The case against human rights law
theguardian.com
theguardian.com
It's quite long, and it uses that length to highlight the problems a universal set of human rights has. He makes some good points about the problems, but nothing that anyone with some familiarity with the area won't already know.
Fine.
Then in the final section, where one might expect some kind of alternative to be proposed he starts talking about development aid, and how that hasn't worked either, and he points out that small-scale, less ambitious projects are often more successful. I think few would disagree with the general thrust of his argument here.
In the very final couple of paragraphs he attempts to say that because large scale aid programs don't work then human rights treaties are "an act of hubris".
I don't think he makes this case very well at all.
Finally - and my biggest criticism - is that he doesn't attempt to provide alternatives to the idea of respect for human rights as a source of moral imperative and authority.
If human rights have failed then that leaves only two main sources of authority: raw power (in the military and economic senses) and religion. I don't find that an acceptable framework to reason with when trying to decipher "good" and "bad".
Religion is just another case of authority. It's not substantively different. The raw power you speak of is the threat of violence; with religion the threatened violence just happens in the afterlife.
Human Rights, on the other hand, is not an authority; it is a proposed set of limits on any form of authority.
The article posits that "the central problem with human rights law is that it is hopelessly ambiguous" and this is where it goes really wrong. Making the laws more specific and binding wouldn't help.
The fundamental problem is that you can't task an authority with enforcing limitations on its own power. And if you task an outside authority with enforcing those limitations, it becomes an existential threat. National sovereignty is the concept that a nation is the highest power; there is no legitimate higher power with authority over nations, therefore a nation has unlimited power over its citizens. That's fundamentally in opposition to the concept of human rights, which the article correctly recognizes, but then it attempts to put an anti-colonialist spin on the issue. Posner is talking from both sides of his mouth.
I don't find that an acceptable framework to reason with when trying to decipher "good" and "bad".
But that's essentially what authority is: a framework for humans to collectively decide good from bad and right from wrong. If you can't decipher them on your own and make the right decisions all by yourself, then you need some form of authority. Just don't expect to find one that limits its own power.
Rather than being a "you can't do that" like many constitutions it is instead become a "you must do that" to the state.
It was only very recently that the EU court explicitly said that national courts can look at the intent and not the explicit ruling when using their judgements on other countries. All too often previously the UK has directly implemented rulings that were addressing concerns in countries that didn't have other safeguards that the UK had.
No, authority is just a way for authority figures to get what they want while reducing the amount of actual work they have to do.
The implementation of human rights has required the continual political participation of citizens (not really an apt term for a baron, but it will have to do) since at least 1215 and the only way we were able to get there is because various groups of men had enough power to confront their ruler and demand concessions.
The problem we face today is that the modern state is far and away the most powerful tool we have ever created and is highly resistant to change (this is a feature, not a bug). Instability often takes a long time to reveal itself (consider Syria) and is extremely bloody and violent yet for some reason we don't quibble about the "human rights" of combatants in a civil war. If you want fast change it is almost certainly going to be in the form of violent conflict and the expected value of winning needs to be vastly higher than the value of maintaining the status quo (unless you have a large unemployed male population between the ages of 18 and 34).
So we (wisely) settle for slow change in our own countries while demanding the rest of the world quickly catch up so we can stop feeling guilty which is tantamount to demanding they forsake even a semblance of stability and a modicum of rights for bloodshed and the potential for the victorious regime to be worse than the current one (as Egypt had the misfortune to discover).
If there is a solution it almost certainly is to work patiently with other countries and push for gradual liberalization and development of governmental institutions that are less corrupt. China is a perfect example. They are walking a fine line between economic and political liberalization and if they move too quickly in either direction they risk igniting a revolution at which point we can throw human rights out the window along with the bodies.
Human rights are like a design doc that no one know how to implement (and no team has been hired to implement) and was created by reading half the api of four similar software projects that have been under continuous development for over a hundred years (just imagine that for a second). The doc might contain some essential truth's about what said piece of should do in some abstract sense but gives no guidance about how to do it and certainly doesn't mention the various children sacrificed during the implementation of the reference systems.
The problem here is that it assumes an "us" and "them" approach, which is clearly invalid. The article does a good job of pointing out the differences in interpretation of the right to free speech, even across "western" countries. Those difference apply to everything.
I was hoping the article would present an alternative way of reasoning societal goals. For example, the Chinese government often emphasises the value of stability and cohesion. I don't think these values (on their own) are necessarily better or worse than those articulated in the declaration of human rights.
Maybe it is possible to unify these under a single framework? For example, the "least harm" model is often used for evaluation of morality. Perhaps that makes sense here too?
With respect to societal goals I think it is also important to realize that we often want conflicting things and that in the US we struggle with societal goal setting (just look at the absurdity of the debates over healthcare because we essentially refuse to articulate and decide on societal goals around health).
