AN INTRODUCTION TO APPLIED HUMAN RIGHTS:

A GUIDE FOR THE PERPLEXED

ROB WATTS

Melbourne
2014

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History says: Don’t hope
on this side of the grave.
But then once in a lifetime
The longed for tidal wave
Of justice can rise up
And hope and history rhyme.

Seamus Heaney, The Cure at Troy (1990)

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 TABLE OF CONTENTS

INTRODUCTION

CHAPTER ONE: WHY HUMAN RIGHTS ARE A GOOD IDEA

CHAPTER TWO: THE RULE OF LAW AND HUMAN RIGHTS

CHAPTER THREE: THINKING ABOUT HUMAN RIGHTS

CHAPTER FOUR: HUMAN RIGHTS IN AUSTRALIA: WHAT AUSTRALIANS THINK ABOUT HUMAN RIGHTS

CHAPTER FIVE: HUMAN RIGHTS IN AUSTRALIA: THE VICTORIAN CHARTER, 2006-2012

CHAPTER SIX: THE VICTORIAN CHARTER IN ACTION: MEASURES OF SUCCESS

CHAPTER SEVEN: STALKING HORSE OR TOOTHLESS TIGER? OBSERVING VICTORIA’S CHARTER OF

HUMAN RIGHTS IN THE WILD

CHAPTER EIGHT: CULTURES OF HUMAN RIGHTS AND THE PROBLEM OF HUMAN CONDUCT

CHAPTER NINE: THE HUMAN GOODS THAT MATTER

CHAPTER TEN: DESIGN PRINCIPLES FOR A CULTURE OF HUMAN RIGHTS

REFERENCES

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INTRODUCTION

… recognition of the inherent dignity and of the equal and

inalienable rights of all members of the human family is the
foundation of freedom, justice and peace in the world …
United Nations, The Universal Declaration of Human Rights (1948)

Beginning in 1945 Eleanor Roosevelt, widow of former US President Franklin D. Roosevelt and a
courageous advocate for the rights of women and Afro-Americans, put her considerable moral authority
into a highly visible public campaign to promote what was to become the United Nations Declaration of
Universal Human Rights (1948). In 1947 as part of that campaign, Eleanor Roosevelt (2000: 180-6) made
a speech which resonates still sixty years on. In it she declared:
I believe in active citizenship, for men and women equally, as a simple matter of right and justice.
I believe we will have better government in all our countries when men and women discuss public
issues together and make their decisions on the basis of their differing areas of experience and
their common concern for the welfare of their families and their world. In the United States and
in most countries today, women have equal suffrage. Some may feel that for this reason this [UN]
Convention is of little importance to them. I do not agree with this view. It is true of course that
the first objective of this convention is to fight for the political rights for women in all countries.
But its significance reaches far deeper into the real issue of whether in fact women are recognized
fully in setting the policies of our governments … Too often the decisions are originated in and
given form by them in bodies made up wholly of men or so completely dominated by them, that
whatever of special value women have to offer is shunted aside without expression.

Whatever else might be said about it, Roosevelt’s speech is a rich and compelling celebration of ideas
central to modern political philosophy like citizenship, human rights and justice. No less provocative
even in the twenty first century is the idea that people like women who are affected by decisions of
governments, ought to be involved in deliberations leading to those decisions. Powerful speeches like
this one by Eleanor Roosevelt undoubtedly played their part in adding to the momentum that produced
the UN Declaration of Universal Human Rights in December 1948.

And yet.

Almost seven decades after the UN Declaration was promulgated, women, even or especially in the
wealthy, democratic countries of the West are still nowhere close to being included in the deliberative
decision-making practices of government, business, or non-government organizations in ways

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proportionate to the fact that they make up one half of humankind. (Even in ‘advanced’ countries like
Switzerland it took until the 1990s for women to get full voting rights). Though much more could be said
about the status of women, the gap between the promise found in Mrs Roosevelt’s speech and the
practical consequences of decades of striving to promote human rights suggest that there is value in
asking some hard questions about human rights.

That is what I want to do in this book. It is important to note from the outset that that while there are
many, many books and papers about the legal aspects of human rights and while I do think about this
aspect pf human rights this is not the main focus. I am much more interested in thinking about whether
human rights does or does not figure in our daily lives, in our families, public spaces and workplaces both
as ideas and as practices.

THINKING WHAT WE DO?

The need to do this is suggested for example when we consider the modern commitment to human
rights, and the claim that this occurred as a direct consequence of what people ‘learned’ or ‘discovered’
at the end of the Second World War. It is now a conventional wisdom that the creation of the United
Nations in 1945 and the subsequent promotion of human rights by the UN, owed a great deal to the
‘discovery’ in May 1945 of the enormity of the crimes against humanity committed by the Nazi state
between 1933-1945. Micheline Ishmay (2008: 212) summarizes this conventional wisdom when she
writes:
… all the victorious leaders, following the atrocities generated by the war, agreed that an
international organization stronger than the League of Nations was needed to counter interstate
conflicts and to promote social justice …
The stress here seems to be on the idea that certain experience forced or enabled people to learn in
such fashion that the impulse to promote human rights gained traction.

Yet the force of this claim is undercut firstly by her own acknowledgement (2008: 214-5) that the
decision to make human rights a central feature of the Charter of the United Nations being drafted in San
Francisco in mid-1945 was not initially accepted by the major powers ie., Britain, the USA, Russia and
France. If anything this was forced on the major powers by a coalition of non-government organizations
(led by the World Council of Churches, the World Trade Union Congress and the American Jewish
Committee) and a large number of small and medium states from Latin America, Asia, Australia and New
Zealand. In early May 1945 the draft Charter of the UN was amended to recognize that ‘[w]e the people
of the United Nations [are] determined … to reaffirm faith in fundamental human rights’.

