ‘grant us rights’ (such as the right to not be assaulted or kidnapped or murdered or stolen from etc). By granting us these rights (and partially enforcing them) they assert their automatic claim (authority) to take control of our lives. Or you could say that by they dupe us into accepting their legitimacy, as rulers.

    And then they go right ahead and take half our wages by force each week and generally push us around using threats of violence (or actual violence).

    If we don’t agree to pay them half our earnings each week they will eventually send round hired thugs dressed in matching blue costumes and armed with an assortment of weapons to kidnap us from our families and lock us inside a cage. If we try to defend our property or person they will beat us down with clubs or perhaps even shoot us. If we try to escape the cage and return to our families and jobs they will also probably shoot us.

    Now let’s consider what would happen if the people working in government took the other approach and acknowledged the fact that *nobody* has the right to steal from another person, or initiate force against them in any way.

    In this scenario if anyone working in or for government threatened you or hired thugs to steal from you by force, or drag you off and lock you up in a cage they would be violating your property and various other individual rights and thus breaking the law. And they would naturally be dealt with accordingly.

    In this scenario simply dressing up in a fancy costume, wearing a fancy badge or working in a fancy building in a capital city would NOT give anyone the automatic god-given right to violate another person’s basic human rights.

    Of the two scenarios, this one seems like the more sane and civilised one, to me.

    I think it’s fair to say that most ‘rights’ are based on some very basic universal moral principles such as: “it’s immoral to steal”…… or “it’s immoral to initiate force or fraud against someone” (assault, kidnapping, coercion, blackmail, murder, imprisonment, deception etc).

    (NOTE: *initiating* force is distinct from simply *using* force, such as in self defence or when enforcing a broken contract – which is in itself a form of self defence against attempted theft or fraud. Thus a mugging would be the initiation of force, but whacking the mugger on the head with an umbrella would be using force in self defence against the mugger’s initiation of force).

    If these moral principles are universal then (logically) they need to be applied universally….. that means they must be applied to everyone, including the people who work in and for a ‘government’.

    But in order for ‘governments’ to operate (at least in the way they do today, and have done for centuries) they MUST violate these most basic moral principles on which all human rights and ‘everyday society’ is fundamentally based.

    A government is, by definition, a group of individuals within a geographical area who claim (and violently defend) the monopolistic moral and legal right to initiate force against everyone else in order to achieve their aims.

    One cannot attempt to justify, legitimise or excuse the behaviour of people in government without justifying, legitimising and excusing their violation of basic universal moral principles, their violation of our basic human rights and their violation of the most basic legal/ moral rules on which our society is based.

    And this inevitably raises the question: what, in our current society, is the actual point of morality, law and human rights?

  2. Tyrone says:

    I was excited to see how you started this post, especially since the doughnut model (and to some extent, the foundation model) you use reminds me of Ronald Dworkin’s work on principles, law & politics. I unfortunately don’t have the time right now to go into quite the detail the previous poster did, but I think it would also help readers if perhaps we had some exploration of communitarian constitutional models of democracy rather than majoritarian. I feel this post is influenced considerably by the perception of rights which dominates US politics – but rights don’t have to be absolute nor strictly negative. Take Canada, for example, where there is a reasonable limits clause in the Charter of Rights which means that anyone can challenge the constitution & certain rights as being unjust by allowing certain violations or for ignoring the rights of a minority.

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