T17 – Liberty – A Dangerous Ally Of Human Rights

Human rights are about achieveing freedom for all, not protecting it for the few

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T17 intro video – audio transcript.

It is time to tackle freedom.

  • Does support for human rights mean that we should all be free?

If so

  • What does freedom mean? Is freedom the same as liberty?

And if it is

  • Is liberty the same as license?

The notorious occulist Aleister Crowley once famously said

Do what thou wilt shall be the whole of the law. Aleister Crowley

Was he a human rights activist?

And then there is the whole question, following on from this, of where the state fits.

  • Can laws control freedom/liberty/(license?)?

If so

  • On what basis?

And

  • Are such laws infringements of our human rights or necessary to secure and/or protect them?

The television personality Jeremy Clarkson has strong opinions about speed cameras and semi-hysterical views about destroying them.  Maybe like Aleister Crowley he is a human rights activist?

There is this running tension in our subject, rival views of what it entails, which we can no longer avoid.

How does the idea of human rights connect with individual liberty?

Past Truths

Our subject originates in the 17th Century, with Hobbes.  Of course his idea that we all had rights to everything (everything that it took to keep us alive) led him to the conclusion that the only way to preserve ourselves was to give up our freedom, to hand it all over to a Leviathan state to protect us from the anarchy of our indefinite but disastrous freedom: the famous frontispiece of Hobbes’s book captures well what the theme of that book is.

Hobbes left no room for human rights – nor any for liberty for that matter.

A generation or two later, John Locke came along and his line was different.  True, he took many of his themes from Hobbes, especially the idea of a government that has been set up through a social contract made by people for whom submitting to a government is much more agreeable than the freedom of the state of nature that precedes it.  But unlike Hobbes, Locke saw people keeping their natural rights – indeed the purpose of the government created by the social contract was to better protect, not destroy, their rights.

So government was a kind of deal – a way of protecting individual freedom rather than transcending such freedoms through the exercise of a collective will (as others, most famously, the Swiss thinker Jean- Jacques Rousseau were later to argue).

Why do any of these old thinkers matter?  How do they influence what we think to be human rights today.

More and more I believe this:

It is not what famous philosophers from the past have thought that makes them original.  Of course they work hard, read a great deal, push themselves, get on with their patrons and so on.

But it is not the inherent brilliance of their minds that makes the key difference.  Rather it is their good luck in having their ideas come along at the right time.  If the conditions happen to be right their views are taken up, embedded in culture and become the norm.

What drives these ‘conditions’?

How well the ideas being discussed fit with the underlying political and/or economic power of the day is my (pessimistic? cynical? realistic?) answer.

Hobbes becomes famous because as he said himself his work ‘fights on behalf of all kings and all who, under whatever name, hold regal rights’ – telling the powerful it is morally right to be absolutist is bound to make you popular among the influential.  (I have written a long paper about his malign influence – Escaping Hobbes.)

And Locke works because he tells people that government cannot invade their basic rights, and those basic rights are their individual rights to life, liberty and estate – their inalienable freedoms.

As subsequently understood this becomes a belief that somehow as individuals we are free, over and above government

  • No discussion of what being free amounts to in practice
  • No sociological sophistication – no appreciation that for some economic disadvantage means such freedom is an irrelevance
  • No inclination to subject ‘freedom’ of this sort to any kind of critical scrutiny, to peer behind it to ask how the contemporary status quo (with its masses of (in practice) differently free people has come to be constituted)
  • Feeds an inevitable suspicion of government as a constant threat to individual freedom and liberty

Now I am exaggerating the implications of the theories that underpin contemporary libertarianism.  But the point is not so much what the great minds make of an idea so much as what those on the hunt for a moral basis for their good fortune do with it, since these are the people who matter.

For the rich and the powerful, those who have everything to gain from leaving things exactly as they are, this theory is perfect.  The state must protect their wealth and makes sure the agreements they make are enforced (Locke demands all this) but it must not do anything else.  More interference than this is a breach of liberty, a denial of freedom!

Even income tax is a concession, with redistributive taxation being morally illegitimate (as one of the most famous proponents of this position Robert Nozick argued, to the delight, no doubt, of well-educated tax-evaders everywhere).

Jeremy Clarkson’s clarion calls for freedom and the decision by leading Conservative David Davis to fight a by-election on the issue of liberty are all echoes in public discourse of this fundamentally libertarian line.

So when, for example, Davis recently so strongly opposes votes for prisoners that he forces a government climb down on the issue  or when he slams the Human Rights Act, he is being perfectly consistent.

For him and libertarians generally freedom and liberty are not the same as human rights.

They are right.

A Different View Of Freedom

The human rights idea does not of course disown the idea of freedom, or that of liberty.

Rather it gives both concepts a different spin and as a result smaller (but still significant) places in the overall ethical scheme which human rights entail.

What is confusing is that freedom and liberty have two meanings in human rights, the first general, the second rather narrow.

Let’s take each in turn.

First the more abstract of the two.

