Gary Judd KC: Human rights - are they real?

Or are they just a gift of the government?

Roy, a commenter on my Lessons from Iran, says there is no such thing as human rights: “Human rights are given and allowed by Governments.”

This introduces a deep philosophical/legal question with profound implications. If Roy is right, it means that the Iranian people do not have the right to life or liberty because the government of Iran has not given and allowed them to have those rights. By way of an opposite example, it also means that New Zealanders have those rights only because the government has given them to us or allowed us to have them.

It is easy to answer emotionally; to say, of course we have them; it is outrageous to suggest otherwise. But we need to do better than that, else we play into the hands of those who are currently undermining our freedom and democracy by assertions having no basis in fact or logic, such as the plainly false claim that the chiefs who signed the Treaty of Waitangi did not intend to cede sovereignty to the Crown, a lie which is used to give impetus to Maori separatist aspirations.

I take Roy’s claim seriously, because it raises a serious question, and I explain why I disagree with it by first outlining what I believe to be the correct position. I have been thinking about what follows for 20 or 30 years, maybe longer, but have never got round to formalising my thoughts as I do here.

I consider that John Locke (1632-1704) produced the rationale for certain rights to exist independently of any expression of them in government legislation or the common law. I go into detail below, but the essence is that human beings have certain characteristics which differentiate them from other living things, characteristics which demand of each person that they allow every other person to live their own lives without forcing them or attempting to force them to act or not to act in a particular way.

That means each person has the right to be left alone and each person has the reciprocal obligation to leave everyone else alone.

This is a moral imperative, and humans may occasionally or habitually refuse or fail to act in that way. That’s why we have laws proscribing certain conduct.

The human characteristics which demand this behaviour are our ability to observe the world around us and, taking what we observe as the raw material for the mind to work on, to think about it and to decide what action we should take. This ability is often referred to as the faculty of reason. Other living things, of the higher orders at least, have forms of consciousness but only humans have developed the reasoning faculty.

The evolution of this faculty has been accompanied by the withering away of other characteristics such as to act on instinct to secure sustenance in the way other animals do through eating what nature has provided by tearing it from the ground or from trees, or using tooth and claw to predate on other animals. Humans still get sustenance from what nature provides but they need to think about how to do it, even if that just means deciding to go to the supermarket, to obtain the bounty produced by other humans from nature through the application of their reasoning faculties.

Humans cannot sustain and live their lives in the uniquely human way unless they are free to do so. Freedom is the fundamental ‘human’ right. It subsumes the right to life because if the individual’s freedom is respected, so also his life will not be in jeopardy from others’ aggressions. It subsumes the right to pursue happiness because if the individual is free, he is free to pursue happiness so long as in doing so he does not trample on others’ freedom.

The caveat “so long as in doing so he does not trample on others’ freedom,” is vital. It is why so many so-called rights are bogus because, for example, they involve taking from others thereby violating the others’ right to be free. Bogus rights is a very big topic on its own which I won’t go into at this point.

Roy’s comment asserts that human rights are given and allowed by governments. This means they are established by law and absent law they don’t exist. So it appropriate to start this part of the discussion by looking at New Zealand law.

The New Zealand Bill of Rights Act 1990, does not suggest that the rights it identifies are brought into being by the legislation. Rather, it affirms rights existing independently of the BORA. Its long title is:

An Act—

(a)

to affirm, protect, and promote human rights and fundamental freedoms in New Zealand; and

(b)

to affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights

Section 28 likewise recognizes that rights exist independently of the legislation. It states, “An existing right or freedom shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in this Bill of Rights or is included only in part.” It is saying that there are or may be rights or freedoms which have not been legislated for, and therefore implies that those which are included also exist independently of the BORA.

The effect of the BORA is to put beyond doubt that New Zealand law includes the BORA rights and freedoms. It also shows that in New Zealand they are now not just law but higher law because departure from them is permitted only when the limitation “can be demonstrably justified in a free and democratic society” (s 5). Yet, in recognition of Parliamentary sovereignty, departure is still permitted and it will be Parliament’s decision whether to enact inconsistent legislation: the BORA aims that if Parliament does so, it should do so consciously by s 7’s requirement for the Attorney-General to draw attention to inconsistencies with the BORA.

If legislation is inconsistent with the BORA, the inconsistency will not invalidate the legislation (s 4), but when an enactment is being interpreted “a meaning that is consistent with the rights and freedoms contained in this Bill of Rights” is to be preferred if that meaning can be given (s 6).

The BORA applies only to acts done

(a) by the legislative, executive, or judicial branches of the Government of New Zealand; or

(b) by any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.

(s 3).

