Rights-talk is all the rage these days.
The Canadian government has just announced –on a $50,000 page of the National Post (Oct. 6) – that we must now thrill as a nation to the creation of “The Canadian Museum for Human Rights.” Immediately I hear the sound of cocktail glasses tinkling at tax-funded conferences; I see limousines waiting for overpaid government bureaucrats who are putting the final touches to yet another dreamland social-engineering document.
Rights are a Roman invention that was extended to ethics via natural law theory. For over two millennia we were assumed to have various rights, and corresponding obligations and duties according to our human natures. From this grew traditional parental rights, matrimonial rights, property rights, and so on. Most of these have come down to us in our fast-fading common law tradition. Fading, because our belief in nature and natural rights has been under relentless attack by egalitarian radicals over the past century and replaced by the notion that human rights exist not due to our natures, but to our status. That is because radicals find the whole concept of human nature dangerous. And of course it is. So they have gotten rid of it.
The American legal scholar Wesley Hohfeld (1879-1918) created the most simple and widely used fourfold classification of modern rights. These are liberties, powers, claims, and immunities. A simple example of each type would be, say: a liberty-right to free speech; a judge’s power-right to sentence a criminal; a claim-right to social security; and an immunity-right to be free from persecution. But little of this has anything to do with human nature.
As a result we are now said to have human rights not because we are human beings (or male or female, or married, and so on), but simply because we are all citizens. And of course – not to be overlooked by grant-seeking academics and fee-hungry lawyers – once we drop nature and define rights only by status, the list of new rights has no natural end. So up on the table we get women’s rights, gay and lesbian rights, rights of the disabled, bilingual rights, washroom rights, the right to social security, the right to an adequate standard of living, the right to education, the rights of blacks (disabled blacks, lesbian blacks, etc.), the rights of fat people, of tall people, and on it goes. And it all makes me nervous.
Because all you have to do to create a new “right” is to argue successfully for a new status. This is the process by which so many new rights have come into existence, even though things like gay marriage are so clearly against nature. At any rate, this is how we have become nations of rights-seekers, our courts endlessly consumed (when so many rights come into conflict, as they must) by debates over whether or not one guaranteed right ought to “trump’ another (which is to say that in the circumstance, one of them will not be a protected right. It will be surrounded with “specifications”). So as it happens, “rights” that everyone assumed had some force and effect end up receiving or losing such through the often bizarre social and moral views of unelected strangers called judges, and human rights commissioners. In other words, modern rights-talk, for all its prevalence, is fluid, fickle, and up for grabs according to who is waging the strongest emotional rights-war against whom.
How to explain this modern empire of rights? My wife says it is a psychological response: we seek to create and defend an increasing number of new human rights in a vain effort to regain the dignity we used to believe was bestowed on us by God. Modern rights may thus be seen as a compensatory reflex or grasping for legal dignity as a replacement for moral dignity. We lived under felt social and moral obligations widely recognized and upheld precisely because they had an absolute source that judges and commissioners could not mess with. And these placed a moral onus on all to perform and behave in certain commonly accepted ways. The Ten Commandments (a list of moral obligations common to most civilizations in history) is a good example. But modern rights are different. They do not create expectations to honour, respect, obey, or to perform a duty to others in any way, but to receive something from others or from the state, or from a court. At bottom, many of them seem designed simply to defend us from the actions of others. So whereas obligations are selfless and create a sense of duty to others, many modern rights are selfish and create a sense of entitlement and defensiveness against others.
A solid critique of this trend – one I am most embarrassed to see Canada now enshrining in a “museum” – is by Mary Ann Glendon in her book Rights Talk: the Impoverishment of Political Discourse (NewYork: Free Press, 1991). Herewith:
“Our rights talk, in its absoluteness promotes unrealistic expectations, heightens social conflict, and inhibits dialogue that might lead toward consensus, accommodation, or at least the discovery of common ground. In its silence concerning responsibilities, it seems to condone acceptance of the benefits of living in a democratic welfare state, without accepting the corresponding personal and civic obligations ….”
She, and other critics amplify this point by insisting that rights-talk is bad because it teaches citizens to make impractical and forceful demands to entitlement (accompanied by the appropriate “outrage”) with no thought for the consequences to others or to society at large. That is why it is no accident that North America, “the land of rights,” is also now the land of litigation.