Freedoms and claim-rights
Sir Roger Scruton’s essay on How do we decide which human rights should be protected in law is published as a blog at http://barristerblogger.com/2017/01/08/exclusive-guest-post-sir-roger-scruton-decide-human-rights-protected-law/ . I plan a longer reply in relation to human rights and family law generally. In the meantime the following is developed slightly from my comment on the host blog site.
Scruton is introduced as ‘the country’s leading conservative philosopher and thinker’. This may be an ambitious claim; but it is not the purpose of this note to deny it. It is fair to ask: why do we have to ‘decide rights to be protected’; but space prevents an answer to that, perhaps the real question. And, in any event, Scruton does not answer it. He merely tells us what he considers to be rights and – though these are part of the thinking behind European Convention 1950 – what are not, in his view, rights. He concludes that certain rights which protect individual ‘sovereignty’ should be retained and claim-rights be ‘adopted, if at all, with caution’.
His paper divides rights into freedom and claim-rights (or benefit rights). The former are the classic rights to which an individual may be said to be entitled: a right to life, to a fair trial, to compensation in tort for injury; and certain rights to protect the individual from government oppression (torture, privacy etc). These rights create in the rest of us matching duties not to encroach on them. They are the rights of the individual and, by definition, entirely selfish (and no criticism is thereby intended by use of ‘selfish’).
Claim rights are the main thrust of Scruton’s argument and opprobrium. He appears to date them largely to a post-Second World War period (on the evidence of this paper Scruton’s grasp of history is not strong). He categorises these rights as: ‘claims for benefits, and rights to “non-discrimination” accorded to privileged (sic) groups’.
Discrimination and benefits rights
Let us dispose immediately of ‘privileged’. A knowledge of discrimination laws surely indicates that its whole purpose is not to provide privileges but to increase to a general level for the less privileged, rights which others already have? Thus in 1928 all women over 21 got more or less the same rights as men to vote – was that a privilege? Since then they have become entitled to equal status (but perhaps not yet equal access) as students, judges and company directors. It took a civil war in the States to erode slavery; and discrimination was still (still is, perhaps?) strong. It is cheap, I am afraid, to take – as Scruton does – Travellers and gay’s wedding cakes as the hall mark of your anti-discrimination argument. There are much more significant and larger groups whom discrimination protects.
My favourite discrimination is that which the zebra-crossing creates for the pedestrian over the otherwise all-powerful (subject to regulation by speed limits, taxation etc etc: yes I know…). For me the car is the supreme exemplar of Toryism and selfishness; and for any pedestrian, moving along at 3/4 mph, to be able to step out in front of and momentarily control the car driver is a true freedom. In Scruton’s terms, I think, it would be an example of outrageous, and unjustifiable, discrimination.
Rights to ‘Christian’ community responsibilities (or ‘socialist direction’)
And of benefits rights: you don’t have to be a Christian – a reading of the Bible, as a valuable historical and political text, might help – to know the parable of the ‘Good Samaritan’. This parable may be said to teach a modern liberal approach to responsibilities. It is an approach which is well over two thousand years’ old. It was this approach which informed medieval ideas of community (one of the oldest administrative law cases – Rooke’s Case (1598) 5 Co Rep 99b – establishes the modern duty of the community as a whole to provide flood defences), the Tudor poor laws (Wolsey is credited by some with initiating the first legal aid scheme); and, yes, of the shift in the 19th century from charity provided by individuals to individual rights, mostly provided by the community or state.
I give this last point to Scruton; but I base it (as a non-Christian) on ordinary West European impulses which I regard as wholly ‘Christian’. He might see them as ‘a socialist direction’ (see p 7 in my copy of his essay). Perhaps as a modern liberal (to be distinguished from Scruton’s ‘classical liberal’ (ie ultra conservative, as I read him)) I believe that the state should tax the rich and others with income (or, perhaps, assets as well). It should give to those (per Keynes, Beveridge): who need – the sick, children’s education; police; amenities (drainage, roads etc); those who need help with protection of rights (eg lawyers); where the environment needs protection; for defence (perhaps); and so on. In other words: in ‘Christian’ or human – civilised, may I say? – terms, all this is for the good of the community or ‘common wealth’.
In the two millennia since Christ (at least) rights have developed to create not only individual rights, but also community responsibilities. Scruton would see these responsibilities pared to a minimum. A modern society, I believe, should retain the claim of benefits rights so far achieved; and should continue to review them and – as need be – edge them forwards.