  • For human rights freedom is about equality of esteem for all: see track one and much of common tracks one and four as well.
  • The subject is universalistic down to its bones: it is concerned with securing for all a successful, flourishing, ethically responsible life.
  • That word securing is important.  Human rights protagonists do not just accept whatever the status quo happens to be.  The idea is a transformative one, willingly embracing change where this is likely to increase the capacity of unlucky, the poor, the disregarded, the weak to enjoy better lives, to make use of the platform for ethical success that it is the job (and moral imperative) of human rights to build.
  • In the pursuit of this rich version of freedom, the human rights idea embraces the state.  Of course there needs to be directed action from the centre to get the right things done.  And of course this may sometimes require those with more than enough for the enjoyment of their freedom to give up some of their wealth to those who have none – the resources of the world are not infinite and individual accumulation cannot but come at a cost to others: equality of esteem entails at least this.
  • As we saw in common track two, civil and political rights fit easily within the world of human rights because they are the means through which a government rooted in equality can be constructed.

On this version of our subject, the state is the friend not the enemy of human rights.  Freedom is what we must work to secure for all, not the name we give to the luckily-enjoyed luxuries of the few.  And freedom is not freedom from government interference as such – it is the freedom to lead a successful life which an effectively functioning human rights culture can provide better than most other models of government (or indeed any other?).

So can government do whatever it wants in the name of freedom and the delivery of human rights? Is Rousseau’s general will (with its incendiary idea that we can be ‘forced to be free’) to rule the roost?

Liberty Must Know Its Place

This is where the second, and narrower meaning of freedom and liberty kicks in.

According to the human rights idea, interferences with our individual freedom need to be justified.  This is because its starting (but not end) point is that the individual is the best judge of what he or she needs to do to live a successful life.

Some interferences will never be justified.

The state needs never to torture a person, or enslave them, for example.

How do we know this?

Because the test of ‘need’, the basis for legitimate interference with individual freedom, is itself rooted in the idea of human rights: is this interference essential to provide for a richer human rights environment for all.  In the words of one of the most famous charters of rights (the European Convention on Human Rights) is this restriction on individual freedom ‘necessary in a democratic society’.

‘No’ to torture and slavery, obviously.

But often ‘yes’ to regulation of property, confiscation even – see track eight.

And quite possibly yes as well to regulation of speech (racial hatred; religious hatred; pornography), and to ‘infringements’ of privacy where the greater (human rights) good demands these (fingerprinting; breathalysing suspected drunk-drivers; warrants to search private property when a crime is suspected; prohibitions on dangerous drugs).

Yes too to legal proceedings against people who want the freedom to be racist, or sexist or homophobic (‘No blacks’; ‘No Irish’; ‘no same-sex couples’’)

And some issues which are of vast importance to libertarians come much lower down in the priorities of a proponent of human rights – speed cameras on the roads, CCTV cameras on the streets, identity cards – the issue for human rights is whether the powers are fairly exercised, not whether they exist at all.

Inevitably, so far as human rights are concerned, the issue is one of balance, and of justification.

So Who Does The Balancing?

The primary judge must be the elected body, the collective common sense of the community at large, guided (we would hope) by the principles that underpin a human rights approach to the world.

Judges are good too at sorting out priorities within the parameters set by the people.  This is where democratic human rights laws like the UK Human Rights Act can be very useful.

And there is a role for conscience as well, where the laws may get the balance between liberty and human rights utterly wrong, perhaps because the attitude of law-makers has been contemptuous of freedom right from the start.

But this is a very different discussion than one propelled by a belief in freedom outside the law to which all laws must be subject.

The human rights ideal has no scope for such selfish distortions of what freedom truly means.

Some Concluding Questions

  • Am I too harsh on libertarianism?
  • Do I run the risk of not taking individual liberty seriously enough?  Am I revealing that I am after all a closet statist…?
  • And a topical one on which I am conflicted and would relish advice:
  • Should the media be able in the name of political freedom to publish what they want without government control?  (I am not sure what I think of Wikileaks… is this political freedom or liberty transformed into license?)
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21 Responses to T17 – Liberty – A Dangerous Ally Of Human Rights

  1. Federico Burlon says:

    I agree with the idea that for libertarians liberty and freedom is not about human rights. I believe that the central feature of human rights is that they are (or should be) revolutionary. By revolutionary I do not mean anarchic or necessarily violent. What I mean is that a proper understanding of human rights conceptualises these as principles that guide human beings toward greater personal and communal development, if necessary, by upsetting established structures and breaking with existing paradigms. It is precisely because of their emancipatory promise that libertarianism is incompatible with human rights. Libertarianism is one-sided. Ask a slum-dweller in Latin America (or anywhere) if he would like his property and income to be sacrosanct and he will probably tell you that he does not care because he has no income or property. Ask the same question to a City investment banker about his bonus, and he will probably give you the opposite answer. Libertarianism seeks to preserve the status quo to the detriment of the dispossessed. For this reason, the libertarian idea of freedom as self-ownership is not only self-serving, but it is also incompatible with the human rights idea of freedom that Prof. Gearty neatly describes. I believe that here is no fault in being harsh with libertarianism because at its core, libertarianism undermines the egalitarian achievements that human rights have made possible as well as their potential for continuing to be an emancipatory, revolutionary project.

