1. Human Rights Charters

I became interested in the theory of human rights when I began researching a paper on Labor’s Historic Mission. I discovered that the Universal Declaration of Human Rights, had had an important role in the history of the Australian Labor Party. Its passage through the General Assembly was not only one of Labor’s greatest achievements, it bore the stamp of Labor’s social pragmatism. 

At least since Federation, Labor’s approach to social and political issues appears always to have been to work pragmatically to create a free, fair, fully employed, and prosperous society. The fact that the ALP’s approach to social and political issues was pragmatic was evident even before Federation. The Frenchman, Albert Metin was so impressed by Australia’s social pragmatism, that he published a book entitled ‘Socialism without Doctrine’ in 1901. 

The pragmatic achievements of state Labor governments were, to his way of thinking, the first indication that the kind of state that we now call ‘social democracy’ could well exist in reality, and that Australia was showing the way.

However, the Second World War was a turning point in the history of many political movements. And the direction of this turn was clearly indicated by the human rights doctrines that emerged at about this time. The most notable of these were President Roosevelt’s Second Bill of Rights (1944), the Preamble to the French Constitution for the Fifth Republic (1946), and the Universal Declaration of Human Rights (1948). 

These human rights doctrines were clearly different, both by intention and in content, from those of the eighteenth century. The eighteenth century doctrines of natural rights, as they were then called, were charters for the new republics their authors were seeking to establish. But, by implication, they were devastating critiques of the regimes they sought to replace. 

Not so the post-war doctrines. At the conclusion of his State of the Union Address, in which he introduced his Second Bill of Rights, Roosevelt said:

All of these rights spell security. And after this war is won we must be prepared to move forward, in the implementation of these rights, to new goals of human happiness and well-being. America's own rightful place in the world depends in large part upon how fully these and similar rights have been carried into practice for our citizens. For unless there is security here at home there cannot be lasting peace in the world.

The rights included in Roosevelt’s second bill included a number of positive rights: including rights to a remunerative job, to earn enough to provide adequate food, clothing and recreation, of every family to a decent home, medical care, protection from the economic fears of old age, sickness, accident and unemployment, and the right to a good education.

The United Nations’ aim was likewise to bring peace and security to the world. And, the UDHR was constructed on the principle that global peace and security must begin at home. Therefore, to bring peace and security to the world, it would be necessary for all nations to provide adequately for the dignity and social development of their own citizens. But also, relations between nations must ultimately provide for the social and economic security of everyone. 

Labor’s stamp is firmly upon the doctrines of human rights that the drafting committee came up with, because any state that was founded upon the UDHR would clearly have to be a social democracy, or welfare state, of some kind. 

It is remarkable, therefore, and a credit to the Dr H. V. Evatt’s presidency of the United Nations General Assembly, that this doctrine was passed nem con by the Assembly. To achieve this result, Dr Evatt is on record as having advised the Australian representative on the drafting committee to be pragmatic, and not get bogged down in political theory.¹  It seems, therefore, that Dr Evatt was not only among the early pioneers of the welfare state, but also one who understood that its development required a non-theoretical approach.²

An important feature of the UDHR is that it requires all nations to provide, as adequately as they reasonable can, ‘through national effort and international co-operation’ for ‘the economic, social and cultural rights’ which are required, if people are to live with dignity in their own societies, and freely develop their own personalities. This is all stated clearly in Article 22 of the UDHR. 

These are known as the economic, social, and cultural rights of mankind, and they are spelt out in detail in Articles 23 to 29 of the UDHR. 

Mr Hockey would call these rights ‘entitlements’, and would presumably advocate that they should all be ignored. 

The welfare state that evolved in Australia from 1945 to 1975 was extraordinarily successful, as indeed were welfare states everywhere they existed. In France this period is known as ‘Les Trentes Glorieuses’. But here it has no name, mainly, I suspect, because Australian intellectuals, as opposed to most ALP members, were much too doctrinaire to acknowledge these pragmatic achievements. 

