Making laws that protect our human rights sounds like a good idea, doesn’t it?
We all know that human beings have rights. They deserve to be treated a certain way, and they deserve to be not treated a certain way, just because they are human.
And in countries like Libyia, Syria, Zimbabwe and the old Soviet Union we’ve seen what horrible things governments can do to human beings, even their own citizens.
Since governments have proved capable of violating these rights, surely we should have laws that make such bad laws illegal?
The key to persuasiveness is using arguments that appeal to your listener. I’m a conservative, I fear big government and the power of the state, so shouldn’t I love a law that would tell the government what it can’t do? Wouldn’t that be a very conservative law?
Or suppose I was the opposite of a conservative, a “progressive” let’s say, who cares deeply about minorities and the ways that the powerful members of society can abuse them. Shouldn’t I be pleased about a law that protects all humans based, not on their standing in society, but on their human rights?
No I shouldn’t. Having a Charter of Human Rights, or a Bill of Human Rights, or any form of human rights legislation is fundamentally flawed, because human rights is an ideal, and legislation is a list of rules. You can’t mix them together.
Human rights is an ideal, a concept, a broad-sweeping vision that should guide everything we do.
But legislation is is a written form of details, procedures and practices about precisely what you can do, how you can do it, who can do it and when. By it’s very nature it has to use very precise and particular language that deals with very particular activities.
This is why “human rights legislation” is an oxymoron. An ideal like human rights can’t be boiled down to specific procedures and rules.
Therefore the lawyers write a law that lays down vague principles with generic language. And then when judges try to use this legislation, they have to interpret these ambiguous moral claims in order to translate them into concrete legal procedures: interpret them with their own moral standards.
When I studied a bit of business law at university, I was taught that the great benefit of law was its very predictability- the same situations were all treated the same way by the same laws, and the citizens could know in advance what the law would say, instead of depending on the capricious mood of the local despot.
But human rights legislation is not rule of law. It is the rule of unelected judges making law based on their own morality guided by a vague moral document (also framed by lawyers). And the results are therefore unpredictable. This is not rule of law. It is the rule of philosophers- philosopher kings.
Besides, if the state can make a law to protect human rights, then they have the power to repeal that law. Since we claimed we needed a law to protect our rights, when that law is gone our rights are gone as well. The state giveth, the state taketh away.
But we all know that is not the case. Our intrinsic value does not come from a scrap of paper or the will of parliament. It comes from our very nature as human beings. No despot can take that away, and that is where our claim to human rights should lie.
Even if we try to use legislation to further human rights without relying on legislation to justify human rights (a tricky balancing act if ever there was one) we find that you can’t legislate morality.You cannot translate a moral code into the list of dos and don’ts that form our laws.