  2. Colin Harvey says:

    I share Conor’s concern about libertarianism. The human rights movement has worked hard to distance itself rightly from the atomistic, selfish and isolated caricature. It is the easy critique of human rights, which some lend unintended support to, but it is wrong. Human rights are intrinsically relational and other regarding, but I suspect also now much more open to embracing some collective and communal egalitarian ambitions, for example, on structural inequalities based on membership (real or perceived) in groups. Human rights ‘knows’ that we live in societies together, and that some are disadvantaged not because they happen to be Conor or Colin but the perception of others about which group they might or might not belong to. Also, is one of the major advances the attempt in modern human rights to enlist collective democratically-anchored bodies in the human rights project? Also, (social) democratically mandated responsive and accountable regulation of areas such as the media seems important. More is probably held back in information terms than shared, and very often for no very good reason. But have we thought through all the implications of an information free for all, are we undervaluing the significance of privacy and appropriate levels of confidentiality and discretion. What do we feel the real world impact is of nothing being confidential – what impact might this have on institutional cultures, what are the unintended consequences. Even with leaks, there is always an agenda, and not everything is revealed. Who decides what we ever see, even then? What do we not see? Are there some with things to say, but whose respect for discretion mean that they are silenced. Libertarianism is the caricature from which we are always trying to escape, for very good reason. But there needs also to be space to be free from our open, transparent, free for all world. That is true for individuals and collectives too.

  3. Richard Buck says:

    Conor, I think you are giving the state too much credit. While it can be the guarantor of human rights against the attacks of extremist groups on the right or left, it is also the most powerful violator of human rights in the world. What to do? To quote the ever popular Lord Action: “Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.” As trite as this quotation may seem, I find that it applies to much in life from family life to international relations. At the country level, the power of government is needed to secure the human rights for all. To do this it must curtail the liberties of some; such as, to spend money as they see fit. As a practical matter, even in a democratic regime, human rights are unlikely to be granted to those without power. National politics is power politics and those with something to be given up will assert their power. This must be countered by the power of people trying to obtain a human right. The best bet is to have a state where there is a balance of power; i.e. , no one group has absolute power. In a balanced power regime, no groups gets its way entirely. Compromise is necessary. The extension of a human right is balanced against the claims of liberty on the part of certain groups. This gets back to our discussion of unions. Unions are needed to balance business interests at the national level. Constitutional limits on governmental power that guarantee certain individual and corporate liberties are also a way of balancing power: individuals and private associations of individuals against the government. Federal states, like Germany and the United States, have an advantage in the balance of power game; the power of state governments can be balanced against the power of the national government. I am extremely leery of an all power national government that grants rights as its sees fit and also withholds them as it sees fit.

    In the international scene, power politics also pertain. To the traditional state-against-state balance of power game we might also add global corporations and international organizations. States are the ultimate libertarians: they countenance no limits to their liberty within their territory or sphere of influence. Global corporations would like to have the same liberties, but they view the whole world as their territory. I see no way to limit one of these groups except by the power of other groups.

    At both the country level and the international level, power (whether state or other) must be balanced to create an environment where human dignity can flourish—where attempts to violate human dignity are thwarted by a counter force. Since the balance of power is the guarantor of human rights and liberties, there will be compromises in both areas as a practical matter. The alternatives are either chaos or absolute power; neither of which will facilitate human rights.

  4. Fatima Ahdash says:

    What is interesting is that in fact we can trace some of the modern human rights discourse (what I mean here is the politicised human rights discourse- the type that was used by Bush Jr and even David Cameron recently when he spoke in China) to libertarianism. This is because liberals such as Locke and Jefferson saw certain rights as natural rights- as fundamental to the human existence and as therefore unalienable( for Locke these were famously life, liberty and property and for Jefferson, these were life ,liberty and the pursuit of happiness.) What is interseting, in the case of Locke at least, is that through framing property as a fundamental human right, he was, in many ways, justifying (almost religiously) colonialism- his idea that America is an empty land that would be better used if man made use of it and therefore approprated it. And it is here that I negin to get worried when some people like Bush begin to use the language of human rights. It tells me that at times, when it is used in that liberal context, it can become imperial. So whilst I agree that there is no place for human rights among libertarianism, it is importnat to see and even resist thier hijacking of the rehtoric of human rights.

  5. Alice says:

    Thanks, Conor. I agree with your critique of libertarianism; I think the problem with it is that it makes most of ‘power’ disappear because it focuses solely on the state as a source of oppression rather than corporations and financial institutions. The social democratic case for the state has always rested in large part on its being the only possible counterweight to corporate power. There are problems with states, of course, even social democratic ones – and libertarianism may help us to identify them (though frankly it’s not that hard – ID cards, 42 days etc – and human rights principles such as proportionality do that job well). But as a general idea the startling inability of libertarianism to address the malign and unaccountable influence of supra-national capitalism makes it, at best, tangential to the most important debates of our times.

