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Human Rights and Human Dignity

We are accustomed these days to rights talk. Rights have a significant degree of authority behind them. The European Convention of Human Rights is a foundational document ratified by a number of European countries. The concept of rights contained therein appears to command the assent of a number of Western democracies. Not only that, when an appeal to some human right (or the violation of such a right) is made it is often capable of putting to rest most social and political discussions.

Nevertheless, there remains some confusion over the nature of human rights, and whilst public discussions may often appeal to rights and rights talk, such discussions are rarely ever principled or follow a logical train of thought. Not only that, significant public voices addressing the issue of rights in relation to abortion, including representatives of Amnesty international, have stated that one is only a subject of rights if such rights are afforded to the individual by some governing body. Hence, if, on their reading, the unborn are not afforded legal protection, then they are not subject to rights and human rights do not apply to them.

This confusion quickly clears up when we actually read the human rights documents, that is, the Universal Declaration of Human Rights and the European Convention on Human Rights. The UDHR is quite clear in linking the ‘equal and inalienable rights of all members of the human family’ with human dignity, and the ECHR follows the UDHR in listing those rights that pertain to all humans in virtue of their dignity.

It is human dignity that grounds rights, and human dignity is something that one possesses not in virtue of being a member of a privileged group, such as all those who have been born, or some positive law granting one legal entitlements; rather, human dignity is something one has in virtue of being human. This dignity flows from human nature, and it does so precisely because human nature is rational nature. Human beings are the kind of things that are rational, whether they exercise their rationality or not. Hence they are the kinds of things capable of determining their own ends (regardless of whether they do so or not), and as so capable they themselves must not be the instrument for anybody else’s end; for that would be to treat them as less than human. Hence every human being is to be treated in light of the dignity that they have; regardless of the legal recognition or otherwise of such dignity. Indeed, it is precisely because humans have such dignity independently of state recognition that one can criticise the state or its authorities for abuses of such dignity.

Rights primarily flow from dignity insofar as human beings must be treated in such a way that their dignity is not violated. This fundamentally entails not subjecting their lives to the will of others, in which case we have a right to life, a right not to be tortured, not to be enslaved or put into forced labour. Flowing from this freedom from being subject to the will of others humans have a right to liberty and security, a fair trial when accused, and a legal framework within which punitive measures are exercised. Being free from the will of others all humans have a right to a private and family life, freedom of thought, conscience and religion, freedom of expression, assembly, and association, and the right to marry.

It is clear then that beginning from the principle of human dignity we draw out these various rights all of which revolve around dignity; failure to respect these rights is a failure to treat humans as fully human. Effectively what these rights ensure are the conditions by which we can live lives in accord with our human nature. In focusing human rights on human dignity, the drafters of the human rights documents did not envisage human rights as things conditional upon state or legal recognition. At the time these documents were drafted Europe had just emerged from a second war which saw some serious human rights abuses, and it is doubtless that having states sign up to these rights and ensure compliance therewith is a good thing. But compliance or otherwise with these human rights by a state does not entail that one is not subject to these rights. Hence, regardless of whether or not a state grants to humans or a certain class of humans, such as the unborn, these rights, those human beings nevertheless have these rights. Any sort of rights talk which classifies humans in one way or another and attributes rights to one class and not to another is absurd and contrary to the nature of human rights which all humans have in virtue of being human.

Dr Gaven Kerr

Blog

Clarity from the Supreme Court

On 10th October 2018 the Supreme Court, the highest UK court,  delivered its much anticipated judgement Lee v Ashers Baking Co Ltd [2018] UKSC 49.

The story has been well rehearsed – Ashers is a company owned by committed Christians, the McArthurs. Mr Lee was gay and worked for Queerspace. He was an existing customer of the bakery and in May 2014 wished to have the slogan “Support Gay Marriage” iced on a cake he ordered. This was refused and the charge of discrimination commenced, aided by the Equality Commission NI, which sought to test the legal boundaries of discrimination and confirm that Mr Lee had been discriminated against on the grounds of sexual orientation and/or  political opinion. Mr Lee succeeded in the County Court and NI Court of Appeal for reasons which were somewhat obscure to lawyer and layman alike.

The Supreme Court’s  judgement, however,  is a model of clarity. It held, regarding discrimination on the grounds of sexual orientation, that:

1. This was a case of “direct discrimination or nothing.”

2. Direct discrimination is by definition, treating people differently.

3. The correct comparator was other people, not different messages.

4. The circumstances of any comparison needed to be “the same or not materially different.”

5. Support for gay marriage was not a proxy for any particular sexual orientation, since anyone of any orientation could support it.

