Andrew Carr asks why, as a classical liberal, I do not support a bill of rights. My political identity survey last year found that among classical liberals only about a third supported a bill of rights, so on this I am not an outlier.
The apparent incongruity is that classical liberals support individual freedom, but oppose a measure that could protect freedom from ‘big government’ or the ‘tyranny of the majority’.
Part of the answer is that virtually all classical liberals believe in democracy as well. Though much has been made of the ‘tensions’ between liberalism and democracy, which obviously can occur, there are also many parallels.
Both give significant weight to the preferences and knowledge of ordinary individual citizens, who ajudicate on the choices offered to them – by parties and candidates in the political sphere, by firms in the economic sphere, and by varying traditions and associations in the cultural sphere. Continue reading “Classical liberalism and bills of rights”
Some bloggers were unimpressed with this justification from Attorney-General Robert McClelland for not proposing a charter of rights:
Let me say at the outset, that a legislative charter of rights is not included in the Framework as the Government believes that the enhancement of human rights should be done in a way that, as far as possible, unites rather than divides our community. [emphasis added]
Guy Beres thought that the ‘absence of any legal bedrock on human rights in Australia is a fairly considerable source of division and uncertainty’. Kim at LR agreed.
The charter itself would have been within the usual range of ‘divisive’ issues, ie those issues on which significant opposing groups both feel strongly. It would have flared for a while, but probably not have entrenched significant on-going conflicts or resentments. The losing side would have had a chance to present its full case, and would have been left with an opportunity to raise the issue again in the future.
But presuming that the charter was just the first step (or the first part of the slide down the slippery slope, depending on your perspective) towards constitutional rights protection then I do think it has significant implications for the way we handle ‘divisive’ issues. Continue reading “Constitutional rights and ‘divisive’ issues”
The government has decided not to introduce a charter of rights. Instead, they will introduce greater human rights scrutiny into the legislative process and increase human rights education campaigns.
While on balance I think that no charter is the right decision, the process of drafting and debating it would have had one distinct advantage over the chosen policy path. This would have been to focus attention on which interests and freedoms really deserved to achieve quasi-constitutional status as ‘human rights’, and which were things that should be the stuff of ordinary political debate.
Instead, the government has decided that ‘human rights’ are all the contents of the seven international rights treaties that have been signed on our behalf by various executives (this is not a democratic process; treaties do not require ratification by parliament). New legislation and delegated legislation will need to have a statement that ‘assesses its compatibility’ with these treaties.
The International Covenant on Economic, Social and Cultural Rights in particular has provisions that are, as Jeremy Bentham famously described rights, ‘nonsense upon stilts’. It is a social democratic wish-list. Take for example this one on higher education: Continue reading “No charter, but too many ‘rights’”
This morning’s Australian reports on this speech by my U of M colleague Simon Marginson calling for extended rights for international students:
International students are temporary migrants. Nations have the option of treating them as quasi-residents, or as outsiders. Everywhere they are treated as outsiders. Nowhere do they enjoy comprehensive human rights in local law. ……..human rights should not be confined to local citizens.
…we should understand student security as an issue of comprehensive human rights…
we suggest that a strong contribution governments can make to student security is to provide affordable student housing, for a mix of local and international students, in areas where students study and work. [I have altered the sequence from the original presentation]
I am a ‘human rights’ sceptic. As a classical liberal, I unsurprisingly believe that many of the interests and freedoms that find their way into lists of ‘human rights’ are indeed important. But I don’t believe these interests and freedoms are best advocated or defended by simply asserting that they are ‘rights’. Continue reading “The ‘human rights’ of international students”
In the SMH, law academic George Williams rejects the idea that there should be a referendum on a charter of rights. He says that
Referendums are held to change the constitution, and have never been to approve an ordinary act of Parliament.
I’m not convinced by this point. The Australian constitutional system is much more than just the formal document called the Constitution. It includes all the laws, conventions and judicial decisions that establish and set out the relationships between the key institutions of government.
In this broader sense of a constitutional system, a charter of rights is an important change in the relationship between the executive and the judiciary, and represents a major shift in how the rest of us consider issues covered by the charter. The substantive rights and wrongs of various issues will become secondary to the legal arguments for and against, which are often much harder for ordinary citizens to understand. The judicial decisions made are likely to lead to conclusions which majorities do not support.
In this context, a referendum is not a silly idea. It’s not like having a vote on an ETS, as Williams suggests, or any of the other issues parliament considers each year. It’s about the rules of the political game, about who gets to decide what. It is a constitutional question, even if not an amendment to the Constitution.
