A Brief History of Conservatism (VI): Rights

Conservatives have traditionally framed the protection of rights alongside the requirements of responsibility and duty; after all, it makes logical sense that your right is my responsibility. Where the liberal and socialist experiments have transgressed this natural logic is over the boundary between what Isaiah Berlin termed ‘negative’ and ‘positive’ liberty. Also, it must be stated early on that for the conservative, any discussion of rights is inherently a political one, and therefore must be understood in the context of the individual-State relationship, not in terms of individual-individual relationships. Conservatives do not reject the concept of rights; to do so would be ignorant of the contribution British thinkers have made, from John Locke through to Berlin. But, as with all things, the conservative will attempt to strike a balance, by finding the limits to such principles. This limit can be found in the Natural Law.

The Natural Law is the concept that any declaration of rights must be universal in their remit. This simple concept is that any ‘right’ must be intuitively appealing in any spatio-temporal setting. For example, we (as in human beings) believe that it is wrong to kill. We do not believe “it is wrong to kill but…”, but that it is wrong to kill, full stop. It is wrong to kill anyone, regardless of the time or location. Nathan Schleuter has most lucidly expressed this issue in his exchange with Nikolai Wenzel[1], though he makes the very important point that our understanding of the Natural Law may change with time; Aristotle believed, for example, in his appeal to the Natural Law that women and slaves were permanently subservient to men because of their “limited capacity for rationality”[2], but we know now how wrong that was. This is part of the reason conservatives prefer the Natural Law to a rational prescription of rights: the Natural Law is discovered; the rational prescription is constructed. It would be based, not on universal truth, but on scientific deduction of human behaviour, which all too often falls prey to relativistic understandings of quality of life (consider, for example, the United Nations’ claim that all human beings have a right to the internet[3]). The fact that the EU is making such a declaration based on the experience of Western nations – and thus ignoring the majority of mankind – obscures the difference between a natural right, and a social construction.

Furthermore, to respect such a natural right requires inaction. Scruton makes the point extraordinarily well that those Natural Law rights derived from universal truths place a burden on others around us to respect our rights, yet the difference between a legitimate natural right and a constructed ‘claim’ right is that a natural right is respected through the inaction of those around us, and it therefore makes it easy for us to respect others’ rights[4]. For example, your right to life demands that I simply do not kill you. However, your “right to the internet” now places a burden on me to act in such a way that I provide you with the internet, otherwise I disrespect your “human rights” through my inaction. But this burden has limited my own liberty; I now must spend more time providing you with something (if indeed I have it), therefore limiting my own capacity for action. But the threat is more sinister; as I mention in my discussion on free speech, what used to be considered a “right” was akin to a “shield” between the State and the individual, thus providing us with reasonable cause for resisting the power of the State where it impinges on our freedom-as-rights. Where the “positive rights” turn leads us is down the route of greater State power; take again the example of the internet. It is extremely unlikely that I could provide you with the internet by myself. In fact, not even companies alone can; the origins of the internet can be found in 1950s and 1960s “packet-switched networks” that were basically intended to provide wireless data-storage for government ministries (private enterprise of course played a role in improving the basic package, but the point remains that it was a government endeavour). So, only the State has the pure power to provide you with the Internet; this calls the State further and further into our lives, by demanding that it respects our “human rights” by providing us with more and more.

For the state to become the guarantor of rights transforms ‘rights’ from a naturally-occurring phenomena,, reinforced by the virtue of civil association, to something conferred on citizens conditional on their obedience to the law. Granted, conservatives demand obedience to the law, but obedience is considered conditional on the government’s ability to respect the rights of individuals. But when those rights originate from the very government demanded to respect them, the relationship between the government and the individual changes irrevocably into one in which the individual possesses no power, and the government possesses all the power.

So the discussion on rights relies on the requirement of inaction on behalf of the government for the right to be respected, and that the right must be universally declarable. However, the question of war poses a serious threat to discussions on rights. After all, if rights are applicable in all places and at all times, how could we ever justify war? I will not delve into theories of Just War; what I will take issue with, is the concept of Human Rights. After all, properly understood, rights are applicable to humans without the prefix of “human” anyway, therefore such a prefix unnecessarily complicates issues. It brings into the discussion questions of animal rights (a concept I personally do not agree with), while extending the umbrella of ‘rights’ out ever-further until anything can be considered a ‘human right’. Carl Schmitt noted the serious error with this in his discussion on the “concept of the political” by remarking that, once one side of a conflict declares itself to be acting on behalf of “humanity”, it implicitly negates the humanity of its opponent, “making them monstrous”, and thus legitimises not only their defeat, but their total eradication from the world[5]. No longer is there a limit to war; only the complete and utter eradication of the enemy can be accepted, and no peace can be given to them, even upon their surrender, as they are no longer “human”.

Furthermore, Schmitt’s theory rested on the traditionally (ironically) liberal notion that governments have an obligation only to those over whom they govern. To suggest the British government is obliged to protect the citizens of France is absurd; they have no relationship at all. Consequently, in the instance of war, the only obligation a government has is to its own people; the rights it is asked to recognise and respect can only be recognised in its own people. Of course, citizenship is not an airtight vessel, as people come and go. But governments should not be concerned with the rights of ‘potential citizens’, only ‘real’ citizens.

Conservatives therefore view rights as a method to judge the legitimacy of State action; intended as guarantors on the limit of State behaviour, rights can be found in the (discovered) Natural Law that rise like a shield between us, and government. After all, some often accuse conservatives of statism because of our respect for institutions, but the truth is stark in contrast, that we see the existence of rights as a protection from illegitimate State behaviour. But rights must also be limited, as they are products of the Natural Law, not ‘claim rights’ that impose a duty of action on those around us to obey.

 

 

This article is the sixth in the ‘A Brief History of Conservatism’ series by Jake Scott. The topic for the next article shall be ‘Freedom’.

[1] See Selfish Libertrians and Socialist Conservatives?

[2] See Aristotle’s The Politics

[3] http://www.businessinsider.com/un-says-internet-access-is-a-human-right-2016-7?IR=T

[4] See Scruton’s How to be a conservative, especially chapter six

[5] See Schmitt’s The Concept of the Political

Leave a Reply

Your email address will not be published. Required fields are marked *