Sunday, 1 January 2012

New Year's Day is a good time to remember old wisdom.
Article 25 (1) of the United Nations Universal
Declaration of Human Rights, subscribed by the
United Kingdom in December 1948, runs as
follows :
'Everyone has a right to a standard of living
adequate for the health and wellbeing of himself
and of his family, including medical care'.

The Declaration was - not surprisingly
- unaccompanied by any mechanism for the enforcement
of the rights which it declared. In that respect it
differed from the European Convention of Human
Rights, to which the United Kingdom adhered in
November 1950 under the auspices of the Council
of Europe and which came into force in September
WS- The Convention established a European
Court of Human Rights, to which the signatory
states accorded supranational powers, and before
which at this moment Britain awaits judgment in
respect of acts committed in Northern Ireland in
1971. Significantly, there is no provision (yet) in the
European Convention corresponding to Article 25
of the UN Declaration.

However it would be unwise to conclude that,
just because it has no enforcement mechanism, the
Universal Declaration is as harmless as it is futile.
Nonsense can never be talked with impunity by
anyone; and when governments solemnly talk
nonsense in the name of nations, harm is certain
to come of it sooner or later. Most of the contents
of the Universal Declaration are not merely
nonsense but pernicious nonsense; and Article 25
is in this respect typical, not least in being both
nonsensical and pernicious in several different ways
at the same time.

A right is a claim which is, or ought to be,
enforceable against others. An individual, apart
from society, cannot be conceived as having
rights - or if he does, they are rights as against
God, which is blasphemy. Robinson Crusoe on a
desert island may experience good luck or bad
luck; but he can have no rights. The concept of
enforcement involves - as the word implies
- the use of force, compulsion: one man's right is
enforced by others being compelled to do what
they would not have done of their own freewill.
This is true even of immaterial rights: a right to
free speech is a claim to say to others what they do
not want to hear, and to do so, if necessary, thanks
to the exercise of force against those who would
like to interfere. But the compulsion becomes
specially evident when the right is a claim to
something material, because what one has another
must go without: a right to free travel is a claim
to compel others to transport me at their expense;
a right to a pension is a claim to compel others to
transfer part of their income to me.

Compulsion is of the essence of a right

This business of compulsion is not something
theoretical or peripheral; it is of the essence of a
right, because there is no point in declaring a right
to what everyone is going to have anyhow. The
whole object of declaring a right is to justify or
commend the use of compulsion to alter the
existing relationship between individuals in a
society. An existing right is a claim which the
society already enforces. A proposed right is a
claim which the proposer would like the society to
enforce. In fact a statement of human rights is
either a description of a society or a critique of a
society.

The compulsion with which rights are concerned
will be either arbitrary or lawful depending on
whether the compulsion is exerted in known and
foreseeable circumstances by known and foreseeable
process. For the compulsion to be lawful, the right
must be 'justiciable'; that is, it must be definable,
so that it can be uniformly and predictably applied,
upon known principles. A right not stated in
justiciable terms is tantamount to a claim to exert
arbitrary compulsion. Article 25 is exactly of this
character. The terms 'adequate' and 'wellbeing',
not to mention 'standard of living' and even
'medical care', are purely subjective: to prescribe a
'standard adequate for wellbeing' is not to interpret
a rule; it is to make an arbitrary decision, and an
arbitrary decision about the compulsion to be
exerted upon the members of a society. The
definition will be not the ruling of a judge but the
manifesto of a revolutionary junta. A 'standard
adequate for wellbeing' is potentially unrestricted -
'the sky's the limit' - and therefore the actual limit
imposed and the performance exacted are necessarily
arbitrary, the decisions of brute force.

The arbitrary implications of undefinable rights
are particularly evident where the right claimed is
by its nature not capable of being satisfied by any
degree of compulsion exercised within the relevant
society. However vague may be the concept of
'medical care adequate for health', the right clearly
cannot be realized if there are no doctors. However
subjective the 'standard of living adequate for
health and wellbeing', it obviously cannot be
achieved if population is outstripping subsistence.
Unless therefore the right asserted is tautologous
and meaningless - unless 'adequate' means simply
whatever is available in the given circumstances
- its assertion is a threat not merely of arbitrary
compulsion but of unlimited and inherently futile
compulsion: it is a programme of nihilistic
aggression.

This is precisely the purpose with which it was
framed by its authors in the United Nations. The
society implicit in any statement of a right is not,
in the context of the United Nations, a national
society. The society intended is international
- the so-called community of nations, or world society.
The compulsion to be exercised in the attempt to
satisfy the claim of right is not purely or mainly
internal to particular societies: it is compulsion to
be be exercised by some societies against other
societies, coercion to be brought to bear upon an
international scale. The statement 'everyone has a
right to medical care adequate to his health and
well-being' is, in the Universal Declaration,
tantamount to the highwayman's 'stand and
deliver': if this right is not realizable within a
society, it must be realized by compulsory re
distribution and reorganization as between societies,
and if it is still impracticable even by compulsion
on an international scale, so much the worse for
the international community! The implicit nihilism
and aggression are global.

Nature and effects of assertions of human
rights

It is not accidental that the assertion of 'the rights
of man' has been characteristic of revolutionary
r?gimes which aspired to interfere with and over
turn the systems of law and society of their neigh
bours ; and there could be no more striking evidence
of the antagonism of Soviet Russia to Trotskyism
than that 'human rights' have to be forced down its
throat at Helsinki or Belgrade like spoonfuls of
brimstone.

On the other hand it is possible to differentiate
the nature and effects of the human rights 'de
clared' by the United Nations from those asserted
as the basis of the American state in the second
section of the Declaration of Independence. A
right to 'life' may be philosophically opaque; a
right to 'liberty' may mean anything or nothing;
but a right to the 'pursuit of happiness' is un
mistakably individualist, a claim upon society for
the absence or minimum of restraint upon oneself,
counterbalanced by the renunciation of restraint
upon others. The right to the 'pursuit of happiness'
and the right to an 'adequate standard of living'
are dead opposites, as opposite as the right to
pursue something and the right to be given some
thing, as opposite as the demand for minimum
compulsion in society and the demand for maximum
compulsion. What a strange freak of human history
it is that the Declaration of Independence should
be among the lineal ancestors of the Universal
Declaration of Human Rights!

It is a paradox upon which a Tory may perhaps
be permitted one parting reflexion. The attempt to
understand or to construct society starting from
the individual is foredoomed to failure, if not to
worse. The initial word 'everyone' in Article 25
(and in most of the other Articles)
- however illogically linked with 'his family'
- contains the same fallacy as 'all men' in the Declaration of 1776 :
'rights' are not an attribute of individuals but a
description of societies. Those who, wittingly or
not, use the concept of 'human rights' to attack
societies from within or without find in the end
that the result is neither health nor wellbeing.
Source: Journal of Medical Ethics, 1977, 3, 160-162

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