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Pro-abortion activists protest in front of the Supreme Court in Washington on May 3, 2022. (Alex Wong/Getty Images)

The Fallacy of Human Rights

“Human rights” are everywhere, and are everywhere described with astonishing vagueness as something “inherent” in all human beings, simply because we are human.

It’s a circular assertion.

Largely in reaction to the tragedies and slaughters of World War II, the United Nations in 1948 produced a celebrated Universal Declaration of Human Rights announcing 30 rights, many of the common liberal variety that attempt to protect individuals from arbitrary power. But then, beginning with Article 22, economic, social, and cultural rights are included, which are claims to state action, rather than to freedom from state action.

Then, declared in Article 29, we find the assertion that “everyone has duties to the community,” but with no mention of what those duties might be. Canada’s Charter of Rights and Freedoms (1982) makes no mention of “duties,” or “obligations” whatsoever, as if 35 million citizens each have a bundle of rights, but no one is obligated to fulfill them.

The Rights Boom

The idea of declaring human rights—they are always “declared”—has become an inflationary pastime. Occasional reports indicate every living human being (dead people have a lot of them, too) now has about 400 human rights, but no one knows for sure. To date, a half dozen “core” international rights treaties have been signed by more than 150 nations, many of which are quite hostile to Western secularization, support the subordination of women in religion and law, and employ lots of child labor, among other abuses.

Furthermore, many ostensibly rights-observant nations breezily carry on business with rights-abusing nations, all of which cheapens the very idea of a right.

A few rights considered normal by almost everyone throughout the ages are the right to life (though in many countries—Canada is one—you don’t have this right until you are “born alive”), innocence until proven guilty (not always observed), to self-defense, to peaceful free speech, to property, to free assembly short of public disturbance or anarchy, and the like. Though often breached, these rights have had a historical pedigree in the common law of most Western nations long preceding the current rights fever.

But the bulk of new modern rights are of dubious merit, to say the least, and hundreds seem simply frivolous. Declared are the rights to travel, to food, water, health care, to have a job, to receive a living wage (but with no mention of who will be legally forced to supply such things), and—I almost forgot—“sex workers’ rights.” Then we have declarations of a “right to a toilet,” a “right to the internet,” and, by the French recently—the most amusing so far—a “right to idleness.”

Many rights critics such as Eric Posner, author of “The Twilight of Human Rights Law” (2014), have concluded that human rights laws are “hopelessly ambiguous,” that rights-regimes are promoting a mostly Western “progressive” (code for leftist/statist/secular) conception of how we ought to live, and that signings of human rights treaties, which are easily ignored with genocides, slavery, child labor, and extra-judicial killings, are “not so much an act of idealism as an act of hubris.”

Another critic described the U.N.’s post-war Declaration as “a funeral wreath laid on the grave of wartime hopes,” and conservative philosopher the late Roger Scruton went deeper: “Instead of limiting the power of the state, alleged human rights have begun to enhance that power … [in] a declaration of war on the majority culture.” A serious turn.

Disturbingly, Canada has long since signed international rights treaties such as the U.N. Declaration of the Rights of the Child (1959), which do seem to express some fine-sounding rights, until it sinks in that children can’t exercise rights. Their putative rights must be exercised for them, usually against their own parents by bureaucrats keen to expose families—and nations—that don’t fit a liberal notion of “promoting social progress,” as urged in the preamble to this declaration.

International rights treaties in fact seem intended to operate not as inter-national, but rather as supra-national powers exerting significant progressive control over the internal policies of signatory nations. And yet, there are many nations that differ profoundly on the basic question of human rights. For example, an observant Muslim—there are 2 billion Muslims on earth—will tell you, in no uncertain terms that human beings do not have rights. Only God has rights. Humans have duties. The meaning of “Islam,” after all, is “submission” … to the word and law of God.

Nevertheless, Islam has published its own catalog of supposed “human rights,” and at first, it looks as if they have caved to our Western rights delirium. But they haven’t. Islamic human rights are each strictly qualified and limited by the law of Shariah and the Koran. Better believe it.

Further investigation shows that some declarations of abstract rights—they are all abstract—beginning with the infamous French Declaration of the Rights of Man and the Citizen (1789) that ignited the modern rights boom (as well as the Terror of the French Revolution) are quite careful to include a reminder, usually in a preamble, of the “duties” of citizens. But duties are never mentioned again. Instead, there are a dozen seldom-remarked phrases such as “determined by the law” attached to its 17 articles. In short, human rights exist—if they can be said to exist at all—only in relation to power, whether civil, legal, moral, or political.

