In part 1 I proposed as a definition:
A right is entirely a social construct. .. I take a right to be an entitlement. It is a possession of status within some specified human society which gives its owner a privilege to act or not act in some specific manner, and/or a claim on other entities within the relevant society to act or not act in some specified manner. …… Rights can not – and do not – exist except when vested by a competent grant-giver in a qualified recipient.
A unilateral proclamation or declaration does not create a right. A human right can therefore only be created between two human parties, where the parties are identified and competent to fulfill their obligations (see part 2). For a right to truly exist, the behaviour of both parties in fulfilling the social contract is crucial. Any right which is an entitlement of one party is utterly dependant upon the behaviour of other involved parties. Without an acknowledged and accepted obligation of the other parties, no right exists. It is meaningless – and entirely insufficient – for third parties to declare that relevant other parties should or ought to have such obligations. A fundamental tenet of all valid contracts is that the parties involved commit to their obligations. It is not valid or acceptable for any party to create commitments for other parties. A contract can only be valid if the relevant parties freely enter into and commit to their own obligations.
Purported rights do not create or overcome behaviour. Actual behaviour creates real rights.
A true right can only exist if a valid social contract between a qualified party on the one hand and a competent party on the other, is in force.
The UN’s “Universal Declaration of Human Rights” (UDHR) was a knee-jerk reaction to the horrors of the Second World War and the state of the world immediately afterwards. Certainly intentions were good. But it was more a listing of pious hopes than any kind of a contract which could be a tool to change human behaviour. The UDHR was a document born of the Holocaust and a desire that such grotesque repression would never happen again. It was intended to be a compass for human behaviour. It has been the wrong tool at the wrong time.
It is my contention that the UDHR has not only failed to be an instrument for “improving” human behaviour, it has also legitimised the idea that purported rights are “free” and not linked to any qualifications or duties or standards of behaviour.
In the 70 years since it was formulated, the UDHR has been used as the “bible” for human rights legislation. But the state of humankind today in respect of the real rights accorded to an individual by surrounding society is in most cases no better than in 1948. In many instances it is very much worse. Human behaviour is not any better now, than it was then. It is my contention that the UDHR has done more harm than good. It frees one party (“everyone”) from any obligations or duties or qualifications in the ownership of an entitlement. The other party which must grant and guarantee the right is never defined. As a “contract document” it is not fit for purpose. It has been counterproductive to its own goals because its very lack of rigour has given mere wishes and desires the false status of rights. This in turn has led to the dilution of the necessary requirements for real rights to exist. It has led us down the wrong path. It has provided a very shaky foundation for the legislation that follows which – not surprisingly – is then poor legislation.
Since it was formulated in 1948 and ratified in 1951, there have been more deaths due to recognised “genocides” than during the Holocaust. Religious fanaticism has increased. Freedom of belief has become the freedom to indoctrinate. Barbarism and terror is the new normal for an extremist. The nuclear family has been stripped of its dignity in many parts of the world. To not offend carries more weight than the voicing of true opinion. Mere accusations (especially on social media) now contain a presumption of guilt. Depravity is glorified in the name of “human rights”. Anti-social behaviour is “protected” by purported rights. Having signed up to the UDHR does not stop nations from cruel and unusual treatment of political opponents. States confiscate more of their citizens’ property than ever before under the guise of taxation. The depths to which human behaviour sinks (whether by Mexican drug cartels or by ISIS) has not changed since the Nazi atrocities.
The UDHR fails as a contract document because
- it does not address what constitutes a right, and
- it does not define the parties to the contract, and
- it does not define the obligations and liabilities of the parties, and
- it states that the subject of the contract (human rights) are universal, and therefore
- contains no commitment from the involved parties
The UDHR ends up being a good-intentioned but banal collection of maudlin platitudes. The entire content can just as well be summarised as Jack Nicholson’s character puts it in Mars Attacks, “Why can’t we all just get along?”. The UDHR was a document of its time. It had the best of intentions but it does not stand the test of time. If the goal was to improve human behaviour, it has led the world down the wrong path.
There is one fundamental, insidious, and corrosive flaw in the UDHR. It is a fatal flaw. This is the legitimising of the view that human rights are “free” and universal and unconnected to duties and obligations and standards of behaviour. It is this claim, that every individual, regardless of qualifications or duties, has entitlements which must be honoured by the rest of humanity without any obligations in return, which is the fatal flaw. Universality requires that the purported rights be “free” and that is why – as declared – they have no value in the real world. The perceived and the true value of any right depends upon the parties involved. Different rights have different values not only to the right-holder but also to the party granting and guaranteeing a right. Rights have a value for the right-holder and rights have costs for the guarantor. These values and costs are profoundly impacted by human behaviour.
There is also a philosophic failure in the UDHR. This is the adoption of the fantasy that human behaviour can be changed by proclamation and declarations in a top-down approach. There is an arrogance – albeit good-intentioned – in a text written by an elite purporting to represent all of mankind. Declaration of purported rights do not create behaviour. It is behaviour which creates and allows the manifestation of real rights. Human behaviour must of necessity begin with the individual, evolve locally and nationally and build up to the international. A top-down approach as in the UDHR is conceptually and fundamentally in error. If human rights are to be real they must first be created and ensured and exercised locally. They must first be rights which are clearly defined (not amorphous as in the UDHR) and specific (not universal and valueless) such that their ownership is clear and their exercise can, in fact, be guaranteed. Implementation at the local level can then be allowed and encouraged to grow to become global to the extent that shared values produce similar behaviour. Universal, amorphous rights as envisaged in the UDHR are necessarily non-existent and unenforceable. If human rights exist at all they start with my behaviour and yours, not with a sanctimonious declaration from the UN. Freedom of speech starts with what I am willing to allow my neighbour to say without triggering any opposing behaviour. If he slanders me then I find the cost of guaranteeing his free speech too much to bear and do what I can to silence him. Every right has a value and a cost. Behaviour creates the rights that are exercised. The rule of law has a part to play – but no system of law can guarantee compliance. In any event it can only begin with laws created at the local or national level to suit local or national rights which themselves have to be created and guaranteed. Global laws imposed on local societies is the cart before the horse.
Human rights are not “free”. They have value to the right-holder and a cost for the guarantor. And if they were “free” – as universality implies – then they have no value. It is by insisting on universality that the connection between rights and behaviour is lost. I suppose it really boils down to whether it is more important to make sanctimonious proclamations about what “human rights” ought to be, or whether it is more important to change human behaviour so that “human rights” are exercised and actually delivered.
The UDHR is written in the form of a contract with seven “whereas” clauses in the preamble, a proclamation clause and thirty Articles. But it is no treaty and no contract. It is just a declaration. As a contract document it is not fit for purpose since the parties to the contract, their obligations and liabilities are all undefined. Even the subject of the declaration – “human rights” are undefined. To its credit it has served as the basis of much legislation. But it has failed in its purpose of improving human behaviour – if that in fact was its purpose. It undermines itself by declaring human rights to be free and universal (and therefore of no real value).
As the UDHR is written even a divine power, if one existed, could not guarantee the purported rights
This is a commentary on why I find the UDHR not fit for purpose as a contract document.
The UDHR is not fit for purpose as a contract document because
- The parties to the contract are undefined.
- Neither are the concepts of “rights” and “dignity”.
- In a contract document the whereas clauses in the preamble are introductory statements of fact that mean “that being the case.” In the UDHR the preamble and its whereas clauses are, at best, ungrounded statements, and at worst, statements of religious belief.
Tags: Human rights
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