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Monday, March 20, 2006


Misunderstanding rights

Current right-wing Labour politics appears to misunderstand just what ‘rights’ are, and more importantly, what ‘rights’ are for. We hear members of the Government arguing that the various new legal constructs that they propose that will restrict civil liberties are protections of our ‘Human Rights’ from ‘the terrorists’. But this thinking is not only muddled, it is completely the wrong way round.

Human Rights exist to place a check on the activities of legitimate powers; governmental, institutional, corporate or otherwise. Legitimate powers are those actors that are able to act within the law to shape the lives of individuals. Human Rights are inventions that allow us to restrict the effects of these legitimate powers on individuals without necessarily having to make each possible form of action individually illegal. If a government uses its legal powers to interrupt my Human Rights, it is though these legal devices that I seek redress. If, say, my employers, a legitimate power, sought to use their power to restrict my Right to Free Expression, I would use the language of Human Rights to defend my freedoms in court.

On the other hand, when illegitimate powers act, redress is sought through straightforward criminal laws. If, say, I receive threatening letters telling me to ‘shut up, or else…’, then this is a criminal case of the standard, well-established kind. Criminal acts may well restrict my freedoms, but it is a mistake to talk about this situation as an offence against my Human Rights. Not just legally, but politically. When Government spokesmen cloak their affronts to Human Rights by describing them in the rhetorically popular language of protecting Human Rights – when what they mean* is that these changes are ‘strengthening’ of criminal law – they cut away the very foundation of the legal constructs that are one of the key principles of the protection of the citizen in a liberal, capitalist state dominated by legitimate, but not necessarily benevolent, powers.

*When I say ‘mean’ I am offering my most generous interpretation of the rhetoric of the Government; that there pronouncements involve little thinking and reflection. Of course, I could be that the case that when the authoritarians in Government are chortling and their wonderful strategy of using the language of Human Rights to undermine their power to work effectively in pursuit of their correct purpose. It would, after all, be such a hilariously ironic way to persuade people to back authoritarianism.

Round-a-bout, I get to a particular misunderstanding of ‘rights’; that of Nick Cohen in The Observer. Of the ‘March for Free Expression’, he wrote; “I think it's fair to say that previous generations would be astonished that their descendants would have to take to the streets to demand such a basic right, but after the death threats against cartoonists, it seems we do.” Can you see what Cohen’s problem is yet? Well, let us begin with his ahistoricism. Is he really saying that ‘previous generations’ enjoyed more extensive rights to free expression than we, in 2006? That is, simply, nonsense. Which previous generations enjoyed the glory days of free expression and would look on the situation facing us, their descendents, as one of, comparably, freedom threatened? Those living in the Victorian Era? The peasants of Medieval England? When? This ahistorical nonsense is a real problem for the pro-War ‘left’; they do not understand that ‘universal Human Rights’ are a political assertion, a statement of how we would like the world to be. They are not a description of how the would is. We can see how insensible the pro-War ‘left’ has become when Jack Straw, a Government Minister, says that ‘a desire for democracy burns in the heart of every person’. Democracy is an invention. It is a good invention. But is clearly does not burn in the heart of every person. We might want it to, but to manage an aggressive foreign policy of the basis that it actually does is madness.

On from ahistoricism and the corollary misunderstanding of universalism, we reach Nick Cohen’s misunderstanding of rights. Our ‘basic right’ to free expression has not been threatened by death threats. Death threats are the actions of illegitimate powers. The individual cartoonists are protected by the workings of criminal laws that prohibit the making of death threats. Cohen might be arguing that it is not individual rights that are the issue, but our collective rights. The problem here is that if we take the death threats to individuals to be a threat the right of all of us to free expression, then there are far bigger fish to fry. The obstruction of a Right is an affront to the idea of Human Rights even if, or more accurately specifically when, the obstructing actor is legitimate. Over the past few weeks we have seen two straightforward offences against free expression; the New York run of My Name is Rachel Corrie was cancelled and the statue of Winston Churchill in a straight-jacket removed. The Danish cartoons, by contrast, were reprinted across the world. There was no obstruction of free expression, but there was a criminal offence. Will the March for Free Expression carry banners demanding that the play is run after all, and placards urging the erection of the statue?

No, they will not, because the whole cartoon affair has been an exercise in racism from the very start. Free expression is obstructed every day. In the case of the Danish cartoons, popular racist expressions were not obstructed. In fact, the cartoons were seen around the world. So why, as Nick Cohen does, suggest that the threat to free speech comes from the dangerous brown people? And that this threat is new, and special? It is not, it is ahistorical to suggest that it is new, and it demands a perhaps unconscious acceptance of a racist ideology to believe that it is special. I do not think that Nick Cohen is a racist. But I do think that he is buying into the very clever racist rhetoric that presents itself, pace Pim Fortuyn, as a defence of liberalism and tolerance.

