Books are never finished, so much as released into the wild. To that end, I have a confession to make: Chapter VII of my book “Politics for the New Dark Age”,  titled “On Liberty”, is my least favourite. The purpose Chapter VII is to make an argument for the importance of so-called “First Generation” civil and political rights, which in Australia are much more poorly secured than people might think. It was (one of) the first bits I wrote, and I relied less on recent research than the Chapters that came after it. The final text is perfectly serviceable, but carries a number of weaknesses that I’d prefer to redress.

Oops, I accidently a positivist

In seeking to justify both the existence and specific content of human rights, I fell back on my legal training to offer a largely positivist account of rights. In other words, these are the rights that all people possess because there exist legal texts from a political authority stating that to be the case. Worse, because I was writing primarily for an Australian audience (who lack a domestic bill of rights of their own) and my own background is in international law, I fell back on treaties or agreements between states such as the twin Covenants and the Universal Declaration of Human Rights. This ‘legal universalism’ is an extremely weak, politically-contingent variant of positivism: we have these rights and not others because a certain subset of states negotiated these specific wordings in a particular historical and international context.

The problem with a positivist account of rights, of course, is that laws change when political circumstances change. National laws should be adaptions derived from universal ethics, not the other way around. While my account addresses historical preludes to the twentieth century legislative rights 'boom', these forerunners were themselves historically and culturally contingent. While I have no issue with belief systems that stake a claim to universality outside their original cultural context (I’m looking at you, Christianity and Buddhism), a positivist account can be challenged on the basis that the rights it promotes are culturally and temporally contingent and depend on the strength of the institutions that enforce them.

The best articulation I’ve seen of this political version of human rights is from Pablo Gilabert, who has posited that the political content of rights may perhaps be specified by the types of claims that are necessary in the context of the [threats and opportunities posed by] modern state, which is universal enough in 2017 to warrant philosophical consideration. But personally, I’m not convinced of the causality: modern states emerged subsequent to liberal, rights-centred philosophies, not the other way around. Rights and institutions co-evolved. 

Rights, natural or social?

So what grounding should I have used? Whether they admit to it or not, most non-lawyers who think about their individual rights would see those rights arising from ‘natural law’. Naturalist conceptions of rights encompass two broad, but largely contradictory sets of philosophies. On the one hand, the original liberal philosophers such as Rousseau and Locke (and modern religious conservatives) would see rights as the gifts of a supernatural being: we are “endowed with rights” by the “Creator”. Later liberals (including many modern humanists and libertarians) see rights arising from “human” status per se: existence as a conscious individual with biological needs requires certain necessities to be met to prevent harm and suffering.

While it’s attractive to appeal to the abstract concept of ‘human dignity’ (certainly, I’ve leaned on it myself), it’s hard to be clear on precisely where the boundaries of “humanity”, “dignity” or “necessity” lie. While I am sympathetic to the Great Ape Personhood Project and support legal protections for the comatose and permanently impaired, such sympathies are the result of an aesthetic choice (see Chapter 17) rather than naturalistic imperative. The sad truth is that in an anarchist state of nature, individuals have no rights: the only interests they could achieve would be those they had the power to achieve through self-help. An individual alone would have no claim on ‘nature’ or the supernatural for the satisfaction of their rights, moral or otherwise; such claims arise only through interaction with other social individuals.

In other words, rights necessarily arise when an individual enters into social relations with others, and not before. "Politics for the New Dark Age” is underwritten by this type of Rawlsian social contract liberalism, which provides the best (i.e. authoritative and persuasive) account of how individuals might join together as a society, using the thought experiment of the “veil of ignorance”. Rights, in this view, are the minimum conditions under which an individual would freely elect to join a society with others. As Seyla Benhabib (who is rapidly becoming one of my favourite political philosophers) puts it:

“A community of interdependence becomes a moral community only [when] it resolves to settle those issues of common concern to all via dialogical procedures in which all. . . . all those whose interests are actually or potentially affected by the courses of action and decisions [of that community] . . .are participants.”

While a social view of rights can underwrite a positivist or particularist understanding of rights (the conditions I would enter this society are different from the conditions I would enter that society), Rawls’ thought experiment is an abstract representation of all societies founded on a minimal conception of individualism and human equality.

A pluralist conception of rights

Thus, rights are social in nature, innate to social structures, not individuals.  We can plausibly claim that any liberal democratic society constituted on the basis of Rawlsian liberalism will share a common conception of individual rights. That’s a pretty powerful claim philosophically and politically, and gets us a long way towards human rights universalism. But not all actual, existing societies are founded on this basis. While liberalism is a pretty powerful cultural technology, other cultural adaptions may be successful in their environment or survive because of path dependencies in their particular evolutionary histories.

In order to make the final leap to a truly universal application of rights, we have to see rights in a pluralist way. What this means is that even if two societies hold radically different beliefs about the basis on which their societies are organised (which may be neither individualist, humanist nor egalitarian), we should in theory be able to find at least some pramatic rules they share about the treatment of individuals. This is due to material constraints imposed by human biological needs and common environmental problems, which restrict the possible space of viable cultural variation. In other words, the possible range of human cultural and social organisation is not unlimited and cultural differences are not inherently untranslateable. Environment and social structure mediates between biological necessities and cultural variation. 

In his later work, Political Liberalism, Rawls called this version of rights the ‘overlapping consensus’. It brings back into our conception of universal rights something like positivism (because the consensus is established by mutual agreement and recognition amongst societies) and naturalism (because of the scope of observed variation is limited by materialist constraints). Because a pluralist conception of rights is mutually constitutive (i.e. it depends on mutual recognition of the ongoing validity of respective social arrangements), it may also be conditional in the sense that a society that fails to meet certain standards is not longer recognised and treated as a member in good standing of the community of societies.

If there's ever a second edition of "Politics for the New Dark Age", expect to see Chapter VII improved along these lines. Until then. . . .