National sovereignty remains a vexed issue across the world. In the contemporary climate sympathetic to the ambiguity which gives rise to such a contradictory notion as the international community the very notion of national sovereignty is ironic. The term carries an overload of emotional power but no coherent meaning. The implication, or even the intention, is that the authority of the so-called international community should transcend the authority of the nation-state to write its own law. The formal context for the notion of international community is of course the United Nations. But the United Nations became possible only because sovereign nations already existed. It does not require too much imagination to view some of the Conventions of the United Nations as a potential threat to national sovereignty. The problem lies with our perception of human rights.
The Universal Declaration of Human Rights (UDHR) grew out of a belief in human dignity and the consequent notion of freedom intrinsic to the formation of the nation-state reinforced by the discovery of the Nazi horrors during the Nuremberg trials. We can go back, at least in England , as far as Magna Carta of 1215 and 1297 in which the king was required to renounce certain rights, respect a variety of legal processes and accept that his will could be bound by law. It is in this context that Simon de Montfort’s ‘Parliament’ of 1265 and his ‘Forty shilling freeholders act tried to reduce the King’s power by baronial voting.’ De Montfort’s motivation was certainly not altruistic, and while an exhaustive explanation of his achievements is not possible here, the consequence of gaining votes for the barons was to start a process towards what we now call the democratic nation-state.
So the nation-state has a very long history and the movement has always been towards the freedom of citizens protected by the rule of law. A just state had, and continues to have, a duty to protect its citizens from the misuse of its own power. The pilgrimage was long and uneven and it wasn’t until September 19, 1893 in New Zealand when women received the vote.
The process then began slowly a very long time ago with the separation of the power of the priest from the power of the King. In Roman times the power of life and death, certainly with and after Tiberius, resided in the Emperor. Although the reality was somewhat inconsistent his power was absolute. Even the apostle Paul, on trial for his life before Festus the Governor of Caesarea (58-60AD) appealed to Caesar for justice. Caesar was the law; there was no law above him.
Now, particularly within the last 20years, the right and power to shape the law within the context of the sovereign state is being threatened. How? By contemporary and ideological defined interpretations of human rights. The emphasis has moved away from the notion of human dignity that insists on the equality of the individual before the law towards the rights of groups not to be discriminated against. Such an eventuality is critical because it is now the state who must ultimately determine who is in and out of a group. An entirely new set of ideological identity doctrines need to be established and reinforced by the state.
This eventuality is reinforced by the international community which is in danger of returning us to a time when the law is decided by a body not elected by the people under the law. And all this is done by the smoky perfume and mirrors of human rights. Nations that do not have a history of liberty grounded in the notion of human dignity, along with Western liberals who believe that the power of the state should be used to reinforce their own views, have become dominant in the United Nations. They want a new world order in their own image which must ultimately undermine the nation-state.
Perhaps the most obvious evidence of this is the new kind of motivation which brings about law change. For most of Western history the impetus for change has come from the grassroots; it came from people disenchanted with state power. Recently in New Zealand , particularly under the present administration, much law change has been initiated by the state either to increase its own power or to curry favour with a particular group. Prostitution law reform, civil union’s legislation and retrospective legislation we now know as Harry’s Bill are examples. This process has actually been reinforced by MMP in spite of having more parties in Parliament. Minority parties have been able to initiate and enforce their own particular ideology on New Zealanders by political manoeuvring around agreements with the government. The most recent and obvious of these is what has become known as the ‘smacking bill’.
To make sense of this claim it is helpful to look at Isaiah Berlin ‘s distinction between negative and positive liberty. Simply put negative liberty is about what an individual citizen can do in the absence of restraint. Positive liberty is at least the possibility of acting to realise one’s purposes, or more recently and less accurately, one’s potential. Negative liberty includes the right to freedom of religion, freedom of speech, freedom of assembly and movement as well as equality before the law. It is the state’s duty to protect these kinds of freedoms (rights).
Positive liberty on the other hand is designed and administered by the state. In a democracy this need not be too serious a problem although in practice it frequently is because a wedge can be driven between rights and duties. The right to education, for example, tends to sit in no man’s land between positive and negative rights. Is the education of children the duty of parents, the right of the child or the duty of the state? If one tends to emphasise parental duty then private education will have a much higher status than if one emphasises the duty of the state or even the rights of the child. Also if education is the duty of state, the state will have to be the provider. The more the state provides the more power it gets.
