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The problem with 'rights'

By John Spender - posted Friday, 9 May 2008

There is something intrinsically appealing about a bill of rights or a charter of rights, or a list of good things to be done and bad things to be avoided. It appeals to the orderly sense hidden in the most disorderly of us: the list of things we can tick off and say, yes, by God, that’s good. That’s the way it should be.

But the problem is always in turning these warm and mushy thoughts into words. The trouble with words, as Alice in Wonderland sapiently remarked, is that words mean what I mean them to mean. Or put it this way: what I think my words mean might be different from what you think they mean. Words are elastic, imprecise: the more of them you bundle together the harder it is to get a clear meaning from them.

Take, for example, the right to life. We’re all very fond of the right to life; no one would be against it. Or would they? What does it mean? No abortions? Not ever? No stem cell research? Not ever? No capital punishment? Not even for a new generation “Hitler”?


Or what about freedom from torture? Torture is something civilised societies abhor, and we have made laws prohibiting it, and have replicated these laws in international covenants. No right thinking person - we are frequently told - should ever countenance torture. Well, I wonder if this is so.

We live in a post 9-11 world. Our world is defined by the enemies of western civilisation, and not by ourselves. The aim of radical Islamists is unambiguous - to destroy western civilisation. This is for them an overriding and virtuous goal, ordained by a religion and one which as believers they are bound to pursue. Any means are open to achieve this goal, including the destruction of whole cities and populations by nuclear and biological weapons.

Now, the science of making nuclear and biological weapons is widely known. All that the Islamic terrorists lack is the means of manufacture and delivery. It is quite possible, likely indeed, that they will realise both.

Hypothetically - and this is something which has been debated - it could happen that an individual was in possession of the sure and certain knowledge of a nuclear or biological catastrophe soon to be visited upon New York, or London, or Sydney. Let us assume for the argument that the only means of obtaining that information would be torture. What then is the ethical choice? Is the ethical choice to say no, no torture, not under any circumstances, even if there is a risk of unimaginable tragedy to many people? Or is the ethical choice: yes, dreadful though it is, torture must be used.

What I have just said illustrates, I believe, a number of dangers in setting down in law a charter of rights.

First, one can never foresee the circumstances in which a human right clearly expressed, and which now seems plain and decent sense, may come to be an obstacle in the protection of the lives of the many.


Second, there is - as I have said - the great problem of words. You cannot catch and hold them in your hands. Words are not like a piece of marble, which may be chiselled and shaped by a sculptor. They defy us. And it is folly to believe that we will ever be wise enough or far-sighted enough to be able to lay down a charter of rights that is good and workable in all circumstances.

Indeed, at the heart of the notion of charters of rights are two inherent conflicts: first, between rights which themselves conflict, such as freedom of speech and the right to one’s good reputation. Second, between public and private rights.

The state upholds public rights and seeks to strike a balance in its laws between individual and public rights. Individuals claim private rights; their rights may conflict with those the state upholds. Thus, sometimes, in times of war or extreme emergencies, individual rights have to suffer for the good of the whole. There is nothing new in this.

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About the Author

John Spender QC was the Member for North Sydney between 1980-1990. Positions held during opposition included Shadow Attorney General, Shadow Foreign Minister and Manager of Opposition Business in the House of Representatives.

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