Of course the US refuses. To decide on goals about health would imply that there are higher values than the pursuit of capital accumulation.
The author explained why large scale aid programs don't work - because large scale programs treat foreign cultures like they are western cultures, or aspire to be. Every culture's idea of "human rights" is different. For example, Europe believes the freedom of speech does not extend to libel or defamation. America does. Islamic states don't think freedom of speech extends towards religions.
I agree with the article, and I would go one step further. There is no such thing as human rights. They are just wishful ideals humanity invented.
Perhaps you were thinking of how truth is a shield against charges of defamation, but I feel compelled to point out that defamation is unlawful in the US.
So... there are no such things as wishful ideals that humanity invented? Are "human rights" any less real than other idealised human concepts, for example "justice"? Or are you saying that they are unachievable, and thus not worth striving towards?
When humanity is the ultimate authority and life is finite, rights become of paramount importance. When we start to assume justice or reward in a life to come (or reward in the perfect communist state to come if we just make some sacrifices now...), or we assume a higher unfathomable plan behind every event, or when we start to think that the individual is less important than the congregation, human rights tend to go right out the window. A casual glance back through history seems to show this to be the case.
My opinion? There is nothing higher than the individual. No time more important than now. Just my opinion.
Organized group brutality appears when the individual becomes less important. If this is because of social ideology, or because of a religion that is in fact a social ideology, the effects are the same.
When these are discarded, the value of the individual re-appears.
Just those who wear kilts and play bagpipes and come from Scotland. Even if one has red hair and one has black hair.
I realize this line has become very blurred in our world, but there is a difference.
No, they don't. Sure, some people articulate this kind of reasoning, other people start from the same premise and get to nihilism and might makes right.
Of course, some people get from the idea of a divine law to rights, divinely ordained, having paramount importance, and others work from the same start to the idea that material success is a sign of divine selection, so whatever you do to succeed -- as long as it works -- is clearly divinely backed.
What I really think it is is that people's views on the importance of rights and people's religiosity or areligiosity are usually formed independently (though perhaps from some common influences), but the former will tend to get rationalized as a consequence of the latter, whether or not there is any real relationship.
A person may conceive there is no god and set themselves up as god. Or they may simply substitute something else for a god. But at this point, they simply have puffed up something into something it is not or they don't take a realistic view of where and what they are.
But be that as it may, the idea that religion provides absolutes becomes rather laughable looking around at the dogmas and and sheer number of them.
When has a god ever demonstrably actually ever given any sort of commandments? So where are the absolutes hmmm?
What is fundamentally "wrong" with killing people that have green eyes? I don't know. What is fundamentally wrong with killing people who don't pray like you do?
When you have to ask questions like that, I think you have not followed the issue far enough.
Its just as possible to assume moral axioms directly as to assume moral axioms prefaced with "God says". You can do this either for detailed rules, or for high-level rules from which detailed rules are derived by reason.
By not defining morals in terms of "what a great authority figure in the sky will reward or punish".
If you meant, you can walk nude in public without fearing draconian punishment then, yes, Germany is luckily a country having a sense for proportionate punishments.
[1] http://www.computerworld.com/article/2855206/give-nsa-unlimi...
But there can only ever be a compromise between these rights. Institutions need taxes to work, but taxes mean taking money away from citizens, violating their rights. A justice system needs to be able to punish offenders. Industry must be regulated to avoid unnecessary deaths and suffering. These balance and compromises are more complicated than any moral high ground.
The effect of this is America can say "we have good human rights, we don't torture political prisoners" and an authoritarian country can say "We have good security, our people don't kill each other". The latter is usually more directly helpful to more people, but the former has somehow become seen as superior.
A random thug can violate your rights as much as a government can, but he's probably not doing it systematically, and it's usually much easier for you to protect yourself from his actions. A shotgun will keep random thugs away from your home, but it will do nothing to deter a SWAT team.
Human rights were designed to prevent systematic abuses that victims cannot possibly protect themselves from, such as Hitler's persecution of ethnic minorities. The UDHR of 1948 was a direct response to the atrocities committed by Nazi Germany. The framework of human rights was never intended to protect ordinary people from one another: that's what the police is for.
Surely there is a level of authoritarianism which you wouldn't support? How far is too far in the name of safety? I suspect different cultures have different answers.
You also can't just look at the murder rate. Let's use China as an example, sure they have less murders than the U.S. (maybe partly because they are more authoritarian), but there are fewer labor protections. You may be less likely to be shot in China, but you are more likely to be killed on the job.
>I'd much rather be here than in America where I won't be arrested for complaining about the government but I'm likely to be robbed or threatened with a gun if I walk down the wrong street at night.
I'm not sure were you're from, but being threatened with a gun is not a common occurrence in America, it's certainly not likely--even if you are walking down the wrong street.