    This is where I think human rights need Marx, notwithstanding his critique of rights as the preoccupations of bourgeois, capitalist individuals seeking to throw off restrain. Marx gave us a critique of capitalist social relations which remains a powerful tool with which to confront the myth that equality and individual self-realisation have been finally achieved under modern capitalism. Without this critique (or something derived from it) the assertion of economic rights in particular risks appearing vulnerable and insipid. Human rights will remain the preserve of the privileged unless they are used in the service of a redistributive and egalitarian vision – and that requires us to know where real power lies
    and how it is abused.

    A separate point: when it comes to documenting human rights abuses (cf Richard’s comment above), we surely need to take account of the capture of states by private forces, consequent corruption and so on. There is no simple distinction between the state and the private sphere when democratic accountability breaks down or is absent to start with.

  6. Luis Paulo Bogliolo says:

    Firstly, I do not think you are being too hard on libertarianism. We are ideologically close on this issue: liberty must indeed know its place. Equality and freedom are perhaps two sides of the same coin – we cannot have freedom for all without at least some equality. That is why libertarianism does not suit the human rights ideal of equality of esteem, it contends liberty should be protected but disregards whose liberty it refers to. It is therefore ideal for those who have political and economic power for it is their liberty that is being protected.

    It is true that governments do often overstep the limits of interference deemed “necessary in a democratic society”. That may be the case with many countries’ reactions to terrorism, especially after 9/11. Then again, almost all that has followed from this has only been another way to protect the liberty of few against the freedom of many. Unlimited detentions, the proliferation of databases and the profiling of foreigners and persons considered “dangerous” are just a few examples of how the State does in fact interfere – a lot more than it should – for the protection of the liberty of some against the freedom of others.

    One could say that the assumption behind libertarianism that many refuse to acknowledge is that “we are all equals, but some are more equal than others” (remember Orwell).

    Human rights cannot be only about more freedom and less interference. The world today lacks many forms of control that are urgently necessary for the human rights agenda. Economic power, financial markets and transnational enterprises need to be better controlled and regulated. The same goes for the media. The more imminent threats to freedom of press and to liberty is not government interference, it is the absence of control that lets the very few people who control the media and the great enterprises control great aspects of the life of many who do not have much. Human rights must be about fighting against the dissociation of humanity into two groups: a very restrict group of rich, technologically advanced and powerful people who will live 100 years or more; and a huge group of underdogs who will not have the freedom to make the choices they think will lead them to a happy life and will not live much more than 60-70 years. There is quite a gap between these groups nowadays and those like us who defend human rights should work towards mending it.

    I do not agree with the proposition that the media should be able to publish whatever they want in the name of political freedom without government or social control. What good is freedom of press if the media is controlled by a handful of people who decide what should or should not be published? If democracy implies a free press, it should also entail a democratic press. People should have influence over what must and must not be published – that means there should be limits to the press (inciting crimes, hate speech…), but there should also be limits to the influence of few individuals over the media giants.

    The United States have great examples of how libertarianism can lead to dreadful results. Take the right to keep and bear arms, so dear to the US Supreme Court, as an example. Government in the USA cannot prohibit citizens to carry fire weapons – an awful interpretation of the 2nd amendment. An eventual governmental interference with this right could prevent numerous events such as the incidents in Columbine or recently in Arizona. At the end of the day, all I can say about this situation in the US is that every society has its dose of lunatics, but some arm theirs better than others. Of course interference in such cases is in order.
    The health system in the US is another good example. The new Congress might attempt to repeal Obama’s health reforms as “it forces people to have insurance” and as government is interfering far more than it should with people’s choices. The point is that this interference shall bring health coverage to over 30 million Americans. It is great to defend your freedom of choice if you have such freedom (if you can choose what insurance you want), but if you can’t even afford the cheapest then there is really no freedom at all.

    My country (Brazil) is another good example of why libertarianism is excellent for those who want to keep the status quo. In such an unequal country, if you are rich why bother to fight for a regressive tax system? You would rather fight for your fundamental right to property and privacy. Meanwhile the right to property of the poor is ignored – many cannot afford to buy a house. Their privacy is worthless, their freedom an illusion.

    What is great about this topic is that it unmasks a certain “neutrality” or inherent good in the concepts of freedom and liberty. We cannot talk about human rights without placing ourselves ideologically and politically. There will always be balancing and grey zones, but we should face these challenges aware of our purpose: to treat each and every human being with dignity. It is therefore crucial that we keep asking whose freedom and whose liberty are we talking about when such concepts come up.

    If in its historical origins the word “dignity” referred to a certain status in society, to a place of prestige, of the noble, its modern sense is not restricted to some but to every human being. Human rights mean all should be treated like nobles (Jeremy Waldron). If we are all noble than freedom is for all, not just for some.

    Finally, about Julian Assange and wikileaks I have not reached any personal conclusions so far but I can argue that:
    1) there are legitimate reasons for privacy and secrecy and wikileaks should also be subject to those legitimate restrictions. For instance, a human rights activist who sought help from the US Embassy in Burma might have his identity and his work jeopardized by the leaks (fictional example);
    There must be some strains on the press for political freedom is only another right that has to be balanced against other interests and rights. No right is absolute and so the press cannot claim to have the freedom to publish whatever it wants.
    2) if wikileaks has proved something so far and the reason it has some reasonable popular support is that governments have abused secrecy and deceived citizens too often. Perhaps some more transparency is needed. People need to know how their representatives act and what they are doing.