The welfare state was not a creation of intellectuals; it evolved simply from the intuitive fairness and decency of Labor people. Yet, it proved to be a very successful kind of state. 

Throughout the period from 1945 to 1975, GDP per capita rose steadily in Australia, despite the rapid increase in population due to immigration, and wages/per hour kept in lock-step with productivity. Moreover, the increases in wages and salaries that occurred did so fairly uniformly across all of the quintiles of wage and salary earners, as indeed they did elsewhere in the world. 

Yet unemployment was almost non-existent. It averaged just 2% for the whole of this productive period, i.e. from 1945 to 1975. 

However, the welfare state that existed in Australia in this period was not without its faults. It suffered from the social ills of most of its contemporaries. In the 1940s and fifties, it was exclusive of some minorities. It was technically racist, sexist, extravagant in its use of raw materials, utterly dependent upon the United States strategically, and showed no particular concern for our natural environment. 

It also contributed heavily to polluting the atmosphere with CFCs and CO2. 

So, any revival of the welfare state would clearly have to deal with all of these problems. Moreover, it would have to deal with any new problems of a social or economic nature that might arise. In short, it would need to be a welfare state for the 21st century. 

Nevertheless, I believe that creating a welfare state for the 21st century is precisely the task that should be undertaken by the next Labor government. It is one that the ALP is historically and philosophically very well prepared to undertake. It is also Labor’s historic mission.

2. Moral Judgments

Bert Evatt’s approach to the task of developing a moral framework for the United Nations was highly successful. It was Socratic and pragmatic. It was Socratic as all good moral analyses must be. And it was pragmatic in the sense that it was a-theoretical. And there are good reasons why it should have been successful. 

Firstly, the occasion was right. In the thirty odd years from 1914 to 1945, the world had experienced two world wars, a disastrous depression, and the Holocaust. And, the delegates to the UN were all seeking common ground. They all wanted ultimately to create a world in which people could live with dignity in their own societies, and be free to develop their own personalities within those societies. The UDHR was their collective attempt to define such a world.

Secondly, the approach was right for this purpose. For the aim was just to achieve a comprehensive agreement, which captured the mood of the UN delegates at this time. They were not primarily interested in political theory. They were interested in defining the political and social objectives of nation states, about which, they hoped, all might agree. 

Dr Evatt took the view, that in the end it did not matter if some of the agreements reached proved to be partly verbal. For, a verbal agreement, he thought, was always better than no agreement. He understood, I think, the importance of the fact of agreement. He also understood that arguments about what is morally right or wrong are nearly always like this: they are both substantial and verbal, and indeed, most are destined ultimately to remain so. 

If moral agreements are like this, then moral disagreements are too. So, if any verbal agreement can be reached, then any remaining disagreement can only be semantic, i.e. about the meanings of words. So, as the talks proceeded, no one had to eat humble pie.

3. Human Rights

The general thesis of human rights is that everyone has a right to live with dignity in their own societies, and be free to develop their own personalities within these societies. So all human rights require social guarantees, and the only bodies that could plausibly provide such guarantees are the nation states in which people live. 

The human rights of people must therefore always be correlative with the duties of nation states. And, if these rights are moral rights, as I believe they are, then the corresponding duties of the nation states must have the status of moral obligations.

In Social Humanism I argued for the following position:

1. An individual’s moral system is the set of all principles of social behaviour that he or she would wish to see included in the social contracts of all societies.
2. The principles of social behaviour for agents of any given kind A are those that specify what an A’s rights, obligations, or responsibilities would be in any of the kinds of circumstances in which A’s might exist.
3. The social agents of a given society are the morally relevant classes of individual or collective decision-makers of that society.
4. The morally relevant classes of decision makers in a given society are those that most members of society would wish to distinguish formally between when stating what their moral principles are.

Given this conception of human rights (the social conception), the rights of mankind, which are set out in detail in the UDHR, is therefore a widely accepted framework concerning the moral obligations of nation states.