Even more pertinent than this observation is the deeper question: what precisely was learned when
Germany was finally defeated in late April 1945, and western military forces liberated concentration

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camps like Belsen, their newsreel cameras capturing unprecedented scenes of horror? In the months and
years that followed, the world certainly came to discover more than abundant evidence of German state-
sponsored genocide targeting Jews, Poles, Russians, and gypsies as well as the killing of people with
physical and intellectual disabilities in the so-called T4 ‘mercy killing’ project. While some of this
genocidal policy used traditional techniques like mass shootings, or famine, the discovery that Germany
had designed purpose-built death camps (like Sobibor, Treblinka and Auschwitz-Birkenau) and used
industrial-style killing techniques including mass production gas chambers and crematoria, shocked
public opinion in the west. No less shocking was the discovery that many of the elite members of
Germany’s scientific and medical establishment had used tens of thousands of prisoners for scientific
and medical experiments.

It is possible to argue that these discoveries provoked a major crisis of faith in the Enlightenment idea
that reason and science guaranteed social and moral progress. Certainly the discovery of the way
science and technology had been used to kill innocent people provoked exiled German writers like
Theodor Adorno and Max Horkheimer (1947/2008:14) to declare that ‘Everywhere the fully enlightened
earth radiates disaster‘. In this way Adorno and Horkheimer signaled their own break with the
assumption made since the eighteenth century Age of Enlightenment that the triumph of science and
reason was linked to human and moral progress. But how far were others prepared to go in rethinking
old platitudes?

From at least the time referred to conventionally as the Enlightenment (ca. 1650-1800), there had been
widespread acceptance in the West of the idea that the knowledge generated by various kinds of
scientific research offered a solid basis for promoting human welfare, securing economic growth, or
solving urgent problems like poverty, unemployment, hunger, or epidemic disease. Scientific research
seemed ‘naturally’ linked to promoting social progress. In the eighteenth century it was assumed that
we were naturally reasonable and reasoning creatures, and that armed with the relevant scientific
theories, facts and explanations there was nothing we could not do to make things better. The premise
that ‘useful knowledge was good knowledge rested on the commonsense ‘Enlightenment’ assumption,
that as homo sapiens we would ‘naturally’ be informed by credible knowledge and would want eg., to
reject all those irrational ideas provided by ‘primitive’ magical or superstitious religious thinking. It seems
that the common sense status of this belief was epitomised by Article 27 of the UN’s Universal
Declaration on Human Rights (1948) which declared that everyone has the right to ‘share in scientific
advancement and (their) benefits’.

Yet for all the solemnity of this apparently commonsensical proposition, if its authors seemed to have
forgotten how in the decade immediately prior to the Universal Declaration of Human Rights, large
numbers of people had been subjected to murderous scientific experiments carried out by highly

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reputable German scientists in the name of a project of ‘racial science’, how much more puzzling was
what happened in the years after 1945.

Firstly in 1947 seven distinguished German doctors and scientists were sentenced to death, and nine
others given lengthy prison sentences after being found guilty of carrying out countless painful,
sometimes fatal medical experiments on prisoners in Nazi concentration and death camps. After the
trials were over, American lawyers drafted what became known as the Nuremberg Code outlining ten
basic rules for carrying out medical experiments on people. (The first Principle of the Code stipulated
that only people able to exercise ‘free power of choice’ should be asked to participate in medical
experiments). This Code became the basis for increasingly expanded codes of medical and experimental
ethics which are now found in almost every society. Surely this meant that medical research could not
help but be ethically sound?

The evidence on this matter is clear: in the decades after 1947, and in spite of the Nuremberg Code,
hundreds of thousands of people including children in institutions, hospital patients, and prisoners in
Australia, Britain and America continued to be subjected to appalling, painful and sometimes fatal
medical experiments by medical professionals and scientists. As Allen Hornblum (1995) shows, there
was actually a huge increase in the volume of medical experiments using prisoners in American jails after
1950. The CIA used prisoners to experiment with the use of LSD for interrogating spies; drug companies
routinely used prisoners to test new therapeutic drugs or cosmetics(Ronson 2004). Some researchers
even injected live cancers or highly infectious and potentially lethal bacteria and viruses, including
malaria, hepatitis, or syphilis. Death, disfigurement suffering and pain were routine. Only in the mid-
1970s did mounting public concern lead to a tapering off in the practice in America.

It seems that in these countries doctors, social workers, and administrators were able to persuade
themselves that the benefits to the public, to say nothing of the profits to be made, counted for more
than the basic ethical idea at the heart of the western medical tradition: primum non nocere: ‘first of all,
do no harm’. The fact that there were codes of medical practice like the Hippocratic Oath in place, to say
nothing of the Nuremberg Code after 1947 which specifically forbade experimentation on vulnerable or
weak people like prisoners, was simply ignored. In America the fact that there was also a Bill of Rights
seems not to have inhibited the practice of experimenting on prisoners or children in institutions. In
America the idea of applying the Nurumberg Code to Americans was simply dismissed: the Code was
only applicable to people like the Nazis (commonly referred to as ‘barbarians’) and not to ‘good’
American doctors (Annan & Grodin: 228). Perhaps that is why remarkably few doctors protested, in spite
of the quite blatant breeches of both the Hippocratic Oath and the Nuremberg Code entailed by these
practices. It also seems that such typical factors as obedience to authority in the prison system,
cowardice, complacency and a refusal to think what was happening operated. Professionals like social
workers simply went along with the practice. As one social worker told Hornblum (1995: 19):

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 Nobody really investigated what the tests were about. We questioned it among ourselves, but
nobody looked into it. The medical personnel walked around in white coats and looked very
official and authoritative.
As is too common, willed ignorance and a refusal to think produced very bad consequences.

