The Limits of Rights and the Ethics of Self-Limitation
Wiktor Osiatynski, a long-time friend of NPQ, lives in Warsaw. He teaches human rights at the Central European University in Budapest and was a member of the commission which wrote Poland's post-Cold War constitution. In this essay, excerpted from a longer lecture, he returns to the basics to talk about the limits of rights and ethics of self-limitation.
Warsaw — It is no surprise that when we have a particularly useful tool we hope that it will solve all our problems. Just as science searches for the key laws of the universe, we would like to have a key that would open every door to what we perceive as happiness or a better life. These days, it seems, rights are often treated as such a key. This has led to the overapplication or misapplication of the language of rights, which has consequences for democratic politics and a coherent society as well as for the individual search of meaning in life. Indeed, inflating the rhetoric of rights can even weaken democracy itself by relegating what should be open debate over goals of the "good life" to procedural litigation instead of politics.
Rights vs. democratic politics | The missapplication of rights in politics has been analyzed by Mary Ann Glendon. She emphasizes that rights, when treated as trumps, limit democracy and public discussion about values and resources. The invocation of rights limits debate and compromise. A rightholder does not have to listen to the arguments of his adversaries, does not have to compromise; when he proves his rights, he wins, and as a winner he takes all.
Glendon blames the "revolution of rights" for the atrophy of democratic politics in the United States. "Gradually," she wrote in her 1991 book, Rights Talk: The Impoverishment of Political Discourse, "the courts removed a variety of issues from legislative and local control and accorded broad new scope to many constitutional rights related to personal liberty." In her view, the rights revolution has contributed to the demise of vital local governments and political parties and to the disdain for politics so prevalent in the US today. "To many activists," Glendon concluded, "it seemed more efficient, as well as more rewarding, to devote one's time and efforts to litigation that could yield total victory, than to put in long hours at political organizing where the most one can hope to gain is, typically, a compromise."
Glendon does not propose to dispose of the notion of rights, of course. She agrees that rights "have given minorities a way to articulate claims that majorities often respect, and have assisted the weakest members of society in making their voices heard."
Mary Ann Glendon can be perceived as a conservative, though she is an ardent supporter of the Universal Declaration of Human Rights. But even the most liberal advocates of human rights need to seriously consider the complex, and often contradictory, relationship between rights and political process, particularily in a democracy.
The rights of democratic participation belong to basic human rights. Voting, eligibility for office, freedoms of political assembly and association, free speech and even the right to education are indispensable foundations of democracy. On the other hand, it is well known that democracy can pose a threat to individual rights. Democratic majorities can simply put aside the rights of ethnic, national or religious minorities. It can protect selfish interests of the most powerful or act on such "standing passions" as religious fanaticism or ethnic hatred. With the new global wave of democratization, a number of formally democratic governments have appeared that act, in practice, as authoritarian or dictatorial states.
There are two ways of limiting such a threat. One is the constitutional entrenchment of special counter-majoritarian devices, such as judicial review, the protection of a constitution from easy amendment, the separation of powers and checks and balances. The other is a constitutional entrenchment of individual rights that cannot be put aside by parliamentary legislation and enforcement mechanisms by virtue of which individuals and minorities can protect themselves and defend their rights. Constitutional rights protect not merely from abuses by the executive power; they also protect individuals and minorities from the changing will of the legislature.
This makes constitutional rights so attractive that there is constant pressure on the framers of a constitution to entrench in a constitution not only the rights but also the interests of particular groups in society. Such pressure has been particularly strong, and often irresistible, during the constitution making in transition countries in the wake of the end of the Cold War.
What is often overlooked, however, is the fact that the very constitutionalization of too many rights limits the scope of democracy by stealing away resources needed for democracy to flourish. Democracy is not just voting but about a publicly open process of setting goals, making choices between values and interests and assigning resources to the implementation of such goals. Constitutions should protect the entry access to public debate and ensure its openness but should not predetermine the outcome of the debate.
In the case of constitutional rights there is nothing to debate; the outcome is already set by a constitution and the two branches of government (executive and legislature) are obliged to set aside the resources needed to fulfill the rights-based obligations. Thus, even before beginning any debate about policy initiatives, a government has to put aside resources necessary for the fulfillment of constitutional obligations. In this sense, every constitutional right subtracts resources that would be available to allocate based on priorities set by democratic debate and compromise.
This is one of the most important difficulties of democratic constitutionalism. The more rights there are enshrined in a constitution, the less room there is for democracy, for public debate and for compromises in society. Consequently, power is transferred from parliaments to the courts in which constitutional claims are settled.
