Week Three of final year Law is rapidly approaching its conclusion, and I am still as motivated and intrigued by my modules – evidently a good thing, to be sure.
As ever, this week has revolved around human rights, and legal theories and has continued to be fascinating. I particularly enjoy being able to study the history and development of various critiques, understanding the historical context and determining whether they still ring true today – see the work of John Austin, for example. My first tutorial for Legal Theory was this week, and I fear that my year abroad in America is beginning to become apparent to my peers as I did nothing but talk to our tutor and lead in the smaller group work. Oh dear. I was just too enthusiastic about the topics at hand, namely Socrates’ trial, the concepts of morality and justice, and the curiously complex questions of a) what is law, and b) whether law and morality should be separate issues, or are they destined to be entwined.
There was also an amusing moment during my Understanding Human Rights module, when our amazing lecturer happened to use my summary of a Marxist perspective when watching Pride (you can read more here) as the introductory slide in her presentation on Marxist theory. Cue my awkward shuffle in my chair as I could feel the gaze of my classmates on my neck.
To get to the heart of this post: for this week’s UHR seminar, we read a passage written by Navi Pillay, the UN High Commissioner for Human Rights, on ‘What are human rights for?’ (see D Moeckli, S Shah, and S Sivakuraman (eds.), 2nd International Human Rights Law (OUP: Oxford 2014) pg 3-6) which was a thought-provoking piece. She begins her answer by saying ‘I was born non-white in apartheid South Africa… My father was a bus driver. We were poor.’ From this, our lecturer asked us to think about:
1) [whether we] think our conceptions of what human rights are for depend on our gender, race, class and where we were born? Should they?
2) What do you think human rights are for?
I felt strongly about the first question, and whilst I felt frustrated contemplating the general modern political consensus of human rights as that which ‘restricts domestic courts’ or as ‘positive discrimination’, I was surprised to discover that by answering the second, I was hopeful.
Navi Pillay’s comments were inspiring, because to me they reveal her belief in the universality of rights and how being human is to be entitled to rights. Her belief in rights-entitlement was her strength and motivation to challenge the apartheid regime, which view her as inferior and not entitled to the same rights and freedoms as her white counterparts. Her unwavering belief in her equal standing to whites saw her through university to the establishment of her law firm. Being from a poor background, and as a black lady, she challenged prejudice because she believed human rights applied to her, just as they applied to her white peers.
Our first instinctive answer to the first question I think tends to be, “of course our conceptions of human rights do not, and indeed should not depend on gender, race, etc.” Yet upon reflection, you realise that as a society we are perhaps influenced by our class, our background etc. into viewing who should have rights-entitlement, and who should not. In addition, negative press, and condemnation of human rights law by leading politicians may result in our conceptions of human rights and who exactly is entitled to having their rights starting to ‘blur’.
The trickier question is the second part: I believe that our conceptions, in a perfect world, would not influence our conceptions of human rights, as we would all accept that as we are all human, we all should enjoy the protection and recognition of rights. Sadly, we do not live in a perfect world, and must accept that our influences can be either positive or negative. It is evident that those marginalised by society due to their class or race, or treated inequality by their fellow citizens due to their skin colour, gender or sexual orientation are more likely to allow these experiences to shape their opinion of rights as universal, and thus as ‘protection’. Those who do not encounter racism, discrimination or homophobia etc. do not understand how important rights are to the marginalised; they are more likely to be influenced by their own ‘privileged’ positions to argue that rights are already enjoyed by all.
