If Victorians are now bloated with human rights why are we so grumpy as a result of ‘trivial’ water and electricity deprivations? 
Posted By Mirko Bagaric on January 27th, 2007
If the State government got it right, Victorians should have kicked off the year a tad more fulfilled than they ended 2006. You see 1 January 2007 was a watershed moment for Victoria. It is on that date, with the commencement of the Charter of Human Rights Act 2006, that Victorian become the first state in Australia to give its citizens a catalogue of legally protected rights. And these are not garden variety rights. They are called human rights.
Sounds super. So why is it that a limitation on one form of right, which doesn’t even rate a mention in the glossy rights charter, has made so many Victorians grumpy? Coincidentally, on the same date that the Charter came into operation, so did Stage 3 water restrictions in Melbourne.
As a result, neighbours are now turning on neighbours by phoning water dob-in lines. Things are becoming so tense that Acting Premier John Thwaites has urged people who have kept their gardens lush using approved water supplies to erect signs to avoid neighbourhood stoushes. The power shortages over the past few days are threatening to push the tempers of many people, especially small business owners, beyond breaking point.
But don’t all of the new statutorily protected rights make up for this these ‘minor’ limitations? After all, the government has given us some pretty fancy protections. We have now got a plethora of what are commonly known as civil and political rights. These include the right to life, liberty, privacy and even cultural rights.
There are two reasons that your well-being receptor hasn’t gone into overdrive as a result of the new rights Charter. First, there is no such thing as human rights. Secondly, to the extent that rights make sense the ones that matter to us are of the economic and social type, which don’t rate a mention in the Charter.
Philosophers have for centuries been trying to find tenable answers to the most basic questions regarding the foundation and provenance of moral and human rights. These include: What are rights? Where do they come from? How can you tell the difference between real and pretend rights? Which right wins when there is a clash?
They’ve drawn blanks. So much so, that Jeremy Bentham declared rights are ‘nonsense on stilts’. A lot of philosophy went on in the two hundred or so years since Bentham. Yet, the most eminent legal philosopher of the 20th century HLA Hart reached the same conclusion about rights that: ‘It cannot be said that we have had … a sufficiently detailed or adequately articulated theory showing the foundation for such rights and how they are related to other values. Indeed the revived doctrines of basic rights are … in spite of much brilliance still unconvincing’.
Unpeturbed by the pursuit of the impossible, the brave hearts of Spring Street pressed on and predictably they have given us exactly what we don’t need. Worse still, it will actually harm us.
Given that there is no coherent hierarchy of rights, invariably the person who wins a rights contest is the one who yells the loudest or has the most money to pay lawyers. This results in minorities being pegged further down the social food chain. Higher order interests such as the right to life, will no doubt be trumped by illusory interests such as the right to privacy.
Even without a bill of rights, last year the so called right to privacy was used to prevent the residents of Sunbury getting confirmation that there was a serial phedophile living in their midst; a tribunal held that a convicted criminal’s privacy prevented his mug shots being displayed publicly and police refused to release the full list of prior convictions of suspected double murderer John Watkins – even after he was shot dead by police!
The best protector of important human interests is not signing up to abstract ideals, but a robust democracy with a free press. As history has shown us, absent these conditions rights documents are worth less than the paper they are written on. Rwanda, China, South Africa and Sudan all have glossy Bills of Rights – doesn’t seem to have helped their citizens much.
The main problem with rights is that they limit our moral horizons to ourselves and those closest to us. Rights appeal to those of us who have a ‘me, me, me’ approach to life. Hence, we just make up rights as we go along and give priority to whatever right happens to coincide with our self-interest.
Don’t believe me? Well look at the big picture of where rights discourse, which is now the orthodox moral currency across the world, has got us. Approximately 30,000 people die daily of starvation, while much of the Western world is getting fat because it has too much food. Hunger is not a resource problem, it is simply a distribution issue. There is enough grain alone produced in the world to make every person fat.
Logically, the only reason that we can sleep comfortably despite this incalcuable preventable human suffering is that we accept that our right to keep our excess food outweighs the right to life of people that are dying of starvation and dehydration.
This indecent assumption can only be debunked if we abandon the notion of rights as the mainstay of moral discourse and make consequences the main moral building blocks. What matters most is maximizing flourishing, not adding to the ever increasing catalogue of rights, which can only be enjoyed by many people at the conversation level.
As far as human flourishing is concerned, if you want to know what interests are important the answer is simple. It is a matter of biology and sociology, not misguided social and legal engineering. To attain any degree of flourishing we need the right to life, physical integrity, liberty, food and water, shelter, property and access to good health care and education. After that it is time to speak of responsibilities and the common good.
We don’t need a bill of rights for this, just a government that understands some fundamentals about the human condition. Hopefully during this term it will spend more time investing in our water and electricity capacity than promoting illogical and irrelevant ideals.
A version of this was published in The Age (Melbourne) 18 January 2007.