  7. Paul Bernal says:

    Another excellent – and fascinating – track, hitting on some of the most important issues of all. For me, the key to the problem with liberty/libertarianism/license is power. When liberty means the liberty to exercise power, that should ring the alarm bells – whether it means a gun owner’s ‘liberty’ to carry or use their weapon, Jeremy Clarkson’s ‘liberty’ to use his powerful car to its powerful ‘best’, or investment bankers’ ‘liberty’ to secure for themselves billion dollar bonuses. Libertarianism in reality all too often simply means that the powerful get to assert their power, and the less powerful get sidelined or even crushed. In the words of that great philosopher, Spiderman’s Uncle Ben, ‘with great power comes great responsibility’ – and that responsibility, in the real rather than the cartoon world, is often avoided.

    That brings me to Wikileaks – a topic that has far more implications than are generally considered in the media, and one which I personally believe will have an impact for many years to come, in a whole lot of ways. I don’t think anyone has a grip on those full implications – certainly not me – but my particular take on it in relation to liberty and libertarianism is again that one of the keys to understanding it is power. Whilst there are many things about Wikileaks that are deeply worrying, and there are many things about Julian Assange in particular that I find concerning, looking at the enterprise as a whole I find myself very much in favour, very glad that they have done what they’ve done, and at the same time very concerned about the reaction to what they’ve done. What they have done is reverse the former balance of power. They’ve stuck their thumbs up at the powerful – governments particularly, but also some of the most powerful corporate interests – and done it in a way that those governments and corporate interests have been unable, so far, to crush. They have tried to remind governments that they should be afraid of the people, rather than the people being afraid of them. They’ve brought at least a degree of accountability where previously there was almost none – and they’ve reversed (for a moment, and in a small way) the imbalance in transparency about actions that there has been between the powerful and the rest of us.

    Shaking up that power relationship is, to me, a good thing – and reminding governments and others that their actions may be noticed, scrutinised, publicised and criticised is, at least in general, a good thing. The extreme reaction of the US government in particular, trying to bring all their power to bear, getting the corporate interests on their side (VISA, Mastercard, Amazon, PayPal etc immediately did what they were told), and some of the extremely biased reporting – focusing on the fact (and possible dangers) of the leaks rather than the substance and implications, makes me think that at least some of the powerful are deeply disturbed by their potential loss of power, and frustrated by their inability to control it. They want to assert more control – I would like us to resist that attempt to control, and resist it vigorously.

    That’s where I think Wikileaks is more about freedom than about the more damaging side of libertarianism – as I said at the start, libertarianism damages where it ‘frees’ the powerful to exercise their power. For the most part, Wikileaks frees those who don’t have power, and constrains and disturbs those who do, and who are often abusing that power. That to me – in general – is a good thing. Yes, there are lots of aspects of it that aren’t so good, but the general phenomenon I would support, and even suggest that I would support it in the name of human rights.

    • Christina says:

      Wiki leaks is key in a long line of investigative reporters, from George Orwell, through James Cameron (bikini Atoll) Lee Miller,(vogue on aushwitch),Wilfred Burchett, , Robert Fisk, John Pilger, Martha Geldhorn, , Kate Adie. A handfull.
      First crucial point ,if nothing else Wiki leaks showed verifiable video footage of killing civilians, except they weren’t just people with dark skins, there were 2 Reuteurs journos also killed. Is that what it takes to object to “collateral damage”? a western journalist?

      Leave personality out of it. Like Paul (with whom I have much in common), there’s unsatisfactory stuff. But nobody has proved that anything put any one’s life at risk, it was all vetted. Helena Kennedy reminded us what the media choose to ignore, the above fact.
      Its not “just gossip which we all knew or suspected.”
      Next as Paul says, how he was received and treated, is a warning to any whistleblowers. Any one who read this week Observer magazine will have been appalled to read that a multi-million contract has been renewed to a group who have been exposed as child and women traffickers, ten years on. The people who lose their job, their credibility and perhaps their life or their reputation are always the whistle blowers, and the media and the politicains are quick to discredit them, or in this case smear or belittle them.

      The media shapes the way we view the state, and to his credit Ragi(?) Omah said he regretted being “embedded”, and sending out the party line. Where are the truth tellers? How can we have human rights, if their violation goes ignored?

      • Paul Bernal says:

        Part of what matters about Wikileaks is not Wikileaks itself, but that they may have opened the doors for others to do the same – so if Wikileaks falls, or if they become ‘corrupted’ by power (which is one of the possibilities I read into the piece linked to by Anthony below) then there will be successors, and the internet, so long as we don’t allow government and corporate power to strangle its freedom, will enable and support their actions.

        Wikileaks may have changed the game for the media and the internet – I hope so. Only time will tell, however.

