That Can't be a Right, Can It?

There has to be a better way of talking about problems.

Over the last couple of generations, the loose and often incoherent bundle of ideas trading as “rights” has somehow achieved overwhelming dominance of  discussion of social and political issues in the West. It parallels the dominance of “market-based” thinking about economic questions, with which it is intimately connected. But it’s doubtful whether, in the one case as in the other, this approach is actually helpful. And each, in practice, tends to work on behalf of the powerful and against the weak. Let’s try to understand what is going on, and why.

When I was small, there were a number of taboo topics in what then passed for the media: people and institutions who would never be criticised on the BBC, for example. Foremost among these were the Royal Family and the Church and their most prominent members. (The satire boom of the 1960s began with very gentle spoofing of both targets.) Today, of course, the number of taboo topics is much larger, if somewhat more random, and it is not easy to identify a single representative institution or concept which the powerful believe must be protected from criticism at all costs. The best equivalent, and one which partly fulfils the functions of an organised religion today, is the complex and messy set of discourses around Rights.

Now, if you asked them, most people would broadly agree about the kind of society the wanted to live in. It would be one where they were not subject to the arbitrary authority of large organisations, where life was generally fair, where it was possible to lead a decent existence, and there was a satisfactory degree of personal security. If such notions are widely accepted and shared, then society tends to work reasonably well, and people are generally happy. But today we have the paradox of societies which are bound by ever more complex and restrictive rules designed to ensure Rights, yet are unhappier, and function less well, than societies in the past. How to explain this?

It’s been said that these days, it’s easier to conceive of the end of the world than the end of capitalism. In rather the same way, we’ve got to the point now where it’s just as impossible to conceive of discussing political and social problems outside the concept of Rights as it would have been (to change the comparison) discussing them a thousand years ago outside the context of organised religion. The result is that virtually all significant questions in our current western society are now posed in terms of competitive power relationships between individual economic political and social actors, with the courts adjudicating cases where brute force is not enough to decide the issue. Does this make sense?

Just as it’s often hard these days for people to understand how an economic or financial issue can be discussed except in the context of “the market,” so attempts to talk about political and social problems in any other language than what it’s convenient to call RightSpeak generally meet with utter incomprehension:

• So you’re saying that you think it’s a good idea to lock people up without trial and torture them, then?

• No, I’m saying that trying to settle everything by a competition to define and impose obligations on others isn’t the ideal way to make decisions in a complex society.

• Ah, so you really think it’s a good idea to lock people up without trial and torture them.

At which point, rational discussion becomes impossible, because panic sets in. The interlocutor  typically has no way of understanding or responding to anything that comes from outside the sealed box of RightSpeak ideas. More than that, there are consistent attempts to assimilate every remaining aspect of life to RightSpeak as well, with predictably conflictual and sometimes downright bizarre results. Just before starting to write this I was looking by chance through stories asking, for example, Do patients have a right to be operated on if not vaccinated against Covid? Do doctors have the right to refuse to treat non-vaccinated patients? Do human beings have a right to be protected from extreme temperatures? Do children born to surrogate mothers have a right to know who they are? And of course there’s always, Does nature have rights? Do animals have rights, and if so against whom? The point is, of course, that there can be no satisfactory answers to questions posed in these terms, even in principle. There are other, and better, ways of dealing with such problems than through zero-sum struggles between rational economic actors wielding legal texts as weapons. In the next essay, I’ll remind you of some of them.

For the moment, though, let’s look briefly at why RightSpeak has got us into our current mess. In a sentence, it’s not fit for purpose.It has two principal problems: the first is its lack of any internal coherence or logic, the second is that it reinforces the power of the already strong. (I take the second to be a disadvantage, but I recognise that others might not.)

As everybody knows, Rights have no objective existence. They are abstractions, brought into being by ascriptive speech acts. You cannot find or discover them, you cannot weigh or count them. You can assert the existence of any Right or list of Rights, and others can assert different lists, and deny the validity of yours. The only way of judging between competing lists is through the application of power, which is why, although there are “generally accepted” lists of Rights, this acceptance is based on underlying power relationships, not on any inherent moral or intellectual superiority of one list over others.

The idea of Rights, of centring all moral and most practical judgements around the desires and needs of the individual, is manifestly a product of the modern era in the West, just like other forms of economic and political individualism. And like those other forms, it is often viewed with disbelief and suspicion in non-western society. Come to that, you don’t find much discussion of individual Rights in the western tradition either. Looking up, I see a copy of Aristotle’s Nicomachean Ethics on my bookshelf, and I recall that for Aristotle, as for almost all thinkers until modern times, ethical questions were about how to become a better human being and a better member of society. How to treat others, not how to get what you want from them. For most of the great philosophers of history, becoming a better person might mean moderating and controlling your wishes and desires: it might even involve abandoning some of them. These days, not only can you be whatever you want to be, you have the Right to that status as long as you can pay, according to the current incoherent and narcissistic mixture of RightSpeak, market economics and California psychobabble which passes for ethical thinking in our time.

