For the next two or three weeks I will be posting essays that I wrote in 2009 before starting Throne, Altar, Liberty. I distributed these essays to my friends through Facebook and e-mail. The dates on the essays are the dates these essays were originally posted to Facebook and/or e-mailed. I am posting them at this time because I am going to need at least two weeks to complete the essay I am working on.
The first essay in this series will be "The Human Rights Scam". I thought this essay would be particularly fitting at this time because of the hoopla in the news about the 30th anniversary of the Charter of Rights and Freedoms this past Tuesday. The progressive media is always telling us about the debt of gratitude we owe to Pierre Trudeau and the Liberal Party for this Charter which, according to progressive commentators, finally secured for us the rights and liberties Americans had enjoyed for two centuries under their Bill of Rights. This is all a lie. Our most basic rights and freedoms are derived from Common Law and were our possession, as subjects of the Crown, before the Charter. It is because the Americans had cut themselves off from the Crown and the prescriptive tradition that was the source of those rights, that they felt they needed to secure them for themselves with the Bill of Rights. Our Charter does not make those rights and freedoms any more secure than they were before 1982. In fact, it does the exact opposite. The limitations clause in section one and the notwithstanding clause in section thirty-three give Parliament and the provincial legislatures the authority to disregard our most basic prescriptive rights and freedoms. The so-called "human rights" legislation, at the federal and provincial levels, does in fact violate our basic freedoms. That is what this essay is about.
Note: Some of the themes in this essay I reworked into my May, 2010 essay "Human Rights Fraud", one of the first essays I posted here.
The Human Rights Scam
By Gerry T. Neal
May 12, 2009
You hear a lot about “human rights” these days. Countless organizations exist to promote “human rights” around the world or to complain about how this or that country abuses or neglects “human rights”. Every time a socialist wants to take your property and give it to someone else he will recite the mantra “human rights come before property rights”. But what are “human rights”?
To answer that question we must first answer the question: What are rights? Rights are closely related to liberties but they are not identical concepts. Our liberties are everything we are free to do, but our rights are everything we are entitled to. Rights can be categorized according to what it is we are entitled to, who is entitled to it, and where that entitlement comes from. The latter concern, the source of rights, has been a matter of discussion for centuries, and is directly related to the question of human rights.
Theories of rights basically find the source of entitlement in three places: government, tradition, and nature. Not surprisingly those favoring big government prefer to see the state as the source of our rights. When we are entitled to things because the government has written it into the law saying that we are entitled to them these are called our legal or civil rights. These are essential for protecting our rights but there is one basic flaw to legal rights – what government gives today, government can take away tomorrow.
For this reason we need our prescriptive rights. Prescriptive rights are rights which are ours by reason of our membership in a society in which those rights have been possessed from time immemorial. They are inherited rights, rights which our fathers fought for and died, and secured for us over the centuries. They come to us, in the customs, traditions, and ways of our people. Since this is the same way in which our government comes by its legitimate authority, government cannot take away our prescriptive rights, without attacking its own foundations.
Naturally, prescriptive rights will vary from society to society, depending on the traditions and customs of the society in particular. In Canada, a country under the sovereignty of the British crown and the Common Law, we (like the British and the Americans) are heirs to a particular set of prescriptive rights that were known in days of yore as “The Rights of Englishmen”. No greater set of rights has ever been or ever could be devised by the minds of men for the protection of our personal security and liberty than these rights that evolved with the Common Law over centuries of British history.
In the 18th Century, Sir William Blackstone, a jurist and professor of law, wrote a famous and influential treatise entitled Commentaries on the Laws of England that explained the English Common Law to the average reader. This work was divided into four volumes, the first two dealing with rights (personal and property rights), the last two dealing with wrongs (torts and crimes). The rights Blackstone discusses, are the Rights of Englishmen. These he divides into relative rights, such as those attached which come to particular persons by means of status (king, husband, parent, etc.), and absolute rights which are vested in individuals and are those “which every man is entitled to enjoy whether out of society or in it”. The latter, are the subject of the very first chapter of the first volume, and Blackstone, after a brief history of the Rights says they can be boiled down into 3 – the right of personal security, the right of personal liberty, and the right to private property. These are the same three rights which John Locke had argued were “natural rights” (which we will discuss shortly) and there is a great deal of overlap between the Blackstone’s concept of individual rights and Locke’s, but Blackstone is very careful to ground, even these rights, in the prescriptive tradition of English Common Law. He goes on to argue for 5 auxiliary rights “which serve principally as barriers to protect and maintain inviolate the three great and primary rights”. These are:
1. The constitution, powers, and privileges of parliament.
2. The limitation of the king’s prerogative.
3. Applying to the courts of justice for redress of injuries.
4. Petitioning the king or either house of parliament for redress of grievances should the courts fail.
5. Having arms for their defense.
Note carefully the last one. Although Blackstone’s right to bear arms is hardly as unqualified as the American 2nd amendment, the right to bear arms is an English tradition, not an American invention.
Other Rights of Englishmen that are our birthright from the historical tradition from the Charter of Liberties and the Magna Carta to the (English) Bill of Rights and Act of Settlement include the right of habeas corpus, the right to a trial by jury, the right to confront ones accusers, protections against retroactive law and self-incrimination, and the presumption of innocence (Blackstone, famously wrote in chapter 27 of the 4th volume of his Commentaries “the law holds, that it is better that ten guilty persons escape, than that one innocent suffer”).
