Occasional Address (2002)

Occasional Address Graduation University
of Western Sydney

2 April 2002

by Alice Erh Soon Tay
Challis Professor of Jurisprudence
President, Human Rights and Equal Opportunity Commission, Australia

Chancellor, Vice Chancellor, academic and staff of the University of Western Sydney, Graduands, Distinguished Guests, Ladies and Gentlemen -

It is an honour and a pleasure to be here today to share with you, Graduands, your families and friends, the joys of today, a day that represents the culmination of much work, learning, striving and not a little occasional frustration and anxiety. I add my very good wishes to the many that others have already conveyed.

It is also an honour to be asked by the Vice Chancellor to address you. And a relief. Rightly or wrongly, as an academic lawyer, and especially as a jurisprudential lawyer, I feel some kinship with people in the Humanities and Psychology, at least more kinship than with physiotherapists, engineers and accountants. We share, I believe, some important values: knowledge for us is sought for itself, not as an instrument to personal glorification and material accumulation; we investigate history and civilisations to help us know more about ourselves and to shape ourselves through heroic figures and literary exemplars; we find in the complexities of literary figures, both ancient and not so ancient, aspects of truths about ourselves; for many of us, the Greeks of Aeschylus, Plato, Socrates, Aristotle, are as close and alive as our friends and colleagues. We are concerned to analyse and clarify, to conceptualise and get to the bottom of things. All this may sound rather stodgy and out of this world; but I would not have it otherwise.

Most of all, our common ground through the intellectual disciplines we have chosen has made my choice of topic obvious or at least easier. I am going to put before you some thoughts about rights, human rights, and also about wrongs, when abuse of the term human rights lead us to make grave human wrongs.

"Human rights" has easily become the most popular coinage in the second half of the 20th century. In the hands of politicians and citizens alike, it is freely circulated in some societies, both in true and false metals; in others, more parsimoniously, discriminatingly, with careful differentiation of its varieties and qualities; in still others, it remains a secret dream, longed for , promised but never delivered by man or God. But true or false, in possession or in hope, human rights as a moral or legal entitlement of all human beings to dignified living, have marked the path of progress in moral sensitivities and produced improvements in social institutions.

Yet the term has often been loosely understood and carelessly grasped. There is often much wasteful confusion and misunderstanding among both promisors and promisees over just what human rights each is talking about. Misunderstandings over what is at stake in human rights have resulted in a proliferation of what could be termed "human wrongs". What do we mean by "human wrongs"?

There is a passage in Milan Kundera's Immortality which illustrates this conceptual confusion:

I don't know a single politician who does not mention ten times a day the fight for human rights or violation of human rights. But because people in the West are not threatened by concentration camps and are free to say and write what they want, the more the fight for human rights gains in popularity, the more it loses any concrete content, becoming a kind of universal stance of everyone towards everything, a kind of energy that turns all human desires into rights. The world has become man's rights and everything in it has become a right: the desire for love the right to love; the desire for rest the right to rest; the desire for friendship the right to friendship; the desire to exceed the speed limit the right to exceed the speed limit; the desire for happiness the right to happiness (Kundera, 1991, p.153).

Confusion over the nature of human rights has led to an inappropriate use of rights terminology. Such confusion, combined with the continuing popularity of rights talk, will continue to cause a proliferation of rights claims, an ad hoc expansion of human rights agendas that will ultimately devalue the very thing we set out to protect - human dignity.

The most misunderstood and controversial aspect of human rights theory and perception is the distinction between human rights as a species of moral rights and human rights as bases of legal rights.

Moral Rights and Legal Rights

There is a considerable difference between a right in the sense of a moral right and a right in the sense of a legal right. Legal rights are laws of a state, while moral rights are claims of persons. Legal rights by definition are enforceable, while moral rights may not be. Some moral rights are enforced, have become enforced, becoming legal rights, while others remain unenforceable. Constitutional rights or rights of citizens, "political or civil rights" as they are known, are other names for legal rights. "Natural rights" or "rights of Man" are different names for moral rights, mostly used before the advent of the Industrial Revolution and known since the end of the 17th century as "human rights".

It is the argument of human rights theory from John Locke to the United Nations Declaration of Human Rights that legal rights should be based on moral rights and states should take the latter into active consideration. Critics of human rights theory have argued that the conception of human rights is utopian, that there are no such rights and that belief in them "is at one with belief in witches and unicorns". For Jeremy Bentham:

There are no other rights than legal rights; no natural rights - no rights of man,
anterior or superior to those created by the laws. The assertion of such rights is an
effect without cause. We may feign a law, in order to speak of this fiction - in order
to feign a right as having been created; but fiction is not truth.

Bentham did not mean by this that people could be murdered with impunity or that they should not be treated decently. Rather, he meant that rights were an unscientific concept, that their existence could not be measured, tested, compared. He did believe that there was a scientific concept on which morality could be founded - the concept of pleasure to be understood as wellbeing, as the satisfaction of desires.

However one holds utilitarianism, many utilitarians see rights and especially human rights as a shorthand for certain necessary prohibitions against pain and the destruction of well-being. That is why a utilitarian like Peter Singer is willing to talk about the rights of animals. He thinks simply that those animals and living organisms capable of feeling pain should not be hurt unnecessarily, as human beings should not. The doctrine of human rights is a propagandist way of ensuring the protection of well-being, for human beings at least. Others, like Stanley Benn, think that the criteria of pleasure and pain, though important, do not provide a scientific or a sufficient basis for understanding the moral life and the reason why we insist that people have rights. Rights for him, and for many others, are intimately connected with what it is to be human in a full and developed sense. Rights presuppose and protect the development of human personality. They guarantee an individual the security and space needed to flourish as a human being: such security and space include material, political, cultural and moral possibilities of development, choice and comparative self-determination. They may require both individual and social development.

