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Terminological inexactitude

Libertarians of the left and of the right mean something entirely different when they talk about "liberty". This bodes rather ill for the Convention on Modern Liberty next week.

The left have chosen to redefine "liberty" to mean something different from the what ordinary people mean by the term. By way of explanation, here is the dictionary definition from Google:

  • autonomy: immunity from arbitrary exercise of authority: political independence
  • freedom of choice; "liberty of opinion"; "liberty of worship"; "liberty--perfect liberty--to think or feel or do just as one pleases"; "at liberty to choose whatever occupation one wishes"
  • personal freedom from servitude or confinement or oppression
  • shore leave: leave granted to a sailor or naval officer
  • familiarity: an act of undue intimacy

Liberty, then, is an absence of coercion, and for people outside the Alice-in-Wonderland world of political discourse this is well-understood and quite unexceptionable. Only once you get political activists and academics involved does a simple concept like this become so muddied as to make sensible discussion impossible.

We can start with Isaiah Berlin and his "two concepts of liberty", namely "freedom from", (or negative liberty) and "freedom to" (or positive liberty). "Freedom to" is the kind of woolly concept that only the occupant of an ivory tower or perhaps a parliamentary draftsman could come up with. It purports to mean "having the power and means to do something" and to his credit, Berlin was quite clear that it was a very dangerous concept because there was a real risk that people would use this "freedom to" in order to crush other people's "freedom from". What makes it worse is that in terms of the definition above and in terms of the way ordinary people understand the word, having the power and means to do something is nothing to do with liberty at all. When people on the left start bigging up "liberty" they are usually talking about wealth or equality or just socialism in general. When they demand more liberty they often mean that they want to crush someone's liberty in order to make some they favour better off. I say it again. This is not liberty. Poor people don't complain that they are not free, they complain that they are not rich.

Hours will therefore be wasted at the Convention in demanding equality while pretending it is liberty. Perhaps this is what the organisers mean by "modern" liberty. Unfortunately, this is not the only terminological inexactitude that is going to confuse things at the Convention either. The words "rights" and "liberties" are bandied around freely by both sides without either feeling the need to distinguish the different meanings. But the two terms are not synonymous as they describe respectively "things everyone must have" and "things nobody can do to you". The technical terms for these are claim rights and liberty rights.

Claim rights are essentially entitlements, and this slightly more disparaging term makes clear that they are controversial things. While making life nice for their beneficiaries, claim rights automatically create duties for others. For example, your right to life creates a duty for me not to kill you. Plenty of people would dispute whether such a duty is reasonable and therefore whether you really have such a right, particularly if you happen to be a mass-murderer. Whenever a new claim right is proposed (something which happens far too often) you should always stop to consider what reciprocal duties it will create. In fact, in many ways you should only consider the duties because it is only by looking at these that you can assess whether what is proposed really is an entitlement.

You think you have a (claim) right to an education? That means I have a duty to pay for it. Think again.

"Liberty rights", on the other hand, are things that can't be done to you. As a subcategory of "rights" they are distinguished from claim rights in that they do not create duties for other people. You may not have a claim right to an education but you do have a liberty right to one. The ECHR is quite clear that the right to education that it enumerates is a liberty right and not an entitlement. Nobody can stop you getting an education, if you want one and you have the means to get it. Whether you get it or not has no effect on me. Freedom of speech is a also liberty right, as are freedom of movement, freedom of association and the right to bear arms.

The problem we have is the tendency of the left to try to invent new entitlements, calling them merely "rights" (meaning claim rights allowing confusion with liberty rights), and without spelling out the duties that they create for everyone else. Yesterday we had Geraldine van Bueren demanding access to healthcare in just this manner. This kind of behaviour tends to bring the whole concept of civil liberties into disrepute and accounts in large measure for the scepticism so many members of the public have for the idea. This is a less publicised part of the corrosive impact of the left on civil liberties than Labour's full-frontal attacks, but they are an important one nevertheless.

Another confusion is over the scope of human rights. When the left proclaims that human rights are universal, they are quite mistaken. Nobody, not even those on the left, thinks that the (liberty) right of freedom of movement applies to prisoners in jails. Or freedom of association, or the right to a family life.

