Friday 22 November 2013

The myth that rights come with duties

Governments and tabloid newspapers constantly bemoan the unbalanced character of civil and human rights. "Don't they realise that society will collapse if rights are not balanced by duties?" they cry. The superficial attractiveness of this reactionary rhetoric has done much to undermine public support for the concept of rights. It must be challenged.

What is liberalism?

At its core liberalism is the idea that as many people as possible should be as free as possible. It combines two very old ideas.

First, the natural love of one's own freedom i.e. discretion over how one lives one's own life, including, for example, the freedom to commit to the dictates of a stringent religion. There is nothing new about the idea of it being a great thing to be able to live your life as you want to. Even in the slave societies created by the first agricultural revolution some people - the elite - have always been entitled to live like that and found it just dandy.

Second, the idea of egalitarianism i.e. that everyone within some category has equal fundamental worth. Of course, not everyone was supposed to belong to the same category and so different people deserved different treatment and protections. A number of intellectual strands came together (from Christian moral theology to social contract theory) in the writing of the Enlightenment thinkers who criticised the arbitrariness of such categories and gradually dismantled the barriers between different categories of people. We now have only two categories: humans and citizens (and arguably the latter is morally arbitrary for many purposes - previously).

When we combine these two ideas, we get the liberalism associated with John Stuart Mill. Instead of the freedom of individuality only being available to a tiny number of people in the elite class, liberalism argues that justice requires extending it to as many people as possible (and at least to all one's fellow citizens).

Rights and liberalism

The concept of rights has an intimate relation to liberalism, because rights are a key instrument for universalising moral entitlements. Rights thus function in two ways:

First, they grant individuals discretion - i.e. liberty - over certain domains of their lives. For example, freedom of speech means that individuals can say most anything, or nothing, and it's up to them. What isn't forbidden is permissible.

Second, this discretion is understood as a universal entitlement, not a specific privilege. The concept of rights takes away the authority of the powers that be, or even the moral majority, to determine who deserves to get which freedoms. People's use of their freedom can certainly be challenged - people can be punished for shouting "Fire!" in a crowded theatre and causing a riot, for example - but their right to freedom does not have to be earned. No one has to prove that they are worthy of their liberty. It is everyone's birthright.

Does this mean that there can be no duties in a liberal society? Of course not. A society of free people can still have a conception of the public interest and can still legally compel positive duties that interfere with personal liberties - taxes, business regulations, even compulsory voting laws. The important difference is that because people already have rights the burden of justifying any restrictions on people's freedoms lies on those wanting to impose the restrictions and not vice versa. Abridging people's rights requires a public justification that even those most affected would be able to appreciate and to challenge. It cannot simply be imposed in the name of society envisioned as a kind of delicate organism whose proper harmonious functioning requires that rogue elements be disciplined and restrained to act according to appropriate social values. That organic conception so popular on both the right and the left is not compatible with a society of free people.

Thus, the 'debate' about human rights and duties so popular in the tabloid media seems fundamentally misplaced. 

Conceptually, rights cannot be conditional on corresponding duties in the way that governments and Daily Mail readers would like them to be: voting as a 'privilege' for good citizens [previously], fair trials but not for 'repeat criminals', freedom of speech but not to upset others; freedom of religion, but not for 'alien' religions like Islam, etc. Conditionality simply removes the liberty that the right was there to protect: it converts rights into privileges.

More to the political point, privileges are granted while rights have to be challenged. When politicians and other figures from the establishment introduce the concept of duties to 'balance' the concept of rights what they are doing is trying to reverse the burden of justification discussed above. Duties are owed by individuals to the 'community', and whether they are satisfied is to be judged by the  'democratic' moral majority acting through government institutions. Thus, instead of individuals getting to decide what to do with their lives as a matter of right, the powers that be get to decide what people should value and do: generally, other people should act in accordance with their values. That removes the protection against tyranny, particularly the tyranny of the majority, that the concept of rights as universal and equal was invented to provide.


Those who complain about the irresponsible use of rights by other people have not understood what rights are about. Those who argue that people should have legal duties to use their rights 'responsibly' are actually concerned with denying liberty to others. They would do well to recall that the only duty directly required by the concept of rights is the general one not to infringe other people's rights.

One cannot endorse rights and duties together. If one tries, one will be as ridiculous as the UK government, whose political parties all claim to defend freedom of speech (personal discretion) while its legal system routinely jails people for using that speech in ways that the moral majority finds offensive, like posting a picture of burning poppies on Facebook (people must be discreet).