Rights, freedom and justice

The following was published in the 9 March 2009 issue of Christian Courier as part of my “Principalities & Powers” column:

In our postchristian society, appeals to human rights have become the functional equivalent of the biblical prophets’ “thus saith the Lord.” They are treated as the final word on a subject, and those disputing such appeals are likely to be marginalized as heretics. In such a climate, some people are tempted to give up altogether on the concept of rights, simply because so many tend to use it as a justification for subjective wants. Yet abusus non tollit usum: the abuse of something does not rule out its legitimate use. There are two foundational problems with the current legal climate surrounding rights.

First, we tend to assume that all rights are justiciable, that is, properly to be brought before a judicial or quasi-judicial body to be settled in case of a claimed violation. However, this is an erroneous assumption that is incompatible with constitutional government and a recognition of the legitimate multiplicity of legal spheres. Matilda can be said to have a genuine right to her husband Frank’s love. Yet the state cannot force Frank to love his wife, because spousal love lies outside the proper competence of governmental authority.

So how would a violation of such a right be addressed? Primarily within the marital context itself. If Matilda feels that Frank is not paying enough attention to her, she does not complain to a human rights commission; she takes it up with Frank by reminding him of his responsibilities as husband. If this has no effect and if Frank stubbornly refuses to listen to and love her, there’s always the possibility of divorce. Yet even in this case the state has not really forced Frank to love Matilda; it has simply recognized the dissolution of their marriage. To be sure, the state has stepped in here, but only as a last resort. Respecting and protecting spousal rights properly belongs to the spouses themselves, and arguably to those who witnessed their vows. Government does not create these rights; it only provides a legal backup in case the marital community irreparably breaks down.

Second, the late Sir Isaiah Berlin famously distinguished between negative and positive freedoms, between “freedom from” and “freedom to.” In the past most bills or charters of rights limited themselves to protecting certain negative rights, including those to freedom of speech, religion, press, association and the like. Such rights call on government simply to refrain from breaching them. No extra expenditure of funds is required. In fact, a government may actually save money by closing down an agency responsible for censoring books, periodicals and broadcasting. In so doing it recognizes that there are certain activities lying beyond its normative competence.

When we get into the realm of positive freedoms the issue of rights becomes more complicated. In a democracy, of course, government undertakes to protect the right to vote, which is the most basic positive right. However, “freedom to”, if wedded to an expansive notion of rights and their justiciability, is incompatible with a recognition of limits to government. If I claim to have a right to nourishment, does that obligate government to force the local grocer to provide me with food?

If I claim a right to have my idiosyncratic lifestyle choices affirmed by society, does this entail government forcing others to express support for me and shutting down all expression of disapproval? If so, it does not fit at all well into a robust notion of constitutional government. Yet this is where much of North America appears to be going at present.

Repealing our bills or charters of rights is not the answer. What needs to be changed is the willingness of our courts to treat mere policy aspirations as rights; instead they should return them to the ordinary deliberative processes at the centre of representative government.