So as we look down the list of the ECHR rights, we have to ask ourselves which of the enumerated rights are claim rights  (and could reasonably be said to be universal) and which are liberty rights and can be happily taken away from those convicted of crimes. I was interested to notice that a protocol was once added to the ECHR by which signatories agreed to only apply the death penalty in time of war. This shows clearly that the distinction I'm making is correct, since this change would only make sense if the right to life were not already universal. Another protocol has now banned the death penalty completely, suggesting that the right to life may have now changed from being a liberty to being an entitlement.

This raises some interesting questions - not least of which is the question of whether any of the other enumerated rights are in fact claim rights. There would appear to be a real possibility that up until now we have had a list of liberty rights which has been masquerading as a list of entitlements. The only exception  is the "cruel and degrading..punishment" clause, which could clearly only apply to prisoners and would therefore seem to imply universality.

Regardless of the actual status of each of the ECHR rights, I wonder if converting liberties into entitlements won't further corrode the attitude of the public to the rights agenda. Signing up to treaties with foreign powers in order to define how future generations will behave has always been a highly dubious practice in my book, as it seems to undermine the fundamental of the British constitution, namely that no parliament may bind it successors. Sure, a future parliament can resile from the ECHR but the ties of the treaty make it considerably more difficult to do so, and this action has effectively robbed future generations of a decision on whether the death penalty is applicable. (For the avoidance of doubt, I'm against). This is therefore a case of an (unenumerated) liberty being taken away from the public by those on the left. This is not the first or the last time either.

When we look at some of the the human rights decisions that have caused the most outrage amongst the general public through the prism of our claim rights/liberty rights dichotomy, can we make sense of either the decision of the courts or of the public outrage? Consider the case of the Afghan hijackers who avoided being returned to their home country because they said they might be tortured by the Taliban. Much of the public was outraged by this apparent reward, a feeling that was presumably driven by a feeling that as criminals the hijackers had renounced their liberty rights and should be deported, regardless of the possibility of torture. This is a view I've heard expressed many times. The human rights court has, however, ruled that people may not be deported to a country where they may be tortured. This would appears to conflict with the idea that the ECHR enumerates liberty rights, and may well explain the unpopularity of the decision. I'm not suggesting that the mass of the public think about it in the terms I've described, only that the analysis I've made of the ECHR can explain the way they think: they don't think that these rights are universal. I think they are right. They way I look at it, the court has allowed some mission creep in a left-liberal direction, allowing a liberty right to become an entitlement.

The whole field of human rights and civil liberties is fraught with high-minded language and, as we have seen, terminological inexactitude. I sometimes wonder if those on the left realise what they are doing when they extend the scope of something like the ECHR further than it was meant to go. When, like van Bueren, they demand a healthcare entitlement as of right, they are not doing the civil liberties cause any favours. When they keep every ne'er do well and terrorist in the country  they enrage the public and hurt the cause again. There was a slightly plaintive posting on LabourHome yesterday, wondering if maybe the left hadn't pushed the accusations of racism a little too hard and a little too widely, so that now it was backfiring against them. It would be a pity to make the same mistake with civil liberties.



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Reader Comments (9)

The Death Penalty: Not a Human Rights Violation
Dudley Sharp, Justice Matters

Some wrongly state that executions are a human rights violation. The human rights violation argument often comes from European leadership and human rights organizations.

The argument is as follows: Life is a fundamental human right.  Therefore, taking it away is a fundamental violation of human rights.

Those who say that the death penalty is a human rights violation have no solid moral or philosophical foundation for making such a statement.  What opponents of capital punishment really are saying is that they just don't approve of executions.

Certainly, both freedom and life are fundamental human rights.  On this, there is virtually no disagreement.  However, again, virtually all agree, that freedom may be taken away when there is a violation of the social contract. Freedom, a fundamental human right, may be taken away from those who violate society's laws.  So to is the fundamental human right of life forfeit when the violation of the social contract is most grave.

No one disputes that taking freedom away is a different result than taking life away.  However, the issue is the incorrect claim that taking away fundamental human rights -- be that freedom or life -- is a human rights violation.  It is not.  It depends specifically on the circumstances. 

