Rights are not inalienable unless we make them so

We heard very little about human rights in the lead up to the Australian federal election, but now is the time to be thinking about the nature of these rights, and the role played by each one of us in protecting them. In the course of writing a PhD on the philosophical foundations of global justice (and injustice), I have found myself returning repeatedly to one book. In The Origins of Totalitarianism, Hannah Arendt attempts to make sense of the horrors of World War II. The book was written in the aftermath of that war against a background, according to Arendt, of both reckless optimism and reckless despair. In this and other respects, Origins resonates with my sense of the times in which we are now living.

Attitudes of despair or optimism are reckless if we adopt them believing that the choice we make between them cannot have any impact on the world around us. We may as well be optimistic rather than despair, we think recklessly, for the tide of events will carry us forward regardless, and nothing we can do or say will make any difference to how these events unfold. This is a very dangerous train of thought. We must believe in our ability to effect change and to influence the social world in which we live; or else hand responsibility for our lives and for the world we share to the politicians, executives of multinational corporations and other people who already exert a disproportionate influence on our lives and world.

Our willingness to assume we have very little political power as individual citizens has partly to do with how we think about rights in modern liberal societies. It is often said that rights, or at least those fundamental rights in which all humans share, are something with which we are born, and of which we cannot be deprived. So the French Declaration of The Rights of Man and of the Citizen tells us that rights are “natural and inalienable”, and “men are born and remain free and equal in rights”. But what exactly are these rights with which we are all born? The American Declaration of Independence says our inalienable rights include life, liberty, and the pursuit of happiness. The French Declaration refers to a natural right to equality before the law, to liberty, to the protection of property, and to national sovereignty. The Universal Declaration of Rights lists numerous rights and freedoms to which all humans are entitled, including the rights to life, liberty and security of person, to recognition as an equal before the law, and to freedom from arbitrary arrest, detention or exile.

In Origins, however, Arendt presents a somewhat different picture of human rights. Having considered the plight of the millions of refugees and stateless people displaced by revolution and the redrawing of political borders in Europe after World War I, she concludes that, “The calamity which befell these people” - who were shipped back and forth across the borders of countries which refused to accept them, herded into internment camps, and ultimately, in many cases, killed in the Nazi gas chambers - was “not the loss of specific rights” but “the loss of a community willing and able to guarantee any rights whatsoever”.

What Arendt’s account points to is the fact that we are not in any real sense born “free and equal in rights”. To the extent we have rights at all, it is because we have created a political community in which we agree to recognise and to respect each other’s rights. The content of rights matters less than the basic presumption that a person is entitled to equal recognition as a rights-holder. Whatever rights a person has, they are presumed to be rights, which are shared equally by all members of society and to the extent that we can describe them as “human rights”, by all human beings. This is not a presumption that we can take for granted, as we might be tempted to do if we think of rights as natural and inalienable.

Since the 17th century, when the idea of states founded on the protection of natural rights was first used to defend the legitimacy of governments and the power they exercise over our lives, we have had to fight to extend rights recognition to marginalised members of society. In democracies like ours, we sometimes take it for granted that women and people of all races and classes are “free and equal in rights”. But formal equality for all citizens was won only after years of determined political struggle, and many people continue to be excluded from the opportunities afforded to some, and to receive little or no benefit from the state’s enormous wealth. Furthermore, there is evidence to suggest that any progress we have made towards a world in which all people are genuinely free and equal in rights is now being steadily eroded.

To take just two examples at the national level. In Australia the disparity between the lives of Indigenous and non-Indigenous people has increased since the 1990’s, with Aboriginal Australians much worse off than the general population in a whole range of areas, including income, employment, life-expectancy and incarceration rates. Meanwhile, we have created prisons for asylum seekers whom we do not accuse of any crime. Recently the High Court found we are entitled to lock up these men, women and children for the rest of their lives if necessary.

But rather than embrace reckless optimism, or succumb to reckless despair, in the face of these depressing realities, we must think carefully about the kind of world in which we want to live and bring up our children. Arendt develops her account of human rights by suggesting that a genuine community of rights holders is one in which each person’s opinions are significant and their actions politically effective. It is a community within which an attack on one person’s rights is regarded as an attack on the rights of all people.

Arendt is surely correct about this. When we talk about the inalienable dignity of the human being we invoke a moral ideal. When we talk about human rights we refer to a political concept, which is one way of giving expression to this moral ideal. But it will only be a good and reliable expression of the ideal if rights are genuinely universal and if we recognise that the deprivation of one person’s rights amounts to an assault on our own rights.

In isolation, as individual citizens, our voices may seem feeble and our actions insignificant. But each time we are tempted to shut our mouths and to ignore the suffering of others, we should think of those people who have been so deprived of the right to speak, to express an opinion and to have an impact on the world around them, that their final act of defiance has been the commission of violence on their own bodies (the last political space left to them). I can think of no more telling symbol of the deprivation of a right to speak and to be heard than the asylum seekers’ act of sewing their own lips shut.

In the recent election campaign both major parties sent the message that we should vote not in defence of a universal community of rights holders, but with an eye to our individual interests. But our interests cannot genuinely lie in a society, which pits the basic and fundamental rights of some members against those of other members, or even of outsiders.

I thought of the rights of others when I voted and I spoke for every asylum seeker whose lips are sewn shut (or who has been silenced permanently) when I wrote “free the refugees” in a blank space on the bottom of my ballot paper. And I will continue to look for ways in which to exercise my political rights and freedoms in defence of other peoples’ rights and freedoms. Having done so, I acted to defend my own rights, and invoked the kind of community in which I can imagine living happily - a genuinely inclusive and egalitarian community.