So, what’s a right?

Ignoring virtue-signaling, placard-waving, and other political gestures, I would say a “right” boils down to a defensible claim that may be negative or positive. The controlling image of the former is the solitary individual shaking a fist at power: “Get your foot off my neck.” As long as you can defend such a negative claim we could say, not that you have an inherent right—like you have a heart or a kidney—but that you are exercising a customary legal power (if such exists) to be left alone; to do whatever the law/power/duty and custom permit.

The most common negative rights in the West have always been best defended not by abstract declarations and phrases, which are easily warped in meaning by judges and politicians, but by formally executed actual documents filed in countless legal cabinets, homes, offices, and legislatures across the world, such as a writ of habeas corpus, a deed to your property, a signed marriage license, a business contract, an executed will, and so on.

So-called positive rights are very different and amount to a claim to something you think you deserve or are owed, usually by some level of government, by a corporation, or by an identifiable person or entity against which you may be able to force performance of the right. Positive rights these days generally are claims to fulfillment of a contract, or to promised goods and services such as “free” medical care, a government pension, a minimum wage, and the like.

In ordinary common law, I’m said to have a property right, without which there’s very little meaning to the right of personal freedom, for if you can’t legally own a home, a car, a bicycle, a pair of shoes, and buy or sell such things at will, your sphere of freedom is very limited. As it happens, Canada’s Charter makes no mention whatsoever of a property right. But even if it were mentioned, if you can’t stop suspicious-looking strangers from wandering all over your property or barging into your home, and police refuse to evict them, your property right is useless because it isn’t actionable or, as I say, defensible.

In short, there’s always a connection between the idea of a right, and one or another power that may—or may not—be able to enforce your claim. If you’re stranded alone on the moon, however, your claim to a “right” of any kind is immediately ludicrous because there’s no entity obliged to fulfill it.

By now it looks like right equals might, and the idea of a free-floating “inherent” right as a permanent “natural” quality of a human being seems pure fantasy. Where did such a fantasy come from? The Western notion of an indwelling personal “natural right,” concludes historian David Ritchie, is the logical outgrowth of the Protestant Reformation’s appeal to private judgment. It appeared in all its “metaphysical nakedness” as a revolt against the authority of tradition, and continues today, mostly in Protestant countries, in the name of … individual rights.

Strikingly, the Euro-Germanic tradition of rights-talk firmly rejects the notion of the individual “lone-rights-bearer” favored in the Anglo-American sphere. Germany’s Basic Law, for example, states that “everyone has duties to the community.” Article 16 devotes an entire section to “protection of family relations,” and declares that citizen freedom is “limited by the moral code.” But nowhere in Canadian rights declarations do we find any mention of moral codes or community limitations on liberty.

In fact, in the infamous “Swingers” case (R v. Labaye, 2006) having to do with the effort of a Quebec community to close down a neighborhood sex club operating above a local convenience store frequented by children, the high court specifically cited J.S. Mill’s libertarian “Harm Principle” as a new individualist moral standard that must henceforth replace community standards. That’s just one example—there are plenty more—of “a declaration of war on the majority culture.”

A Little More Rights Scrutiny

But what about the logic—or rather, illogic—of human rights? It doesn’t look good. The first, and still most devastating logical demolition of the entire concept of human rights was Jeremy Bentham’s “Anarchical Fallacies,” composed in 1815 as a frontal attack on the French Declaration of 1789. Logically, and embarrassingly for rights enthusiasts at a loss for replies even today, Bentham trashed the entire underlying theory long ago. Let us examine his attack, keying off his response to assumptions of the Declaration.

Assumption: Men are born free and remain free and equal in rights.

Bentham argues this is simply and clearly false. Worse, a lie at the heart of our civilization. Humans aren’t born free, but helpless, wholly dependent, and utterly subject to parental and societal will and law. Society, he states, “is held together only by the sacrifices men can be induced to make of the gratifications they demand.” Declarations of rights falsely said to exist prior to government, on the other hand, in effect counsel the ignoring of all sacrifice of the passions, implicitly authorizing insurrection against established society if imagined rights are violated.