Maurice Cranston distinguished between legal and moral rights in terms of their generality, enforceability and the justification of the enforceability of their claim. Thus, the most common and commonly experienced legal rights are those that are enjoyed by everyone living under a constitution or jurisdiction and upheld by courts; the most common and commonly expressed moral rights are those claimed by an individual on a personal basis. Hence, in one case, one asks, "Would the courts uphold the claim?", while in the other, one asks, "Can the claim be morally justified?", vis-à-vis those who deny the claim.

A human right, Cranston argues, "is something everyone has. They are not rights a man acquires by doing certain work, enacting a certain role, or discharging certain duties; they belong to him simply because he is a human being."

But moral rights may be universal or belong to one individual or a limited class of individuals by virtue of some special distinguishing quality or by doing something specific to earn the entitlement in question, although the standard way of justifying a moral right is to demonstrate that that right has been earned, as by labour to acquire a right of property. Here, morality and legality join hand to create an enforceable right. But the most important of moral or human rights cannot be justified as earned rights. Nor should they be. As Cranston said:

A human right, by definition, is something that no one, anywhere, may be deprived of without grave affront to justice. If a declaration of human rights is to be what it purports to be, a declaration of universal moral rights, it must be confined to this sphere of discourse.

When and how can essential human rights be converted into legally enforceable rights? Cranston suggests the following criteria: practicality, universality, being of paramount importance, immediacy or urgency. Such "human rights: are absolute, about them, no decent human can disagree. Other "human rights" - economic and social rights - like the right to paid holidays, and paid maternity leave, may be rights of another kind, of groups of people, as earned or inherited or purchased rights, requiring justifications for their existence. These "human rights" are defeasible and may give way to other, more urgent claims.

The doctrine of human rights maintained by this view is an ascriptive and not initially a descriptive one. It represents a resolve to treat people in a certain way and to organise social affairs, including law, in such a way as to promote this view. The formation of moral rights is in the realm of human consciousness, ideology and philosophy. It is from there that they are transformed into legal and actual rights. This transformation is not an automatic or inevitable one but one conditioned by complex political processes and activity. But how do we justify "transforming" a moral right into a legal right?

What is the foundation or justification of a right?

Neither natural nor human rights are, as some would believe, ultimate, inalienable, imprescriptive, grounded in holy writ, taken as unquestionable or resting on the logical requirement of a social contract. In this sense, there is no ultimate source or justification, rule or required behaviour of which we cannot ask, "Why should I obey this?" The shift in modern life from a concept of natural rights is an implicit recognition of the fact that such rights are not deduced from nature or governance of the universe or of society but rather from a developing concept of what it is to be human, to lead a human life, to become a person. Far from being the foundation of morality in a historical sense, rights follow from our experience with moralities.

The expansion of moral rights

In the last 10-15 years there has been a powerful move by NGOs and the UN High Commission to give greater and greater recognition to human rights as, by themselves, enforceable rights. This movement can be attributed to the strength of popular outrage against morally repugnant behaviour coupled with the politicisation of law in societies including Australia. It is part of the development of the legal protection of human rights that is a distinguishing achievement of the 20th century.

Part of this movement lies on the fact that, as the powers of the state and the demands made upon it increases, many see law more and more as an instrument for social control and social change. They want to substitute social policies and administrative direction for law and legal values and procedures.

The dangers of this trend have been identified some 10 years ago - particularly in relation to asserting the existence of new generation rights in law long before societies had the capacity to accommodate them. Ian Brownlie noted the risks involved in attempting to approach human rights aspirations through an inappropriate legal discourse:

As policy goals, as standards of morality, the so-called new generation of human rights would be acceptable and one could sit around a table with non-lawyers and agree on practical programs for attaining these good ends. What concerns me as a lawyer is the casual introduction of serious confusions of thought, and this in the course of seeking to give the new rights an actual legal context. The type of law invention about which I have reservations involves a tendency to cut out the real pioneering - the process of persuasion and diplomacy - and put in its place the premature announcement that the new settlement is built. ("The Rights of People in International Law", in James Crawford, (ed), The Rights of People, Clarendon Press, p.14).

There is no doubt that some human rights are weak without enforcement procedures. Assertion of rights in law is essential to build a political culture in which human rights claims can be contested either domestically or internationally. Rights can be validated only through this process, but they must also be recognised in society, by those who claim them and those who must respect them. An important, indeed vital, aspect in this context is the recognition of the kinds of rights or claims at issue and the balance that society and state must make to determine when and how to recognise them.

Summary

It should be clear from what I have said that I do not hold either that human rights, whether moral or legal, are static, once claimed or recognised, fixed forever; or that they are relative, good for some people and dispensable for others. On the contrary, I believe that we are constantly adding to our lists of moral and legal claims precisely because our moral perceptions are constantly extending and our material conditions enable and encourage us to wider our claims both for ourselves and for others. And I believe that our Common Law system, and hence our courts and judges can, acting within the law, administering justice according to the law, by application of the law, add to the list of legally upheld human rights. Both international law development and local communal opinion give support to judicial extension of the list of human rights. And I hold that while different histories may explain how some absolute rights came to be denied they cannot justify such denial or the continuance of denial.

Last updated 1 December 2001