“Far am I from denying in theory; full as far is my heart from withholding in practice… the real rights of men… If civil society be made for the advantage of man, all the advantages for which it is made become his right… Whatever each man can separately do, without trespassing upon others, he has a right to do for himself; and he has a right to a fair portion of all which society, with all its combinations of skill and force, can do in his favour.”
Edmund Burke from Reflections on the Revolution in France (1790)
There is a debate in political theory and in practical politics about the value of rights. There are at least two traditions opposed to taking rights seriously:
1. The radical statists – thinkers like Jeremy Bentham and Karl Marx didn’t like the way in which rights could be used to get in the way of whatever it was they thought was in the ‘true interests of society’. They saw rights as backward looking – protecting the interests of the few against their own enlightened concern for the many. The modern version of this is found in Fabianism and Neo-Liberalism.
2. The conservative tradition – thinkers like Edmund Burke were fearful of the unexpected damage that ideas like Human Rights might bring about in a society when they had not been tested by experience – looking over the Channel at the blood being spilled in the name of Human Rights one can have some sympathy with this point of view.
While both these sceptical traditions may have some merit it is also interesting to note that they almost cancel each other. Attacks on Human Rights seems largely to be a defence of privilege. For the radical statists the hidden assumption is that they (the new and emerging elite) know best how the rest of us should live. The conservative tradition is largely concerned to defend the privileges of the old and threatened elite. Both views are only useful to those who form part of the elite.
In reality rights are the vital lifeblood of civil society – and it is a mistake to try and separate them from piety, virtue or duty as some thinkers do. As Simone Weil notes duties are inextricably bound up with rights (even if duties are logically prior to rights – as I have argue elsewhere):
“A man considered in isolation, only has duties, amongst which are certain duties towards himself. Other men, seen from his point of view, only have rights….”
The big question is not ‘whether rights’ – the big question is ‘what rights’. This is a truth that Edmund Burke himself recognised. This is why the tradition of Human Rights is essential – even if it inevitably challenges existing patterns of civil rights. Human Rights are not a panacea, but they are a useful way of interrogating the existing pattern of rights – the actual laws, customs and systems of our society. As Burke recognised we need rights in order to distribute the “fair portion of all which society, with all its combinations of skill and force, can do in his favour” – this is never a simple matter and it is certainly subject to change.
A good example of this is the current debate on the application of human rights to the lives of disabled people. Our current law and systems are built on dreadful negative assumptions about disabled people. They provide for some cold charity and care, but they do not support people’s real Human Rights. They reflect two centuries of prejudice and oppression – so there is no reason to expect that the current patterns of civil rights are adequate protection for the real status of disabled people – as equal citizens.
We also know much more about how to combine “skill and force” to provide a “fair portion” for all citizens. For instance, we know that inclusion, citizenship and independent living create a better world for everyone. So we recognise – with even greater urgency – the moral case for the radical reform of our current welfare system – particularly the systems that impact on disabled people.
Human Rights are not enough, as Hannah Arendt noted when discussing the Eichman trial:
“For Israel the only unprecedented feature of the trial was that, for the first time (since the year 70, when Jerusalem was destroyed by the Romans), Jews were able to sit in judgement on crimes committed against their own people, that for the first time they did not need to appeal to others for protection and justice, or fall back upon the compromised phraseology of the rights of man – rights which, as no one knew better than they, were claimed only by people who were too weak to defend their “rights of Englishmen” and to enforce their own laws.”
It is time that the human rights of disabled people are turned into real civil rights – “the rights of Englishmen.”