A recent case in Britain raises the age-old question: if a person has a right to something, does another person have an obligation to provide it for them? It seems the term “right” is much-abused.
Last year, the Sunday Telegraph launched a campaign under the slogan, End the Human Rights Farce.
The slogan was rather broad and provocative, and out of context it suggests that human rights themselves were being denounced as a farce. That it featured a photograph of a shifty-looking, cigarette-smoking Iraqi did little to dispel the superficial image of a reactionary and possibly racist diatribe.
However, the newspaper had a good argument.
An illegal immigrant, after having been disqualified from driving for repeatedly being caught driving without a licence (a penalty the paper notes is absurd on the face of it), eventually caused an accident that killed a young girl.
Almost a decade later, the legal fight against his deportation was still alive, and his lawyers had just bolstered it by claims of a “family life”.
The European Convention on Human Rights, and the consequent Human Rights Act in Britain, grants people the “right to respect for private and family life”, and says that “there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary…”
The immigrant’s claim is that his present life with his wife or fiancée (even his lawyers seem unsure), two step-children, and two more children he fathered with the woman in question, constitute a “family life” with which the UK government cannot legally interfere. The Sunday Telegraph notes that asylum had been denied him before any of this happened, and lists a string of convictions in the intervening years, as well as evidence that the family life which the defendant claims to value so highly is rather less tranquil and secure than his lawyers would have the courts believe.
There appear to be compelling reasons for not granting him the “right” he claims, and last weekend, almost a year after launching its campaign, the paper was able to quote the UK’s Home Secretary: “By the summer, I will have changed the immigration rules so that we can end the abuse of the right to a family life.”
Alhough a harsh reaction to abuse of the law will undoubtedly have its own unintended consequences, it is hard to argue that this is not a reasonable response to a high-profile case in which “rights” rhetoric was abused to claim benefits that clearly were not intended in law.
That there is even any question about this matter demonstrates considerable confusion over what we unthinkingly call “human rights”.
For example, it is common for populist politicians to cite various rights, from a Constitution, from political declarations such as the Freedom Charter, or from international statements on human rights, to argue that people not only ought to be left alone, but ought to receive material benefits of one sort of another.
How exactly they are to be obtained is usually left vague, but when the people have a right to housing, well, then houses is what they ought to have, not so?
It’s not so simple.
It is helpful to distinguish clearly between freedoms on one hand, and entitlements on the other. Freedoms are those rights that prevent another person – and in particular the state – from acting in a way that infringes your liberty. Entitlements are those rights that are economic in nature, and implicitly impose a financial obligation upon someone else.
Examples of the former, taken from South Africa’s Constitution, are the rights to privacy, to freedom of religion, to freedom of expression, freedom to assemble, picket and petition, freedom to form a political party, freedom of movement and residence, freedom of trade, occupation or profession, the right not to be deprived of property, and the right to just administrative action.
These rights cannot be arbitarily limited, and can only be limited by certain laws of general application, such as in cases where one has committed a crime.
This is where the Sunday Telegraph’s poster boy is wrong. Claiming freedoms that an undocumented immigrant does not merit in the first place might be defensible if one supports free, unfettered immigration, as I do. However, the chap in question used high-minded human right language to claim rights he additionally forfeited by dint of his negligent and criminal actions. That does, indeed, make a farce of the notion of “human rights”, as the Sunday Telegraph infers.
The lack of clarity about rights goes even deeper, however.
The right to economic, material things is fundamentally different from the right to freedoms. The South African Constitution in many cases is careful not to speak of the “right to”, but of the “right to have access to” material things like housing, healthcare, water, food and social security (though it omits this subtle nuance when speaking of the right to education).
The problem is this: if I have a right to healthcare, and I cannot, refuse to, or neglect to pay for it, someone else has to either provide it at no charge, or pay for it. If I have a right to housing, then someone has to buy or build me a house. If I have a right to food and water, which are indisputably necessities of life, and I fail for whatever reason to provide these for myself, then someone else is obliged, by law, to provide them for me.
This, in effect, means that someone else has to produce that to which I claim a basic human right, guaranteed to me in the Constitution.
There’s a word for people who are obliged to work for others without choice or payment. And those people, under the South African Constitution, have the right not to be subjected to slavery, servitude or forced labour.
The mere fact that one has a right to something does not mean the government, or anyone else, is obliged to provide it. In fact, the “access to” language hints at this.
Swaminathan Aiyar made the case eloquently in a column he penned in 2010 for the Times of India.
He writes: “Rights are not limited by budget constraints, but entitlements are. So, rights are universal but entitlements are not.”
It could be argued (and some scholars do) that even non-material rights such as a right to enjoy one’s property unmolested impose an obligation on others, in the sense that its implementation requires a judicial bureaucracy which the taxpayer has to fund. But drawing the line between non-material freedoms and material entitlements, as Aiyar and I both do, seems useful.
He cites the growing economic crises in developed welfare states as a warning. In the US and Europe, entitlement obligations are rapidly sinking the budgets of even the richest countries, and threaten future generations with entirely unsustainable debt burdens.
He does not deny that there are arguments in favour of limited entitlements, even in relatively poor developing countries like his own, and in fact notes that “Christian charity” was common in law throughout the industrialisation of Western nations such as Great Britain.
However, the distinction ought to be very clear. Arguing for entitlements is to advocate charity with other people’s money.
If you’re a taxpayer in support of entitlements, you’re demanding that the law require all other taxpayers to match your own generosity. And if you’re a likely beneficiary, you’re saying that you’re not capable of supporting yourself, and are happy to accept the “charity” of others, taken from them by force.
It is also to place a significant financial burden on the state. As a country grows richer, it can undoubtedly do more to fund education, housing for the poor, support for the jobless, or welfare to the disabled, the elderly or the orphans.
Observes Aiyar: “The communist experience shows that giving welfare rights priority over basic freedoms is the road to serfdom. And the capitalist welfare state now shows that entitlements, although desirable and inevitable in democracies, must be limited and targeted at the needy, so that they do not hog all spending or bankrupt governments.”
To make the case that basic freedoms are sacrosanct, we ought to be careful to distinguish between the essential freedoms that protect us from abuses by the state, and mere entitlements that place a burden on the fiscus and the productive capacity of our fellow-citizens.
A convincing moral case can be made for some entitlements, but they ought to be made with care, and with full awareness that they can never be simple absolutes in the way that our constitutional liberties are absolute.
More dangerously, over-arguing them, or reducing them to thoughtless rhetoric, risks the very freedoms we hold most dear. If politics consists of yelling “Housing for all” and “End the human rights farce” over the parapets at each other, it would be a shame if our true freedoms are caught in the crossfire. DM
While we have your attention...
An increasingly rare commodity, quality independent journalism costs money - though not nearly as much as its absence.
Every article, every day, is our contribution to Defending Truth in South Africa. If you would like to join us on this mission, you could do much worse than support Daily Maverick's quest by becoming a Maverick Insider.
Click here to become a Maverick Insider and get a closer look at the Truth.
Burger King is called "Hungry Jack's" in Australia. This is due to one restaurant in Adelaide having already claimed the named Burger King.