Rights and utility in Australia

The following was written for a talk in 2008. Since then Australia’s Prime Minister, Kevin Rudd, has instituted a small committee to examine the issue of human rights in Australia. There seems some likelihood the Commonwealth will adopt rights legislation similar to that of Victoria and the ACT (see below). While this is probably the least worst position, I am unsure that Australia’s democratic record is such that it cries out for this additional centre of power, however dilute.

Under a non-rights system Australia has been at the forefront of the world in many reforms. Moreover, in my view (which will be found in other posts on this site) a rights discourse harkens back to old and outmoded forms of political association. Australia’s democratic system remains one of the most advanced in the world. The fact it lacks much reference to old and worn doctrines that remain in other countries’ political systems does not seem to me to be a great disadvantage. Australia’s uniqueness in this respect should be celebrated rather than regretted.

For my previous installment on rights, with particular reference to the UN High Commissioner for Human Rights, see here.

 

 A rights-branded utilitarianism?

In his 1985 paper ‘Political Ideology in Australia: The Distinctiveness of a Benthamite Society’, Hugh Collins, now Master of Ormond College at Melbourne University, observes that Jeremy Bentham rejected the idea of natural rights. Indeed this is so. Bentham became famous for his critique of the ostensibly liberating idea of natural rights as stated in the Declaration of Rights published by the French National Assembly in 1791. He took the declaration sentence by sentence, and subjected it to a withering attack. For example he takes the sentence: ‘The end in view of every political association, is the preservation of the natural and imprescriptible rights of man.’

Of this Bentham states:

More confusion — more nonsense, — and the nonsense, as usual, dangerous nonsense. The words can scarcely be said to have a meaning: but if they have, … these would be the propositions either asserted or implied: –

1. That there are such things as rights anterior to the establishment of governments: for natural, as applied to rights, if it mean anything, is meant to stand in opposition to legal — to such rights as are acknowledged to owe their existence to government….

He acknowledges rights given in law, but not rights preceding government – natural rights. Thus he makes his famous declaration:

Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense, — nonsense upon stilts.

For Bentham, rights were both dangerous, and a lawyers’ paradise.

In contrast to natural rights, rights given in law are merely human inventions, suitable for the time, and adjustable according to the needs of the polity. Rights in law can be designed to promote happiness, or a life well lived. Legal positivism allows the society control over its own affairs. Natural law mystifies that which ought to be in democratic control. According to the rhetoric of natural rights, the natural rights of the generation that sets them down must forever enslave future generations, for they are inalienable, and eternally true. In the broad concept, legal positivism sought to destroy this approach, and instead create a system whereby laws could reflect the will of the people, and be adjusted accordingly.

For Bentham, the task was to design a system of government and economy that properly allowed the people to govern and thrive – to design a system that did not involve a mystification that locked the people out of a say in the laws that governed them.

Australia largely adopted and developed Bentham’s system of positive law. For example, the South Australian colonial constitution was described by a contemporary as the only thorough Benthamite constitution in the world at the time. The other Australian colonies were not so far behind, adopting Benthamite constitutions and implementing reforms, including full male suffrage and later full female suffrage, equal electoral districts, regular parliamentary elections, the ballot, councils,  public gardens, sanitation, codification of the common law. The Torrens land registration system is Benthamite, first implemented in that Benthamite experiment, South Australia. Benthamites in South Australia and Victoria were world leaders in secret ballot innovation.

As a result of this activist program, Australians as a general rule do not discuss legislation in terms of rights. We tend to look to a cost-benefit analysis instead. What is the cost of bike helmet laws? Not much. What is the benefit? A great deal. The benefit does not accrue only to the individual who might escape brain injury, but to the public health system that is relieved of the cost burden of that brain injury. Ok, we say. Let’s legislate. We treat the freedom of speech in the same way. We do not feel inhibited, for example, to legislate for limits on free speech where that freedom interferes with social policy – defamation, criminal conspiracy, anti-bullying, restrictions on cinema and television, restrictions in trade practices, and restrictions in advertising.

In the United States the situation is different, and perhaps in the UK. In America, at least, legislation for bike helmets is understood to trample on individual freedoms, individual rights – the right not to wear a helmet, the right to act without interference from the state. Likewise, seat belt laws have been repealed in some states of the US on these grounds. Repealing seat belt laws in Australia is virtually unthinkable.

In Canada since the introduction of a bill of rights, corporations have claimed the right of free speech to advertise potentially damaging products outside of schools. They won in the courts. And there is nothing the legislature, the representatives of the people, can do about it.

In Australia up to now we have preferred utility to rights. As Terry Moran, the new head of the Commonwealth public service, appointed by Kevin Rudd, stated in February 2008 on his appointment: The public service is not ‘about boring administration, but about improving things – the Benthamite concept that the role of government is to achieve the greatest good for the greatest number.’

