In the contemporary Western world, rights-mania is all the rage. It seems that each passing day we find a new claim to some special right. People are pulling rights out of the proverbial hat, even when no such rights ever previously existed. We are making them up as we go along.
Everyone is talking rights. The problem is, no one is talking responsibilities. The hard truth is, they were never meant to be separated. They go together. It is futile to talk about rights without corresponding duties, obligations and responsibilities.
Consider a wedding for example. If the bride and groom simply listed a set of demands, a bagful of rights, the wedding would be unlikely to get off the ground. Instead, typical wedding vows have always spoken of duties and obligations. Sure, marriage features certain rights, but always in the context of clear responsibilities.
The current push for a plethora of rights, at the expense of responsibilities, is a recipe for disaster. True, it will be a field-day for lawyers. They will be greatly enriched by the ever-expanding set of rights. But individuals and societies will be the losers.
I have written elsewhere on the folly of a Bill of Rights. I am not alone in such concerns. Murdoch University law lecturer Augusto Zimmermann has just recently written an important new article in which he offers eight reasons why a Charter of Rights is bad news. (In my piece I had offered ten reasons, and more could be provided.)
His whole article is well worth reading, but I here present some choice snippets from it. He begins by noting, “I should immediately explain that I am totally in favour of any constitutional guarantees which protect our most fundamental rights — our rights to life, liberty and property in particular. However, I simply do not believe any federal charter of rights can achieve these worthy goals satisfactorily.”
Here are a few of the reasons he provides for rejecting a charter of rights (all argued for much more extensively in his article): “Human rights legislation is unnecessary. The tendency of governments to acquire ever-increasing power has traditionally been curtailed in the Western world by a system of checks and balances.”
“A federal charter of rights may give excessive power to the judiciary. Charters of rights lead to the politicisation of the judiciary. As the generalities expressed in rights documents must be applied to particular real-life situations, and as rights frequently conflict with each other, there is need for judicial interpretation. After all, says Professor Mirko Bagaric, ‘rights documents are always vague, aspirational creatures and give no guidance on what interests rank the highest. This leaves plenty of scope for wonky judicial interpretation’.”
“A federal charter of rights may weaken Australia’s democracy. The delicate balance of power between the judiciary and the legislature that is basic to a functioning democracy has been jeopardised by human rights laws, especially in countries whose legal system is based on common law. Indeed, the legal philosopher Jeremy Waldron believes that judicial enforcement of a bill of rights is utterly inconsistent with the ability of ordinary citizens to influence decisions through democratic political processes.”
“A federal bill of rights may lead to the assumption that our basic rights are not God-given but government-authorised. My final point is of particular relevance for those who profess to be Christian. For them, basic human rights should not be considered creations of parliament but gifts of God. John Stott says: ‘We received them with our life from the hand of our Maker. They are inherent in our creation.’ The enactment of a federal charter of rights may lead to the wrong assumption that the state is the ultimate creator of our basic rights. If the state replaces God as the ultimate authority for right and wrong, the state becomes a ‘god’ unto itself and it is enthroned as the all-powerful ruler over the life, liberty and property of the people.”
Zimmermann concludes with these words: “There is no good reason why Australia needs a federal charter of rights and every reason to believe it will seriously damage democracy and those constitutional mechanisms which up until now have prevented the concentration of power in the hands of a few.”
Quite so. The push for a bill of rights has been no panacea in most other nations which have enacted such legislation. As Zimmermann reminds us, “The impressive bills of rights passed in China, Cuba, Uganda, Rwanda, Cambodia, Russia and the Sudan proved no barrier to multiple human rights abuses committed in those countries.”
All such legislation tends to do is allow minority groups with activist agendas to obtain special rights, often at the expense of the rest of the community. While it will provide more lucrative work for lawyers, it will do little to protect basic human rights (such as the right to life for the unborn, or the rights of Christians to freely proclaim the gospel) which are slowly being whittled away in the meantime.
Now, how soon will we hear from those called ‘the usual suspects’ to argue that the USA has done pretty well with a Bill of Rights?
We need to distinguish the USA from most other countries because their Bill of Rights is incorporated into their constitution in a way that makes amendment and abrogation difficult. However, the erosion of individual rights in the USA has been mostly done surreptitiously in the Supreme Court.
And the countries you listed have been blatant in refusing to uphold the rights of their citizens at all.
John Angelico
Wow, I’m really happy to hear of a legal academic writing something like this. For the most part, it appears the most outspoken of my lecturers are very supportive of a Bill of Rights. Did you find the article on AustLII, or in a journal? If so, I might look it up.
Natasha Sim
Thanks Natasha
The link to his article is now up (see just at the end of my article).