The issue here is not that positive rights are a bad thing but rather that they can present a danger to personal freedom the more the state is able to invent and enforce them. To a considerable extent this is what is happening between the New Zealand government and some conventions of the United Nations. A subtle shift in authority and propaganda is taking place. For example, United Nations Convention on the Rights of the Child has, in the domestic setting since it was ratified in 1993, developed its own special kind of authority (especially in the eyes of public intellectuals appointed to implement it), and, as a consequence, trumped the sensitivities and beliefs of ordinary New Zealand citizens. We have seen this in the last couple of years with the removal of Section 59 of the 1961 Crimes Act. There were no hordes of parents or children demonstrating on the streets. The call for change came from public intellectuals and noisy NGOs, well placed in relation to the levers of control and media influence. They won the day because the clear, common sense distinction between parental discipline in the context of the family, was usurped by an ideological confusion of parental correction with violence.
And Human Rights’ Commissions are partners in seduction. In New Zealand the Human Rights Commission supported the removal of section 59 from the Crimes Act. The Equality and Human Rights Commission in Britain has just released its annual ‘Sex and Power Report’. Progress has not been made because there are fewer women than men in Parliament, senior executives, judges and so on. Sexist workplaces and stereotyping are to blame. What the report fails to comprehend, or regard as important, is that men and women make individual choices. Many women because they are saner and more sensible than the Commission tend to choose jobs that do not interfere too much with their family life and personal relationships that go along with that. They are motivated by the intimacy of concern and not ideology.
It is not that UN Conventions are bad but rather the problem lies with the nature of authority given to documents which New Zealand citizens have had no hand in shaping. The long-standing and sometimes acrimonious debate around the so-called issue of smacking seems to reinforce that interpretation.
So instead of having hundreds of years of common-law and its consequences shaping human rights we tend to get a situation where human rights doctrine begins to shape the law. The so-called international community becomes a kind of bureaucratic deity. The rights battle is the new game between neighbours; the government is the referee, coach and manager. Human rights rule.
Human rights are fine as far as they go. The problem is that they do not and cannot go far enough in the business of helping human beings form just and satisfying relationships. They run a very clear second, maybe even third. They are certainly not a foundation for a good and harmonious social order.
Human rights focus on the individual and on the self at the expense of duty. When they focus on the group injustice is likely. That is particularly true of the increasing number of new positive rights established and protected by the state. They are nearly always divorced from the reality of interpersonal and intergenerational duty. Human rights are without flesh and bones, they are bloodless. They can never stir the heart to forgiveness or even to admiration of the other.
Paul’s little New Testament book Philemon is 1,000,000 miles away from human rights even although it is about slavery and freedom. Paul’s plea to Philemon (slave owner) for Onesimus (slave) would see human rights as superfluous. Again there is an irony. Human rights, if they are to be effective in any way, must first of all be posited on the foundation explored by Paul in this little book.
Paul loves Onesimus and he knows that he shares with him a common human dignity given to both of them by God. Onesimus might well be a slave but he shares a common dignity with his ‘owner’.
Paul does not berate the slave owner but simply appeals to Philemon for Onesimus on the basis of his loving friendship and their common faith in God. Or, if you prefer something more secular,in a common and shared understanding of human dignity.
We can reasonably accept that the appeal is successful and that the slave ceases to be a slave and becomes a ‘brother’ and friend. The owner would have lost nothing and gained a great deal. We can also assume that other slaves owned by Philemon will be treated similarly. Without rebuke one slave owner learns a deeper way of relating to others.
As I have said at first human rights are fine as far as they go but they run into a great deal of trouble, and so do we, when we try to take them too far. Human rights cannot be a foundation to social order; we cannot have, in spite of the Prime Minister, a human rights culture because a human rights culture would be ultimately destructive. Human rights must be based on an understanding of human dignity which is not shaped by human rights. Human rights are derivative they are not foundational.
Kofi Annan has said human rights are rights that any person has as a human being. Well yes, but that is a tautology. A human being has rights because he or she is a human being. Because a human being has rights he or she is a human being.
Of course, human rights are based on the idea that every human being has dignity but the question of who gives that dignity is critical. Dignity can only be given to us by either God or the deified state. There must be an authoritative source outside the individual and above the state to bestow dignity; there must be some Court of Appeal.
For the apostle Paul that Court of Appeal was obvious. Imagine if Paul had appealed to the Emperor to abolish slavery would he have been successful? The law had made slavery legal and commerce had made it necessary. The balance between duty and rights is essential. Without that balance the reality of human friendship, dignity and freedom from slavery cannot be driven home to our hearts. When we shape the law only around human rights doctrine we divorce the citizen of this responsibility and reinforce his suspicion, even hatred, of the state.
And that is precisely the problem of human rights as a foundation for human relationship. They cannot teach us the sheer attractiveness of brotherhood or sisterhood even although they frequently usurp that language. Human rights are perhaps necessary in an imperfect world but they must never be disconnected from duty, which in spite of its initial unattractiveness is much closer to love, harmony and friendship than the power of the state.