  8. Ronan McCrea says:

    I think most of your critique of libertarianism is correct but I do think that you are perhaps not quite concerned enough to protect an individual’s right to define their own identity and place within the world. The idea that the goal of the human rights movement is the “securing for all a successful, flourishing, ethically responsible life” needs perhaps to be nuanced. I think all humans share a desire to exercise some degree of autonomy and any worthwhile theory of human rights must take account of this. While autonomy in economic matters (if seen as a right to be free of taxation or regulation) can rightly be curtailed, I would be more hesitant about areas such as speech and discrimination. Human rights must defend those who desire to construct a personal identity and personal relationships that fly in the face of accepted notions of a “successful” life. A key element of recognising the dignity of others is to accept their autonomy and their right to choose things that we would not choose ourselves. Respecting someone’s right to choose their own identity and life respects their dignity to a greater degree than imposing one’s own ideas of dignity on them. It may violate a person’s dignity to force them to wear a crown more than to allow them to choose to wear rags. An adult who finds greater dignity in acting in a pornographic film for example may find their dignity more violated by the poverty of unemployment than the act of participating in a pornographic film. One would need compelling reasons to over-rule their perception of what their dignity requires. As Oscar Wilde said “Do not do unto others as you would have them do unto you: they might not like what you like”. Similarly, in relation to discrimination law, there must be some spheres of life (choice of one’s friends or spouse for example) where the right to define one’s own existence and relationships trumps the need to secure equality(I suspect you agree with this but the thread does not make this clear). The most monstrous violations of human rights of the 20th century (Nazism and Communism) both justified their actions on the need to cause suffering now to attain utopia in the future. One of the lessons drawn from humanity’s experience with these ideologies (and one which is particularly useful in opposing torture for example) is that no goals, however laudable can justify overriding certain basic protections for the ability of an individual to carve out a life inconsistent with collective goals. The human rights movement must be wary of trampling excessively on individual liberty in pursuit of its own goals.

  9. Richard Buck says:

    I like Paul Bernal’s point about Wikileaks reversing the previous balance of power. This is one tactic for the powerless to gain power and its works well in societies with a tradition of free speech. Free speech was a key part of John Locke’s position on rights and he would not place any restrictions on it. Free speech is a way of guaranteeing and protecting all the other rights. Free speech is a way to assert one’s interests and to fight incipient tyranny without resort to force. The power of free speech, as Paul points out, is demonstrated by the U.S. government’s reaction to Wikileaks. I think freedom of speech should be close to absolute, with the caveat that it must be exercised in a way not threaten life and injury, such as yelling “Fire” in a crowded theatre when there is no fire. Having said that, I recognize that free speech protection for a media monopolist is a contradiction. Therefore, laws restricting ownership of multiple media outlets within a country or a media market make sense. Rupert Murdock can say anything he wants, but he should not be able to own all the media outlets in the State of Kansas, for example. Also, the common good would justify the requirement that media devote some of their time and space to dissenting opinions.

    For all their sins, libertarians can perform a useful function in the body politic. In the United States they have been the only political party to consistently oppose U.S. military adventurism and the disastrous war-on-drugs. The anti-drug-war position is a civil liberties position. The position on military adventurism is more complicated, but there is kind of a “liberties of nation-states” facet to it. One wishes that libertarians had enough political clout to get abolishment of the war-on-drugs on the legislative agenda, but not enough to win a national election. They would make a good opposition party.

  10. As with many of the other commentators, I find the issues covered in this track – and indeed that flow out from it in others’ comments – most stimulating.

    I agree with much of what has been said about the economic consequences of libertarianism in the comments; in particular the way in which untrammelled rights to private property on the part of the “haves” lead to the increased impoverishment of the “have nots”. Or, similarly (and the USA is the classic case here) the way in which very narrow interpretations of freedom from the state (small government, low taxes, etc) lead to degraded conditions for those majorities of people who are at the “bottom” end of society. As Conor said of libertarianism, “For the rich and the powerful, those who have everything to gain from leaving things exactly as they are, this theory is perfect.”

    Conor argues that in a more proper understand of human rights, human rights embraces the state – I would perhaps go further and say that the state is essential to human rights for as long as the modern state is seen as the authorizing instrument for what we are legitimately due. Without the state, then human rights are reduced to the status of desirable norms or standards. Even if Cameron’s big society were to achieve these standards (which no serious person believes), their guarantee as a matter of right via the power of the state would be missing, and thus they would be missing the cornerstone which makes the phrase “human rights” make sense.

    Thus, from both a practical point of view and a conceptual point of view, the state is in. Of course the state is not all fun and games; this is one of the key tensions: the way in which the rights which are guaranteed by the state are also the rights which restrain the state, which hold it back from interfering in our realms of personal liberty, where this is not justified.

    Conor asks, in effect, how do we figure out what is justified and what is not (“so who does the balancing?”) This is where democracy is key – as Conor also says, pointing to the European Convention on Human Rights – the questions about justification can often be resolved, or at least understood, by considering what is “necessary in a democratic society”.

    For me, this is where this discussion links up with some over the past couple of weeks. The discussions over animal and environmental rights brought to the fore the question of whether we justify human rights using an interests or an agency model of rights. The interests model of rights is a clear fit with much of what Conor says, and with much of the discussion following from his post: human rights are about identifying fundamentally important aspects of human being and making sure they are available for all.

