Against my better judgement I've been reading up on Dale Farm. Against my better judgement because it sounds like, and turns out to be, the kind of rank stupidity that just gives me a headache. At issue is a small part of the land, those living there have no planning permission to build the houses that they have built. Various groups have claimed that the law as it stands should not be enforced against these people because they are part of a particular ethnic group. This has got me thinking about how annoying are a lot of public supporters of human rights. And how damaging to the rights they claim (and ought) to be supporting. There's a deep confusion about the extent and nature of human rights.
Just to get it out the way, planning laws in general are stupid. If you want to help get the UK out of recession then build baby build. The temptation to NIMBYism is too strong and must be resisted in law if we are going to build half the buildings you need to run a proper country. But that's beyond the scope of this.
We have a group of people who have, by universal admission, broken the law. The authorities are responding with punitive action according to law. And they have been attacked by many human rights groups. I find this deeply worrying. Firstly because the human rights these groups are arguing for include many things that I would regard as not fundamental and indeed positively harmful. Secondly, to argue for this, to be obviously and totally on the wrong side (legally and ethically) of the argument is not "impassioned defence of human rights no matter how unpopular". It is re-enforcing the idea of "Daily Mail human rights", obligations on government to do the wrong thing because of international pressure. It's not just a matter of doing the wrong thing in this case, it's destroying the credibility of real and important freedoms.
Remember my framework. I'm a utilitarian, governments are there to make people happier against their will (because their long and short term interests or their personal interests and the total interest are not the same). (Forcing people to play cooperate on the prisoner's dilemma). I'm a liberal (all individual choices should be legal if it's not scientifically clear that it is harmful) because we dont know what makes people happy, this ignorance means we should be scared of the negative unintended consequences of bad law.
This being said, what are liberal human rights, why are they a good thing?
What I mean when I talk about and defend human rights are rights of a very precise type. Each is of the form:
Why am I restricting myself to things like this? Why not impose positive rights? Things of the form:
But stronger than this is the reason why judicial activism in general is a bad idea. Because getting someone other than the government to make a law is a bad idea. We select governments to be good at law making. Someone else then, judges in particular, we have no reason to suspect of being good at law making. In fact in many countries the judges have, by the nature of their appointment, a bias, towards one department of government and towards conservatism. (Any strong supporters of positive rights, imagine that you gave Justice Scalia the right to draft any law he liked to defend these rights).
But any idiot can say "no". You dont need to assume that judges (or whatever other body defends such rights) are good at writing law for them to be able to detect that this law of that type and say "this section of this law is not valid".
So then, why do we want such rights, and how do we work out which types of law to use?
To me, rights are the imposition on government of a kind of Hippocratic oath, "first do no harm". If the government does nothing at all that's ok so long as they haven't positively made anything worse. So the types of law should be those that we know to make things worse and that governments have no legitimate reason to deploy.
So an obvious rights could be: "laws that result in people being tortured", "laws that discriminate government service based on factors that dont relate to the service provided", "laws attacking peaceful protest against the government" etc.
How to decide which though? My decision (sadly) isn't good enough. A council of respected men isn't good enough. Winning a war isn't good enough. You need the combination of a council of wise men and persuasive argument and a popular referendum. Without people who have the job of sitting down and thinking clearly you will get something misconceived (why we have representative democracy), without public support you will sooner or later get a repeal or a revolution. Without public consultation and involvement you will get something irrelevant to the society and government.
Enough scene setting. Back to Dale Farm.
Countless representatives of Human Rights (from the UN, EU and Amnesty amongst others), have given their view. They have given some variation on this:
The right to adequate housing is very very hard to universalise even by the standards of positive rights. Most governments most of the time and all governments some of the time just do not have the resources to build state housing for the whole population. It just cannot be done.
It is also not clear to me that "cultural suitability" is any kind of consistent or sane restriction. As a rule, we should never respect people cultures, because there's always a crazy culture that will make impossible demands. What if I'm an anarchist nut and I wont live in a house built by a government? That makes the right impossible to fulfil.
This "right" is perfectly nice aspiration. Governments that are bad at it should be voted out all other things equal. But it is only one of the demands on public funds. To set it apart as obligatory on governments is foolish.