Therefore, caution is essential when defining what belongs to a constitution and what ought to be a part of the political debate to establish public policy goals. Policies should be set and adjusted through a political process and should not be framed as constitutional rights. Similarly, interests of particular social groups, even the most powerful or numerous—workers, peasants, capitalists, politicians—should be left out of a constitution to be deliberated in democratic political process. Constitutions should be limited to necessary institutions, procedural rules and the most basic rights.
In a slightly different perspective, constitutional rights can be compared to veto power. A rightholder is entitled to say to the majority: "No, you cannot override my right." In most cases this is justified by the basic character of rights: They protect values and resources necessary for the security and dignity of an individual. When they go beyond these limits, however, and protect interests of groups they can disrupt political community; too many veto powers to too many people can disrupt necessary cooperation in pursuit of selfish interests.
Indeed, conservatives claim that rights weaken organic groups in society, such as family or church. Communitarian critics suggest that rights weaken local communities and lead to placing particular interests above common good or even place the rights of the individual above the group.
For communitarians, too exclusive a focus on rights neglects the crucial importance of political trust, on which "free societies vitally depend." That trust is weakened by the fact that the over-litigation of societal discourse limits room for cooperation and compromise. Rights separate citizens from each other.
Rights vs. other values | It was mentioned earlier in this essay that instead of searching for a magic key that would fit all doors we should rather look at a number of instruments that could be used for various spheres of human and social experience. Let us now briefly look at some of these spheres and consider the usefulness of rights and other mechanisms and principles for each of them.
Rights in relations between an individual and the state |
The essential characteristic of the relationship between an individual and the state is the state's ability to use coercion against the individual. Therefore, human rights and constitutional rights apply most directly into this sphere. Rights provide a shield to protect an individual from the abuse of coercive power or from mere intrusion into a realm restricted for personal choices. Claim-rights are to assure each individual access to the state, including access to justice, needed for the sense of personal security. The need for security may also justify some degree of access to state-controlled resources.
The role of rights in the decision-making process within the state is more complex. It is assumed that a democratic society makes most of its decisions—which concern either the establishment of the universally binding rules of conduct or the redistribution of scarce resources—in a political process. An essential element of such process is the interplay of interests, visions of common good, and principles. The debate about these issues should be ongoing for the interests, available resources, visions of common good and even standards of behavior are constantly evolving.
There are, however, some values of such fundamental character that they should be taken beyond and above political process; they should be put above the reach of political process and insulated from the control by a majority. The rights of individuals and minorities are such exceptions. In a well-designed society they are given constitutional protection.
In other cases, though, in or during the search for political solutions of various social problems rights may be less effective than debate and compromises. At times, the language of rights seems to be almost misguiding. One such example is the protection of the environment. Mary Ann Glendon suggests that such attempts are futile. "Many conservationists are coming to recognize that, where environmental issues are concerned, the biblical language of stewardship may be more appropriate than endowing trees with rights, and more conducive to responsible use of resources than vague promise that everyone has a ‘right' to healthy environment."
The role of principles in a constitutional order is a subject of controversy. Traditionally, most constitutions contain fundamental principles of a society, most often in the preambles, sometimes also in the text of constitutional norms. This was relatively simple in a traditional national state where it was easy to determine what citizens have in common rather than how they might differ from each other. In modern pluralist and multicultural societies, however, many principles may divide their members and create a sense of exclusion. Therefore, there are arguments that constitutional norms should not include ultimate principles but, rather, focus on the rules which enable people to co-exist, cooperate and make reasonable expectations against each other regardless of their differences.
Rights in society | Society has to be based not just on rights but also on bonds, mutual responsibilities and duties undertaken by the members of a society. While in a constitutional order there is just one basic duty of the citizens (i.e. to obey the law), in a society, there exists a much richer network of duties imposed by religion and morals, tradition and customs, common standards as well as individual expectations. Society grows on the basis of mutual obligations and shared responsibility for the common good. A sane society is one that manages to inculcate a sense of responsibility as a deeply internalized value for most of its members.
Although no society is—or should be—free from competition and conflicts, there exists more room for compromises in society than in the state. In fact, in a society there can co-exist many different life-styles, ideologies, values and principles without the necessity to look for compromise between them. Moreover, when real compromises are needed, society has at its disposal much more abundant resources than any state. A state deals primarily with limited resources: the appropriation of budgetary reserves to one goal diminishes the pool left for other purposes. A society, by contrast, has at its disposal many unlimited resources ranging from friendship to mutual help, compassion and love.
Rights and the pursuit of happiness | For Thomas Jefferson and co-authors of the Declaration of Independence the pursuit of happiness was one of the three most inalienable rights, as basic as life and liberty. Life experience leads most people to the conclusion that happiness is more than just a right. Its pursuit requires more than liberty.
