At the inaugural lecture of Northumbria University last November, Lord Justice Laws provocatively asks “whether human rights make us bad citizens”. (Read the comment by Rosalind English in UK Human Rights Blog). Bearing in mind that the discourse of rights has reached a protagonist role in current political and legal thought, Laws argues that we should not confuse rights with morals.
The entrenchment of rights in the culture of the State carries with it a great danger. It is that rights, a necessary legal construct, come also to be seen as a necessary moral construct. Applied to the morality of individuals, this is a bad mistake. (…) Why is it so malign a force? Let me consider the nature of rights a little more closely. What am I doing when I state that I have a moral right – a right to do something, or a right not to have something done to me? It is not a statement that implies any virtue on my part. I am not good because I assert that I have a right. To claim a right involves no moral action by the claimant. There is nothing virtuous in making the claim. It is not an act of self-sacrifice or self-restraint, kindness or consideration towards anyone else; it is not other-centred; it claims what is due, or what is thought to be due. Systematically, it is a claim about how someone else ougt to behave – or refrain from behaving. Any morality in it is the other person’s morality. If it is morally justified, it is because the other party owes a duty – a moral duty – to make it good. (…) The performance of duty is virtuous; whereas a claim of right is only an insistence that someone else behave virtuously.
I see the point Lord Justice Laws makes here, and I agree to some extent. Society would stop working if all of us tried to exercise at one time all the rights we are entitled to. The exercise of rights demands compromises from all. (I recommend visiting the blog Strasbourg Observers to read about the intricate work of the European Court of Human Rights in the assessment of the prevalence of some rights over others). For example, we may have the freedom to express our negative opinion about a certain religious figure, but deciding not to exercise this right on the day of his death is morally honourable, not to speak about the fact that it would probably be more sensible as well (hazardous sparks may result). Yet, this does not mean that freedom of expression should be legally limited on such a day. Abstaining from sharing our views may be more virtuous in this case, but one cannot be impelled by law to act virtuously. If that was the case, the act would not be virtuous anymore. In this sense, I agree that the performance of a moral duty is virtuous, more so than the exercise of an individual right.
This reasoning corresponds to the liberal perspective of a legal system in which enough accountability mechanisms are in place to ensure the exercisability of rights. The problem is that most countries do not fit this model. Human rights are not only the shield individuals can make use of to protect themselves from an inherently hypertrophic public force. In those places where people live at the mercy of violent forces at war, where economic and social rights are suspended in the name of austerity or where women dread being alone in the street, claiming one’s rights is not at all selfish. Rather the opposite, in that context (virtually anywhere in the world), human rights become a democratic impulse, a mobilising force and a source of solidarity. When human rights are at jeopardy and the State does not provide the means to ensure their protection, fighting for your own rights is tantamount to fighting for rights for all. And vice versa: Defending Human Rights is the way to defend your own human rights. Some two thousand years ago, Terence famously said: “I am a human being, so nothing human is strange to me”. Nothing can be more virtuous.
Photograph: A woman protester waves the victory sign during clashes with military police near Tahrir Square (Amnesty International USA)