The right to be protected from forced evictions is exactly the statement that no property rights exist. Yes people should be forcefully evicted from houses that are not theirs, or that they have built illegally. Obviously. Yes it must be done non-violently if possible, as with all police action. It must be done by due process of law. But unless you want to claim that everyone has the right to stay in any house they like regardless this right is a nonsense on the face of it.
The right to be free from discrimination is the most amusing. This is a negative right of exactly the kind I called for. I unambiguously support banning any laws or government actions that discriminate. This is why I think in this case there should not be discriminable, and that the law as it stands should be applied. If anyone wants to claim that non-travellers would have been granted the required planning permission had they gone through the same process please leave a comment. But so far I have not heard this claim. If it is true it must be shouted from the rooftops, this eviction would be ipso facto an act of discrimination. But that's not what I read. What I read is "the government should not apply the law because the people in the case are from a minority". This is exactly the opposite statement. Non-discrimination doesn't mean being on the side of the minority, it means non-discrimination.
And before we go in for second-level effects on the public conciousness and a background of anti-traveller feeling lets think. Most people in this country get their opinions indirectly from tabloids. What do you think is going to help ethnic tensions: "minority group treated the same as everyone else" or "minority group given special treatment you dont get"? I know which one inflames my prejudices.
So, the judgement in this case is wrong because of an over-broad concept of human rights. But that's no so terrible is it?
Yes, yes it is. Remember the Daily Mail.This story has been portrayed very clearly by them as yet another case of evil human rights. And you know what, the Daily Mail is largely right. Let us consider the class of what we may call "Daily Mail human rights":
Just to get it out the way, planning laws in general are stupid. If you want to help get the UK out of recession then build baby build. The temptation to NIMBYism is too strong and must be resisted in law if we are going to build half the buildings you need to run a proper country. But that's beyond the scope of this.
We have a group of people who have, by universal admission, broken the law. The authorities are responding with punitive action according to law. And they have been attacked by many human rights groups. I find this deeply worrying. Firstly because the human rights these groups are arguing for include many things that I would regard as not fundamental and indeed positively harmful. Secondly, to argue for this, to be obviously and totally on the wrong side (legally and ethically) of the argument is not "impassioned defence of human rights no matter how unpopular". It is re-enforcing the idea of "Daily Mail human rights", obligations on government to do the wrong thing because of international pressure. It's not just a matter of doing the wrong thing in this case, it's destroying the credibility of real and important freedoms.
Remember my framework. I'm a utilitarian, governments are there to make people happier against their will (because their long and short term interests or their personal interests and the total interest are not the same). (Forcing people to play cooperate on the prisoner's dilemma). I'm a liberal (all individual choices should be legal if it's not scientifically clear that it is harmful) because we dont know what makes people happy, this ignorance means we should be scared of the negative unintended consequences of bad law.
This being said, what are liberal human rights, why are they a good thing?
What I mean when I talk about and defend human rights are rights of a very precise type. Each is of the form:
The government shall make no law of this type, if it does that law is not valid, if any agents of the government act according to rules of this type they may be sued by the people they affect.The key question is what values we should substitute in for "this type".
Why am I restricting myself to things like this? Why not impose positive rights? Things of the form:
The government shall make a law of this kind, if they do not then such laws should be assumed to exist.I assume it is stupid to oblige someone to do something they cannot. If we accidentally substitute in "build a golden ladder to the moon" for "this kind" in both cases the first is not a problem, the second is likely to be both an expensive disaster and then later ignored.
But stronger than this is the reason why judicial activism in general is a bad idea. Because getting someone other than the government to make a law is a bad idea. We select governments to be good at law making. Someone else then, judges in particular, we have no reason to suspect of being good at law making. In fact in many countries the judges have, by the nature of their appointment, a bias, towards one department of government and towards conservatism. (Any strong supporters of positive rights, imagine that you gave Justice Scalia the right to draft any law he liked to defend these rights).
But any idiot can say "no". You dont need to assume that judges (or whatever other body defends such rights) are good at writing law for them to be able to detect that this law of that type and say "this section of this law is not valid".
So then, why do we want such rights, and how do we work out which types of law to use?
To me, rights are the imposition on government of a kind of Hippocratic oath, "first do no harm". If the government does nothing at all that's ok so long as they haven't positively made anything worse. So the types of law should be those that we know to make things worse and that governments have no legitimate reason to deploy.
So an obvious rights could be: "laws that result in people being tortured", "laws that discriminate government service based on factors that dont relate to the service provided", "laws attacking peaceful protest against the government" etc.