Secondly, nowhere did the Nuremberg Code acknowledge, let alone prohibit the possible use that could
be made of the medical research already done in the 1940s. It is an unpalatable fact that countless
millions of people around the world have actually benefited from the research carried out by German
researchers using Jews, Poles and prisoners of war as their involuntary research subjects. For example it
was research done on helpless women prisoners in concentration camps after 1939 which enabled the
rapid development of the birth control pill, which by the 1960s was in worldwide production and use.
This was just one of dozens of cases of bad research producing good effects, a problem which persists
even now. (We ought to remember here the use of randomized clinical trials in which desperately ill
people are treated with placebos or the continued use of animals in scientific research, or the creation of
a market for volunteers who are paid to become guinea pigs in countless clinical trials (Carney 2011).

Though there are many other things that might be said about the intended and unintended
consequences of the ways science and scientific research had been conducted in Germany after 1933,
this discussion plainly suggests we need to ask questions about the value of relying only on formal legal
codes of human rights, or on other instruments like codes of ethics to prevent bad things happening to
people and to prevent serious abuses of human rights. (This, of course is not an argument implying we
should get rid of codes of ethics or other formal legal codes).

Other questions need to be addressed. Though a case has yet to be made that what Hannah Arendt
(1958:5) had to say about a key defining character of our time applies to the specific case of human
rights, there is every reason to think she has grasped a key feature of a great deal of human conduct
when she points to our refusal or inability to think what we do.

This insight came to her as she sat in a court room in Jerusalem in 1961, witness to one of the great trials
of the twentieth century. The defendant was Adolf Eichmann, a key bureaucratic figure in the
development of the ‘Final solution’, the Nazi plan to kill all of Europe’s Jews. As she looked at him she
said she saw neither a psychotic nor a moral monster, but rather an ‘ordinary man’ who loved his family
and wanted to do well at his job. She saw in Eichmann someone who was unable or unwilling to
understand the implications of what he was doing, and who preferred to rely on clichés than to think
about his own conduct. Eichmann she said was an ‘ordinary man’ who shared certain traits in common
with large numbers of other ordinary people. Her conclusion was that
... the heedless recklessness or hopeless confusion or complacent repetition of 'truths' which
have become trivial and empty -seems to me among the outstanding characteristics of our time.

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This may well help to explain why well-intentioned people can engage in hideous experiments on other
people or do other very bad things to other people. Arendt’s proposed antidote was simple: ‘What I
propose, therefore, is very simple: it is nothing more than to think what we are doing’. Though it will
need some further discussion, Arendt’s proposal points to something like both the purpose and an
approach to doing what Michael Sandel (2005:5) has called ‘public philosophy’.

By ‘public philosophy’ Sandel means firstly that political and legal controversies of the day provide a
valuable opportunity to ‘do philosophy’. Secondly the practice of public philosophy entails that moral
and political philosophy can and should be brought to bear on contemporary public discourse. As to
what this signifies about how we might do public philosophy I am guided by remarks made by John
Finnis (1980) about the value of linking descriptions of states of affairs to evaluations of desirable courses
of action, oriented to some conception of one or more goods. (The word ‘goods’ (or ‘bads’) here is used
in preference to the widely used ‘values’ which George Orwell correctly understood had already become
a ‘weasel word’ in the 1940’s). Accepting that there is no perfect fit between description and evaluation,
Finnis (1980: 19) nonetheless argues that there is a:
… mutual though not quite symmetrical interdependence between the project of describing
human affairs by way of theory, and the project of evaluating human options with a view at least
remotely to acting reasonably and well.
The requisite interdependence says Finnis, is best understood as the reciprocal value of having people
who possess a ‘deep knowledge of the facts of the human situation’ which is needful, if we are to
evaluate ‘the implications of basic values’, as well as having people skilled at evaluation, a capacity to be
valued because it helps us to decide which ‘descriptions are really illuminating and significant’.

If we are inclined to take human rights seriously, we will need to think what we do. As an exercise in
public philosophy I take this to mean that we will need to address some important questions.

TAKING HUMAN RIGHTS SERIOUSLY: THE PROBLEMS WITH RIGHTS

In writing this book I have been guided by certain basic intuitions about the kinds of questions we need
to ask. One of those intuitions is the small but important point, that talking about human rights matters
because if there is something valuable about rights talk, that value lies in a certain universal aspect of
that condition in common we call the ‘human’ condition. The claim to universality itself is a frequent
feature of discussions of human rights. Ishay (2008: 3) typically insists that:
Human rights are rights held by individuals simply because they are members of the human
species. They are rights shared equally by everyone regardless of sex, race, nationality and
economic background. They are universal in content.
Anthony Grayling (2007: 150) adds some flesh to this somewhat bare-boned assertion, when he suggests
that human beings everywhere and at all times wish to stay alive, want to enter into relationships with

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each other, want to eat and be sheltered from the elements, and want to exercise the opportunity to
make a life for themselves that they feel is good. If these are the things they want, there are things they
do not want: they do not want to be murdered, tortured, raped, treated with lack of respect or
humiliated. It is this simple but profound truth that human rights talk captures. To talk about and to
advocate for human rights acknowledges and addresses the fact that these wants -whether expressed
positively or negatively- matter to all of us. It may also imply some judgment that these common needs
are still insufficiently acknowledged, let alone actually available either to all of the peoples of the world.

