Tim Stanley, a man who I admire greatly but whose views are from an era long past, drew my attention to this article in The Telegraph. The piece, written by Kate Maltby, comes in response to the recent Supreme Court decision regarding the “right to die”. Unsurprisingly, the majority held that this thorny matter was one for Parliament to deal with, not the courts, but there were some interesting arguments and opinions and you can read the full judgment here. Maltby argues against the existence (creation?) of such a right; yet her argument lacks bite and does not seem to add anything new to this debate. Hence it is the broader claim she seeks to make that I want to take issue with.
Maltby contends, to quote her by-line, that “we need to stop thinking of everything in terms of 'rights'”. This is doubtless something we can all agree on; a rights-based argument will not help you with everything, merely when one’s human rights are at stake. Of course this was not the point that was being made. Maltby is making the case that modern Britain has created a “rights culture” (presumably, although she does not say so explicitly, since the implementation of the Human Rights Act). This is an argument that is often made by those on the Right and is presented here as follows:
“Because at the heart of this lies our chronic addiction to the language of rights. As a society, we can afford civil rights to each other, but whatever Locke might have thought, when it comes to the fundamentals of birth, death, love, sex, the world has never been able to provide satisfactorily for us. How can we claim the right to a life without pain if none of us have ever known one? Is the government in breach of contract when it fails to stop my heart breaking?”
There are clearly a number of things to say. It is not clear what distinction is being drawn between human rights and civil rights. The UN’s International Bill of Human Rights includes the International Covenant on Civil and Political Rights, an instrument which protects the right to life, freedom of religion and freedom of speech among a number of other human rights. Presumably then, Maltby is differentiating between what she sees as political rights and broader human rights which she enumerates as “birth, death, love and sex”. This is of course question begging, some vague category of rights is apparently acceptable (for some unspecified reason), but another, even vaguer category is not. All that is really being said is “the rights I approve of should be given effect to, but the ones I do not should not be” -hardly the most robust of arguments.
However, the argument is more confused even than that. What is conspicuously absent from the “fundamentals”, which Maltby thinks cannot be protected by rights, is the right to life. Surely that is the most fundamental thing of all; if she thinks the state cannot protect the right to death (whatever that may mean), why ever does she think there is a legal right to life? Either Maltby must think that there should be a right to life, which would render her “fundamentals” argument incoherent, or she does not think that such a right exists, something I would love to hear her justify.
In any event, Maltby seems unaware that the legal argument for assisted suicide does not come from a right to death, or even the right to life. It comes from the rights one has with respect to the way one’s life is lived, in particular Article 8 of the European Convention on Human Rights-the right to respect for private and family life. Now, we can have a good faith discussion about whether assisted suicide is included in such a right, but that is not what the article does. Rather, Maltby disregards the possibility of assisted suicide because she is of the opinion that society cannot protect “fundamentals”-a confused argument in the extreme.
In addition, the mistake is made that rights are enforced by citizens against one another. Human rights, in their modern legal form, were created in response the Second World War and its attendant horrors; both the contempt for human life and suffering and the way some countries gave effect to prejudice, for example Germany’s Nuremberg Laws. Such events made clear what a totalitarian state was capable of and in response international instruments were drafted to protect the individual from the excessive powers of government. Protecting individuals from the state is what human rights were designed to do and that is what they still do. Indeed much human rights jurisprudence is devoted to determining what exactly is considered an organ of the state or a public body. It is strange therefore that the political right are so hostile to the idea of human rights. One would expect those who are concerned about the power and size of the state would welcome the legal instruments which limit these things.
There is much more to be said both in defence of human rights and with regards to the article in question, but I will leave it there. Attacks on Human Rights such as these undermine the dignity of the individual and in cases such as this cause pain that people without disabilities such as Kate Maltby and I can hardly imagine. They should not be taken lightly and I will be returning to this issue.
Maltby contends, to quote her by-line, that “we need to stop thinking of everything in terms of 'rights'”. This is doubtless something we can all agree on; a rights-based argument will not help you with everything, merely when one’s human rights are at stake. Of course this was not the point that was being made. Maltby is making the case that modern Britain has created a “rights culture” (presumably, although she does not say so explicitly, since the implementation of the Human Rights Act). This is an argument that is often made by those on the Right and is presented here as follows:
“Because at the heart of this lies our chronic addiction to the language of rights. As a society, we can afford civil rights to each other, but whatever Locke might have thought, when it comes to the fundamentals of birth, death, love, sex, the world has never been able to provide satisfactorily for us. How can we claim the right to a life without pain if none of us have ever known one? Is the government in breach of contract when it fails to stop my heart breaking?”
There are clearly a number of things to say. It is not clear what distinction is being drawn between human rights and civil rights. The UN’s International Bill of Human Rights includes the International Covenant on Civil and Political Rights, an instrument which protects the right to life, freedom of religion and freedom of speech among a number of other human rights. Presumably then, Maltby is differentiating between what she sees as political rights and broader human rights which she enumerates as “birth, death, love and sex”. This is of course question begging, some vague category of rights is apparently acceptable (for some unspecified reason), but another, even vaguer category is not. All that is really being said is “the rights I approve of should be given effect to, but the ones I do not should not be” -hardly the most robust of arguments.
However, the argument is more confused even than that. What is conspicuously absent from the “fundamentals”, which Maltby thinks cannot be protected by rights, is the right to life. Surely that is the most fundamental thing of all; if she thinks the state cannot protect the right to death (whatever that may mean), why ever does she think there is a legal right to life? Either Maltby must think that there should be a right to life, which would render her “fundamentals” argument incoherent, or she does not think that such a right exists, something I would love to hear her justify.
In any event, Maltby seems unaware that the legal argument for assisted suicide does not come from a right to death, or even the right to life. It comes from the rights one has with respect to the way one’s life is lived, in particular Article 8 of the European Convention on Human Rights-the right to respect for private and family life. Now, we can have a good faith discussion about whether assisted suicide is included in such a right, but that is not what the article does. Rather, Maltby disregards the possibility of assisted suicide because she is of the opinion that society cannot protect “fundamentals”-a confused argument in the extreme.
In addition, the mistake is made that rights are enforced by citizens against one another. Human rights, in their modern legal form, were created in response the Second World War and its attendant horrors; both the contempt for human life and suffering and the way some countries gave effect to prejudice, for example Germany’s Nuremberg Laws. Such events made clear what a totalitarian state was capable of and in response international instruments were drafted to protect the individual from the excessive powers of government. Protecting individuals from the state is what human rights were designed to do and that is what they still do. Indeed much human rights jurisprudence is devoted to determining what exactly is considered an organ of the state or a public body. It is strange therefore that the political right are so hostile to the idea of human rights. One would expect those who are concerned about the power and size of the state would welcome the legal instruments which limit these things.
There is much more to be said both in defence of human rights and with regards to the article in question, but I will leave it there. Attacks on Human Rights such as these undermine the dignity of the individual and in cases such as this cause pain that people without disabilities such as Kate Maltby and I can hardly imagine. They should not be taken lightly and I will be returning to this issue.