4. Human Rights and Natural Rights

This pragmatic conception of human rights (outlined in §3), which was pioneered by Bert Evatt and Elenor Roosevelt, is significantly different from the conception of natural rights developed by philosophers in the eighteenth century. A natural right is a natural law conception. It is a right that a person is born with, and which a person has just in virtue of being human. 

But, personally, I do not believe that there are any such rights. In my view, Hugh Collins correctly identified Australia’s unique political stance as Benthamite. ‘Political institutions and policies’, he says, ‘are to be assessed in terms of the impact of their operation upon the interests of the majority’. That is, the guiding principle of politics must always be a kind of institutional-cum-legal utilitarianism,³  of the kind that led to the development of the UK People’s Charter of 1838. Notoriously, Bentham did not believe in natural rights. But he did believe that a society’s laws and institutions, must be judged pragmatically by their consequences for good or ill. Hence, it is plausible to suppose that the Labor Movement in Australia did not evolve from any pre-existing doctrine of natural rights, but rather from the Chartist movement in Britain in the 1840s. 

The founders of these movements were not, of course, natural rights theorists. They were more inclined to believe, as Elie Helévy (1972, p. 138) did, that: ‘Governments were instituted, not because man had rights, but because he had none.’ Therefore, any proposed rights, such as those that might be contained in a worker’s charter, would have to be evaluated as instruments for overall social improvement. Yet, as Collins remarked (pp. 151-2), within ten years of the discovery of gold, practically the whole political programme of the Chartists was realised in the Australian colonies. That Chartism should have succeeded so completely in Australia by the 1860s, while failing so bitterly in Britain, is doubly significant in any appreciation of Australia’s political culture. (p. 152)

It is doubly significant, I presume, because it tells us important things about our own culture as well as Britain’s. British culture still muddles along with a natural law theory of human rights—as inherent entitlements. Evatt’s more coherent conception of human rights is a social one. On Evatt’s view, human rights are the individual correlates of the social moral obligations of governments to the people they govern. And these, presumably, are things that we can, and should, go on arguing about, and forever refining.

5. James Allan on Human Rights

James Allan argues that the articulation and acknowledgement of human rights presents a danger to democracy. His argument is roughly this:

1. There are no rational procedures for deciding on the truth or otherwise of moral principles, such as those of human rights or governmental responsibilities. (Yes, I agree.)
2. Yet, it is relatively easy to obtain verbal agreements about such principles, because the language used to express such agreements often lacks empirical precision. Indeed, the language used is often chosen specifically to conceal significant disagreements. (Yes, this is true, and it is a good thing about Human Rights agreements that it should be so.)
3. Consequently, the statements of moral principles contained in such international documents should never be accepted other than provisionally. (Yes, I agree.)
4. Therefore, Allan argues, to enact them as laws, or accept them as constitutional amendments, would be to abrogate our responsibility for interpreting them for our own society. (I agree. Statements outlining the responsibilities of states do not belong in legislation, but in their constitutions.)
5. Moreover, he says, if such principles were accepted for our own society, without full public ventilation and a national referendum, their refinement would have to be left to the judiciary to complete. (No, judges must try to interpret the constitution consistently with the natural meaning of its wording at the time it was written. It must be left to future generations to update it, if this should prove to be necessary. If the original meaning would make the constitution irrelevant to the issue being discussed, it is up to the court to recommend a range of constitutional amendments.)
6. But, he says, our judges are no better equipped to make such basic decisions than we are. (I agree. And they should not be allowed to.)

Brian Ellis
Emeritus Professor of Philosophy, La Trobe University
Professorial Fellow in Philosophy, University of Melbourne

 

Footnotes

1. Or, words to that effect. See Hogan 2008, Faulkner 2008, and Kirby 2008.
2. The drafting committee was chaired by Eleanor Roosevelt, and it is likely that this moral approach to the drafting process was also hers.
3. This form of utilitarianism is not familiar to most philosophers, who, most commonly, distinguish only between ‘act’ and ‘rule’ utilitarianism. But the Benthamite thesis is neither of these. It is, for reasons explained fully in Ellis, 2012, a form of social contractual utilitarianism.