Human rights are a good idea because thinking about human rights compels us to think about some
basic and common human needs. This consideration alone warrants us taking human rights very
seriously.

Having said that however, and like many people we cannot afford to ignore the many obvious yet
puzzling aspects of human rights. Several things stand out initially, both of which undermine any simple
idea that the universality of human rights somehow makes our promotion of human rights a simple or
obviously good idea.

The first is the way that many advocates for human rights seem to imply that human rights aren’t all
that relevant in any modern, western democratic society. Those who advocate strongly for human rights
often argue as if human rights are only really needed in ‘Third World’ countries where people have to
put up with dictatorships, military juntas or endemic, life-threatening poverty. Take the impassioned
advocacy by the philosopher Anthony Grayling. If there is one highly accessible contemporary
philosopher who has worked to make issues like human rights come alive it has to be Anthony Grayling.
Here is Grayling (2007: 153) writing about human rights:
Theory is scarcely to the point here; talk of human rights is serious talk, because violations of
them are serious matters. It is about real people and their real agonies of mind and body. And the
fact that there are human rights organizations that lobby, complain, inform, campaign, demand
and accuse has palpable effects: individual lives are saved, prisoners freed, regimes shamed,
sanctions imposed, differences for the good made …
Here Grayling is addressing and implicitly acknowledging the ‘obvious’ way most people in a place like
Australia think about human rights. Most people think about horrific instances of crimes against
humanity like genocide, torture, and political terror as offences against human rights. However and for
many people living in wealthy, ‘first world’ nations these problems are thought to exist only in far away
places or at least ‘somewhere else’ like Iran, Russia, Somalia or Uganda. This may be thought a blessing.

Yet it is also a problem. Treating human rights as some sort of issue for international forums, reinforces
the sense that there is something abstracted about human rights. In spite of strong and sincere advocacy

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for human rights., the ‘stuff’ of human rights seems to either be a bit abstract, or else it seems to lack
any simple and direct immediacy.

Secondly and this is arguably a more serious problem, there is the problem that asserting one set of
rights seems to lead to a storm of conflicting rights claims, or to a situation where the rights of one
group are used to trump the rights of another group. Think of what happens when we start to talk
about rights and particular groups of people argue that they have a certain right which must take
precedence over the rights of another group. I think eg., about a discussion that has gone on in Victoria
over the last ten years. In 2006 the government of Victoria (a state in the federation that is the
Commonwealth of Australia) introduced a Charter of Human Rights and Responsibilities. Using that
Charter, the Catholic Church in Victoria successfully argued in 2009 that if it was to exercise its right to
freedom of religious belief and practice, it must also be allowed legally not to employ homosexuals,
single mothers, or divorced people in its schools or hospitals. The Catholic Church argued that if it was
forced to employ these kinds of people would offend its members’ deepest beliefs and so infringe their
right to profess their religious belief. In October 2009, the Victorian government agreed with the
Catholic Church, making it lawful for the Catholic Church (and other like-minded religious organizations)
to discriminate against people, including homosexual men and women, who until then thought that the
Charter and other anti-discrimination legislation protected their right not to be discriminated against on
grounds of their sexuality. In this case the right to freedom of religious practice cancelled out another
right namely the right of people not to be discriminated against on the grounds of their sexuality.

As we will see this is just one instance among many when the rights of one group may trump the rights
of other groups. At the least it seems that asserting that ‘X has a right to do Y’ can quite quickly promote
a battleground as various rights are thrown back and forth between groups who do not see eye to eye
about very much except what they disagree about. As many writers have discovered, rights talk can be
very tricky, contradictory or paradoxical, all too often ending up in sterile and frustrating controversies as
people endlessly assert their rights against the rights of others. Far from the ostensible universalism of
rights promoting harmony it seems that rights talk can generate highly divisive politics.

Finally we see something of this complexity again when the universality of rights talk is contested as
allegations are made that talk about ‘universal’ human rights involves a conspiracy by governments
seeking to impose Western beliefs or values at the expense of other equally legitimate values. This belief
was at work when a coalition of African states rejected the UN Covenant on the Rights of the Child (1988)
and set about drafting an ‘African’ statement on the rights of the child. Here the support for an idea
about human rights remained undimmed even if the assumption that the idea could be expressed in
terms of universal ideas was decisively rejected.

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What do these kinds of circumstances imply for human rights? Does it mean eg., that we cannot
attribute any kind of universalism to the concept of human rights? Or does it imply, as a long line of
critics have argued, that the core idea is somehow fundamentally muddled? There are many critics who
claim with Jeremy Bentham, one of the original critics of human rights in the eighteenth century, that
circumstances like these indicate why ‘all talk of human rights is nonsense on stilts.’ Does the problem
that rights can cancel each other out, imply that we need to think about dropping certain rights from the
list of rights, or does it mean we need to come up with better ways of resolving such disputes?

These questions are closely connected to other controversies which go to the role of the law in both
identifying and protecting human rights. What role is to be played by the law, and in particular how
valuable are legal processes (like litigation), law reform or the use of constitutional mechanisms to
promote human rights?

THE ROLE OF THE LAW?