The public opinion research accompanying the report of the National Human Rights Consultation suggests that those proposing a charter of rights have a tough task ahead.
These days, only bastards and people who know a little political philosophy are likely to question the whole idea of ‘human rights’ (‘nonsense upon stilts’, as the utilitarian philosopher Jeremy Bentham memorably called them). So on questions about parliament paying attention to human rights or increased education on human rights only one or two percent of respondents express opposition.
But only 7% of respondents disagreed with the proposition that human rights are adequately protected (with a large 29% not expressing a view).
Worse for the main advocates of putting general human rights into legislation or the Constitution, the public isn’t in general very sympathetic on some of the issues that are driving the human rights push in the first place. Continue reading “Will a human rights charter be popular?”
The Australian and The Age both ran opinion pieces yesterday favouring gay marriage, but the two articles were contrasts in tone and argument.
In The Age, Tim Wright preached to the converted. None of the concerns people might have about gay marriage were addressed. Rather, gays should be allowed to marry because it is a ‘basic human right’. Opposition to it comes from personal flaws: it is senseless, inhumane, mean-spirited, the product of fear, a cave-in to conservative lobbies.
In The Australian, Tim Wilson took a more conciliatory path. Picking up on Tony Abbott’s covenant marriage argument, he argued for pluralism in marriage contracts – letting gays marry and also letting religious people have stricter forms of marriage.
The Wilson approach seems much the better one. Opposition to gay marriage cannot be put down to the left’s standard cast of villains. While I personally think the case for gay marriage is strong, even from a secular conservative perspective, the arguments are counter-intuitive. People need to to be taken through them, not insulted.
Tim Wilson’s argument also highlights that gays and conservative Christians have more in common politically than either probably realise. They are both cultural minorities with the same threats from an homogenising state.
Wright’s article is an example of how an emphasis on rights damages democratic discourse. It encourages people just to assert entitlements, rather than to engage with other people’s views and perhaps reach a compromise on some evolutionary position. Winner-take all politics brings unnecessary rancour and division to civic life.
According to The Australian, the new girlfriend of David Hicks, Aloysia Brooks, ‘writes poetry on human rights issues’. Thankfully the paper spared us any quotations from it. But we were not so lucky in escaping ex-Justice Michael Kirby’s imaginative musings on ‘human rights’:
In an article published in The Age last week he told us that:
The essential underpinning of fundamental human rights is love. Love for one another. Empathy for fellow human beings. Feeling pain for the refugee; for the victim of war; for the prisoner deprived of the vote; for the child dying of cholera in Zimbabwe. We can imagine what it must be like to be a victim because, as human beings, we too feel, and yearn for, life, freedom and justice.
That’s quite a segue from ‘love’ to the pity we feel for a kid we’ve never met and never will meet dying of cholera. Putting ‘love’ as the underpinning of human rights seems to me to have things the wrong way around. It is because we don’t love each other, because positive emotions of any kind are in finite supply, that we need social norms and legal and political institutions that seek to protect us from others and to manage conflict in a peaceful way.
Judith Shklar, a fine Harvard political theorist and escapee from the Nazis as a girl, had it right in her famous essay on the ‘liberalism of fear’: that liberalism – which provides much of the ideological basis of ‘human rights’ – begins with the evil of cruelty, and the desire we have to live free of fear.
Whether legally-entrenched ‘human rights’ are the best way to put limits on cruelty is a debate that we will again be having over the next six months. But it we had unlimited love no such legal rights, and no such debate, would be necessary.
In my yet-to-be published debate with Alan Soble about The Peel’s pro-gay door policy for The Philosophers’ Magazine, I argue for The Peel being allowed to decide who it allows in, and he argues for a door policy that does not discriminate on sex or sexual preference.
I think there is a confusion in Soble’s position. On the one hand, he thinks that people should not be disadvantaged because they are gay or straight, or male or female. He supports anti-discrimination law to neutralise so far as possible any negative repercussions of these characteristics (though I am unclear how being straight can be a significant disadvantage, unless you count kids). On the other hand, using anti-discrimination law to prevent gay-only bars entrenches disadvantages of being gay, such as the difficulties involved in identifying and meeting other gay people. You can be gay, but you can’t have institutions that support that characteristic.
A similar confusion is found in VicHealth’s More than tolerance report. It chastises respondents to its survey who would be concerned about a close relative marrying someone from a Christian, Jewish or Muslim background – especially Muslim:
Continue reading “Tolerance vs rights”