Rights: a pragmatic perspective

The Oxford Dictionary has a very pithy definition of a right: moral or legal entitlement to have or do something. Unfortunately in the real world actually defining what should be included as a right is more problematic. In the last 800 years we have seen The Magna Carta, The Declaration of the Rights of Man and of the Citizen from revolutionary France, The United States Bill of Rights, The Universal Declaration of Human Rights and more recently The Charter of Fundamental Rights of the European Union The Universal Declaration of 1948 declares that the “…recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world…”

But humans are more complex than that and there are wildly differing interpretations of where rights come from and what they should include. There are some interesting ways of approaching the subject. In 1979 Czech jurist Karel Vasak came up with the division of human rights into three generations:

• First-generation: liberty and participation in political life – freedom of speech, the right to a fair trial, freedom of religion, and voting rights.
• Second-generation: social, economic, and cultural in nature – a right to be employed, rights to housing and health care, as well as social security and unemployment benefits.
• Third-generation: the softest set of rights and have proved hard to enact – group and collective rights, self-determination, economic and social development, a healthy environment and even intergenerational equity and sustainability. Critics would argue that this is an attempt to dress up a political agenda as rights

I have forgotten the fourth generation – the right to see football on free-to-air terrestrial television.

The exponential growth of claimed rights over the last few years has led to a complicated situation of conflicting rights. In his book Shouting Fire, lawyer Alan Dershowitz has a list of rights and counter-rights:

Right to free speech – Right not to be offended
Right to life of foetus – Right to choose abortion
Rights of criminal defendants –Rights of victims
Right to keep one’s money – Right to equitable distribution of wealth
Right of gay couple to adopt right of child to be adopted by a heterosexual family
Right to know of sex offenders in neighbourhood – Right of privacy after serving sentence

This is just a sample of a list that goes on for three pages and makes fascinating reading. How can we possibly sort out all these contradictory claims?

Dershowitz takes a pragmatic view; rights come from wrongs. It is a practical viewpoint based on human experience. As we have seen what constitutes perfect justice is very controversial and will probably never be resolved definitively. Intelligent people can and do disagree about economic justice. There is however much more consensus as to what is perfect injustice. The inquisition, slavery, Stalin’s purges, the Holocaust and the massacres in Rwanda show us what can happen when there is an absence of basic rights. I tend to favour a negative conception of rights. Negative liberty means that there are certain things that states and others cannot do to you. Just a few negative rules go a long way. Such things as freedom of speech, property rights, due process of law freedom of association are absolutely fundamental. Positive liberty, the right and frequently the obligation to do certain things, has often produced overblown bureaucracies and sometimes even tyranny.

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