We can define a Right as the ability to impose a moral, practical, financial or legal obligation on another person or entity, and thus to compel or constrain behaviour. There is no such thing as a Right for me without a corresponding obligation for you. We can see at once that this is a very awkward basis on which to construct rules for a whole society. It’s essentially the same concept as the market economy —competition between utility-maximising individuals—but its effects are rather different, and more profound. As with market economics, though, there is the assumption of an Invisible Hand, which somehow reconciles all the various wants and needs with each other. So Human Rights textbooks will tell you that all attempts to secure rights are ultimately additive, and do not interfere with each other, just as economics textbooks would have you believe in a perfectly operating competitive market which benefits everyone. Both have courts and judges available to referee doubtful cases. The reality is that, as with a market, where Rights are involved there will be winners and losers, and these will largely be decided by how much power and how much money the different actors can command.

This wasn’t such a problem when the first Liberals began to talk in terms of individual Rights. As middle-class businessmen, they wanted the Right to run their own affairs, without paying unnecessary taxes or obeying tedious external regulations. They wanted the Right to have their property protected, and the Right to enforceable contracts. As lawyers and intellectuals, they wanted the Right to read the books and news that interested them without interference, and to organise themselves politically without worrying about the coercive power of the State or organised religion. Rights, in this context, were a reasonably coherent programme to increase the power of the middle classes at the expense of the monarch and the aristocracy. (They were not, of course, intended for ordinary people.)

The subsequent attempted universalisation of Rights raised a number of serious conceptual and practical problems. For a middle-class lawyer to demand an end to the censorship of periodicals criticising the monarch was one thing. But how could that new freedom be generalised? The first texts (like the 1789 Declaration of Rights in France) essentially gave with one hand and took away with the other. So free expression of opinions was guaranteed, except when it posed a threat to public order. So freedom of the press was guaranteed, except when it wasn’t. So property was “inviolable” (for those who had it)  except that it could be seized if there was a “public need.” Now to be fair, all this represented a considerable advance on the old system of keeping arbitrary power in the hands of the King. But such a text couldn’t solve the basic problem, which is still with us today. Whilst in principle Rights are absolute (we don’t say, “a reasonably fair trial”) in practice they have to be limited in some way, or chaos will result. So, the Declaration, like many later texts, forbids arbitrary arrest, but does not, and cannot, prevent laws being passed to effectively make arbitrary arrest legal. Even today, it’s instructive to look at the European Declaration of Human Rights, where we find that each ringing paragraph of guarantees is followed by a more sober paragraph of exceptions: so many, in fact, as to make the actual guarantees themselves effectively meaningless unless a government wishes to respect them in the first place.

It was not obvious, either, where these Rights came from, what they were based on, or which took precedence if there was a conflict. Most civilisations up to that point had evolved rough-and-ready codes of behaviour, sometimes organised into law, but essentially enforceable through social pressure. These codes were sometimes derived from religious texts, directly or indirectly, but always filtered through custom and tradition over long periods of time. But for the new, self-affirming, middle-class individualists, it was unclear on what a code of Rights, as opposed to behaviour, could actually be based.

The most popular expedient was recourse to Nature, or to a God so practically absent as to amount to the same thing. The US Declaration of Independence of 1776 famously asserted that it was “self-evident” that God had created humans with certain inalienable rights, although no-one up to then in the fifteen-hundred year history of an institutional Church appeared to have noticed it. The series of Declarations beginning in 1789 generally referred to a Supreme Being in passing, whilst claiming that the Rights being recorded were “natural and inalienable.” But the mood of the time was no longer for an activist Deity making detailed regulations: in both cases (and serially for the different versions of the French Declaration) human beings actually had to put together lists, which would include some Rights, and exclude others. Some things were easy and automatic: the sanctity of property, for example. Others were much less so.