The second half of the 20^th century saw a rise of rights discourse in the US and other countries. This trajectory was traced in 1979 by HLA Hart in his article ‘Utility and Rights’. He observed:

We are currently witnessing, I think, the progress of a transition from a once widely accepted old faith that some form of utilitarianism, if only we could discover the right form, must capture the essence of political morality. The new faith is that the truth must lie not with a doctrine that takes the maximisation of aggregate or average general welfare for its goal, but with a doctrine of basic human rights, protecting specific basic liberties and interests of individuals, if only we could find some sufficiently firm foundation for such rights to meet some long familiar objections.

Rights talk, even in Benthamite Australia, has become the fashion. The problem is that it is impossible to point to a right. Rights are merely a convenient invention, useful as a bargaining tool. Rights carry moral weight, but are weightless.

Bentham has it, for example:

Talk of right: – say a man has a right to such a thing in such a case, and we have no matter of fact to encumber ourselves with – When you have said he has a right – insist upon it -: … all proof is needless. The business is thus settled in a trice by the help of a convenient word or two, and without the pains of thinking.

But if we do think about it, what claim of rights is real, what is a genuine right, and what is not, what can be dismissed as a false claim? Can a person claim the right to marry whomever they choose? Seems fair. Can they marry a child? Surely not! But that form of matrimony, as I understand it, exists in many cultures. Should that cultural practice be permitted? Should that self-determination be a right?

Can a person marry any consenting adult then? Naturally, I suppose – that sounds fair. So a woman may marry a man who already has a wife? Can a woman have her daughter circumcised? Why not? Why does the girl’s right not to have her body tampered with trump the right of the woman to practice her culture? What are the limits to the freedom of speech? Why should we wear bike helmets?  These are not desert island philosophical contrivances designed to test a philosophy or idea at the extremes. Surely there is a guiding principle we can use other than merely the exercise of rhetorical, financial and physical power to decide what should be a right. The principle of power does not seem enough for a system that claims a high moral ascendency.

David Kennedy, an international lawyer, Manley Hudson Professor of Law and Director of the European Law Research Center at Harvard and human rights practitioner, raises some important issues in relation to human rights. In a talk at Harvard in 2007 he noted that human rights advocates have become significant players in the international realm, and he considered how their power might be exercised responsibly. In his book, The Dark Sides of Virtue, he observes that rights tend to fetishise the assessment of judges, are dependent on state power, and pretend to universal human truth. Moreover, as human rights have a general vocabulary of what is good, what is virtuous, they are arrogant.

One problem with human rights is that, at least on one reading, they are supposed to be universally true, eternal and inviolable. The only way around that is to make them culturally relative. Neither path is adequate.

Moreover, trumping is a key problem in rights. Which rights trump which? Should I have the right to practice my culture, or should my child be protected from female circumcision? Should I be able to advertise junk food outside schools or is some right belonging to children being trampled over?

The more one thinks about it, the more one gets entangled in a mess with no deliverance. Worse though, is the idea that the implementation of rights might cause harm. What then? What if, for example, cessation of female circumcision were to be such a heavy blow to the society that practices it that the culture disintegrates? One need only read of the culture of the Hofryat women in Janice Boddy’s account of women conducting female circumcision in Sudan to imagine such a possibility. Or, on a different note, Ellen Gruenbaum’s discussion of female circumcision suggests the girl you save may be unmarriageable. Have you done well making her an outcast? And what of the right to bear arms, claimed not only in the United States, but by socialists in the United Kingdom in the 1830 and 40s? As professor Robyn Eckersley at Melbourne University has said in support of rights, rights are superior to the cost-benefit analysis. For Eckersley rights should be implemented ‘whatever the cost’.

In relation to possible harm caused by the implementation of rights, David Kennedy notes:

Although I find it hard to take too seriously the idea that rights exist in some way, let us assume that they do, and that the human rights movement is getting better and better at discovering and articulating them. If it turned out that doing so caused more misery than it alleviated, because human rights turned out to be more part of the problem than the solution, then, as a good-hearted legal professional, I would advocate our doing all we can to keep the existence of rights a secret. In a similar way, if it turns out that rights are “just” a fantasy, a social construction, and so forth, that tells us nothing about whether they are useful or not.  If they are a more useful than not, more power to the society which constructed them. (Dark Side of Virtue, p7)

We have begun to enter a land of mirages, where whatever we want to be true we will say is true, and whatever we don’t want to be true we will hide. Bentham’s comments about lawyers rubbing their hands in glee begins to make sense.

But there is something going on in Kennedy’s discussion that seems to be way outside the rights discourse. In fact rights are being subjected to a test that has nothing to do with inviolability, eternality, or universal truth, and only a slim association with a culturally relativist approach too.