How to decide which though? My decision (sadly) isn't good enough. A council of respected men isn't good enough. Winning a war isn't good enough. You need the combination of a council of wise men and persuasive argument and a popular referendum. Without people who have the job of sitting down and thinking clearly you will get something misconceived (why we have representative democracy), without public support you will sooner or later get a repeal or a revolution. Without public consultation and involvement you will get something irrelevant to the society and government.
Enough scene setting. Back to Dale Farm.
Countless representatives of Human Rights (from the UN, EU and Amnesty amongst others), have given their view. They have given some variation on this:
Professor Yves Cabannes, chair of the UN Advisory Group on Forced Evictions, says there are three pieces of international rights legislation, to which Britain is a signatory, which have been breached by Basildon council in the instance of Dale Farm and by the government across the UK. They are:These rights, and the laws they are based on, seem to me either insane or misapplied. Taken one at a time:
• The right to adequate housing which is culturally suitable
• The right to be protected from forced evictions
• The right of ethnic minorities to be protected from discrimination.
The right to adequate housing is very very hard to universalise even by the standards of positive rights. Most governments most of the time and all governments some of the time just do not have the resources to build state housing for the whole population. It just cannot be done.
It is also not clear to me that "cultural suitability" is any kind of consistent or sane restriction. As a rule, we should never respect people cultures, because there's always a crazy culture that will make impossible demands. What if I'm an anarchist nut and I wont live in a house built by a government? That makes the right impossible to fulfil.
This "right" is perfectly nice aspiration. Governments that are bad at it should be voted out all other things equal. But it is only one of the demands on public funds. To set it apart as obligatory on governments is foolish.
The right to be protected from forced evictions is exactly the statement that no property rights exist. Yes people should be forcefully evicted from houses that are not theirs, or that they have built illegally. Obviously. Yes it must be done non-violently if possible, as with all police action. It must be done by due process of law. But unless you want to claim that everyone has the right to stay in any house they like regardless this right is a nonsense on the face of it.
The right to be free from discrimination is the most amusing. This is a negative right of exactly the kind I called for. I unambiguously support banning any laws or government actions that discriminate. This is why I think in this case there should not be discriminable, and that the law as it stands should be applied. If anyone wants to claim that non-travellers would have been granted the required planning permission had they gone through the same process please leave a comment. But so far I have not heard this claim. If it is true it must be shouted from the rooftops, this eviction would be ipso facto an act of discrimination. But that's not what I read. What I read is "the government should not apply the law because the people in the case are from a minority". This is exactly the opposite statement. Non-discrimination doesn't mean being on the side of the minority, it means non-discrimination.
And before we go in for second-level effects on the public conciousness and a background of anti-traveller feeling lets think. Most people in this country get their opinions indirectly from tabloids. What do you think is going to help ethnic tensions: "minority group treated the same as everyone else" or "minority group given special treatment you dont get"? I know which one inflames my prejudices.
So, the judgement in this case is wrong because of an over-broad concept of human rights. But that's no so terrible is it?
Yes, yes it is. Remember the Daily Mail.This story has been portrayed very clearly by them as yet another case of evil human rights. And you know what, the Daily Mail is largely right. Let us consider the class of what we may call "Daily Mail human rights":
- All minorities must be treated preferentially to everyone else.
- Those who practice barbaric minority practices must be protected.
- Those who practice non-harmful majority practices that are annoy minorities must be punished harshly.
- Criminals must be treated better than non-criminals.
If this is what we are talking about when we say "human rights", (and most of the time the Daily Mail does), then opposition to them is good. I would happily march on parliament for the repeal of these rights. These are terrible, immoral things. The Daily Mail is right to oppose human rights.
This is a disaster. Because of this totally justified and correct opposition to "Daily Mail human rights" other things are put in danger. Anything with "human rights" in the name has now lost all credibility. No matter that the Human Rights Act (which I dont particularly like, it's too weak, but that's for another time) does not in fact give a legal basis for Daily Mail rights. The words are there, thus there is a campaign against it. The real an important failings of the European Court of Human Rights aside, the key failing is that it has allowed itself to become associated with Daily Mail Rights. It has doomed itself to destruction because people dont know what it is actually trying to do.
Is this really a problem with Human Rights organisations?
Yes.