The US has a higher homicide rate than Western Europe, but if you remove gang members and drug related homicides, the numbers go way down.
The high murder rate is definitely a problem, but most of the Europeans I've talked to think it is something that middle class Americans deal with on a day to day basis. This is simply not true.
The United States was a traditional leader in human rights and one of the few countries that has used its power to advance human rights in other nations.
What? When? And compared with which countries?
Sure, what about the political and military support for the (very brutal) dictatorships in latin-america in the 70s and 80s?
> Given that all governments have limited budgets, protecting one human right might prevent a government from protecting another.
That's not an excuse to dismantle human rights, only a reason to talk more about how to define and balance competing rights.
Just because it is impossible to protect every right all the time doesn't mean that the rights are not valuable. To take a familiar example, consider the CAP theorem. It is impossible to achieve consistency, availability, and partition tolerance at the same time. But that doesn't mean that we should ditch any or all of them as a goal. We just make do with as much consistency as we can achieve, as much availability as our budget allows, etc. according to our specific needs. As our hardware and software improve, we'll get even better at balancing those three, though we'll never reach perfection.
There's a tendency for philosophically minded people to try and come up with a single, internally consistent set of interpretations and set it up as eternal truth. But politics doesn't work like that. In politics as in database design, you always tinker with this and that, adapt to new material constraints, and make different compromises as you go along.
> If a government advances one group of rights, while neglecting others, how does one tell whether it complies with the treaties the best it can or cynically evades them?
Philosophically, yeah, that might be a pesky distinction. But in practice, it's often easy to tell when a government is evading its responsibilities instead of trying the damnedest to make do with what's available here and now. Because most governments in evasion mode don't even try to test the alternative.
In the early 1990s, Lee Kuan Yew, the long-time leader of Singapore, made waves in the political philosophy community by arguing against human rights. Naive philosophers took Lee's arguments at face value and tried to construct all sort of elaborate theories in an attempt to respond. After only a few years, however, it became clear that Lee was only trying to justify his own dictatorial rule.
> China cites “the right to development” to explain why the Chinese government gives priority to economic growth over political liberalisation.
Just because somebody invokes some right to justify violating some other right doesn't mean that anyone else needs to take them seriously. I'll take China seriously when they can present compelling evidence that "the right to development" is truly, fundamentally, utterly incompatible with the right to criticize the Communist Party. Until then, what they're saying is worth less than cattle manure. (See? They're not even trying.)
Trading human rights against one another is something we should do as a last resort when we really, seriously can't have both after years of trying hard. It's not something that we should accept by default.
> international human rights law does not require western countries to change their behaviour, while (in principle) it requires massive changes in the behaviour of most non-western countries
Unless you've been living under a rock, it seems that Western countries must change their behavior just as much as others do. Torture and mass surveillance in the United States! Censorship in various EU member states, oh my! No country even comes close to respecting all human rights, and the fact that some score better doesn't mean that the rules are unfair to others.
On the other hand, as a citizen and resident of a very non-Western country, I fully agree that the behavior of my country must undergo "massive changes". Seriously, fuck this authoritarian, chauvinistic, intolerant culture. If it needs to be changed beyond recognition in order for the people of this country to enjoy some human rights, by all means change it. Good riddance, I won't miss it.
> With the benefit of hindsight, we can see that the human rights treaties were not so much an act of idealism as an act of hubris...
With the benefit of hindsight, what I can see is that political theorists are too easily swayed by temporary turns of economic fortune. Do you know what finally made googly-eyed Western philosophers realize that Lee Kuan Yew's criticism of human rights was a load of bullshit? It wasn't any profound philosophical realization, it was the Asian financial crisis of 1997. As soon as the Singaporean economy crashed, nobody gave a damn about what the leader of Singapore had to say about human rights. His economy crashed, so he must be wrong, right? Duh.
Western political theorists are getting nervous these days because China is growing fast. But I wonder what all those professors would say if the Chinese economy crashed tomorrow. Likewise, Western scholars are getting nervous because most of them are good ol' progressives who don't like the U.S. meddling in the Middle East (so far so good), but somehow feel like they need to support their opinions with favorable depictions of those poor, victimized Middle Eastern communities. But wait, you don't need to glorify the victim in order to condemn the aggressor! Go to Afghanistan or Saudi Arabia and ask the women whether they like being oppressed. They're Arabs, so they can't be too hungry for Western-style human rights, right? riiiight?
The recent surge of doubt about human rights among Western scholars is, at best, little more than an extension of white guilt, and at worst, playing into the self-serving rhetoric of rich dictators in China and other developing countries. It does a disservice to the countless non-Western, non-white activists who are risking their lives this very moment to bring free speech, due process, gender equality, and other basic human rights to their own neighbors.