On Human Rights

My assignment early this week was to offer some comments on the occasion of the 75th anniversary of the Universal Declaration of Human Rights (UDHR) at a day long conference at Mathias Corvinus Collegium, featuring a distinguished international cast of academics.

Nowadays we see all around us the promiscuous claims that any good thing a liberal can dream up is asserted to be a “fundamental human right,” and while the UDHR resembles our Declaration of Independence and Bill of Rights in some important respects, it also introduced the willful confusion about “human rights” we see today. (My favorite human right in the UDHR is the right to paid vacations.) Here is part of the comments I delivered:

The unrestrained and ill-defined domain of human rights has encouraged its extravagant overuse, as declaring something to be a “human right” is thought to put the matter beyond debate. Human rights claims create a de facto duty of governments to realize the new human right through positive or active provision. Human rights claims are usually described as a matter of some urgency, this having the effect of removing policy responses from the realm of deliberation and debate. . .

There are three ways of distinguishing true from false human rights claims.

First, a clear revival of the old vocabulary and understanding of natural rights—such as freedom of speech, freedom of conscience, and so forth—as distinguished from positive (contractual) rights or civil rights, such as a right to a pension, a right to health care (in many countries), offers a helpful distinction. The natural rights foundation orients government to protecting individual rights chiefly by not interfering with them—what Isaiah Berlin stigmatized as “negative liberties.” In other words, natural rights prescribe limited government. Positive rights create duties and obligation for government to provide resources to satisfy human rights claims.

The difficulty with the unconstrained version of human rights that is dominant today can be grasped by noting that while old-style natural rights (such as freedom of speech, conscience, assembly, etc.) can be secured by the simple step of the government not interfering with the choices of free individuals, human rights to the provision of welfare state goods are inherently insecure. Human desires are infinite, and the list of goods that can contribute to the happiness and flourishing of individuals is equally expansive, while resources are not infinite. The tacit premise of much of our human rights discourse shares with classical Marxism the idea that scarcity is not inherent. Thus, treating human rights claims for welfare provisions as both possible and necessary is essentially to promise heaven on earth. This mode of thinking about human rights represents the emancipation of the human will, unconstrained by any material or moral necessity.

This leads to the second useable distinction. The promiscuous overuse of demands for any good thing that can be reconceived as a fundamental human right confuses ends and means. The end of legitimate government, as the UDHR—following the Declaration of Independence—implicitly includes, is to secure the natural rights of individuals. Health care, housing, pensions, paid vacations, and other material benefits are all good things, but are means to the proper ends of government. While natural rights are absolute or unequivocal (or nearly so—Aristotle would qualify this statement), the means of the welfare state are subject to deliberation, debate, tradeoffs, and prudence. Put differently, there is no tradeoff between the right of conscience as opposed to the right to health care or housing, which will always be constrained by limited government resources and competing policy priorities.

This leads to the third useable distinction: any claim of a “human right” that requires government to transfer resources from one party (generally taxpayers) to another is not a fundamental human right, but a welfare state benefit. The policy may well be laudable and contribute to improving overall social welfare, but this is an evaluation that should be conducted as an exercise of democratic deliberation rather than as a categorical human right that by definition attempts to raise the claim above democratic deliberation and accountability.

In one sentence: legitimate human rights are natural rights: welfare rights dressed up as human rights are not.

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