Lee v Ashers therefore differed from James v Eastleigh [1990] 2AC 751 – free swimming related to differing retirement age for men and women – and Preddy v Bull [2013] UKSC 73 (B&B accommodation only for heterosexual married couples). The complainants in these cases were adversely affected in law, because of a proxy for the protected characteristic.

6. There was no associative discrimination here – evidence of Ashers previously serving gay customers including Mr Lee himself and  employing gay staff, all put paid to that.

7. “In a nutshell, the objection was to the message and not to any particular person or persons.”

The Supreme Court made it abundantly clear that in this case, the cause of equality was done “…no favours to seek to extend it beyond its proper scope.”

The Supreme Court also examined discrimination on the grounds of political opinion. It accepted that

1. Support for gay marriage was a political opinion.

2. It pointed out that discrimination can arise irrespective of motive.

3. The legislation was designed to protect those who held an opinion from less favourable treatment, as compared with others who did not hold such an opinion.

4. It was clear that Ashers had previously served Mr Lee in other ways. Likewise they would have refused to ice the cake with this message, irrespective of the political opinion of the person asking for it. The Supreme Court took the view that it was not Mr Lee’s opinions or beliefs which resulted in the refusal of the order, rather:

“The objection was to being required to promote the message on the cake. The less favourable treatment was afforded to the message not the man.”

An interesting aspect of the judgement was how the Supreme Court dealt with the European Convention rights of the McArthur’s who owned Ashers, as opposed to the company itself. It concluded that in order to uphold the qualified ECHR rights of the McArthurs under Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression), the company should not be found liable. This differed from saying that the company had Convention rights.

Rather, to ensure that the McArthurs were not obliged to supply a cake iced with a message with which they profoundly disagreed or indeed be compelled to provide goods facilities or services expressing  a message with which they disagreed, unless justification was shown, the Convention rights could be invoked to protect the McArthurs, since to do otherwise would negate their Convention rights.

IMPLICATIONS

Significantly the Supreme Court was unanimous in reaching its decision. No dissenting voices confused the issue. Individuals are protected from compelled speech whether in icing, print, or orally. The groupthink mentality has been curtailed at least in the context of offering goods, facilities, and services.

Whether this is a victory for religious or political freedom has already been widely debated. However most commentators agree that the Supreme Court has stood up for freedom of expression, something which unites Baroness Hale, Peter Tatchell and no doubt, supporters of Iona (NI), on a significant area of social policy.

Shortly after she issued the judgement in Preddy v Bull, Baroness Hale gave a lecture at Yale Law School on Religion and Sexual Orientation: the clash of equality rights. She examined the case law on the subject and dealt with criticisms from the Archbishop of Canterbury and the Attorney General of Northern  Ireland on how  equality law had developed, particularly as it appeared increasingly to sideline religious belief or indeed fail to understand or show sensitivity to it.

Baroness Hale defended the role of the courts by explaining that the Law Commission had dismissed calls to legislate against offending religious feelings. However, she noted in examining Canadian case-law, that provision had been made there for a “reasonable accommodation” defence in dealing with conflicts of rights. She also acknowledged that some Christians did feel a lack of respect for their beliefs and queried whether a more nuanced view would be better.

She concluded:

“I find it hard to believe that the hard line EU law approach to direct discrimination can be sustainable in the long run. But I am not sure how comfortable I would be with the sort of balancing exercise required by the Canadian approach.”

Perhaps in Lee v Ashers we can see the arrival of some much-needed nuance into the conflict between competing rights through the mechanism of freedom of expression.

Although the Ashers have been vindicated in this matter, there will undoubtedly be many more conflicts to come where rights will clash. Freedom of conscience in medical matters such as abortion and euthanasia is one which might benefit in part by this decision but I very much doubt if it will be the last word on conscientious objection.

MARY J LEWIS BL

Blog

Rehabilitating Public Moral Discussion

A lot of public discussion over hot button issues such as abortion, same sex marriage, euthanasia there involve a definite moral dimension such that proponents and opponents hold that each is either right or wrong and that general society’s position on the matter is a good one or a bad one. However, often these public discussions occur free from any appeal to what is right or wrong in the case at hand since appeals to moral judgements are taken to be judgemental and reflective of a private morality that not everyone accepts. Hence, unless everyone or at least the majority of people affected by the particular issue agree with the moral position in question, it is not one that can inform the public debate. Accordingly, these hot button moral issues are decided not by appeal to what is right or wrong about the particular situation, but by an appeal to the democratic majority in question, whether that majority is expressed by a political party that promotes the issue as party policy or by a referendum.

