McLachlan: When human rights are almost indefensible

WE should consider repealing existing laws and plan for a new constitution that addresses realities not ideals, argues Hugh McLachlan

Those who are thought to deny people their so-called “human rights” are commonly vilified and, no doubt, some deserve to be. Nonetheless, we should risk the vilification.

I believe in the actual existence of a category of moral rights that we all have as human beings by virtue of our shared humanity. They are prior to and independent of the deeds and decisions of politicians and governments. In a long and noble philosophical tradition, they are called, inter-changeably, “human rights” or “natural rights”.

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These are distinct from other sorts of moral rights that people have by virtue of the particular times, places and contexts that they happen to be in. Hence, to deny the existence of human or natural rights is not to reject morality as such. For instance, the famous utilitarian moral philosopher and social reformer Jeremy Bentham thought that all claims about the reality of natural moral rights are “nonsense on stilts”.

If there are any moral rights, it is far from self-evident what they are. Even if we knew what human rights actually exist, there would still be a problem in deciding what laws, if any, we should pass with respect to them. To say we have a moral right to something or other is not necessarily to say we should be given a legal right to it.

For instance, if two people promise each other sexual fidelity, each has a moral duty to be faithful to the other and a moral right to fidelity from the other. However, it does not follow that adultery should be a crime, although it used to be one in Scotland and is yet a crime in some places.

Politicians are not infallible. When they say something or other is a “human right” they might be mistaken. Even if they are not, it does not follow that what they correctly identify as “human rights” should become a legal right or a constraining assumption of a country’s constitution.

I suggest that we all as human beings have a human duty to refrain from wantonly and wilfully killing any other human. We have thereby, I suggest, a corresponding human right to life in the sense that we have a right that our life is not taken from us in particular ways by any other human being.

However, we could not have, in this sense, a human right, say, to work or, say, to marry. It is possible for any human to refrain from wantonly and wilfully killing all others. It is not similarly possible for him or her to employ or marry each one of them.

Whether or not people have a human right, say, to work, to higher education, to pensions, to holidays with pay and so forth, we should, if and when we can, strive to produce societies and policies which make it likely that people will get employment, education and so forth. However, that need not involve passing laws that specify that people have so-called “human rights” to such things.

People who are, for instance, hungry or homeless require food and shelter. They do not require a legal right to food and shelter. Are people more likely to get, say, food, shelter, employment, education and so forth if they live in a society where such things are codified in the legal system – or, perhaps, even in the constitution – as legal rights? As a matter of political ideology, some people dogmatically assert that they are more likely to do so, but this is a highly contentious issue.

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Talk of “human rights” tends, often, to thwart and constrain rational discussion about the desirability of having, here and now, particular laws and particular public policies.

Politicians and commentators often use the following formula. If they approve of something, they say that it accords with human dignity and complies with our “human rights”. If they disapprove, they say it is an affront to human dignity and conflicts with our “human rights”. Rationally, this way of arguing is vacuous. Nonetheless, it has proved to be rhetorically very successful. It can sound convincing.

As an example of “nonsense on stilts”, consider the following claims from a preamble to the resolution on cloning that was passed by the European Parliament on 13 March, 1997:

“… the cloning of human beings … is a serious violation of fundamental human rights … it offends against human dignity … each individual has a right to his or her own genetic identity … human cloning is, and must continue to be, prohibited”.

The notion that we have a human right to genetic uniqueness is not merely mistaken, it is an absurdity. For instance, identical twins have the same gene-set. Does it follow that the existence of each twin is a serious violation of the fundamental right to genetic uniqueness of the other?

If a law is a justifiable law, there will be good reasons that can be given in support of it which are unrelated to whether or not it is compatible with the Human Rights Act. If the only reason that can be given to justify a particular law is that it is required by the Act, we can reasonably suggest that the law should be repealed.

Should prisoners be allowed to vote in general elections or, say, in referendums? The question should be settled by the strength of the arguments for and against the proposal. It is not a good reason in favour of the proposal to say politicians have signed an international treaty in terms of which it has been declared that prisoners have a human right to vote.

We should consider repealing the Human Rights Act. We should consider a realignment of our position with regard to international treaties, agreements and conventions about “human rights”. We should exclude “human rights” from any proposed constitution that we might suggest for an independent Scotland.

• Hugh McLachlan is Professor of Applied Philosophy in the Glasgow School for Business and Society at Glasgow Caledonian University.