Pros and Cons of a Bill of Rights

As historians look back on the 20th century, some will note the assertion of rights-claims as one of its distinguishing features. No one would dispute that much good has flowed from this development. The US civil rights movement facilitated, for example, the dismantling of some institutional barriers to the full participation of African-Americans in American life. Human rights have played a role in domesticating and limiting state power.

At the beginning of a new century, however, significant problems with the rights revolution are becoming evident. In the name of alleged rights, some courts have proved willing to remove a variety of issues completely from any significant legislative or executive oversight, the most notorious instance being Roe v. Wade.

There is also the problem of quasi-judicial bodies using rights-language to narrow protections afforded by particular rights in the name of “diversity” or “anti-discrimination.” In an Australian context, one need only think of recent attempts to circumscribe—in the name of religious liberty—the protections afforded to church organizations by that very same religious liberty.

Given this recent history, people have good reason to be wary of proposals for an Australian Bill or Charter of Rights. But what is perhaps most remarkable about current discussion of such propositions is a widespread failure to examine an important preliminary question: Where do rights come from?

Some professional human-rights careerists are inclined to dismiss this as a philosophical question of little relevance to the “real world.” The reality, however, is that whatever is identified as the source of rights will influence what a Bill of Rights contains, not to mention such a document’s internal consistency.

Once we examine such questions, we immediately find ourselves confronted with a major problem. Put simply, contemporary secular jurisprudence has proved unable to provide any plausible account concerning the origins of rights.

This should come as no surprise. Modern philosophy cannot provide a moral account of anything insofar as it declines to—and cannot—identify an ultimately authoritative source of moral goodness. One need only think of all the unsuccessful modern attempts to establish a foundation for rights. These include the command of the sovereign; the majority of voters; and, perhaps most bizarrely, John Rawls’ imaginary social contract that abstract non-existent persons might adopt in an equally imaginary “original
position.”

The influential left-liberal jurist, Ronald Dworkin, argues, for example, that individual rights should be identified “without employing any particular conception of the good life or of what gives value to life.” He maintains that such issues are (almost always) “private” matters, which therefore “as a matter of right” should be left to individuals to decide for themselves.

The basis of Dworkin’s argument is that everyone enjoys what he calls “the right to moral independence”, a right which, in turn, is based on what Dworkin describes as “the abstract right to equality.” Unfortunately, Dworkin nowhere explains in any of his voluminous writings from where this right of equality is ultimately derived.

We cannot but note the difference here between Dworkin and the late Martin Luther King. The latter unambiguously based his rights-claims on two foundations: Christian revelation and the natural law. Both, King maintained, were intrinsic to the American experiment, and, more importantly, met the demands of human reason.

Sadly, people who make such claims today are often dismissed as religious eccentrics, or reviled for daring to point out the inadequacies of secular-humanist accounts of rights. The reasons for this are not hard to imagine. Acknowledging the inadequacy—indeed, incoherence—of such accounts rules out using them as grounds for presenting what are essentially no more than preferences as “rights.”

The very first declaration of human rights based their inalienable character on the affirmation that each person receives them from their Creator. Ironically, many who earnestly engage in rights-talk today simultaneously insist that there are no moral truths. It would never have occurred to the American founders to claim rights that were not grounded in truth. Such a proposition violates a basic rule of logic: the principle of non-contradiction. If something is not true, then how can it be a “right”, with all the moral absoluteness implied by this word?

The tragedy of modern times is that the demand for human rights has never been so insistent at the very moment that the inconsistencies characterising their secular justifications are more striking than ever. This alone should give those who genuinely believe in human rights good reason to be cautious before supporting any Bill of Rights. 
 

About the Author:
  Dr. Samuel Gregg is an Adjunct Scholar at The Centre for Independent Studies in Sydney.  This edited extract is from his article ‘The Crisis of Human Rights’ published in Policy Autumn 2001.