Bill Muehlenberg, CultureWatch
Dear Natasha,
as per normal, ‘Newsweekly’ is on the ball: http://www.newsweekly.com.au: “1 – 21 Mar 2009 – LEGAL AFFAIRS: Unelected judges are today’s new aristocracy, James Allan
A bill or charter of rights would be bad for Australia argues University of Queensland law professor James Allan.
Subscribers only – please login”
Gerard Flood
See also “[Human Rights] Crusaders rely on lies” by Janet Albrechtsen. This points out the deceitful way that these elitists try to hide the fact that these bills will transfer supremacy from elected Parliament to unelected judges. Most of the support comes from self-serving lawyers and judges, who think they have some special anointing to decide what’s best for the rest of us.
Jonathan Sarfati, Brisbane
First up, I am lawyer with an interest in this area. That said, I do not believe that my views on this topic are in any way influenced by a desire to generate more work.
Whilst Bills of Rights are commonly used to advance liberal policies this is not a function of the instruments themselves. It is equally open to other minorities to use these instruments to protect their interests against State encroachment. My view is that Bills of Rights do little to protect the rights of minority groups that already have political support. In fact they are potentially of more use to groups that are politically disempowered (such as Christians).
As you point out these instruments are worthless where there is not already a robust legal system. It may also be historically true that in Countries where the Rule of Law was recognised these instruments were unnecessary. However, as the legislative books of the common law world have become increasingly voluminous and technical it is no longer realistic to expect the political process alone to properly protect people’s rights, particularly those of unpopular minorities. Is this not what so many of the excellent articles on this website complain about?
I also think that fears of Judges usurping legislative power are overstated where the power to override the protected rights is retained by the legislature.
Simon French
Now, how soon will we hear from those called ‘the usual suspects’ to argue that the USA has done pretty well with a Bill of Rights?
We need to distinguish the USA from most other countries because their Bill of Rights is incorporated into their constitution in a way that makes amendment and abrogation difficult. However, the erosion of individual rights in the USA has been mostly done surreptitiously in the Supreme Court.
And the countries you listed have been blatant in refusing to uphold the rights of their citizens at all.
John Angelico
Wow, I’m really happy to hear of a legal academic writing something like this. For the most part, it appears the most outspoken of my lecturers are very supportive of a Bill of Rights. Did you find the article on AustLII, or in a journal? If so, I might look it up.
Natasha Sim
Thanks Natasha
The link to his article is now up (see just at the end of my article).
Bill Muehlenberg, CultureWatch
Dear Natasha,
as per normal, ‘Newsweekly’ is on the ball: http://www.newsweekly.com.au: “1 – 21 Mar 2009 – LEGAL AFFAIRS: Unelected judges are today’s new aristocracy, James Allan
A bill or charter of rights would be bad for Australia argues University of Queensland law professor James Allan.
Subscribers only – please login”
Gerard Flood
Another excellent refutation of a Bill of Rights comes from none other than Bob Carr, former premier of New South Wales and a Labor one at that: “Lawyers are already drunk with power” and a more detailed paper “The Rights Trap: How a Bill of Rights Could Undermine Freedom“.
See also “[Human Rights] Crusaders rely on lies” by Janet Albrechtsen. This points out the deceitful way that these elitists try to hide the fact that these bills will transfer supremacy from elected Parliament to unelected judges. Most of the support comes from self-serving lawyers and judges, who think they have some special anointing to decide what’s best for the rest of us.
Jonathan Sarfati, Brisbane
First up, I am lawyer with an interest in this area. That said, I do not believe that my views on this topic are in any way influenced by a desire to generate more work.
Whilst Bills of Rights are commonly used to advance liberal policies this is not a function of the instruments themselves. It is equally open to other minorities to use these instruments to protect their interests against State encroachment. My view is that Bills of Rights do little to protect the rights of minority groups that already have political support. In fact they are potentially of more use to groups that are politically disempowered (such as Christians).
As you point out these instruments are worthless where there is not already a robust legal system. It may also be historically true that in Countries where the Rule of Law was recognised these instruments were unnecessary. However, as the legislative books of the common law world have become increasingly voluminous and technical it is no longer realistic to expect the political process alone to properly protect people’s rights, particularly those of unpopular minorities. Is this not what so many of the excellent articles on this website complain about?
I also think that fears of Judges usurping legislative power are overstated where the power to override the protected rights is retained by the legislature.
Simon French
Thanks Simon
I elsewhere offer more concerns about a BoR, as for example here: https://billmuehlenberg.com/2005/08/07/what-is-wrong-with-a-bill-of-rights/
And I think my fears about “judges usurping legislative power” are in fact well-placed. I have documented numerous worrying cases of judicial activism on this site, such as: https://billmuehlenberg.com/2008/11/02/the-threat-of-judicial-activism/
But thanks for writing.
Bill Muehlenberg, CultureWatch