Comment: Let us not confuse ‘rights’ with ‘policy’

Centuries of philosophy underpin our understanding of inalienable rights. Let's not confuse them with policy outcomes.

'Rights' is a term that is often bandied about with passion but is often deeply misunderstood. We mustn't confuse our fundamental freedoms with 'policy outcomes', writes Dr Peter Phelps.

One of the unfortunate aspects about modern political debate has been the squatter-like occupation of the ‘rights’ debate by the Left. To some extent, it has been the fault of people on my side of politics.

We have, under the banner of ‘conservatism’, claimed that our Common Law traditions are fine and we don’t need codified rights and it’s all too difficult and that it just empowers activist judges and… you get the drift.

Ms Bracks' recent contribution to the debate exemplifies just how dangerous is such an abandonment of the field. And while she is correct on the protection afforded to US citizens by codified rights, the implications of her style of ‘rights agenda’ are much less pleasing.

It is illegitimate to proclaim things as ‘rights’ when they are no more than policy prescriptions.

So what should rights do? Rights exist to ensure that a person who seeks to benefit from the community of humanity, known as ‘society’, is not imperilled by that society.  In other words, true rights have a quality of limiting the state (or other aggressive individuals) in what it can do to individuals.

Rights pre-date the existence of the state.  For this reason, the US Declaration of Independence speaks of “unalienable” rights – they are not granted by the state, but recognised by the state and prevail over it.

It goes on: “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” Note the emphasis – ‘to secure these right’, not to fabricate them. To rely on ‘consent’, not force.

So what are these rights? Genuine rights are the ones that you would possess as a human being, even if the state did not exist. They are the three great natural rights: Life, Liberty and Property.

You own your life. You may seek to join with others in voluntary association, but that does not mean other people own your life. People cannot take your life – that is murder – and you are morally justified in stopping anyone from doing so.

You own your liberty. When you live, you do things. Nobody has the right to tell you not to do something, provided that it does not hurt others.

You own your property. The product of your life and your liberty is your property. People who take your property without your consent are thieves.

By the same token, a crime committed by an individual is no less a crime when that same crime is committed by a group of individuals masquerading as a gang, or an army, or ‘the government’.

Any valid right can be adjudged thus: if I lived alone on a desert island, what claim could I make, and what claim could I give effect to?  Try asserting your “right to free education” in the middle of Antarctica.

People – invariably of the Left – who talk about a “right” to free education, or free health, or clean water, or non-discrimination are really talking about policy outcomes, not genuine rights.

By clothing such policies in the language of ‘rights’ they purport to place them above debate, as if they were supremely, obviously natural. But they are not.

I presume that Ms Bracks supports ‘abortion rights’ at the same time she decries ‘gun rights’. It is quite arguable that abortion is a subsidiary right, under the auspices of one natural right, that being Liberty. But gun ownership is clearly a subsidiary right of all three.

A gun protects me from those who would seek to do me harm (Life). A gun allows me to enjoy an afternoon of target shooting (Liberty). A gun stops a burglar from stealing stuff from my home (Property).

Indeed, Ms Bracks is wrong to believe that this is something which just arose in the context of 1776 and the American Revolution. The 1689 English Bill of Rights – that word again! – included a specific right to bear arms, among a suite of other rights which are the basis of our Parliamentary system.

This is not meant to be a dissertation on gun ownership, but to show how contentious the issue of rights can be when people seek to hijack the language of ‘rights’ and use it for policy outcomes. Just because you think those policies are good does not – and cannot ever – make them rights.

And just because you think that certain (genuine) rights are ‘bad’, that opinion offers no justification or authority for disposing of them.

The Hon Dr Peter Phelps is a Member of the Legislative Council of NSW.

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