It does not apply to the acts of private citizens. The criminal law is intended to stop ordinary citizens from violating the rights of their fellow citizens. Unlike private citizens the government has a monopoly on the initiation of force. The BORA is the most systematic legal restraint on the government’s use of force against its own citizens.

Although, the BORA tends to show that the rights affirmed by it exist independently of it, Roy has redoubtable authority on his side in asserting that rights come from governments. Jeremy Bentham (1748-1832), major thinker in the fields of legal philosophy and representative democracy, to whom I shall return, was also of the view that rights come from Parliamentary legislation. But the weight of opinion, represented by solemn declarations, is against Bentham.

The first is the American Declaration of Independence. For the Anglo-World at least, it most famously enshrines the view that rights exist independently of law. Promulgated July 4, 1776, to explain why the American colonies of Great Britain were rejecting British rule, it includes:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Life, Liberty and the pursuit of happiness were just three of the rights which, according to the Declaration, were God’s gift to all men and are inalienable.

The other notable instrument is the August 1789 French Declaration of the Rights of Man and of the Citizen. As we shall see when I return to Bentham, this is the one which sorely provoked him.

Opinion, represented by such declarations is insufficient to demonstrate the existence of rights independently of law. The opinions must be grounded in fact and logic, to a consideration of which I now turn.

The framers of the American Declaration were heavily influenced by the works of John Locke. That “all men are created equal” and that the people have rights, they got from Locke. But the framers departed from Locke in describing rights as a gift from God (“endowed by their Creator”) for Locke derived man’s freedom from man’s nature and man’s rights from each person’s political equality with others, rather than that they are a direct gift from God. What Locke did attribute to God was “the law of nature” which placed limits on man’s “uncontrollable liberty.”

Granted, it is possible to read Locke’s works as giving God the credit for the existence of rights, but I think he was more sophisticated than that and whilst giving God full credit for man’s creation with human characteristics (as was the almost universal belief of the times – humanity had to wait almost 200 years for Charles Darwin’s alternative explanation in the theory of evolution: On the Origin of Species (1859)), Locke attributed freedom and equality to man’s humanness.

Locke was living in times where careless expression challenging the divine right of the King to rule could result in execution. He grew up during the English Civil War (1642-1651) and was 28 at the time of the Restoration of the Monarchy in the person of Charles II (1630-1685). Locke became great friends with the Earl of Shaftesbury who was much embroiled in politics. They were intent that Charles should exclude his brother James, a Catholic, from succession to the English throne. “Shaftesbury and Locke were playing a dangerous game. Shaftesbury came under suspicion for high treason and found himself imprisoned for a time in the Tower of London…. In 1683, fearing for his own life because of his connections with Shaftesbury, Locke … fled to the Netherlands, living there until 1689” (Mark G Spencer in his Introduction to LOCKE, Wordsworth Editions Ltd, 2014, containing two of Locke’s major works).

Bitter confrontation and conflict between Catholics and Protestants were inextricably connected with the struggles for political supremacy between Parliament and the Monarchy. This was the environment within which Locke formulated his political philosophy and wrote his major political works which were published later when safety permitted.

James II did succeed Charles but in late 1688, James was forced into abdication and exile, with Parliament engineering the substitution of William of Orange and his wife Mary on terms dictated by Parliament in what came to be known as the Glorious Revolution, glorious because it was effected, it is said, without a drop of blood being spilt. This is when English Parliamentary sovereignty became a reality. The Bill of Rights, passed late 1689, confirmed what had been asserted, largely ineffectually, in earlier instruments starting with Magna Carta.

It was doubtless not coincidental that Locke’s Two Treatises of Government was first published late 1689 or early 1690. Chapter II of the Second Treatise commences:

4. TO understand Political Power right, and derive it from its Original, we must consider what State all Men are naturally in, and that is, a State of perfect Freedom to order their Acions, and dispose of their Possessions, and Persons as they think fit, within the bounds of the Law of Nature, without asking leave, or depending upon the Will of any other Man.

A State also of Equality, wherein all the Power and Jurisdiction is reciprocal, no one having more than another: there being nothing more evident, than that Creatures of the same species and rank promiscuously born to all the same advantages of Nature, and the use of the same faculties, should also be equal one amongst another without Subordination or Subjection, unless the Lord and Master of them all, should by any manifest Declaration of his Will set one above another, and confer on him by an evident and clear appointment an undoubted Right to Dominion and Sovereignty….

6. But though this be a State of Liberty, yet it is not a State of Licence, though Man in that State have an uncontroleable Liberty, to dispose of his Person or Possessions, yet he has not Liberty to destroy himself, or so much as any Creature in his Possession, but where some nobler use, than its bare Preservation calls for it. The State of Nature has a Law of Nature to govern it, which obliges every one: And Reason, which is that Law, teaches all Mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions. ….

