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Law and Rights

Human rights

Human institutions – kings, tribes or parliaments – make laws, but are all the laws they make truly law? And is that all the law there is? There is a very old and long-lasting belief that in addition to human law there is natural law, which gives us a standard to judge human law.

The Roman scholar lawyers used the idea of natural law. As they compared Rome’s laws with the laws of the people they conquered, they saw common principles and standards. This common element they called ‘natural law’. They also used the term for what was reasonable and right even if it was no part of any one law system. The Roman lawyers were practical scholars. The inventors of natural law were Greek philosophers and they were much more philosophical about it. They saw natural law as the perfect model of law, a sort of divine standard, which was supreme over human law.
Natural law

This idea was taken up by the Christian church. The church preserved the learning of the Greeks and Romans, even though they were pagans. So many of their ideas seemed close to Christianity or could be used by it. In Christianity natural law became part of God’s law. It was not the law you found in the Bible; it was the law you could work out by your God-given reason and which was a fundamental law for human beings and their society. It started with the seeking of good rather than evil, and included the need to preserve life, to have children, and to bring them up. The Catholic church today uses natural law to condemn birth control and abortion. According to this teaching, the laws which allow these things are not true laws because they break God’s law.

Natural law took a new direction with John Locke and the Enlightenment thinkers of the eighteenth century. It was used to support the idea of natural rights which had been no part of the natural law before. The starting point of these thinkers was not perfect law or God’s law, but the individual person.
Natural rights

They wanted man to have rights as part of his nature, something which he had before there was government and which governments had to protect. By calling these rights natural rights they gained for them the authority of natural law, as supreme, above normal law, and which normal law had to respect.

This was the thinking which led to the first great modern declarations of human rights. The English Bill of Rights of 1688 claimed rights as given by the laws and customs of England. They were ancient. The revolutionaries in the American colonies in 1776 and in France in 1789 claimed rights because they were natural. So natural that you did not need to argue that they existed. The American Declaration of Independence says the rights to life, liberty and the pursuit of happiness are ‘self-evident’. The French Declaration of the Rights of Man and Citizen says its principles are ‘simple and incontestable’.

When the revolutions were over and the rights they had proclaimed became accepted and part of ordinary law, there was less need for the idea of natural law and natural rights. Legal experts said they did not really exist. The only law was that made by human institutions and the only rights were those that legal systems provided for and protected. There was no outside standard.

But the world looked for outside standards when it faced the horrors done by Hitler and his Nazi party in Germany. Hitler came to power legally. He was appointed chancellor by the president in January 1933. In February the parliament (the Reichstag) was burned down. Hitler put the blame on the communists and got the president to sign an emergency decree which took away freedom of speech and freedom of the press and allowed prisoners to be held without trial. In July the parliament passed a law which gave Hitler the power to make law. The parliament still met and passed laws, and elections were held, but the only candidates were Nazis. It was parliament which passed the Law for the Protection of German Blood and German Honour which made Jews non-citizens and forbade marriage and sexual relations between Germans and Jews.
Nazi Germany

With power given into his hands by law, Hitler locked up and tortured all opponents to his rule in Germany and, when he controlled most of Europe during World War II, killed nearly all its Jews. Five million were shot or gassed.

So were all these actions lawful? No one could think so. The countries which combined to beat Hitler (Britain, the United States and Russia) put the Nazi leaders on trial for crimes ‘against humanity’ which was a modern version of ‘against natural law’. The United Nations, formed after the war, issued a Universal Declaration of Human Rights. This is the modern version of natural rights. We do believe that human beings because they are human cannot be treated in certain ways. We believe this no matter what the law of any particular country may be.
UN Declaration of Human Rights

The United Nations declaration drew on the Bill of Rights of England (1688), of the United States (1791) and on the French Declaration of the Rights of Man (1789). Most of the civil and political rights in the UN declaration came from these documents and sometimes the same words were used. Rights were now for ‘everyone’, women as well as men. There were new social and economic rights such as equal pay for equal work, protection against unemployment, and a decent standard of living.

The big three powers were not at first very interested in a declaration of human rights. The small nations, Australia among them, were more responsible for pushing the UN in this direction. Australia’s foreign minister at this time was Dr HV Evatt, a brilliant lawyer who believed passionately in the United Nations and the need for a declaration on human rights, particularly economic and social rights. He was closely involved in the planning of the organisation and in drawing up the declaration. He was president of the General Assembly when the declaration was adopted in 1948.

The United Nations can’t make countries respect human rights. Over 100 countries have signed a UN covenant promising that they will. They have to report regularly to the UN on human rights in their territory and the UN checks up on countries where human rights are being abused. Asking questions and publicity are its chief weapons. Publicity works because around the globe people are interested in human rights. Organisations such as Amnesty International make a difference because they report on abuses and their letter-writing campaigns to governments which hold political prisoners reminds them that they are being watched.
Advancing human rights

This does not mean that the governments stop the abuses and let their people hold demonstrations and criticise them in the media. But it is now harder for governments to ignore outside pressure. They have to explain, or tell lies, or change a bit.