In part there are ‘practical’ issues at stake involved in the arguments critics have mounted. Apart from
arguing that talking about human rights simply invites a large degree of conceptual muddle, they have
argued that it is wrong to place the identification or protection of rights in the hands of unelected
judges, claiming this will reduce the power of a democratically elected legislature while enhancing the
power of an ‘unelected’ judiciary (Campbell 2001; Allan 2003). Others have argued that bills of rights will
encourage frivolous litigation, and choke an already clogged court system. Other critics have argued that
in countries with an effective common law system there is simply no need for a bill of rights: the rule of
law and principles like habeas corpus are more than enough to protect human rights (Allan 2002, 2003).
(Many of these arguments were relied on in August 2009 by former Australian Prime Minister John
Howard in a major attack on the proposition that Australia needed a bill of rights (The Age 27 August
2009). Implicit in these arguments are some large and quite substantive questions about the
fundamental basis upon which claims that we possess human rights are best based. In effect this goes
to the question of authority.

Certainly there is a tradition of thought which insist that there is something natural and inalienable
about our human rights: here the ultimate authority may be a conception of authority vested in a god or
the gods). This would give rise to a claim that ‘god’ gave us our human rights. Alternately the idea might
be put that because we are all humans we have human rights because ‘nature’ made us that way.

Others are not so sure. Those who work within the tradition of ‘legal positivism’ say the law is whatever
lawmakers say it is. That is governments make laws and do so lawfully and if they give us rights so be it.
Equally if they take them away so be it. This ‘legal positivist’ tradition insists that unless the law identifies
and protects a specified list of rights, all talk of rights is so much huffing and puffing. This preference for

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the use of state power, the rule of law and procedural justice backed by the power of the state perhaps
explains why so many countries have not been content to rely on the UN Universal Declaration of Human
Rights preferring instead to introduce various kinds of bills of rights. This preference however does not
lessen the need to ask hard questions.

How eg., are ‘bills of rights’ and/or of legal systems reliant on lawyers, and judges, along with their
vocabulary and modes of reasoning, able to address the quite complex issues involved in promoting
human rights? What eg., are we to make of the quite skeptical arguments made by Stuart Scheingold
(1974/2007) about the role of the law and the work of lawyers in promoting human rights? Scheingold
(1974/2007) first argued over three decades ago, that while the law and talk of rights is part of a
powerful mythos, it can only be truly effective when it is harnessed to the task of changing both
communal values and human conduct. As Scheingold (1974; 2007: 5) pointed out:
Legal frames of reference tunnel the vision of both activists and analysts leading to an
oversimplified approach to a complex social process – an approach that grossly exaggerates the
role that lawyers and litigation can play in a strategy for change.
This proposition is especially challenging given the effort expended by reforming lawyers and
governments everywhere on developing bills of rights, promoting law reform and using anti-
discrimination laws and tribunals. Is it possible that a legally based rights project will not by itself take us
all that far? As I will show there is some cause for concern about the capacity of statutory law, lawyers
and courts alone to make much progress in promoting human rights.

If the law does not provide all that secure a basis for identifying and protecting human rights, then on
what basis can we think about human rights? How will we identify those rights said to be human rights?
On what basis of authority can we legitimately identify and protect certain rights? Was John Rawls
(1970) arguably the single most influential political philosopher of the second half of the twentieth
century, right to insist that rights come before goods? Or is John Gray on more solid ground when he
suggests that human rights are better approached as a consequence of a ‘long chain of reasoning’ and
thinking about the nature of human interests and goods? This question matters to Gray because he
(2007: 108) thinks:
Human rights have neither substantive content nor moral weight until their impact on human
interests, their contribution to human well-being has been specified.

In effect John Gray (2009) like Michael Sandel (2005), is arguing that whatever else we want to say about
human rights, we need firstly to identify those human goods or valued ends that define a life as a good
life. Whether or not this case has merit, it does suggest that we need to establish what if anything can be
said about the relationship of human rights to our ethical ideas about living a good life understood in all
of the various ways this should properly be thought about. If ethical ideas are at stake in any claims we
make about our human rights, will identifying these ethical ideas help to resolve the problems we face

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when dealing eg., with contradictory rights? Or does the fact that human values and our beliefs about
the valued ends that make a good life are so varied and contested, imply that to try to resolve the
contradictions between various rights by resolving the differences between our ethical ideas is merely an
invitation to leap from the frying pan into the fire? And who is best placed to address these questions?

Treating this as an exercise in ‘public philosophy’ (Sandel 2005), I want to address a small number of
questions, the answers to which help to shape the sequence of chapters.

In Chapter One I ask two basic questions: what is a human right and what makes it right? That is, on
what basis have people historically based their claim that we humans have rights? Since this inescapably
seems to involve some appeal to authority what is the nature of that authority? As I show broadly
speaking there are two kinds of answers that have been given. One answer is that the only rights that
matter are those that the state is prepared to acknowledge (This is what a broadly defined ‘legal
positivist’ tradition says). The other answer is that the rights that matter are somehow grounded in our
nature and the ways of living humans have devised for themselves (This we can call the ‘natural law’
tradition. This tradition however is [slit between those who say ‘God’ made us who we are, while
others simply say ‘society’ or ‘nature’ is the source of our ideas about human rights). Without
pretending that two classic expositions of the answers given respectively by Thomas Hobbes and John
Locke have said all that needs to be said, I nonetheless suggest we see some of the strengths and
weaknesses of the respective answers each offers when we do as I do and look at Hobbes and Locke’s
account of rights.