Okay, let's leave the cartoon issue to one side, because we're never going to agree on that, and I don't have any feelings one way or another about Nick Cohen, but... I couldn't disagree more with this:

Human Rights exist to place a check on the activities of legitimate powers

No: human rights exist to regulate everyone's (public) relations with everyone else, in such a way that relationships can be policed without the intervention of the state at every turn. Rights are about autonomy and respect. If I stand at Speaker's Corner mouthing off my "pro-war left" credentials, and you stand ten feet away blowing an airhorn, you have infringed my right to free speech. You haven't committed a crime, merely acted disrespectfully. To suggest that rights are there merely to protect us against the state et al. (which is what they're for too) is way too minimal. That's what they'd be there for in a totalitarian or fascist society, in which every relation with everyone else was conducted in some sense "through" the corporate-state.

So, in short, cartoonists receiving death threats is something those interested in a rights discourse should be interested in, though IMHO not something we need to be marching for at the moment. Let's face it, if we marched every time some nut offered his services in killing unbelievers/Jews/Man United fans etc., we'd all have very sore feet.
But the sounding of an airhorn is the exercise of legitimate power. It is perfectly legal to sound an airhorn, and this kind of activity is only restricted where it is conflict with the human rights of someone else; for example the right to a home life, or, in your example, the right to free expression. I didn't want to suggest that only states, institutions and corporations are able to exercise legitimate power, individuals can too. But, plainly, the much more powerful actors exercise much more legitimate power, and it is this legitimate power that is capable of conflicting with the human rights of individuals, so the discussion tends to concentrate of these.

The sending of death threats is the exercise of illegitimate power and is properly dealt with as a criminal matter.

My argument is that the sending od death threats is a very bad thing, but that a 'rights' discussion of threats to free expression ought concentrate on the ways in which legitimate power can be used to shut down speech.

But it is good to know that you still read the blog, even if you disagree with this post.
Actually, I don't disagree with the post. As usual with your posts, I agree and disagree at the same time. What is spot on here is the idiotic pretense that our "human rights" can be defended by restricting our "civil liberties". It's like arguing that we can have more chocolate by eating fewer Smarties: i.e. impossible, a blatant contradiction in terms. Pure NuLaborious newspeak shite.

Where I think you're wrong is the definition of rights. It's too narrow. What about, for example, a claim-right that the poor have against the rich to a share in their wealth, to basic income and free healthcare, and so on? I'm not sure how that kind of economic right would fit your scheme, but IMO they exist as surely as a right to free speech. A right to freedom of expression is useless, for example, without an education to enable that expression to be contentful. I think you've only provided a way of looking at rights of/against power. And even on just that narrow scope: surely you don't believe that a campaign of threat against any group of people (even right-wing cartoonists) has nothing beyond private, criminal implications?

Oh, and you're obviously wrong about those cartoons and racism, but, meh, water under t'bridge.

Hunan Rights are rights one has because they are an living organisism with human DNA – a Human Being.

This is in contrast than constitutional, legislative, administrative, and contractual rights, which exist because of a constitutional, legislative, administrative or contractual action. Of course Human Rights are often repeated in constitutions or laws which makes it easier to enforce. Human rights, unlike the other exist without or even despite constitutions, etc.

Both free speech and not being a victim of criminal violence such as terrorism are Human Rights, which a government has a duty to protect.

I am rather less than happy with many governmental attempts to accomplish both at the same time. But then I am less than happy with many governmental attempts to do either one by itself. But then we have the inherent conflict that governments are necessary to protect Human Rights and a the same time the greatest threat.
"Hunan Rights are rights one has because they are an living organisism with human DNA - a Human Being... Human rights, unlike the other exist without or even despite constitutions, etc"

This is ahistorical nonsense, a misunderstanding of statements of universalism. People lving 500 years ago did not have Human Rights in the way that we do now. People living in Burma do not have the Human Rights that we do living in the UK. We assert that Human Rights are universal, this is a statement of political will. That does not, in itself, make it so.

To believe that Human Rights are transcendental objects that exist outside of history and society is to make a very grave error.
People living in Burma do not have the Human Rights that we do living in the UK

I'm not sure about that. I'd say that they do have the same universal rights as us, just that the civil and political context they're living in doesn't respect them - and that's where the "political will" bit comes in. But Hank's wrong for another reason: constitutional, legislative, administrative, and contractual rights are all just sub-groups of human rights, various claims and powers (negative and positive) that we have against each other and the state. Not simply on the basis that we're human, but grown from social and historical struggle, as you say. Certainly not to be pissed away to fat tools like Charles Clarke.
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