What is a ‘classical liberal’ approach to human rights?
ced that he will take a “classical liberal” approach to human
rights. There is a fair degree of confusion about what this means.
Classical liberalism…
Federal attorney-general George Brandis wants to champion a
‘classical liberal’ approach to human rights, but what does this
actually mean? AAP/Daniel Munoz
Tim Wilson, Australia’s Human Rights Commissioner, has announced that he will take a “classical liberal” approach to human rights. There is a fair degree of confusion about what this means. Classical liberalism is not a coherent body of political philosophy.
However, in relation to human rights, there are three key ideas that
most classical liberals subscribe to. The first is the idea that all people are born with rights, which
they hold simply because they are human. This is the idea that underpins Article 1 of the Universal Declaration of Human Rights:
All human beings are born free and equal in dignity and
rights. They are endowed with reason and conscience and should act
towards one another in a spirit of brotherhood.
Not everyone shares this belief. Many people believe that rights are
simply entitlements granted by the state and held only by citizens. But
for classical liberals, rights are much more than this. They are
universal (held by everyone) and inalienable (they continue to exist
regardless of whether or not governments recognise them).
The second idea concerns what human rights actually are. Classical
liberals believe that the list of genuine human rights is quite short.
It is comprised primarily of those things that are necessary to preserve
life and individual liberty.
This list includes the right to be free from torture, slavery,
arbitrary arrest or detention. Freedom of association and freedom of
speech are also seen as legitimate human rights. But other rights,
particularly economic and social rights, are viewed as mere aspirations.
Thirdly, classical liberals believe that the role of the state in
fulfilling or protecting human rights should be very limited. States
should do only what is necessary to protect life and property.
Classical liberals believe in a minimal state – as political philosopher Robert Nozick puts it, a “night watchman” state – that does not interfere with the privacy of citizens and their freedom to live, work and be educated in any way they see fit.
Wilson has alluded to all of these ideas in public statements. Like attorney-general George Brandis, Wilson has argued
in favour of focusing the attention of the Australian Human Rights
Commission on the rights championed by classical liberals, particularly
the right to free speech.
Wilson has talked about the problems that occur when certain rights
(such as the right not to be discriminated against) collide with other
rights (such as the right to freedom of association). Like Brandis,
Wilson has criticised the Australian Human Rights Commission for its
emphasis on anti-discrimination.
But there are several reasons why a classical liberal approach to
human rights does not necessarily reflect the needs and aspirations of
contemporary Australian society.
First, the philosophical foundation for the classical liberal idea of human rights is very shaky, as argued by the likes of philosopher Joseph Raz. Historically, classical liberals view rights as bestowed by God or derived from some essential human essence.
But many Australians seem to take a more pragmatic view of human rights, as noted
by Aboriginal and Torres Strait Islander Commissioner Mick Gooda.
Rights are the important interests and values that democracies have
decided to protect. Far from making rights less important, this makes
them more so.
Community consultations
show that many Australians are also more ambitious than many classical
liberals about what these rights should consist of. Brandis has said
that freedom is the core human right without which nothing else is
possible. But food, work, education and social security are also
important. Rights are inter-related and inter-dependent. It is a mistake to think that something like a right to adequate health care is too vague to be an enforceable right.
Human Rights Commissioner Tim Wilson has criticised the government’s policy of detaining asylum seeker children. AAP
Click to enlarge
Finally, Australians seem to aspire to more than a society where
individuals are just left alone to pursue their own interests and where
the best a government can do is prevent individuals from being
arbitrarily deprived of life or property.
For example, ensuring that certain groups of people are not
discriminated against is a central part of an equal society. As Brandis
points out, since its establishment in 1986, the Australian Human Rights
Commission has spent much of its time advancing the idea in Article 2 of the Universal Declaration of Human Rights, which reads:
Everyone is entitled to all the rights and freedoms set
forth in this Declaration, without distinction of any kind, such as
race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.
This is hard, slow work, done on a case-by-case basis and through
public education and training. It certainly lacks the glamour of the
classical liberal rhetoric around liberty and freedom, but it has been a
vital part of achieving a fairer society and a better life for millions
of Australians.
So far, Wilson has not been at his most convincing championing rights
of privacy or arguing for more free speech. Where his views have
resonated is on subjects such as children in immigration detention.
On this issue, Wilson has simply said that he doesn’t think it is
right. This is the sort of visceral response shared by most Australians.
In addition to his gut feeling that imprisoning children is wrong, as
a classical liberal, Wilson should find the government’s entire asylum
seeker policy deeply troubling. What the government is doing is
violating the rights of the few (asylum seekers) in the name of
achieving a greater good for the many (preventing deaths at sea and
protecting Australia’s sovereignty).
To a classical liberal, this sort of utilitarian approach to rights
should never be acceptable. Wilson’s intervention on this issue will be
important.
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