In his book the Dark Sides of Virtue, Kennedy leads us to a conclusion that rights should be viewed pragmatically. Rights, he says, should be subject to a cost-benefit analysis.

Now, it just so happens that the cost-benefit analysis is a hallmark not of a rights society, but a utilitarian one – remember the bike helmets? As Philip Schofield, Professor of Law and director of the Bentham Project at the University College London, observes, ‘In economics, cost-benefit analysis can be seen to have its origin in Bentham’s utilitarian methodology.’ Indeed, Bentham is all about the cost-benefit analysis with happiness as the end.

If rights are to be subject to a cost benefit analysis, we are really back where we started, with a rights-branded utilitarianism.

 

 A bill of rights?

The desired function of a bill of rights as part of the constitution is that it prevents the legislature unfairly legislating against minorities, or even majorities. It does this by placing into the hands of judges a significant power over legislation. To implement a constitutional bill of rights in Australia we will have to have a referendum. We are going to ask a significant majority of the population to declare that they have so little faith in themselves that they should hand over the final say on the legislation their representatives pass to a group of unelected lawyers holding ultimate power, and over whom the electorate have no immediate control. We will create a kind of third house, a House of unelected, and irremoveable Lords – a few select individuals who have the power to shape legislation beyond anything now provided for in the current constitution.

Think of abortion law in the United States. Here the majority have control of it. There they don’t. We will wait with bated breath for a decision from on high about how we should live. And if we don’t like it, forget about casting a vote against the perpetrator at the next election. We will just do as they say, or face the sanction of the state. The only way to change the new law will be by referendum.

However, Victoria has legislation that promtes rights. Using this judges may comment on the rights-values in particular legislation.  This rights legislation is amendable by no special procedure – it is amendable by the legislature. In interpreting that act, should a judge overstep the bounds of social expectation, the legislature can intervene. A constitutional bill of rights is a whole different ball-game.

So it is that Sam Crosby, on giving up his role as leader of Young Labour in 2008, spoke against a bill of rights, suggesting it could be used to prevent the implementation of a reformist agenda. A report of Crosby’s position states:

 Crosby points to the situation in Canada. “The right to free speech means that tobacco companies can advertise as freely as they like due to the interpretation of an unelected judge. And it means the judiciary is increasingly politicised to the point where Canadians are now, for the first time, calling on judges to be elected, because judges are called on to make political decisions.”  This was no airy-fairy, feel-good love-in, says Crosby. They debated the transfer of power to judges and the ramifications for parliamentary democracy.  “A charter transfers power away from elected parliaments to unrepresentative judges who don’t have to account to anyone, who are not elected and who are largely unscrutinised.” He says that Labor’s entire history “is a belief in legislatures, in forming governments, in representing people in government. We are not a party that believes in handing massive swathes of power to judges.”

And so it is that New South Wales Labor Attorney-General in 2008, Mr Hatzistergos, has expressed grave misgivings about a bill of rights.

To conclude:

As an early Australian agitator for democratic institutions wrote in 1839, ‘The greatest improvement in political constitutions that has occurred has been that of introducing into them the principle of responsibility to the people, and the beautiful machinery to which we allude is that of the responsibility of the governing to the governed.’

That matters of great importance to the people should not be ‘investigated and deliberated upon in public assemblies’¹ but be transferred to the courts is a direct challenge to the most fundamental principles of Australian democracy that have held sway since the first significant struggles for democracy in the 1830s, and that were finally implemented in the 1840s and 1850s under the influence of utilitarian constitutional reform. It would see a substantial change to the foundation of our democracy – the primacy of the will of the people expressed though an empowered executive.

It also represents a move from our utilitarian culture to a virtue culture, attempting to create objective rules (spun in fact from thin air, but presented as high wisdom) – objective rules to govern the implementation of policies that the citizens of this country, by definition, are not felt sufficiently responsible enough to generate for themselves through the electoral process – rules, apparently, that the people do not want, but are to have only distant and awkward control over, through the notoriously difficult referendum process.

If rights are to make a direct appearance in our Commonwealth legislation it should be only with the explicit acknowledgment that they are human inventions subject to change and amendment, and are not in any way, as Navi Pillay put it, ‘absolute, universal, indivisible’. Pillay’s form of absolutism (her word!) should be unwelcome on these shores.

The solution to social problems is not the enforcement of a set of objective moral codes over which, after writing, the people have limited control. Instead, the solution is the dissemination of information, public education, public debate, public awareness, public pressure – that messy process of public engagement that stirs the country. The solution is, in fact, the system we already have. Sound basic educational standards are critical to this process. This seems a better approach than creating a system of constitutional rights. It preserves the foundational principles of our society, principles which have facilitated the creation of one of the most successful and responsive societies in the world.

1. James Macarthur, quoted in A.C.V. Melbourne, Early Constitutional Development in Australia, St Lucia: University of Queensland Press, 1963 [↩]