    However, it is when Conor brings us back to the question of justification and balancing, it seems to me that the crucial role of political agency must be accepted. Who does the balancing, who makes the decisions about “whose and which interests”, to play on a famous book title? The danger here is a new form of denial of liberty, this time in the name of the interests, capabilities and conceptions of flourishing which are supposed to arrive with the fulfillment of human rights.

    There needs to be a robust defense of the political agent at the heart of human rights – which is why I am so pleased that Conor brings us back to democracy at the end of his post; the implication of doing so is that he sees this need clearly. Democracy – particularly as it is practiced in the UK at the moment – has many faults and failings, but for as long as it is being practiced in some way, there is the capacity for individuals to exercise political agency and change the system for the better. Moreover, for human rights, it is my view that this agency must be seen as central to the exercise. Otherwise we end up with yet another political movement where the rich, powerful and influential set out what the “interests” of humans everywhere are, and then go on – using the power of the state – to inflict it upon them. Reductio ad absurdum? Recent history would perhaps suggest we are much closer to this fate than we often like to think….

    A central role (not a token one) always has to be kept for the individuals and groups of people who we talk about where we talk about human rights – for these people, the people who’s lives are going to be affected as much by “our” proposed human rights instruments as much as they are by the abuses of current governments and corporations – for these people to put in place the rights they think they should have, not just the ones which we volunteer on their behalf, speaking as we like to do for all of humanity.

    • A further point by way of clarification: part of why I believe the emphasis on political agency is non-negotiable, is because while it is the case that we can construct robust, plausible and highly justified accounts of what interests, capabilities and functionings – what rights indeed – human beings may be said to have, or ought to have, it is nonetheless the case that when these are put into practice, operationalised, institutionalised, there turn out to be so many possible ways of doing so which have consequences for the people immediately involved. From this point of view, there is no such thing as the right to life, the right to free speech, the right of association, or to education – but there are a multitude of such rights, or ways of bringing such rights to life, some of which are clearly better than others. The people at the heart of every attempt to realise such rights must always be enfranchised to take hold of the process by which they are being realised. The interests of the people whose rights we seek to protect are never served by constructions (theoretical or practical) which leave them powerless with respect to their own political destiny.

  11. Craig Valters says:

    Am I too harsh on libertarianism?

    No, you’re not. The world that the libertarian would be content with is one I’m simply not willing to accept, as you’ll see below…

    Do I run the risk of not taking individual liberty seriously enough? Am I revealing that I am after all a closet statist…?

    There’s nothing wrong with recognizing the positive role of the state, whilst being wary of its power. Individual liberty is important, but it can only be understood in the context of social circumstance. One of the roles of the state should be to recognize that the traditional individualistic rights simply are without meaning in a circumstance where you are not in a position to exercise them. That’s why I have previously found the much cherished slogan for America, ‘The Land of Opportunity’ difficult to reconcile within the context of their social problems. Opportunities can be diminished by circumstance and states should attempt to mitigate those circumstances by securing minimum standards of support to citizens.

    This was something Rousseau recognized, yet is rarely credited for. In Book 2, Chapter 11 of the Social Contract:

    “…bring the two extremes as near together as possible; tolerate neither rich people nor beggars. These two conditions, naturally inseperable, are equally fatal to the general welfare; from the one class springs tyrants, from the other, the supporters of tyranny; it is always between these that the traffic of public liberty is carried on; the one buys and the other sells”

    In fact, I’m of the opinion that Rousseau’s thought (albeit it with a nuanced understanding, one which there is no space for here) offers a lot to contemporary discussions on freedom and liberty. Libertarian thinkers such as Nozick only act to confuse contemporary political and moral thought with the notion that if we have the potential opportunity to achieve our needs, that is enough. It isn’t. If we follow this path then we find rights to simply be about the protection of the interests of the powerful. Of course, perhaps they always have been about that very thing. But the norms and laws instituted in the name of rights, with all their universal talk, have the potential to take on a life of their own.

    A human rights discourse that acts on what it actually poses to be has no room for ‘selfish distortions’, as you say Conor.

  12. Craig Valters says:

    Should the media be able in the name of political freedom to publish what they want without government control?

    Put simply, it depends on the context. As with all of the discussions we have had previously, I think we need to focus on a more diverse set of countries, as I personally very much doubt one (most likely liberal) media template will fit all situations.

    Tim Allen and Nicole Stremlau make a persuasive argument that in some circumstances (they focus on conflict zones) the media should be controlled. There is an argument to be made that a ‘free media’ is much like a ‘free-market’, they both at least require the presence of a strong (and hopefully egalitarian) state which includes, among other features, a well-functioning legal and judicial environment. What do we think about free press in Rwanda before/after the genocide of 1994? What about in Afghanistan and Iraq? These examples raise different questions of accountability for a ‘free press’ and who, if anyone, has the power (or right?) to control such forces. Rwanda has become a textbook example to show that the liberal freedom of the press model cannot be applied everywhere: Snyder and Ballentine have persuasively argued that the conflict was intensified by greater press freedom. Yet, rapid liberalisation of the media was part of the Arusha peace accords and generally seen to be positive, despite its clear potential to be used as a method of incitement. Of course, this is an extreme example. But for me it serves to highlight that the idea of a ‘free press’ is not some ‘trump’ which overrides other clearly more important factors – or even necessarily ‘better’ than a not-so-free press.