Bentham again: “All rights are made at the expense of liberty,” for “no liberty can be given to one man but in proportion as it is taken from another,” as when your liberty to walk on your property is gained only by denying this liberty to others. How is your house made yours? “By debarring everyone else from the liberty of entering it without your leave.” Hence, “all laws creative of liberty, are, as far as they go, abrogative of liberty.” Rights advocates attempt to avoid this obvious truth by claiming rights as original absolutes that trump all laws.

Assumption: Rights are inherent.

The undeniable truth that a right is a positive or negative claim on another person or entity negates the assumption rights are inherent in each of us and self-fulfilling, for there can be no such thing as a right for one without a corresponding obligation upon another person, or entity, to satisfy the right. If you declare “I have a right to marry,” for example, you are also declaring that someone else has an obligation to marry you.

Assumption: Governments are created by free contract of the people.

This idea remains a popular fiction. But history reveals that every government that has ever existed has been the evolved product of conquest, habit, custom, tradition, or some combination of the same. The underlying assertion found in theorists such as John Locke that governments exist only by contract of the people and are legitimized by consent, is historically false, as the philosopher David Hume pointed out long ago. Why? Because a pre-existing government and a prior system of established law are required in order to establish and enforce contracts in the first place.

And so, Bentham again: “Contracts came from government, not government from contracts.” Contractarians (Bentham was taking aim at John Locke) seek “to excite and keep up a spirit of resistance to all laws” as if “in [them] is the perfection of virtue and wisdom,” but in all others, “the extremity of wickedness and folly. Our will shall consequently reign,” they insist, “without control, and forever: reign now we are living—reign after we are dead.”

This extreme focus on individual will found an immediate home in French revolutionary law, which declared that if either party (not both, but either) to a contract withdraws consent, the contract is ended. The longstanding contractual standard of “Two to make it, two to break it,” overnight became “Two to make it, one to break it.” Just so, in attempting to freeze political reality in a written rights contract, in a kind of “hubris of the now,” contractarians seek to imprison all future generations in the will of the present, thereby robbing them of their freedom to change … the contract.

Assumption: Human rights are natural.

The declaration of human rights as natural, inalienable, and made … by the goddess “Nature,” prior to, and excluding all government, is again, Bentham insists, repugnant to all laws and a recipe for perpetual revolution. The very word “natural” stands in opposition to “legal.” That’s why Bentham described the entire notion of rights prior to law as “terrorist language … the maxim of the anarchist,” and then, in one of Western history’s most memorable lines, as “nonsense upon stilts.” For merely “wishing there were such things as rights, are not rights,” just as “hunger is not bread.” As to limitations? Checkmate again, for “what is every man’s right, is no man’s right.”

Assumption: The right of resistance to oppression.

Bentham: “In proportion as a law of any kind … is unpleasant to a man … he, of course, looks upon it as oppression,” and so, all rights enthusiasts insist, you should “submit not to any decree or other act of power, of the justice of which you are not yourself perfectly convinced.” By now, Bentham is rollicking, arguing that rights claims tend to reduce to a demand for the satisfaction of personal will. Rights claimants are little Napoleons. And so, “if a constable call upon you to serve in the militia, shoot the constable and not the enemy; if the commander of a press-gang trouble you, push him into the sea; if a bailiff, throw him out the window. If a judge sentences you to be imprisoned or put to death, have a dagger ready, and take a stroke first at the judge.”

Some Conclusions

The fundamental assertion of all rights documents is that listed rights such as we find in the prototypical French Declaration (and in the Canadian Charter) are “imprescriptible”—meaning inalienable, universal, true forever, equal for all, cannot be altered, and so on. As applied in pre-democratic societies where absolute sovereignty lies with rulers, declarations of practical (as distinct from abstract) rights—as found in “Magna Carta” (1215)—may be an effective popular shield against abuse from above. But in democracies, where sovereignty is considered to reside in the popular will itself, rights, once declared inalienable, become an unchangeable shield against new expressions of a better will by the people themselves. The people then exist in a rights trap.

So the final, and ironic, stage of Western rights hysteria—the death throes, so to speak—seems to be when progressive elites and judges attempting to continue the re-engineering of public policy must (as in Canada) resort to inventing and legitimizing phantom interpretations of various declared rights, thus undermining public confidence in the value of a document that says nothing about them.

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