Locke, John. Locke: Two Treatises of Government (Cambridge Texts in the History of Political Thought) (pp. 79-80). Cambridge University Press. Kindle Edition.

Locke’s political assertion of “Equality” for “all Men” is, I believe, grounded on his analysis in Essay Concerning Human Understanding of how knowledge (or understanding) is gained. The Essay, of about 700 pages also published 1889-1890, canvasses many aspects of human understanding. The foundational building block is that the objects of human understanding (ideas, Locke calls them), are not innate (present in an individual from birth) but are gained from experience. He demolished the widely held view that there are common notions or common principes, “characters as it were stamped upon the mind of man, which the soul receives in its very first being, and brings into the world with it.” This is the true position, he said:

§22. The mind thinks in proportion to the matter it gets from experience to think about

Follow a child from its birth, and observe the alterations that time makes, and you shall find, as the mind by the senses comes more and more to be furnished with ideas, it comes to be more and more awake; thinks more, the more it has matter to think on. After some time it begins to know the objects which, being most familiar with it, have made lasting impressions. Thus it comes by degrees to know the persons it daily converses with, and distinguishes them from strangers; which are instances and effects of its coming to retain and distinguish the ideas the senses convey to it. And so we may observe how the mind, by degrees, improves in these; and advances to the exercise of those other faculties of enlarging, compounding, and abstracting its ideas, and of reasoning about them, and reflecting upon all these; of which I shall have occasion to speak more hereafter.

Locke, John. An Essay Concerning Human Understanding. Neeland Media LLC. Kindle Edition.

What the child has, or almost all children have been born with are faculties which they may use to gain experience.

§1. The way shown how we come by any Knowledge, sufficient to prove it not innate.

….It would be sufficient to convince unprejudiced readers of the falseness of [the innateness] supposition, if I should only show (as I hope I shall in the following parts of this Discourse) how men, barely by the use of their natural faculties may attain to all the knowledge they have, without the help of any innate impressions; and may arrive at certainty, without any such original notions or principles.

Locke, John. An Essay Concerning Human Understanding. Neeland Media LLC. Kindle Edition.

In other words, we are born tabula rasa; our minds are a blank slate, upon which ideas may be imprinted by the exercise of the faculties with which all but a few unfortunates are endowed: to be able to observe through our senses and to use thinking to organise the material so gathered, skills which develop in sophistication as we use them in tandem with ever-accumulating ideas.

These views about the nature of man’s consciousness at birth and the incremental path to knowledge may be incapable of scientific verification but if we introspect, we can I think appreciate thar this was the path of our intellectual development.

Human understanding is Locke’s backdrop to “Creatures of the same species and rank promiscuously born to all the same advantages of Nature, and the use of the same faculties, should also be equal one amongst another without Subordination or Subjection,” and to the natural state of perfect freedom to order their actions, and dispose of their possessions, and persons as they think fit, within the bounds of the Law of Nature, without asking leave, or depending upon the will of any other man.

The equality Locke speaks of is what I call political equality, where all power and jurisdiction “is reciprocal, no one having more than another.” No man is naturally another man’s master.

If all are free and equal, logic dictates that each must respect the freedom and equality of the other. If one does not respect the freedom and equality of the other the offender is acting in contradiction of the nature he claims for himself. This does not mean that each person does act in that way; it means that each ought to act in that way to avoid contradicting his nature as a human being. Man’s nature creates for everyone a moral imperative, a demand that may not be avoided or evaded, that “no one ought to harm another in his Life, Health, Liberty, or Possessions.”

Wesley Newcomb Hohfeld (1879-1918) in his Fundamental Legal Conceptions analysed the nature of legal rights to distinguish them from similar legal relations. He demonstrated that each true legal right, a claim-right, has a correlative legal obligation or duty. X has a right in respect of a because Y in his relation to X has the duty in respect of a, and vice versa. For example,

If I have a claim-right that you should pay me £5, it follows that you have a duty to pay me £5. If I have a claim-right that you should not assault me, you have a duty not to assault me. If I have a claim-right against you to be provided with work, then you are under a duty to provide me with work.

Campbell, David; Thomas, Philip. Fundamental Legal Conceptions As Applied in Judicial Reasoning by Wesley Newcomb Hohfeld (Classical Jurisprudence Series) (p. xiii). Taylor & Francis. Kindle Edition.

Although Hohfeld was concerned with legal rights, those arising when persons are in a legal relation, his analysis is in my view equally applicable to the rights human beings derive from their nature as human beings.

Whilst Locke postulates “the law of nature” as a qualification on rights arising from freedom and equality, so that the right is the source of the obligation, I incline to the view it’s the other way round: the natural state of freedom and equality of all (a factual matter) implies the obligation on each to respect the freedom and equality of the other. Because of the obligation, the beneficiary has the correlative right.