In Chapter Two I turn to a second set of questions about the role of the law. Are legal approaches to
identifying and protecting human rights reliable? Are there limits to the reach of the law? What are we
to make of the fact that the gravest abuses of human rights are perpetrated by sovereign states? Is it
possible to resolve conflicts between competing rights, especially by legal means? As I argue here relying
on the law to identify and protect human rights has its virtues but it is subject to some problems. I briefly
explore the core idea of human rights as a legal concept and at the limits of the law and of typical
mechanisms used like litigation or tribunals to protect rights. As Wesley Hohfeld’s (1919) famous, but
overlooked analysis of rights talk as a juridical matter suggests, there may well be too many dead-end
streets in which an excessive preoccupation with rights will end up trapped. Equally as Scheingold
(1974/2007) suggests, a regard for litigation goes only some part of the way to protecting people from
abuses of their rights. The task of making a culture of rights in which a positive regard and respect for
people flourishes, suggests that we need to go beyond rights and into the daily practices and values of
ordinary people.

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My fundamental and paradoxical point in this book is that we will not build a sustainable culture of
human rights if we only engage in rights talk or if we only rely on lawyers and the law. To be blunt: if we
are to build a culture of rights we need to escape the gravitational pull of rights talk as done by lawyers.

Writers like John Finnis (1980) have argued ‘the explanatory justification of rights’ as well the resolution
of many conflicting claims about rights cannot be done by only using rights talk. I agree. While we can,
and should engage in legal reasoning and use legal processes like legislation in our courts to promote and
protect human rights from time to time, this by itself will not get us very far. Equally while there is some
value in attending to the often narrowly technical debates between legal academics about the
administrative-cum-legal pros and cons of bills of rights, or Charters of Rights, there are far more
complex and challenging issues to be addressed.

Given the advocacy made on behalf of formal charters of human rights how well do they work? That
large question is addressed in Chapters Four through Seven. I begin by looking at what ordinary
Australians know about and think about human rights. The answers are I suggest sobering. Then I turn
to examining the design and effects of the Victorian Charter of Human Rights and Responsibilities 2006.
In these chapters I attempt to describe as carefully as possible both what is in the Charter and what it
set out to achieve, before I attempt some evaluations pf its success to date –which admittedly is not a
very long time.

I then turn to a third set of questions in Chapters Eight through Ten. How does talk about rights connect,
if at all, to talk about ‘justice’ and or to basic human ‘values’ -or as I prefer to call them human ‘goods’?
This requires some hard thinking about the connection of rights to goods, if we are to establish whether
spelling out a human right is a good idea.I turn to ask what facts and values matter, if we are to
construct an account of human rights that might inform a culture of human rights? I begin by addressing
the question of what goods might define the human goods that a regime or culture of human rights
might seek to promote. As Socrates first suggested, living in a good society is to live in a society which
enables all its members to flourish. It does this by addressing the question of justice: what do we owe to
each other? Socrates did not lay down any detailed prescriptive answers about the content of justice pr
the substance of a just society. He preferred a commitment to leading what he called ‘the examined
life’, grounded in the practice of elencthia. Elencthia is what we sometimes call the ‘Socratic method’
and is manifest in persistent dialogic questioning accompanied by a gentle, sometimes ironic scepticism.
Even so, Socrates like his successors Plato and Aristotle, understood that a good society oriented to
justice would require the cultivation on the part of every citizen, of a commitment to practice those
virtues oriented to creating a community in which all might lead flourishing lives. In case readers are
worried about relying on a long-dead philosopher who doesn’t provide clear answers, I turn to two
philosophers who are very much alive, Martha Nussbaum (1995; 1999) and John Finnis (1980). Both
Finnis and Nussbaum provide rich and content-ful accounts of the flourishing life. To ensure that we can

15
lead flourishing lives, Nussbaum for example speaks to the purposive development of human
capabilities. In an even bolder argument Finnis argues for certain basic human goods which he identifies
as common or universal human goods which a regime of human rights can be grounded in. ‘Growing’ a
culture of human rights depends very much on embedding a clear-sighted regard for engaging in what
Finnis calls ‘practical reasonableness’

CONCLUSION

I suggest that in our beginnings we see interesting possibilities. When Eleanor Roosevelt talked about
human rights she spoke about the links between a conception of ‘active citizenship’ and the ‘stuff’ of
rights and justice. For Mrs Roosevelt, ‘active citizenship’ required a process of active public deliberation
which involved:
... bringing men and women together to discuss public issues together and make their decisions
on the basis of their differing areas of experience and their common concern for the welfare of
their families and their world.
Implicit in Roosevelt’s conception of active citizenship are several important ideas: the link between
human rights and justice is too important to be left to the law and lawyers. Likewise the relationship
between human rights and any number of ethical ideas is too important to be left to philosophers.
Granting the practical value of human rights while acknowledging the conceptual complexity and
practical issues which attends all talk of human rights, what then are we to do? I argue here that only by
developing a ‘culture of human rights’ will we arrive at good answers to that question and to a number
of other questions. To do this I draw on work by Sen (2009) and Habermas to make the case that a
commitment to deliberation will be one of the distinguishing design principles of any culture of human
rights worth having.

