Rights: the human, the civil and those on stilts

Ronald Dworkin has a piece in the Guardian arguing that the present debate over where the balance between 'human rights' and 'security' should lie is inherently dangerous as it undermines the very concept of the former.

It's one of these arguments that is, in so far as one accepts the definitions, so self-evidently true as to be essentially tautological: of course there can be no 'balance' between human rights and other considerations because these rights are by definition inviolable, and defending them should pay no heed to the consequences of presrving them.

While I believe in the existence of such rights, I don't think people like Dworkin do much to help their cause. One of the reasons here is because he doesn't attempt to provide any arguments to support the existence of such rights, preferring instead simply to dismiss any arguments against these - or rather their supposed legal incarnation in the form of the Human Rights Act - as 'absurd'. Yet if the utilitarian argument is so self-evidently absurd, why does he rely on this to support his case? For be in no doubt, this is precisely what he does:

"Of course it is terrible when deluded terrorists or criminals on probation kill innocent people. But the increased risk that each of us runs is marginal when we insist on enforcing human rights rather than abandoning them just because they have proved inconvenient. It is one of Britain's most honoured traditions to accept the marginally increased risk as the price of respect for individual human dignity. That is what self-respect requires. It is dangerous gibberish to say that the public has a right to as much security as it can have; no one has a right to security purchased through injustice." [emphasis added]

Notice the recourse to distinctly non-liberal categories of justification for a supposedly liberal position: tradition and utility. If he had depended on the former, he'd be on firmer ground - but if he did this, he would have to concede that the rights he is assuming are 'human' are more properly understood as being civil. People like Dworkin think this notion is dangerous because it allows for the idea that rights cannot be enjoyed by all people everywhere and this, in turn, would allow us to retreat and descend into moral relativism. I agree with this to a point but at some level something has to be conceded to the Benthamite case, which is - although from very different political perspectives - essentially the same as that taken by Burke and Marx: what matters about rights is the extent to which they are enjoyed and experienced. This is Betham's 'positive' rights - those actually enforced by law. In the absence of this, what's the point of talking about their existence? They are abstract, immaterial, "nonsense on stilts".

The reply to this is the notion of human rights as a form of moral argument, a rule of human conduct - a recognition that all human beings are equal in the sense of owning their humanity and this carries some obligation on the rest of humanity to acknowledge this. This is the concept of human rights I share: we condemn torture and indefinite detention without trial because the former negates the individual's humanity, the latter is a form of slavery - both are essentially types of spiritual murder. This should not happen at any time anywhere, without exceptions, regardless of the consequences - beause to do so, to approve of others doing so, represents a slide into barbarism and into a place where the normal affections of humanity have been seared over with the iron of urgent expediency.

Here I would agree with Dworkin but this very concept is degraded when rights that are properly understood as being civil - as belonging to a specific civitas - are counted as being human. Here human rights inflation damages the cause. I won't attempt to draw up an exhaustive list but real human rights should be restricted to those that don't depend on a certain level of economic development or a certain form of human organisation. Contrary to the Universal Declaration of Human Rights, the right to paid holidays, the right to join a trade union, the right to a formal education, don't exist independently of a certain level of economic development and a particular form of social organisation. There are no human rights of receipt, only those of non-interference - and these even depend on the existence of a state that has the ability to interfere in the first place.

But assuming they do, why is this thought to be a so much weaker defence to make? We have the moral framework that says as a matter of rights human beings should not be treated in certain ways. But we also have a history and a tradition that says British subjects should not be treated in certain ways too, and these properly understood are more extensive than the narrow range of rights that could realistically be described as 'human'.

Why is an appeal to tradition so much less persuasive for Dworkin, especially since he himself implicitly depends on such arguments? Probably because it's too Burkean. But that's rather the problem: Burke, along with Bentham and Marx, raise questions that Dworkin conspicuously fails to answer. He is therefore, here at least, an unsuccessful advocate of a case that can and should be defended.