Conventionally these rights are called human rights, but it is more correct to call them individual rights because the right is personal to the individual, not something possessed by a group albeit that each person within the group possesses the right. Seeing them as individual rights is consonant with Locke’s conception of all being equal.

There is thus ample reason to think that individual rights are derived from the nature of human beings and that what an enlightened government does is to promote and protect them by enshrining them in law.

There is also powerful support for Roy’s view that human rights are given and allowed by governments.

The August 1789 French Declaration of the Rights of Man and of the Citizen followed hard on the heels of the American Declaration of Independence in 1776. It set out the “natural and inalienable” rights, which are freedom, ownership, security, resistance to oppression. Provoked by the French Declaration, Jeremy Bentham published Anarchical Fallacies; being an Examination of the Declarations of Rights issued during the French Revolution.

Bentham trained as a lawyer but never practised. Best known as the founder of the utilitarian philosophy (the principle that “it is the greatest happiness of the greatest number that is the measure of right and wrong”), he was also a fierce critic of the American Declaration as well as its French successor. He would have no truck with the idea of natural law and natural rights primarily, it seems, because he saw that they were justified as divine in origin. Whilst perhaps not an atheist, he was certainly against religions, advocating religious freedom and abolition of all connection between church and state.

As is apparent from my brief discussion of John Locke’s seminal explanation of why humans have rights, Locke’s writings are suffused with references to “the Lord and Master of them all” and suchlike, but as I hope is also evident, his reasoning is not dependent on divine endowment of man with those rights. It is a fact that human beings have the characteristics of birth, existence and understanding described by Locke (whether their source be divine or otherwise), and his argument from those characteristics to the existence of obligations and rights is compelling. It may be Bentham never bothered to examine the Lockean basis for rights, simply taking at face value the attributions to God in the Declaration of Independence and therefore rejecting the very idea that there is a non-religious basis for individual rights.

Be that as it may, Bentham was scathing of the idea that there might be rights other than those created by government. He was, in the part I have emphasised in the following lengthy quote from Anarchical Fallacies, especially caustic about the claims in the Declarations to the inalienability of rights.

We know what it is for men to live without government-and living without government, to live without rights: we know what it is for men to live without government, for we see instances of such a way of life- -we see it in many savage nations, or rather races of mankind; for instance, among the savages of New South Wales, whose way of living is so well known to us: no habit of obedience, and thence no government. -no government, and thence no laws no laws, and thence no such things as rights-no security property: liberty, as against regular controul, the controul of laws and government perfect; but as against all irregular controul, the mandates of stronger individuals, none. In this state, at a time earlier than the commencement of history-in this same state, judging from analogy, we, the inhabitants of the part of the globe we call Europe, were; -no government, consequently no rights: no rights, consequently no property-legal security no legal liberty: security not more than belongs to beasts. - forecast and sense of insecurity keener-consequently in point of happiness below the level of the brutal race.

In proportion to the want of happiness resulting from the want of rights, a reason exists for wishing that there were such things as rights. But reasons for wishing there were such things as rights, are not rights; — a reason for wishing that a certain right were established, is not that right-want is not supply - hunger is not bread.

That which has no existence cannot be destroyed that which cannot be destroyed cannot require anything to preserve it from destruction. Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense, -nonsense upon stilts. But this rhetorical nonsense ends in the old strain of mischievous nonsense: for immediately a list of these pretended natural rights is given, and those are so expressed as to present to view legal rights. And of these rights, whatever they are, there is not, it seems, any one of which any government can, any occasion whatever, abrogate the smallest particle.

I have included this lengthy quote to display the vehemence of Bentham’s argument against rights existing independently of governments. He is right to the extent that in the absence of government and law, self-help is the only remedy for rights violations. Self-help may lead to dangerous situations. Governments can try to stop that by seeing that rights violations are dealt with by objective laws and impartial enforcement.

The deficiency in Bentham’s argument is its failure to consider the principles upon which the content of the law is to be based. If the law allows a man to have his adulterous wife stoned to death, that is a right the law gives to the men of that country, and the adulterous wife has her freedom curtailed in the most extreme of ways.

If the law makes no provision to stop slavery or worse sanctions it, does that mean the slave has no right to be free? And if the slave can be put to death with impunity because the law allows it, does that mean the slave has no right to life?

Governments and law can protect and promote freedom. Or they can curtail freedom. Choices must be made. They ought to be made in a principled way based on an understanding of the individual human’s need for freedom.

Gary Judd KC is a King's Counsel, former Chairman of ASB and Ports of Auckland and former member APEC Business Advisory Council. Gary blogs at Gary Judd KC Substack where this article was sourced.