Countries acting alone or in groups can also put pressure on countries where human rights are being abused. This is a change from the old rule in foreign affairs which was that you did not criticise a nation for what it did in its own territory. The pressure is usually the stopping of trade or investment. Pressure of this sort from many countries forced the white South African government to stop apartheid, which denied civil and political rights to blacks.

It is much harder for one country on its own to bring pressure to bear. If it stops trade or investment, the country abusing human rights simply gets what it needs from somewhere else. While the caring country is losing money, others are making more, and the country abusing rights goes on as before.

There has been a debate in Australia over how much we should stress human rights in our relations with other countries. When abuses are taking place in our own region, those who care about human rights naturally want to do something about it. They say how can we treat as friends, governments which are locking up and torturing people? Our government says that it raises these matters privately with the governments concerned. Human rights activists want them to do more than this. But it is hard for one country, particularly a not very powerful country such as Australia, to exert great pressure on its own. It would be silly to harm our own interests, make an enemy of one of our neighbours, and still make no difference to how it treated human rights.

Australia does not have to give up its opposition to human rights abuses. We need to choose the methods that will work to advance the human rights cause. If nations are taking joint action, we can participate. If they are not, private protests may be all that our government can do. The strongest new force for change is the worldwide interest in human rights. We can and have contributed to that through the United Nations. Individual citizens can contribute through organisations such as Amnesty International.

Though Australia helped draw up the UN Declaration of Human Rights, it does not have a bill of rights of its own. The founders of the constitution did not think it was necessary. Scattered through the constitution there are a few rights, but there is no general statement of rights. For a long time few people in Australia were worried about this absence. Sir Robert Menzies in 1966 gave the same reasons for Australia’s not needing a bill of rights as the founders gave seventy years before. Australians had the protection of the common law and of responsible government. If a government denied the human rights of any citizen, ministers had to answer to parliament, which could vote them out of office.
An Australian bill of rights?

In the thirty years since, more and more Australians have come to believe that we do need a bill of rights. They do not have confidence that politicians in parliament will protect them. They are more likely to think that politicians are the danger.

We have developed new ways of protecting rights. The ombudsman will examine any citizen’s complaint about how they have been treated by the government. If any citizen believes they have suffered discrimination because of their gender, race or ethnic background they can appeal to the Equal Opportunity Commission. A Human Rights Commission examines and reports on human rights.

Still the demand for a bill of rights in the constitution continues. People are shocked to find that so few rights are protected in the constitution. They should not be too alarmed. Australian society believes in human rights and has many institutions, old and new, which protect them. The best protection for human rights is not a bill of rights but a long tradition of respecting them.

That does not satisfy those who want a bill of rights. They say the existing protections can be easily pushed aside. Habeas corpus, our protection against detention without trial, can be suspended by parliament. Commissions on human rights and equal opportunity can be abolished by parliament. The only way to guarantee rights is to have them written into the constitution.

All right. So rights will be safe in the constitution. But they still have to be interpreted. Rights are not straightforward. The right to free speech does not allow you to slander other people or stir up racial hatred. The right to privacy does not mean that you can hide your affairs from the tax office. Rights clash with each other and with the public good. If rights are made safe in the constitution, it will be unelected judges who have to decide these difficult questions. Isn’t it better that politicians elected by the people and answerable to the people decide the balance between rights and the common good?

No, No, so say those who want a bill of rights. They are the last people we would trust.

While Australians were debating the question, the High Court found that one right which would be part of any bill of rights was already in the constitution. The court declared invalid a law which banned political advertisements on television during election campaigns (Australian Capital Television case, 1992) because it limited the free speech that democracy requires. There is not a single word about free speech in the constitution. However, the court decided that since the constitution sets up a representative democracy, the document implies that there will be freedom of political comment. Looking for the implication of the document is an acceptable way of interpreting it. What was strange in this case is that we know the writers of the document had deliberately excluded a bill of rights from the constitution.
Implied rights

Weren’t the unelected judges going too far this time? If we want a bill of rights, we will put it in the constitution. And is it clear that in this case the judges made the right decision? There is a democratic argument for such a ban. If parties have to collect millions of dollars to pay for ads, the rich people and companies which give the money may come to have too much influence over the parties. Doesn’t this show the disadvantage of judges determining the extent of rights?

Most people don’t think so. A recent opinion poll showed that 70 per cent of Australians wanted a bill of rights and wanted judges to be the protectors of it. The faith in representative democracy and responsible government is in decline. The trust in unelected judges is on the rise.
Trust in judges

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