What follows is my submission to the Colin Brown Human Rights Project. This is a community consultation process carried out by the Law Reform Institute of Tasmania, at the behest of the Tasmanian State Government. The project is described here in more detail. It will culminate in a recommendation to Parliament for human rights legislation.
There’s no separating the law from moral philosophy, as much as legal theorists try to construct a value neutral system. To my mind the obvious place to start is with Kant and Rawls. Where many theories of human rights begin with an attribution of inherent human dignity, I believe the place to start is with a recognition of autonomy. This is a wider and more useful presumption than dignity, and it has implications of responsibility by means of Rawls’ original position.
It works like this: Any rational actor, from a standpoint of ignorance about their status, sexuality, gender, disability, age, and even religious affiliation, would choose a legal system which included a basic right to autonomy. To do otherwise would be to suppose that others could choose better than you, something which would happen only in the case of children and the mentally disabled. Even in these cases someone choosing from the original position would want those who took care of children to raise them in such a way as to encourage their capacity to have and use their autonomy. Similarly, although the duty of care and decision making for the mentally disabled and severely physically disabled would fall to others to the extent that they could not manage this for themselves, someone choosing from the original position would want mentally and severely physically disabled human beings to have, nevertheless, as much control of their own destiny as possible.
The same logic suggests that humans who for reasons of economic, education, or social disadvantage (e.g.: language, cultural, or social status) are not able to exercise full autonomy should be helped in their capacity to do so by those who have more resources or by the society as a whole. Prevented by the veil of ignorance from knowing whether you would be a pauper, illiterate immigrant, or lawyer, one would choose to provide education and a minimum of economic resources so as to allow exercise of one’s freedom to act.
This, then is the first indication that responsibility is part of autonomy. In fact autonomy can never be absolute, because different actor’s wishes will often conflict. Even principles based on Rawls’ fairness can conflict with one another. But Kant and Rawls together provide the solution. Humans should each act in according to principles such that if all acted according to those principles then this would be the outcome each would will. Moreover it would be the outcome each would will from the standpoint of the original position, not knowing their gender, sexuality, social status, religion, cultural background, disability and so on within society. Such principles inevitably impose responsibilities on those most capable, along with a principle of maximum autonomy while making least infringement on the autonomy of others.
It’s then possible to make claims about the rights which flow from autonomy and what is required by the legal system to maximise the capacity for autonomy by each human being. This principle and these claims form the basis for human rights legislation. Going about it in this way begins from a stance which does not favour any religion, race, gender, ability or other group. It’s the moral equivalent of having one person cut the cake and the other choose which piece to take.
Proposal: Rights enabling autonomy
I do not believe representative democracy is the ideal political system for providing maximum autonomy, but given that the proposal’s context is the Tasmanian Parliament (and the Hare Clarke proportional system is far better than most in this regard), it’s sensible to frame human rights from the standpoint of being implemented within that arrangement.
Human rights can be seen as a series of principles drawn from the basic concept of autonomy, and conflicts and priorities can be determined by reference back to this fundamental idea. I’m going to suggest a list of such rights below, but the point would be that the principles outlined above could be used to develop a flexible and extensible series of rights and to arbitrate conflicts between those rights.
- Rights of the person:
- Right to freedom from torture.
- Legal rights and freedom from arbitrary imprisonment. These are articulated quite well in articles 6 – 11 of the Universal declaration of human rights.
- Right to marry.
- Right to hold property.
- Freedom of religion.
- Freedom of sexuality.
- Freedom from discrimination.
- Right to privacy. Includes freedom from intrusive advertising or corporate presence.
- Right to enjoy the environment.
- Right to the capacity to exercise autonomy. Includes right to medical care, education, sustenance.
- Right to livelihood.
- Right to leisure and the opportunity to exercise creativity.
- Freedom from fear and oppression.
- Rights enabling political autonomy:
- Free access to information. This includes transparency of government processes, and a free press.
- Freedom of expression and political belief.
- Education to a basic standard.
- Freedom from manipulative political advertising.
- A right to privacy; required to protect against discrimination based on political beliefs and affiliation.
- Freedom of association.
- Freedom to engage in peaceful protest.
There are many rights which might in the past have been taken for granted, like the right to enjoy the environment or the right to privacy, but are now threatened by changes in technology or society. So to make a set of rights set in stone would be a mistake. We need instead to look at the underlying purpose of those rights and interpret that purpose for the particular situation.
Responsibility of care
As mentioned in the introduction, autonomy is accompanied by responsibility. This follows because a rational actor choosing from the original position would envisage a society which required a duty of care, and of empowerment, towards those with diminished capacity. Put another way, just as autonomy is universalisable, so is the care which maximises the capacity for autonomy in others.
In terms of human rights this responsibility of care is largely mediated by the state, but it can very well relate to the actions of individuals and corporations as well as the institutions of the state. For example it is a matter of this responsibility of care that a business should provide disabled access for patrons. It is from this that a person should be constrained from invading another’s privacy or discriminating on the basis of gender or political beliefs.
In the end this responsibility of care is the driving logic behind bringing in human rights legislation. The state has a responsibility of care for its citizens, and such legislation helps discharge that responsibility.
The reason for bringing this out explicitly, however, is that this responsibility of care is a way of arbitrating the various tragedies of the commons which beset this overpopulated world. The rights based on autonomy are matched by responsibilities, especially responsibility to those who are not yet born. Thus the same principles which produce the principle of autonomy also produces a responsibility to care for the environment and other resources held in common in a way which would be chosen by a rational actor who did not know what part of society he or she might form, or even if he would live in this generation or another.
This responsibility is arbitrated and enforced by the state, but it extends to each individual and corporation.
It seems sensible to administer human rights by means of a law recognising the principles of autonomy and responsibility of care on which this system is founded. This principle would be expanded to a series of rights and freedoms as enumerated above, and environmental, discrimination and disability legislation matching the responsibilities.
- Corporations are not people. There seems no good reason to allow them to fall under human rights legislation, and plenty of reasons why it would be a bad idea.
- Human rights, especially when expressed in this way, is so wide-ranging that all legislation should be scrutinised in these terms. Whatever body parliament used for this purpose would report on the human rights implications of new legislation, and the government would be required to modify the new legislation or else provide an explanation for the need to override human rights in this case.