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Legislation is no substitute for respect

Thursday 7 December 2017

Andrew Hamilton, Eureka Street
Support for human rights often depends on the issue under discussion. When the Human Rights Commission defended the human rights of asylum seekers, government supporters vilified the commissioner.

Wedding cakeMany of these supporters defended the right of bakers to deny cake-service at gay marriages. At the same time, many defenders of the rights of asylum seekers denied the rights of the bakers to act according to their conscience. The right to freedom from discrimination has been set in opposition to the right to religious freedom.

The government has appointed a panel to report whether and what legislation may be necessary to safeguard religious rights in the light of the redefinition of marriage. Given the conflictual nature of much public conversation about human rights, it may be helpful to step back from this particular issue and to reflect on human rights more generally.

Human rights are often seen as a list of individual rights that are self-contained and unconditional. In this view rights are individual entitlements that you have fully or not at all. So you must defend your rights tooth and nail against people who wish to excise part of them on the grounds that you are contravening their rights.

From this perspective the claim to rights is always competitive because other individuals will make conflicting claims. The conflict must be resolved by the assertion of power, either the power of government or the power of the majority. The corollary of this view is that you do not have a right until someone concedes it to you. Perhaps that is why governments behave so vituperatively when any critic accuses them of abusing human rights. The criticism supposes that rights are not the government's to give and to remove.

It is better to see human rights as expressions of what it means to flourish as human beings. Like health, flourishing can be named in various dimensions. We do not flourish unless we have sufficient food, sleep, shelter, access to medical care, education and work, the freedom to associate with others, to marry and form a family, to publicly state our political and religious opinions, to express our thoughts freely and to associate in groups of like-minded people.

We can then name these dimensions of flourishing rights. We shall not thereby offer a complete listing of the things on which our flourishing as human beings depends. This analysis, however, does show that we have rights because we are human beings, not because of our religion, nationality, productivity etc.

'From this perspective the relationship between the right of people in same-sex marriages to freedom from discriminations and the right of people to religious freedom is not conflictual but complementary.'

We cannot flourish as human beings unaided. We do so through our relationships to other people and to our world. So we do not enjoy human rights as isolated individuals but through our relationships. In fact our rights give expression to the respect that we owe to one another by virtue of being human. So the implications of each right and of their intersection need constantly to be negotiated in the business of daily life from childhood onwards.

In this understanding, human rights cannot be given or taken away by government action or majority opinion. We have rights because we are human beings. Nor are they given to us as individuals. They are possessed and negotiated in our relationships to one another, relationships that are naturally cooperative rather than conflictual.

Nor do rights disappear when we cannot access them because of tyranny, poverty or discrimination. People starving in Yemen because of war have a right to food even if they cannot force it to be met. Asylum seekers on Nauru have a right to security and the protection of the law, even if these things are denied them.

Laws do not give citizens rights, but they do recognise them and can protect them and regulate relationships when different aspects of human flourishing intersect.

From this perspective the relationship between the right of people in same sex marriages to freedom from discriminations and the right of people to religious freedom is not conflictual but complementary. The rights of both flow from the demands of human flourishing. Balancing these rights demands first of all mutual respect. Legislation may also be necessary to safeguard disputed rights and to mark the limits of their claims. But legislation is a blunt instrument and is no substitute for respect. 
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