    The Allen and Stremlau article can be found here if anyone is interested: http://eprints.lse.ac.uk/28347/

    Coming into the main debate: By and large, I think I support Wikileaks.

    Some rambling thoughts on this:

    I do wonder if I support Wikileaks because the large majority of what they release tends to confirm my suspicions of certain powerful nations and more generally coincide nicely with my opinions. That’s not something I feel apologetic for, if it’s ‘truth’ being released and it release aids the pursuit of progressive human rights or egalitarian goals, then of course we will be for it. Very often, these releases have tended to expose troubling corruption, power structures and political (and military) actions which we really should know about, as they show how what politicians say and what they do are very different. How else will we realize that certain actions being taken on our behalf (by our elected representatives) go against what many of us would agree to? Politics is a murky world. And things only tend to change when they are exposed in this way.

    Yet, the article Anthony posted does make me question something: is it making a profound change? Can anyone tell me what has happened in the wake of the ‘collateral murder’ video (it’s shocking: http://www.collateralmurder.com/) ? Not a great deal. As Paul states, media coverage has …focused on ‘the fact (and possible dangers) of the leaks rather than the substance and implications.’

    On a different level, I wonder how we would feel if it released data that were hugely damaging to a human rights project? What if the release of diplomatic cables, for example, undermined an ongoing peace process? This could be said to be the case already. Some may argue that transparency is crucial in such processes; but to me it’s clear that if every interaction in political discussions were publicized very little could be achieved, considering the need for compromise. Yet, where does the line get drawn – and most crucially really – who draws the line, particularly when the most powerful states are implicated? To say that the state should have the power to decide whether such documents get released assumes a constant benevolent and transparent form of government that I’m sure anyone in the world has; certainly some less so than others.

    These are just thoughts; I don’t feel as if I have an answer. But my instinct is that a good way to think about it is like with human rights: they are not just stuff the state should provide, so we can go about our private lives, but a protection from the state itself – history has shown that this is required. Having freedom to expose the state (and private actors) using information like Wikileaks has is important in the same way. We need the state not just to allow it to happen, but to allow it to happen against them – it is surely a sign of a healthy and well-functioning democracy when this is possible – and the sign of a power-hungry and selfish one when it’s not.

    This, as discussed, is heavily contingent on the societal context of the release of information or opinions. In some countries it will correctly be deemed an important political freedom; in others it could be part of the licensing of incitement to extreme violence.

  13. Craig Valters says:

    Oops, obviously I meant: ‘To say that the state should have the power to decide whether such documents get released assumes a constant benevolent and transparent form of government that I’m NOT sure anyone in the world has…’

  14. Favio Farinella says:

    A first idea is about limits which are connected both to freedom and liberty.

    Freedom as a natural attribute of every human being precedes the idea of human rights. Precisely because of that inherent attribute we have the chance to adopt the human rights idea as our personal ethic. Natural limits exist to our inherent freedom which prevent us to learn and adopt an ethic. They are dependant on our particular circumstances (education, religion, genre, etc.).

    If we were lucky enough to learn about human rights and decide to adopt the idea, then legal limits will appear to constrain the exercise of rights for the benefit of the disadvantage. Legal limits remind us the notions of equality and non-discrimination. It is not only ‘our right to liberty’ but also -and more important- the right of ‘others’ (the weak, the voiceless, the disadvantage).

    The human rights idea is also about our obligations to our fellows. ‘Natural limits’ which are born out of personal circumstances are to be considered together with ‘legal limits’ provided by domestic laws. These restrictions referred to what we can do and how we shall act. Freedom and liberty must also be considered from this negative criteria which guarantees the empowerment of the weak in every unbalanced society.

    A second idea is about communication.
    Let us consider the last events that are taking place in Tunisia, Egypt and Yemen. One of the first actions decided by the regimes in power, was to cut off every communication technologies. The absence of communication is a synonym for isolation. The less we know, the more ignorant we grow. Our distinctive capacity for reasoning is to be insulted every time that a leader decides what is right for people to know. Of course there must be limits -as with every other right-, but set by the congress and according to legal proceedings.
    The right to communicate goes always along with the right to be previously informed of facts which is the first step to start forging an opinion (which by the way constitutes the basis of our freedom of conscience and expression). Just to put an example, the Vietnam war would have ended sooner if people had known about the atrocities in real time.
    To cut off communications sounds like closing the door of the house to hide from everyone the subsequent domestic abuses. Finally, freedom is better defended with more freedom.

    • Christina says:

      I’ve found this extremely hard. Favio has exactly put his finger on it.
      Two succinct paragraphs relating to contemporary events: “their first action was to cut off communication. The right to communication to be informed of the facts,” (nearly always war..Caly and Mai Lai and Guantanamo).
      Please, please, look to the media and freedom of information, else we’ll not have a foundation for rights, or even know where they are, or how abused. The whistleblowers are the first/next casualty in any conflict.
      I shall say it again Favio, bravo,
      Freedom is better defented with more freedom.