I respect the mission and history of Amnesty International more than that of just about any organisation, but it is putting that mission in danger at the moment. The name and reputation of Amnesty is incredibly valuable. If Amnesty says that a person is guilty of no crime I need to be able to be sure that's the case based on their word, otherwise I cannot join their letter writing campaign. These campaigns are hugely powerful and valuable. If Amnesty looses this credibility we have put political prisoners in mortal danger. If Amnesty clearly puts itself on the unpopular but correct side of argument it can swing public opinion in important ways. If Amnesty carelessly lets itself get on the unpopular and incorrect side too many arguments the result is clear. Less respect for Amnesty as a force for good, less letters in campaigns, more people being tortured and killed.
I understand that the bias towards socialism amongst the kind of people who join human rights organisations gives an idea of the power and benefit of government that I dont share. This excuses the idea of positive rights most of the time. But rights organisations need to be really careful. Dont confuse your politics with things that you need to do to stop people being killed. Dont confuse public policy you disagree with with active harm. And most importantly, dont abuse your position as conscience of the people. It will bite you on the ass.
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I don't want to dispute your overall thesis concerning tactical considerations for human rights organisations. However, I do want to dispute parts of what you said.
ReplyDeleteWe select governments to be good at law making.
Unfortunately, this is false to fact. We select governments to be good at winning elections. Officially, I suppose there is some higher level belief that the electorate will force winning elections to be identified with "good governance" from the legislature. I do not think that belief is well justified.
It is an unfortunate corollary that governments would rather do the politically expedient thing than the optimal thing. Look at climate policy, transport policy, immigration policy, drug policy or the content of the party conferences. Look at the US for a more extremal case.
I also want to object slightly to your form of legitimate human rights laws: "Laws of type foo are a priori invalid". This is too narrow, in my view. It explicitly enumerates a series of rights that you have, and the default assumption is that a law passed is legitimate unless explicitly struck down.
There are two foundational objections, one philosophical and one practical. The practical objection is that unless your legislature is enlightened precisely when a new domain of potential laws are considered, you will have illegitimate laws. Historically, legislatures tend not to be particularly enlightened. Nor do the populace as a whole, in the short term.
The more philosophical objection is that you are enumerating a specific set of this that do not legitimise violence (disclosure; I'm a long way down the classicaly liberal path). The implicit default is that it is legitimate; a priori, the law "Wearing a fez is a capital crime" is legitimate. I think that is wrong, in a strong normative sense. As I see it, the correct formulation of human rights laws is: "Unless the law falls into category foo, it is illegitimate". I would also note that combating akrasia or enforcing PD cooperation does not imply monopolistic control of legitimate violence in a geographical area, but that's a fairly widespead conflation.
I also think don't think that those opposing the eviction are interested in legal theories. To me, this seems like a signalling issue, where to evict the residents is being seen as an attack upon a larger group. Objecting to the percieved attack is then the basis on which a legal theory is sought.
Sorry, that line was inaccurate. For "We select governments to be good at law making." please instead read "As far as we can we design constitutions such that the government so selected is systematically good at law making." The point about judges still holds.
ReplyDeleteYour second point is exactly the argument over the inclusion of a Bill of Rights in the US Constitution. To me the Hamiltonian "that which is not permitted is forbidden" idea is good, but insufficient. Yes it is good to have limits on what categories of laws are permissible, but in practice it wont work.
In practice a clever legislature can argue almost anything as within the jurisdiction you set it, see "congress has power to mandate individuals to take health insurance because it can regulate inter-state trade". (Sorry for the endless US examples, but it's the case I know best and the simplest to understand). And when you have this necessarily wide scope you need to start crossing out things that you've unintentionally let into the ring. Both the Hamiltonian and the Madisonian are necessary. I dont call the Hamiltonian class of exceptions human rights for purely semantic reasons, there's no real argument there.
As for combating akrasia != monopoly on legitimate violence. Yes, the one is the aim, the other is the myth used to support the means. "Legitimacy" doesn't seem to me an idea that's terribly sound. As a legal fiction to distinguish the minimal necessary violence from the rest it does make some sense however. ... Although. Let me have a think about the Icelandic Commonwealth before I commit myself to a monopoly being necessary.
In practice almost all political questions are signalling issues. But where I have to trust the organisation signalling to signal honestly and ethically I find how they choose to signal very worrying.