How do we know?  Because those very same governments and human rights stalwarts, rightly, tell us so.  Universally, both governments and human rights organizations approve and encourage taking away the fundamental human right of freedom, as a proper response to some criminal activity.

Why do governments and human rights organizations not condemn just incarceration of criminals as a fundamental human rights violation?  Because they think incarceration is just fine.

Why do some of those same groups condemn execution as a human rights violation? Only because they don't like it.  They have no moral or philosophical foundation for calling execution a human rights violation.

In the context of criminals violating the social contract, those criminals have voluntarily subjected themselves to the laws of the state.  And they have knowingly placed themselves in a position where their fundamental human rights of freedom and life are subject to being forfeit by their actions.

Opinion is only worth the value of its foundation.  Those who call execution a human rights violation have no credible foundation for that claim.  What they are really saying is "We just don't like it."

copyright 2005-2009 Dudley Sharp
Permission for distribution of this document, in whole or in part,  is approved with proper attribution.

Dudley Sharp, Justice Matters
e-mail,  713-622-5491,
Houston, Texas
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.
Pro death penalty sites (Sweden)
Feb 22, 2009 at 10:00 PM | Unregistered CommenterDudley Sharp
Mr Sharp...

The day that a human-operated system of justice becomes infallible is the day that I will change my views and support capital punishment. Until then...
Feb 23, 2009 at 10:44 AM | Unregistered CommenterPogo

I agree. I think Dudley's point that the death penalty is not in conflict with human rights may be correct though.
Feb 23, 2009 at 12:22 PM | Registered CommenterBishop Hill
Maybe, maybe not... Big problem though is that the death penalty is not reversible in the light of later information - where, should the state have "offed" an innocent person, that's a *serious* violation of their human rights.
Feb 23, 2009 at 5:22 PM | Unregistered CommenterPogo
Yes, I think that's fair.
Feb 23, 2009 at 5:31 PM | Registered CommenterBishop Hill
@ Pogo: But then, so is locking an innocent person up for 20 or 30 years. There's no way you can give anyone this lost time back.
Feb 24, 2009 at 10:58 AM | Unregistered Commenterlukas
lukas... That's true, but it is at least possible to do <i>something</i>, however inadequate to compensate for the lost time. Until somebody invents a pretty clever new drug that's not an option after the death penalty has been erroneously exacted.
Feb 24, 2009 at 12:26 PM | Unregistered CommenterPogo
Brilliant post, and so true; witness, for example, the lesbians who took their health authority to court because of their claim that they should be *entitled* to the same IVF treatment as straight couples at the taxpayers' expense. This is a completely separate issue to their 'right' to have children, but is treated as one and the same thing.
There is never any distinction made between liberties and freedoms in this so-called democracy; unlike the US constitution which says that each are created equal but not that they go on to be equal, and they have the right to the pursuit of happiness but not the entitlement at the expense of others in which to pursue it, the bellows of 'discrimation! discrimination' are enough to prompt the State to enact antisocial laws.
Feb 27, 2009 at 1:17 PM | Unregistered CommenterMara MacSeoinin
It almost seems that the PTB/political groups/whoever wish to expand the social contract to include what are more or less wishlist provisions, and fall back on discussion centering on rights/liberties because it's rhetoric that people respond to. For example, I think most people these days would say that a child has a right to healthcare. Given that doctors and hospitals are a fairly new human invention, I'm not sure how a person could correctly say that having healthcare is a fundamental human right. Would it not perhaps be more useful if we owned up to the fact that we desire for all humans to live with certain resources and be proactive in producing them? I would hope that taking the positive action of consensus and creation would be more constructive than the top-down 'uphold these rights, or else' approach we currently seem to have. My suspicion is that many on the left are trying to work the latter flawed system; whether they agree with it or not is certainly going to vary. I would say it's better than nothing, but as you say, liberties are being eroded at breakneck speed and they'll certainly be gone long before they've sorted out the world's various human rights crises.
Feb 28, 2009 at 10:40 PM | Unregistered CommenterLanna Rosgen

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