21 February 2022

What Jolyon Maugham gets wrong about human rights

By Hugh McLachlan

The distinguished barrister Jolyon Maugham QC recently tweeted the ambiguous claim that: ‘Human rights aren’t negotiated. They shouldn’t be rolled back because others think them contestable. They are immutable. That’s their very point.’

This is very misleading.

‘Human rights’ are traditionally defined as moral rights which are held by all human beings by virtue of their shared humanity at all times and places. Such moral rights are prior to states and governments. They are moral rights which human beings have as human beings. They are, by strict definition, immutable.

However, that is not the same as the legal rights and duties created by legislators. These vary from state to state and time to time – and if they can be created then they can be ‘rolled back’.

Moreover, there is room for debate about whether any specific moral rights of the former kind actually exist. Certainly they are not created by the documents of politicians and other officials which are ‘Declarations’ of them. Governments should protect moral rights, but they do not make them. This is the traditional theory of human rights.

The American Declaration of Independence memorably states:

‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness …’. 

There are, I suggest, at least two general sorts of moral rights: rights of action and rights of recipience.

We have a moral right of action to do something if and when we do not have a moral duty to refrain from doing it. For instance, we have, a moral right to, say, sing the national anthem if and when we do not have a moral duty to refrain from doing so. While we are, for instance, serving on a jury, we have a moral duty to refrain from singing completely.

While rights of action are the absences of particular moral duties, our rights of recipience correspond to and are generated by the existence of particular moral duties of others. For instance, if we promise someone that we will return the money if they give us £50, we have a moral duty to give them £50 and they have a moral right to receive £50 from us. 

Not all rights of recipience arise from promises or contractual agreements. For instance, we have a moral duty to refrain from having sex with anyone and everyone without the consent of that person. We have a corresponding moral right not to be raped by anyone and everyone. 

Do we have inalienable moral rights to life, liberty and the pursuit of happiness? It is not clear what such rights would mean in practice, and far less that we have them self-evidently.  

It might be morally justifiable to kill someone, if for instance, they are about to kill someone else and cannot be safely and conveniently stopped in any other way. There is no immutable moral right not to be killed intentionally.  

However, I suggest that we have a moral duty not to kill another human being wantonly. We have this moral duty towards each and every other human being. Conversely, each and every other human being has a moral duty towards us to refrain from wantonly killing us. We each have, I suggest, a human right to life that corresponds to this universal moral duty. 

According to Article 13 of The Universal Declaration of Human Rights:

‘Everyone has the right to freedom of movement and residence within the borders of each state.

Everyone has the right to leave any country, including his own, and to return to his country.’

It is not self-evident that any sort of actual inalienable universal moral right to liberty is expressed here. For instance, during the Coronavirus lockdowns, it was generally accepted that we were not morally entitled to enter and leave our own home and country at will. It was accepted, too, that it was legitimate for the government to legally restrict such movement

The two rights which I have suggested as universal, inalienable, immutable human rights are rights of negative recipience. The moral duties from which they derive and to which they correspond are duties to refrain from particular actions rather than to perform them. Hence, the fulfilment of the relevant duties is invariably and universally possible. 

However, it is doubtful that there are any such human rights of positive recipience.

For instance, in the Universal Declaration of Human Rights, it is asserted that:

‘Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.’

‘Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.’

It is possible for you and me to refrain from killing and raping all other human beings. However, it is obviously physically impossible for us to provide employment, food, clothing and so forth for the entire world. Hence, we cannot have immutable universally held moral rights to such things in the same way as we have human rights to life and human rights not to be raped.

Some states might sometimes have the acumen and the available resources to provide at least some of these good things for their own citizens. All states might have a moral duty to try to do so. However, this would not generate a universally held moral right to such things. We have a right to life because all other people have a moral duty to refrain from killing us wantonly: they do not merely have a duty to try to do so.

Not all human beings live – far less have lived – within the bounds of functioning states, and even fewer within states that have such acumen and available resources. 

If there actually are any moral rights that all human beings have by virtue of their shared human nature, it is not self-evident what they are.  It is a contestable matter about which reasonable people might reasonably disagree.  However, it is beyond dispute that few of those things that are commonly said to be ‘human rights’ are any such thing.

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Hugh McLachlan is Professor Emeritus of Applied Philosophy at Glasgow Caledonian University. He is the author of 'Social Justice, Human Rights and Public Policy'.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.