These, our inherited rights are threatened, by a document ironically entitled “The Canadian Charter of Rights and Freedoms”. This document was tacked on to the Canadian Constitution in 1982 by Pierre Eliot Trudeau when he repatriated the British North America Act. Section 33 (1) of the Charter allows Parliament or legislatures to pass Acts which will operate “notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter”. What are those provisions? Section 2 identifies the “fundamental freedoms” of 1) conscience/religion, 2) thought/belief/opinion/expression, 3) peaceful assembly, and 4) association. Section 7 is the right to life, liberty, and security of person. Sections 8-15 include our right to security against unreasonable search and seizure, our right not to be arbitrarily detained or imprisoned , our basic legal rights upon arrest and upon being charged with a crime, our right not to be subjected to cruel and unusual treatment, and our right against self-incrimination. All of these rights, we had under Common Law, as subjects of Her Majesty, by reason of tradition, prescription, and inheritance prior to Trudeau’s Charter. By allowing government to pass Acts which contradict these rights, Trudeau’s Charter is essentially designed not to guarantee them, but to take them away from us.
Mr. Trudeau was a big believer in “human rights” though. In 1977 he had Parliament pass a document entitled the Canadian Human Rights Act. The Canadian Human Rights Act made it illegal to discriminate. To discriminate means to “make a distinction” in the sense of preferring one over another. The CHRA makes it illegal to discriminate against someone on the basis of any of a number of identified reasons – race, sex, religion, etc. This discrimination is illegal under the CHRA in such things as hiring, promoting, and firing employees, serving customers, renting or selling property, and that sort of things. But to make discrimination illegal, means that you are limiting the rights and freedoms of individual persons in Canada. Specifically you are limiting the right of employers to hire, promote and fire whoever they want, the right of businessmen to do business with whoever they want, the right of property owners to rent or sell to whoever they want. In limiting any of these rights you are limiting the basic freedom of association. The Act further, in its Section 13, limits an even more basic freedom – that of thought and speech.
To make matters even worse, the government bodies established by the Act to investigate, prosecute and try cases of discrimination, are not subject to many of the ordinary limitations on police, prosecutors and judges. The burden of evidence in discrimination cases is essentially shifted onto the accused and the trials themselves are a means of punishment.
What kind of “rights” can these “human rights” possibly be that in their name, the most basic rights and freedoms of the English tradition are to be sacrificed?
The idea of “human rights” evolved historically out of John Locke’s doctrine of natural rights. Locke (1632-1704) was the founder of the Empiricist branch of the Enlightenment Project that rivaled the earlier Rationalist branch founded by Rene Descartes. In his Two Treatises of Government Locke identified three basic rights which he said belonged to every individual. These were life, liberty, and property, the same three that Blackstone would later write about. But whereas Blackstone, a Tory, would ground these rights in the context of an established tradition, Locke argued for them on the basis of abstract theory. In a primordial state of nature prior to society, Locke argued, men were free and possessed certain rights under natural law. The basic right was that of property. Men had a right to what was theirs. Since every man owned at least himself, he had the right to his life and to do with it what he wanted (liberty). But these rights in the state of nature were difficult to defend and so men formed a contract to establish society, whereby government and law would enforce and defend their rights.
Locke’s theory had many things to commend it, foremost among them his recognition of the primacy of property rights, indeed his identification of rights with property. The Communist Trudeau did not even consider property rights worthy of being mentioned at all in his Charter. The problem, however, is that divorcing rights from the context of a particular tradition and attaching them to all people universally by means of nature, blurs the distinction between what I am entitled to and what I desire (they are not the same thing). This causes the list of natural “rights” to ever expand and inspires anti-social and often destructive behavior. In 1789, for example, the French National Assembly approved the Declaration of the Rights of Man and of the Citizen. This document adopted Locke’s theory but identified considerably more rights than he did. This was understandable considering that its purpose was to stir up the French Revolution. British statesman Edmund Burke, seeing the madness that ensued from this document, wrote his Reflections on the Revolution in France in which he affirmed prescription as the basis of all legitimate rights.
Today, the principal document of the “human rights” doctrine is the United Nations’ Universal Declaration of Human Rights, passed by the General Assembly in 1948. This document is 30 articles long, and while much of it simply rewords the traditional English rights into universal rights it does not properly distinguish between a person’s wants and needs on the one hand and his rights on the other. Having your wants and needs met is a condition right, not a basic right. The only basic rights, the only rights which could conceivably exist in a state of nature apart from society and law are negative rights. Negative rights are entitlements to things you already have. They place no burden on anybody else – other than that they leave you alone to enjoy your rights. Positive rights – which entitle you to something you don’t have, and which place a burden on others to provide those things – may belong to someone by right of membership in a society which grants those rights to its members. They cannot be universal rights belonging to all humans.
Clearly the doctrine of “human rights” is a socialist doctrine. It is also an egalitarian doctrine – the Universal Declaration of Human Rights preaches equality and non-discrimination long before it gets around to enumerating the basic rights of life and liberty. But it is also a foundational doctrine for World Government.
The doctrine of “human rights” is a version of Locke’s doctrine of the universal, natural, rights of the individual, emphasizing the universal, where Locke emphasized the individual. Even if we properly limit our concept of natural rights to negative rights to one’s own life, liberty, and property, these rights don’t mean a whole lot unless they are recognized and respected by others. That is where the importance of society with its inherited rights and legal protections comes in.
By placing the importance on universality rather than on the individual the doctrine of “human rights” becomes an argument against particular societies and their particular traditions and in favor of a universal society that will universally protect “human rights”. It is no coincidence that the idea of “human rights” is so closely connected to the United Nations.
The doctrine of “human rights” inspired the tyranny and bloodshed of the French Revolution. Here in Canada it has been the basis for our being denied basic rights which are ours by inheritance from the English tradition. One shudders to think what this doctrine might inspire if a World Government arises to take over its enforcement.