What is clear is that the notion of morality is one that has been largely dismissed to the private realm and not as having any force to justify doing something that is right (or avoiding something that is wrong) if its being right (or wrong) does not accord with the general will of the people. The state of the public debate reflects something that Alasdair McIntyre and Elizabeth Anscombe focused on when discussing modern moral philosophy, and this is that it is as if we are in a post-apocalyptic era wherein we use the same terms as a previous era such as true, good, right, just etc, but they do not have the same meaning or force that they once had. Accordingly, there is no common conceptual backdrop (or philosophical psychology) against which moral claims can be defended or indeed disputed. With that situation in place, all moral positions are perceived to be motivated by emotions associated with agreement and disagreement, i.e. love and hate. Thus if you agree with something you are taken to approve of it or to like it, and if you disagree you hate it (and this very easily is taken to be love or hate for the one who holds the viewpoint). Moral judgements then are often dismissed as follows: if you don’t like x, don’t have one, but don’t stop others who do from having one.

Yet the latter approach is quite problematic when it comes to certain uncontroversial moral judgements; take murder for instance. A principled moral stance against murder is not simply a dislike for murder, but the judgement that there is something about the action which is wrong; and it is not wrong simply because the victim of murder does not want to be murdered, since even if the victim did want to be murdered the judgement could still be made that the action itself was wrong. Moral philosophers will typically analyse such an action against the backdrop of a moral theory independent of the tastes of the philosopher himself and which expresses the objective nature of moral judgements (by that philosopher’s own reasoning). What is often missing from contemporary public discourse is appeal to a rigidly worked out moral framework that informs the moral judgements which occur in such discourse. Hence the dismissal of opposed views as motivated by hatred or some other negative emotion.

Just as McIntyre, Anscombe et al sought to reorient modern moral philosophy by (re)introducing the conceptual framework that informed a lot of moral talk, and having done that proceeded to justify various moral judgements, so too in our contemporary (non-specialist) public discourse we need to (re)introduce a conceptual backdrop by which disagreements about moral issues can be evaluated.

In his book Man and the State, Jacques Maritain reflects on his experiences of drafting the universal declaration of human rights, and he notes that despite disagreements of theoretical justification, it was possible for all of the parties involved in the drafting to come up with a number of rights that they took to apply to all humans. So it is possible to come to agreement on practical outcomes of disputed moral positions without those involved compromising the moral framework to which they are committed. In the case of the declaration of human rights, all parties involved realised that they had to reach some sort of conclusion, and they sat down and talked it out. They didn’t denounce each other publicly, or take to social media (there was none) to laud their own positions. They discussed, no doubt heatedly, the vexed issues and managed to produce the universal declaration of human rights.

The above experience indicates that in whatever way agreement is to occur, it has to occur within the context of discussion of the moral viewpoints involved, not by focusing on the conclusions generated from those viewpoints. If we focus on conclusions, we label others as pro-this or anti-that, and thus we do not give them a chance to articulate why they are pro or anti whatever they are. By focusing on conclusions we do indeed react emotionally to what we either like or do not like regardless of how reasonable its foundations are. On the other hand, when we focus on the reasons for the conclusion, it is possible to find common ground, and to map out clearly where the divergence occurs. When we know that, we are not as quick to denounce our interlocutor, but rather we can see how he or she has been led to adopt that position.

The individuals involved in drafting the declaration of human rights were not involved in political lobbying, running for office, orchestrating a rhetorical tennis match; they had work to do in finding a practical solution to vexed moral questions, and they sat down and hammered out the issues. We need to do the same in our public discussion. Radio interviews, social media debates, parliamentary debates etc are good as far as they go, but very often they descend into one-line burns that only serve to focus on conclusions and not the reasons which justify those conclusions. What we need is a public space where reasons justifying moral judgements are discussed without acrimony. This can take all sorts of forms such as reading groups, school philosophy programmes, public discussion groups etc, but what it cannot be is faceless. A public space within which moral discussion takes place must allow for one rational individual to talk to another rational individual; it cannot have either give their own two cents to a third party who in turn relays these messages back and forward and the discussion goes nowhere. The lack of any such public space, or even an acknowledgement for such, wherein justifying reasons for moral judgements are discussed is leading to a lack of knowledge of why one’s opponent concludes as he or she does; and this leads us to focus only on the conclusions whereby we define our positions as anti-this and pro-that, it does not illuminate us as to why we disagree or where we could possibly agree.