Of course, it is difficult to give sense and meaning to one's life without rights and freedoms. Without rights a person cannot be an owner of one's own life. For it is the rights and freedoms that delineate the boundaries around a person and give one a space to act as one chooses, to grow, to live according to one's own plan and values.
Rights and freedoms are necessary pre-conditions for our conscious actions and choices but they do not decide about these choices. Rights do not give, by themselves, any sense or meaning to our lives.
Sense and meaning of life are not legal but philosophical and ethical concepts. They deal less with the relations with others and more with one's relation with oneself and, often, with a transcendental being from whom one can seek protection and guidance. Sense can be made of life less from consumption than from self-limitation, self-restraint and commitment. The essential element of commitment is precisely the self-limitation of some of one's own freedom for the benefit of other values that mean more for one's sense of life. It can be family, nation, revolution, friends, God or anything that gives a sense of mission. And it is living up to one's commitment that, quite often, gives people the deepest sense of happiness.
It goes without saying that to be able to make a commitment one needs to be free in the first place. Even the most benevolent ruler cannot make commitments for the ruled. He cannot come and say: "We all know that freedom by itself doesn't give happiness. Therefore, I will restrain your freedom to give meaning to your lives and to make you happy." To his surprise, people will not feel happy; sooner or later some of them will begin to fight for freedom. When they win freedom, they will have to find out what to do with it. They may abuse it, lose it or find a meaningful commitment that makes sense of it all. When they do that, they will leave the realm of law and rights and enter the realm of ethics.
Rights and ethics | Ethics is not about rights. Ethics is primarily about self-restraint and self-limitations. Conversely, rights are not necessarily about ethics. Rights are good for protecting our freedoms and possessions and for claiming what others owe us.
But rights have little to say about sharing and giving, about love, forgiveness and similar principles of personal ethics that are mentioned in the Sermon on the Mount and other sacred texts.
Ethics can exist without rights and freedoms. Ethical systems can be based on duties and limits imposed on a person. Moral restraint can be built on fear of punishment and eternal sanctions. One can even be held responsible for one's acts without rights. A non-free person, a slave, a serf can be held responsible and be punished for his or her acts. But one cannot truly feel responsible for one's acts without rights and freedoms. Without rights and freedoms, without the ability to make significant choices about life, no person can feel or be responsible for her or his own life. Therefore, there can exist no ethics of responsibility without rights and freedoms. (The issue of responsibility was crucial for Catholic philosophers, from Emmanuel Mounier to Jacques Maritain and Karol Wojtyla, who combined the ethics based on commandments and Sermon on the Mount with the concept of human rights.)
It seems that rights can also play a more specific role in ethical systems. First, rights still can be the "fallback" mechanism when ethical norms are inadequate to protect people from abuse and violations by state power. Second, human rights can play an important role as a guide for self-limitations postulated by ethics. For when I adhere to the philosophy of human rights and treat rights seriously, in my own behavior I should respect rights of all human beings, even when they do not observe human rights norms between themselves or in their acts directed toward me. Do unto others as you would have them do unto you.
Ethics go far beyond rights. We may act according to the letter of the law but far below the standards of ethics. As Joel Feinberg has written, "even knowing that one has rights and being prepared to act accordingly are not sufficient (but only necessary) for a fully human and morally satisfactory life. A person who never presses his claims or stands on his rights is servile, but the person who never waives a right, never releases others from their correlative obligations, or never does another a favor when he has a right to refuse to do so is a bloodless moral automaton."
In lieu of a conclusion, a letter to a student.
Let me begin with congratulations that you have completed successfully a course on human rights. I hope you will be able to claim your rights and to respect and protect the rights of others. I also hope that you will be able to distinguish between the situations where your rights should come to the foreground and the ones when they should be kept in the background and used only when necessary. Here are some crude guidelines:
Be aware of your rights—and the mechanisms that may help you exercise them—whenever you face a coercive arm of the state. But as a citizen and a voter, try to keep balance between those interests and desires that should be protected by rights and those that can be compromised in a process of setting public policy goals. Remember that your participation in such compromises, even when it involves some costs on your part, makes the society better. In your relations as a member of society and various social groups, carefully balance your rights with obligations, duties and all other mechanisms that enhance mutual trust and respect among the members of society.
In your seach for meaning and pursuit of happiness, treat your rights and freedoms as the floor on which you can act but from which you may need to spring up to reach toward gods of your choice, toward some values you cherish, toward commitments to others. Short of being a martyr, live a life of healthy self-discipline. Think about your happiness but also about your own limits and use the rights of others as the guidance for self-limitations. Try not to violate rights of others even if they do not recognize such rights, except when you act in justified self-defense.
In your thinking about rules, values and principles, try to see various instruments which can be used to achieve different goals. Do not try to use rights as a universal key that will open all doors in front of you.