Modern Rights declarations are considerably longer and more detailed. After the end of World War 2, the victorious powers felt, not unreasonably, that they had vanquished cruel, unjust and oppressive systems, and that there should be some document that reflected and perpetuated this fact. The upshot was the 1948 Universal Declaration of Human Rights. It was vastly more ambitious, and for the first time introduced ideas such as the Right to education, which could not be properly defined, and which required governments to mobilise money, personnel and resources to implement. By specifically claiming that “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind” the Declaration not only linked lack of respect for human rights to the excesses of the Nazi state, but argued that respect for human rights could prevent such things in the future: the Nazis, in other words, were fundamentally ignorant about human rights issues. This is a line of argument that remains very powerful today: as we have seen it is essentially fallacious, since governments that do not wish to be bound by texts will not be, and well-behaved governments don’t need to consult texts all the time anyway. But it is a very typical Liberal argument, that carefully drafted texts can actually alter reality.

So Rights without the power to exert them are essentially empty. The first person to really notice this was the philosopher Baruch Spinoza, who argued, in effect, that rights were co-extensive with power. We have the right to do everything which it is in our power to do. He didn’t argue that we should do everything we had a right to do, still less that it was always morally acceptable to do so, but rather that the two could not be separated. Like many such uncomfortably perceptive arguments throughout history, it has been violently attacked, but never seriously shaken.

It follows that, if the ability to assert Rights, derive advantages and change the behaviour of others depends on power, then the more power you have, the more Rights you can identify, assert and exert, either directly or on behalf of others for whom you claim to speak. The impossibility of any agreement on what constitutes a Right, or what exactly it consists of in practice, means that any organisation or individual with power, whether financial, political or mediatic, can make use of the RightSpeak discourse to advance effectively any position of potential advantage to them. An extreme case is the argument that Trades Unions should be made illegal since they interfere with the Right to sell one’s labour at the price one fixes. This impeccably Liberal argument is not often made these days, but it is coherent in its own terms. (Interestingly, the Right to join a Trades Union is actually listed in the UDHR, although it is generations since any of the principal RightSpeak actors have mentioned it.)

This, therefore, is the second practical problem with trying to manage a society on the basis of competing claims to Rights. The same Right may be entirely theoretical for one group within society, even as other groups enjoy it practically. The great English Socialist historian RH Tawney christened this the “Ritz Society" problem, after what was then the most expensive and luxurious restaurant in London. Anyone, he argued, was free to eat there, and the management would not turn away anyone because of skin colour or gender. But of course without the ability to pay, this freedom was essentially meaningless. Tawney saw this as a metaphor for the society of the 1930s: I doubt if he would feel differently today.

In some cases, the RightSpeak discourse can also be a useful mechanism for diverting attention away from mundane domestic reality. After all, what does the “Right to education” actually mean in practice?  Some western governments have seen no inconsistency in publicly criticising the Taliban government in Afghanistan for its policies about the education of girls, while starving their own education systems of resources. And perhaps there isn’t an inconsistency, if you see Rights as essentially symbolic, performative phenomena.

The fact that there are not, and cannot be, any objective criteria for deciding what Rights people should have, and often no way of measuring whether actually they exist at more than the declaratory level, means that RightSpeak has found it easy to colonise other areas of life. One example is the increasing tendency to present the results of conflict as “human rights violations.” Now there is an accepted and well-established vocabulary for such acts, drawn from criminal law and the law of armed conflict. Terms like “crimes against humanity," or “violations of the laws and customs of war” have recognised definitions, and agreed elements which have to be proven before a court to a high standard. By contrast, claiming that in a given country there are “massive human rights violations,” which is something that is done very frequently today, means effectively nothing, and does not require proof, or even evidence. It is unusual for any assertion to be made about which rights have been violated.

The objective of this discourse is to increase the power of certain lobbies in the West associated with the RightSpeaking, good-thinking liberal interventionist orthodoxy which has tended to dominate political life since the end of the Cold War, by turning issues of provable fact into issues of subjective judgement. Sometimes the two modes of thinking come into direct conflict, as, for example, when trials of alleged perpetrators are held. The pressure for such trials, when it started abut thirty years ago, was essentially from human rights activists, and, oddly, international lawyers, few of whom had ever been in a courtroom. These people were therefore horrified to discover that actually prosecuting alleged perpetrators required things like evidence and witnesses, proof to a very high standard, and even cross-examination of witnesses (“victims” in RightSpeak). The result has been an unsatisfactory mess, with little sign of any reasonable definition of “justice” having been done.

This is a general problem. Rather as is the case with market economy theories, if the idea of basing social and political decisions on some synthesis of competing Rights claims actually worked, then a lot of the weaknesses described above would matter less. But it doesn’t work, because by definition conflict can only produce more conflict. If everything is assimilated to a conflictual discourse of complaint, any generally satisfactory outcome is ruled out by definition.

Which leaves us rather where we started. Most people find it fairly easy to visualise the kind of society they would like to live in: they do not need complex, conflictual rules which award prizes to the strongest. Next week, we’ll look at some of the alternatives.