A final point. My purpose in this book is that it be treated in the way any guide book works for a tourist,
namely as a source of background information about the words to use and questions to ask if you get
lost, as well as hints about things to see and places to avoid. Responsibility for the hard work of actually
engaging with the terrain that the guide book is a guide to, belongs to all who seek the place none of us
has ever yet seen. This is not ‘utopia’ so much as a future worth having To this extent I do not agree with
Orwell who said that any map which does not include a place called ‘utopia’ is worthless. We have seen
too often what utopians can do to the rest of us. What we do need if we are ever to work towards a
future worth having are those very capacities for clarity, and a principled regard for important virtues like
courage and common-sense, allied to a basic ethic of respect for truth and others which Orwell always
tried to live out in his work as a writer -and activist. Orwell, like his great predecessor Socrates,
understood the value of trying to avoid relying on abstracted propositions. We properly recall that
Socrates famously failed to persuade anyone using rational argument of his core belief that it was
preferable to be a victim of injustice rather than to perpetrate an injustice. His own preparedness to die

16
as a result of a manifestly unjust trial was a practical demonstration of a profound truth: do as I do and
not just as I say.

QUESTIONS

1. What key questions is the author (me) asking here?

2. Can you get a grip on the likely major claims?
3. Does it seem that this author is relying on any assumptions that you can spot at this stage?
4. What do you understand by ‘ethics’ and ‘morals’? Are they the same thing or different? If you
think they are different why do you think this?
5. What do you understand about ‘human rights’?
6. Are you a skeptic about human rights’ or a ‘true believer’? Can you identify the basis upon
which you rely for your basic judgement about this?
7. How much do you on a daily basis think what you do? Think for example of the way you
read, or the way use ideas when talking in the home or in the workplace.
8. Are you capable of great wickedness?

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CHAPTER ONE: WHY HUMAN RIGHTS ARE A GOOD IDEA

We hold these truths to be self evident, that all men are created
equal; that they are endowed by their Creator with certain
unalienable rights; that among these are life liberty and the pursuit
of happiness. That to secure these rights governments are instituted
among men, deriving their just powers from the consent of the
governed …
The United States Declaration of Independence (1776)

Today it is fairly likely that if a poll were taken of all humans about the question ‘are human rights a good
idea?’ that most of us - by a small majority -would say ‘yes’. Assuming that this was the result, Anthony
Grayling (2007: 242) would say that this is because a momentous shift occurred after 1945 in the way
governments, political leaders and public opinion thought about three things - war, the sovereignty -or
power- of the state, and human rights. These changes in thinking he says ostensibly reflected what had
been learned at the conclusion of a global war (1939-45) which saw ordinary citizens pay a far higher
cost in terms of lives lost and the quantum of sheer terror and misery than that experienced by either
citizens or military combatants in any previous war.

Grayling argues it was agreed that if wars like the one just concluded were to be prevented in future, the
international community needed to organise itself far more effectively than had proved to be possible
under the old League of Nations set up in 1919. It was also agreed that national sovereignty could no
longer be a shield behind which grave crimes against humanity might go on unnoticed. The practical
solution was the establishment of the United Nations and its Security Council with responsibility to
prevent both genocide and war. The UN was required both to intervene to prevent genocide and to
authorise any outbreak of war such that any war not sanctioned by the UN would by definition be an
illegal war and so render any offending state liable for its actions. Grayling (2007:242) also says it was
agreed that there was merit in synthesising all of the ideas about liberty and rights from the centuries
before ‘and to organise that thinking into a body of clear cut principles and to affirm it as universally
applicable’. This thinking says Grayling resulted in the United Nations drafting the Universal Declaration
of Human Rights.

MODERN HUMAN RIGHTS

Released in December 1948 the Declaration initiated a ‘new era’ in human rights. The idea that the
Universal Declaration of Human Rights points to something novel about human rights can be interpreted
in al sorts of ways. One way of understanding the claim is to say that it legitimated a new, liberal and

18
non-religious idea about our rights supplanting older presumably religious and non-liberal ideas about
rights. Another way of interpreting the claim that there was something new about the Universal
Declaration is to point to the intensity with which the UN and governments everywhere took the talk
about rights more seriously. Both possibilities raise important questions which I begin to address in this
chapter.

Certainly since 1948 there has been a lot of energy put into promoting human rights. The Universal
Declaration would be followed over coming decades by a succession of major UN Covenants, the first
addressing Civil and Political Rights and the second dedicated to Economic, Social and Cultural Rights.
The UN has also subsequently drafted special covenants spelling out the rights of children, women,
peoples with disabilities, indigenous peoples and so forth. On each occasion governments around the
world were then invited to accept them as legally binding - though what this means has not always been
clear. Each of these Covenants provide examples of what we now understand by ‘human rights’. As an
example we can consider the list of rights found in the UN Covenant on Civil and Political Rights
(UNCCPR).

These rights are frequently treated as minimum standards for any state claiming to respect human rights.
They have been represented in a matrix often referred to by the acronym FRED. (F stands for Freedom, R
stands for Respect, E for Equality and D for Dignity). Under the rubric of ‘freedom’ for example there are
eleven rights. These include:

 Freedom from forced work

 Freedom of movement
 Freedom of thought, conscience religion and belief
 Freedom of expression
 Peaceful assembly and freedom of association
 Property rights
 Right to liberty and security of person
 Right to fair hearing
 Rights in criminal proceedings
 Right not to be tried and punished more than once
 Protection from retrospective criminal laws

Under the idea of ‘respect’ we might find such rights as:

 Right to life
 Protection of families and children
 Cultural rights for ethnic minorities or indigenous peoples

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‘Equality’ refers to:
 Recognition and equality before the law
 Entitlement to participate in public life (including voting)

Finally under the heading of ‘dignity’ we might find rights such as the
 Prohibition of torture and cruel, inhuman or degrading treatment
 Protection of privacy and reputation
 Humane treatment when deprived of liberty
 Appropriate treatment of children in the criminal process.

