Lanna at Head Desk has been pondering the question of the universality (or not) of human rights, and I started to write a comment there, but I decided it was worth turning it into a full posting here.
I've been wondering about the distinction between human rights and liberties for some time now and in recent weeks have come to the conclusion that a human right essentially defines an entitlement and therefore a duty on government (and perhaps on others), while a liberty defines a restriction on government (and perhaps on others). I've also concluded that human rights are potentially disastrous.
Here's an example of why.
Lanna's a home educator, and as I've commented previously, there is an ongoing campaign against HE by the government. They have instituted a review of the whole area - the fourth in three years IIRC - and this appears to have been preordained to conclude that there is a need for home inpections by state-approved monitors. Once in place, this will no doubt lead in time to the outlawing of HE. By way of a softening-up exercise, the government has arranged for its client charity, the NSPCC, to make vague insinuations of child abuse in the direction of home educators, which Lanna reckons is a fairly obvious attempt to stigmatise the whole community before regulating and legislating against them. It certainly looks very much like the similar treatment dished out to smokers and foxhunters in the past and so I think she may well be right.
So what has this got to do with human rights? Well, from the HE perspective, how come then the state can demand entry to your home? How come they can force your children to talk to them? How come they can demand that you not be present? Haven't you got a right to privacy? The right to a family life? You would hope, wouldn't you that your human rights would protect you against this sort of thing. But you'd be wrong. The government will argue that the mere possibility of the loss of the child's rights justifies the loss of parental rights to privacy.
And this is the problem with human rights. By creating entitlements, but no understanding of how to balance different people's entitlements off against each other, they create confusion and sow discord and eventually leave the field of debate entirely empty, ready for government to legislate as they wish.
In this case the government has decided that the parent's rights are secondary. (This rather conveniently coincides with their own prejudices and the needs of their financial backers in the trades unions and the educational establishment, who of course want to stop state schools from haemorraging pupils.) But it is clear that they could just as easily have referred to the right to privacy of the parents and decided something completely different. The same set of human rights can give entirely different outcomes depending on who happens to be in power at the time and the whims of whoever is funding them.
Human rights give governments the power to do what they want.
So how would it work with a liberties-based approach? The first thing to notice is that a liberty doesn't say anything about any individual's entitlements. But by defining what government may not do, the definition of a liberty implies how the rights of the individuals are to be balanced, and moreover, it implies them in a way that makes the outcome completely clear: there is only one possible conclusion that can be drawn.
For our HE example, the US Fourth Amendment (this is clearer for explaining the principles) simply says that the government may not enter the home without reasonable suspicion and a warrant. While this doesn't actually seem to address the question at hand - of how to balance the rights/needs/entitlements of parent and child, these things all flow naturally from the elucidation of the liberty. The rights of the child do receive appropriate protection ("if there's reasonable suspicion, we'll come and check things out") as do those of the parents ("we'll leave you alone unless there's reasonable suspicion").
Liberty works. It has worked for hundreds of years when it has been given the chance. Human rights don't. They never have.