What's Wrong with Human Rights?

As we all know there has been much heated discussion about rights, and it has been particularly fierce in the transgender battles. Much of the focus there has been on men who have transitioned and their right to be treated as women. If recognised, this right means they can, for example, compete in women’s sports and occupy women’s safe spaces. However, in criticising aggressive transgenderism, more often than not the wrong culprits are fingered and the reason the whole thing has got out of hand is overlooked.

First, the culprits. People have always said and demanded daft things, and the internet has only exacerbated this phenomenon. But, traditionally, if a lobby group demanded something the majority felt was outrageous, they would simply be ignored. Or, if their demands were directed at government, told their request had been taken under advisement and they would be informed of the outcome in due course. The heart of the problem with the demands made by transgender activists – and those of many other vocal rights groups − is not the fact that people make these demands: it’s that they are listened to, and that policy is developed and enforced accordingly. The culprits are our governing bodies.

The same goes for the de-platforming of speakers with ‘divergent’ views at universities, literary festivals and just plain paid-up speaking venues. One might expect an outcry in social media and perhaps even on-the-street protests, but it is the authorities who listen, who cave in to demands and who de-platform speakers that are the culprits. If going ahead with an event creates a risk to public safety, then arrest those threatening public safety. Don’t deny the right to free speech under cover of preventing hate speech, with ‘hate speech’ defined as anything that someone, somewhere, objects to. It seems obvious, but both sides in this fight are utterly intransigent.  

Why has this happened? Why do our governing bodies listen to the rights-driven demands of vocal lobby groups? It’s easy to accuse certain political and social classes – not to mention certain media outlets – of being irretrievably woke, but why has that happened? The question is complex, but one often-overlooked part of the answer lies in the notion of rights as the basis of moral decision-making and, by extension, legislation. If a group states that it has a certain right and proclaims that this right must be respected, our guardians simply don’t know what to do. They are lost. They lack a moral compass.

Modern rights-based thinking derives from the Universal Declaration of Human Rights, which was proclaimed by the UN General Assembly in Paris on 10 December 1948.  The Declaration set out “for the first time, fundamental human rights to be universally protected”, and it was hugely influential. The EU is rights based, as is clear from its official website:  “The European Union is based on a strong commitment to promoting and protecting human rights ... Human rights are at the heart of EU relations with other countries and regions”. EU policy includes “promoting the rights of women, children, minorities and displaced persons”.

Rights-based moral thinking was an understandable reaction to the horrors of the Second World War, and the Declaration sprang from noble intentions. But, as with many good intentions, these have had perverse and unintended outcomes. A clue lies in that last sentence of the EU statement relating to minorities. The original idea was that minority groups would be included in universal human rights, “rights that are inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status”. The perverse outcome is that any minority group whatsoever sees itself, by virtue of being a minority group, as having special rights.

This presumption of special rights results in the demand for special privileges, which is most apparent in intersectionalist arguments. If I belong to a certain minority group, I am allowed to use words that you are not allowed to use. I can call you racist but I can never be racist. I can call you transphobic or Islamophobic, but you can’t call me heterophobic or anti-Christian, because I have special rights that make me untouchable. In fact I can pretty much do and say whatever I want because I don’t have the same privileges as you, but the group I belong to is disadvantaged, therefore I have unimpeachable rights.

The presumption of special rights explains the culture of victimhood. It goes without saying that individuals or groups can be, and are, the victims of terrible wrongs, but one has to have been wronged to be a victim. It is not sufficient to be a member of an identity group. That said, it’s easy to see the appeal if membership of a group means being treated in a special way. Who wouldn’t want to join up?

This is what flummoxes our governing bodies. When considering these demands they can’t see their way through the argument, because the idea of rights is so convincing and yet inevitably leads to deadlock. A woman has a right to choose what happens to her body, but a foetus has a right to life. Male-to-female transgenders have the right to use women’s toilets, but women have the right to safe spaces. Individuals have the right to free speech, but people have the right to be protected from hate speech. Each right of each special group cancels out the opposing right, meaning that no resolution is possible.

The only option is to shout the loudest and heap the most abuse on one’s opponents, and this is where social media come in. Ironically, the tactic often used is to accuse one’s opponent of being in a certain group: “You’re just an old, white male, so your views don’t count”. No matter how righteous and intersectional you feel when tweeting this, it’s a tactic that involves assuming that certain groups don’t have the same universal rights as others. Surely the danger is obvious?  It’s not so long ago that “You’re just a young, black male so your views don’t count” seemed just as incontrovertible.

The idea behind universal human rights is to stop this historical flip-flopping of who is currently persona non grata by rejecting special privileges for special groups. Those framing the Universal Declaration of Human Rights in 1948 believed in the existence of “rights that are inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status”. They are truly universal, and they impose universal moral responsibilities for how an individual should behave towards others, unlike special rights, which encourage an obsession with how others should behave towards an individual.

On Sunday 15 March Joe Biden announced during the CNN Democrat debate, "If I'm elected president, my cabinet, my administration, will look like the country. I commit that I will, in fact, pick a woman to be my vice president." Fitness for the position, apparently, is a secondary consideration. This doubtless wins Biden kudos from the left, but Christopher Hitchens in a 2008 article says it best:

People who think with their epidermis or their genitalia or their clan are the problem to begin with. One does not banish this specter by invoking it. If I would not vote against someone on the grounds of ‘race’ or ‘gender’ alone, then by the exact same token I would not cast a vote in his or her favor for the identical reason.

Hitchens died in 2011 and so missed the worst of the latest obsession with identity politics, but it is worth looking back at the arguments of this combative writer. He pointed out that Martin Luther King argued that colour is irrelevant, not that it is the defining feature of a person’s identity. The current woke phrase “person of colour” makes being or not being white the sole intersectional feature, and while paving the way to weaponising  the phrase “white privilege” has the consequence of lumping together all other races of the world, as if the Japanese businessman, the Inuit hunter and the Syrian refugee mother actually share something meaningful in being non-white.

What our governing bodies need is a decision-making tool that allows for moral debate rather than cancellation. That tool can be found in the Universal Declaration of Human Rights. The Declaration states that we all have the same rights, because we all have the same moral obligations, and this idea needs to be kept foremost in mind, and implemented. Special rights for special groups – even if apparently morally righteous based on historical rebalancing and/or a retribution for past sins – are simply immoral in this light. ‘Positive discrimination’ was always an unfortunate oxymoron, and it was well replaced by ‘affirmative action’, but action needs to be affirmatively directed at whoever needs it as a suffering human being, not as a member of a special identity group.

This is not a solution that ends all debates about competing rights. But it does provide a framework for thinking about some of our most intractable social issues without peremptorily shutting down one side of the argument.

David Wolcott