So in order to rehabilitate public discussions of morality, we have to move beyond the rhetorical tennis match and engage with those reasons which justify our views, disagree with those reasons when we do, and get into a discussion of why we disagree (and where) and to pursue the discussion wherever it goes. If the impasse over some of these hot button issues is not resolved by this, at least the public discussion of them will be a lot less acrimonious and divisive.

Dr Gaven Kerr

Blog, Media

The Right to Religion in the Public Place

 

On 19th April Dr Gaven Kerr of Iona Institute NI attended an event at which he was a member of the panel to discuss a new animation put forward by the NI Human Rights Commission and the Evangelical Alliance. The animation can be viewed here: https://www.youtube.com/watch?v=NsjhqqCubfw. The event was titled: Let’s Talk About Rights and Religion, and it aimed to focus discussion on the rights based background to religion and its public expression. By and large the event was a success and all of the panellists agreed that greater awareness of the right to religion and its public expression is a good thing. Dr Kerr’s approach to the issue was as follows.

The Universal Declaration of Human Rights states the following in article 18: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

The European Convention on Human Rights similarly states in article 9: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

It has been elsewhere remarked on this blog the Christian theological vision involved in our contemporary notion of human rights: https://ionainstituteni.org/2018/03/29/christianity-and-the-universal-declaration-of-human-rights/ This is to the effect that human dignity is what generates human rights; and human dignity is derived from the rational nature of human beings. Effectively, insofar as every human being is a rational substance, regardless of its stage of development or occurrent abilities at the time of consideration, every human being must be treated as an end in itself and never as a means to an end. To treat a human being as a means to a further end is to gloss over the person’s rational nature and to treat the human as something that is not human. This conception of human dignity grounds the right to life which is primary in both the Universal Declaration and in the European Convention, but not only that, this conception of dignity as we have said generates all other human rights; and that is no less true of the right to religion and its public expression.

As both human rights documents state, all humans have the right to freedom of thought, conscience, and religion. This stems from a consideration of dignity insofar as we have dignity because we are rational substances. As rational substances we are free to form our beliefs in accord with what our reason tells us is the case. Thus, it is our rationality that grounds that right. Not only that, included in this right is the manifestation of religion or belief in worship, teaching, practice and observance. The latter bears some reflection particularly in the context of human dignity.

As rational beings, we form our thoughts and beliefs on the basis of our reason. Thus, we believe something, be it a religious belief or otherwise, because we have reason to believe it. Given that we have reason for such beliefs, we have a right to the public manifestation of such beliefs. But that rational grounding of such public manifestation carries with it an obligation on the part of the believer and an obligation on the part of the state.

On the part of the believer, he or she must accompany the public manifestation of beliefs with the reasons for such belief. That is to say, the believer must at least be able to say why he or she believes as he or she does. This has the twofold aspect of justifying the believer and allowing the non-believer to engage with the believer on a shared rational basis; such advice is indeed that given by St Peter in 1 Peter 3:15 wherein he advises that we be always prepared to give an answer for the hope that we have.

On the part of the state, insofar as the public manifestation of belief is accompanied on the part of the believer by the reasons by which he or she believes, the state has a duty to protect the right of the believer to manifest his or her belief in public in the ways alluded to in the human rights documents above. Thus, simply because a belief is a religious one does not automatically entail that it has no position and ought to have no position in public life. Accordingly, the state cannot justifiably relegate religious belief to the private realm simply because it is religious. Given that the public manifestation of that belief is accompanied by the reasons for such belief, religious belief has just as much a place in the public square as non-religious belief.

It is worthwhile to focus on this right to religion and its public manifestation, not to mention the rational backbone to all of this, precisely because one commonly hears the refrain that religion belongs in the private realm and not in the public. Yet the human rights documents referenced above did not see it this way, and if one looks at the role of human rationality and in turn dignity in the derivation of human rights, it simply cannot be the case that religious belief is essentially a private affair with no place in the public realm. The joint venture then of the NIHRC and the EA is to be welcomed.

Dr Gaven Kerr