Almost every significant political controversy of our time revolves around a question of human rights. This is a fairly recent historical development. It was only in the late 18th century that the concept of universal (or “natural”) rights was accepted as a fundamental principle of a just society. This coincided with the great revolutionary republican movements in Europe and the New World which codified in writing – as a form of contract with the citizenry – precisely what liberties their populations would be guaranteed in return for an agreement to obey the laws of the land.
The most explicit and eloquent expression of this is found in the American Declaration of Independence in which the Founding Fathers declare that they “hold these truths to be self-evident… that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” (This is often now disastrously interpreted as a right to happiness itself, rather than just the pursuit of it.)
The drafters of the Constitution would go on to enumerate quite precisely what freedoms were being underwritten which, of course, reflected the assumptions and values of the time. “All men” being created equal did not apply to slaves, women or indigenous peoples. The document itself, despite its splendid intentions, became therefore an instant antique which has had to be amended constantly to remain in touch with contemporary social values.
But what remains is the idea of unalienable rights: the sacred concept of individual freedom which legitimate governments must accept and which must be laid down in statute. This is now a universal principle which virtually all democratic countries and international bodies accept. It has superseded the earlier model of liberty embodied in Magna Carta which was still the basis of British practice until well into the last century: that you are free to do anything at all unless it is specifically prohibited by law. After the Second World War, Britain took an active role in drafting the European Convention on Human Rights which pretty much put an end to the old understanding.
This country has now fully, if rather incoherently, embraced the republican social contract idea of government as guarantor of rights which must be legislated for if they are to be recognised. Unfortunately, in their naive idealism, neither the 18th-century authors nor the post-war convenors of the Human Rights Convention, anticipated the extent to which the rights of some people would conflict with the rights of others – especially if happiness (as opposed to the pursuit of it) was to be regarded as an unalienable right.
So here we are. Not only beset with apparently irreconcilable differences between individuals and groups whose rights are incompatible, but with no political or legal way to adjudicate between them – because the only principle that we all accept is that everybody must be free to pursue what makes them happy.
Those who are wondering how it could have come to this – how, for example, a female Labour MP could be heckled and shouted down by members of her own party for defending the rights of women – should consider the possibility that this was inevitable. Indeed, it should be astonishing that what Rosie Duffield did in Parliament last week was regarded as brave and defiant. But it was – for good reason – even though the cause of women’s rights would once have been thought to be beyond dispute particularly on her side of the House.
Unfortunately, she – and the women who fight along with her – do not represent the most powerful (fashionable) human rights lobby on the scene. Where once feminism would have been top of the list of priorities in everybody’s calculation, it now must struggle with the trans lobby to maintain even the basic definition of what a woman is.
The battle for ascendancy in the human rights league is relentless and disorienting because there is now a built-in assumption that current definitions must be archaic and biased in favour of established groups. So there has to be what Marxists call permanent revolution in which the privileges and considerations of every section of society are reconsidered. Yesterday’s victims of oppression become today’s enemy of some previously unrecognised disadvantaged category and the whole equation shifts.
But there is no way of settling these conflicts if the only standard we have for judgment is the principle of human rights. Do women have a right to safety and privacy in female-only spaces? Of course they do. Do men who have decided that they are women have an equal right to access those spaces? If you say they do not, as most women would, are you transgressing the rights of trans people? This is a futile argument.
There are much wider human inclinations that must come into it before we can discuss this subject reasonably. Unfortunately, those other considerations are much more vague and unmeasurable than the legalistic definition of a “right”: things like compassion, justified fear and the amorphous notion of fairness (in the way that it is used in real life) have to come into this. The balance between the needs and demands of groups of people has to be mediated through what earlier generations saw as “wisdom” – knowledge of what actually matters and what counts as good intention. It is, for example, our love for children – which goes beyond reason – that prevents paedophilia from becoming a legal right rather than a calculated estimate of a child’s right to be protected vs an adult’s right to happiness.
When those revolutionary doctrines which proclaimed the primacy of rights first emerged, critics argued that benign dictatorship was actually better able to deliver benevolent rule. It isn’t necessary to go that far to see that we cannot settle all the moral dilemmas of the human condition with a debate about which rights take precedence over others. We need a new way of talking about liberty – and happiness – that does not end in futile deadlock.