I believe this question should make us realise that there are ‘privileged’ citizens, and due to their status and own guaranteed rights they cannot see why other citizens will demand equal rights-recognition; each having different conceptions of human rights and who is entitled to them. I would submit as an example LGBT* citizens in Northern Ireland. They ask for and deserve equality, and should be entitled to equality and non-discrimination under the law in Northern Ireland – namely that of the HRA 1998. The current issues of this sort would be of same-sex marriage and also the ‘gay-blood ban’. However, there are those in our society who, because of their own background and potentially religion views, refuse to accept that their fellow citizens, fellow humans, are entitled to rights equality. Members of the LGBT* community thus see human rights as their means, both on legal and political levels, to secure true equality in society. Their conception would be that as humans, they are entitled to human rights, which have been declared to be ‘universal’ and ‘inalienable’, whether by the UDHR, or ECHR. Conversely, those in society, influenced by their political and religious beliefs would argue that the law cannot be interpreted to agree with the demands of the LGBT* community. (There is an element of a natural law argument in their conception of human rights; these citizens would argue that the law of God cannot provide what man demands should be law.)
I mentioned in my reply to last week’s discussion the film Selma. I offer this as a further example of how differing backgrounds and beliefs influence our views on human rights, and the entitlement of same. Essentially, the film focuses on the struggle of the African-American community to secure rights-recognition through being granted the right to an equal vote. To be able to vote means more than society participation and maintaining a democratic system – it means that your voice counts, that you matter as a member of society. The film is based in Alabama, which essentially viewed African-Americans as the lowest class of citizen, and not deserving of the right to vote. Furthermore, the state officials fear that if ‘the blacks’ can vote, they will change society and challenge the status quo. The African-American community fight to be granted the right to vote, knowing that they can achieve numerous positive changes through democracy. They felt entitled to vote, and thus be counted, as humans. However, the status quo in Alabama viewed them simply on the basis of their different skin colour; their own racist views and conservative opinions influenced their conception of rights, holding that African-Americans were not equal to them and not deserving of the same rights and freedoms. This struggle for equal recognition in society is still ongoing for the African-American community in the USA, just as we witness the similar struggle for civil rights and equal recognition for the LGBT* community.
From a personal perspective: as a young woman, I would view human rights as confirmation that my worth is equal to that of my male peers. This, and being from a working class background, results in my conception of human rights as a means to prevent discrimination and ensure equality and fairness, in society and in the eyes of the law. My own background ensures that I will be sympathetic to the struggles of those citizens likely to suffer discrimination; I will advocate their rights as I believe that we are all entitled to rights-recognition and protection. Should my background etc. influence my conception of human rights? I would argue that it should, because it means that I strongly believe that human rights should be protected and recognised for all. As a human, and one who enjoys rights-recognition, I am aware that there are those who do not and I cannot see why I should not support them in their struggle to achieve rights-equality.
I thought that this is a very intriguing question, because it develops on the premise of the gap we have been discussing in class between the theoretical expectations of human rights, and the practice of human rights. Those whose conceptions of human rights stem from universality and equality of entitlement would argue that the gap between expectation and practice is wrong, and needs to be amended. Conversely, those who are influenced by gender, class, religion, political ideology etc. may argue that current human rights law is protection enough, and needs no further clarification or expansion. This can be seen in the current -Conservative! – government’s proposal to scrap the HRA 1998 and replace it with a ‘British Bill of Rights’.
To address the second question: I feel that human rights are definitely a means to ensure equality in existence and for the protection of humanity. I think that human rights exist to essentially ensure that all humans are recognised as equal beings. Human rights provide encouragement and motivation, as we are aware that we are all human and thus all possess dignity, which needs to be respected. By encouragement and motivation, I mean that by being aware of human rights, and what they provide and protect, we are aware of what we are entitled to – eg. freedom of expression, right to an education, right to assemble – which in turn encourages us to aspire in our goals. This could be either career goals, or to aim to campaign on behalf of others. Navi Pillay was aware of her human rights, taking encouragement from their stemming from shared humanity and dignity and thus aimed to succeed regardless of the prejudice she faced in South Africa as a black, working class lady.
Human rights are present to provide hope to those who may be classified as ‘others’ so that these minorities are aware that they are equally entitled to existence, to education, etc. Human rights are for motivation, so that we come to realise that regardless of race, background, language etc., we are all human and should be respected. Therefore, human rights are a platform for us to realise that discrimination and racism is deplorable.
It is 2015. If we cannot realise our shared humanity by now, when shall we? Human rights exist for us to do exactly that.