As Grayling notes, the achievement of the Universal Declaration of Human Rights which identified many
of these rights was only possible because of the widespread support for the idea and by the decision
taken to ensure that those drafting it came from every region of the world. Those representing the so-
called ‘Third World’, many of them at that point, colonies or former colonies of the old European
imperial powers, were especially supportive of what they saw as a counter-balance to the excessive
power and influence wielded by the old ‘superpowers’ like Britain, the USA, France and the Soviet
Union. Even then these ‘superpowers’ were alarmed by possible restrictions or limits being put on their
freedom to act in their ‘national interest’.

It says something that on the one hand that since 1945 most nation-states around the globe have
adopted ‘bills of rights’ most of them replicating the UN Covenant on Civil and Political Rights (UNCCPR).
A terminological note is needed here. The reference to a ‘bill of rights’ here needs to be interpreted
broadly. It refers to two kinds of ways human rights can be specified and protected. One approach
involves inserting into the constitution of a state a catalogue of rights. Epp (1996) argues that this
typically confers significant legal status to the rights specified and gives effect to guarantees of rights.
(Examples of constitutional bills of rights include the United States Bill of Rights (1791), the Canadian
Charter of Rights and Freedoms (1982) and South Africa’s Bill of Rights (1996). The other way of
identifying and protecting rights involves parliaments enacting legislative statements of rights as an Act
of Parliament -which can be subsequently amended by the legislature. Examples of statutory bills of
rights include New Zealand’s Bill of Rights (1990) and the United Kingdom Human Rights Act (1998).
Further the UN has systematically expanded the reach of its surveillance and reporting capacities to
monitor progress in protecting human rights eg., the UN Covenant on the Rights of the Child now
requires of all governments a five year cycle of reporting on how well the rights of children and young
people are being promoted.

Apart from the near universal practice of introducing ‘bills of rights’, it can be observed that the theme of
human rights has come to be the object of routine political discussion both inside many countries and
internationally. Think eg., of issues like the treatment of asylum-seekers, responses to the threat of

20
terrorism, the status of women, the continued dismal treatment of people with disabilities and children,
and the way China’s record of human rights abuse has become a matter of regular diplomatic
engagement all make this point. These observations may indicate why human rights can be treated as a
good idea, although to its critics it may suggest the opposite.

Certainly there is plenty of evidence to suggest that we still have a long way to go if the idea of human
rights is ever to be judged a good idea in practice. We might eg., take the puzzling case of the USA. The
US is generally acknowledged to be a society where the rule of law operates. It has long had a famous
Bill of Rights adopted in 1791. Most of the formal aspects of a robust democracy are in place including a
very robust free press and a high regard for the freedom of speech. Yet the actual record of a regard for
human rights in America is also threadbare, even tattered (Ignatieff 2005).

Keeping the UN Covenant on Civil and Political Rights (UNCCPR) in mind eg., we might note that the USA
executes more people including young people under 18 years of age than any other state with the
exception of China. The conditions under which prisoners on death row in some states like Louisiana are
kept, is in clear breach of rights to humane treatment when deprived of liberty, or the right not to be
subjected to torture and cruel, inhuman or degrading treatment. America’s prison population which is
astonishingly high is still subject to involuntary prison labor which is in breach of the right to freedom
from forced work. As is now notorious and beginning after the 9/11 terrorist attacks, the US suspended
the application of habeas corpus and held large numbers of people in detention in Guantanamo without
any formal legal process depriving thousands of people of their right to a fair hearing. Equally it
systematically indulged in the use of torture of ‘terror suspects’ and later, after its illegal invasion of Iraq
in 2003 facilitated a program of abuse of prisoners in the Abu Grahib prison. More generally it remains
matter of record that a century and a half after the abolition of slavery Afro-American citizens still face
well designed obstacles in some Southern states to being able to vote denying them the right to
participate in public life (including voting). Finally and more generally the US has been hostile to any UN-
led infringement of what it sees as its national sovereignty: it has generally refused to sign off on many of
the UN’s covenants -including the Covenant on Genocide. The US since the late 1940s has systematically
used the procedural rules enabling the Security Council to operate and especially the right of veto given
to members of the Security Council, to promote its own interests. Though the US is hardly uniquely or
solely responsible for this, it has meant that the UN has failed to prevent most of the wars that have
erupted since 1945. Worse the UN has failed to prevent a single instance of genocide including standout
cases like the Rwandan genocide in mid-1994 (Powers 2003).

What has come to be called ‘American exceptionalism’ (Ignatieff 2005) can stand in for the many
practical difficulties associated with promoting and protecting human rights either globally or inside any
particular country or community and which extend far beyond any failures, real or imagined, by the USA.

21
There is it seems, a large gap between what governments say they means when they declare a
commitment to recognising human rights and what they actually do.

SOME QUESTIONS -AND ONE METHODOLOGICAL POINT

That gap suggest the need to ask some basic questions. Is talking about a ‘human right’ (whether to life,
to privacy or to vote) a good idea, and if so why? Aside from assuming that human rights are an
obviously ‘good idea’ we need to ask what kinds of arguments might be made on behalf of human
rights? Why have people thought that talking about our rights was a good idea? Does the idea that we
now think about human rights in a new, ‘liberal’ or ‘secular’ way implies that we once thought about
rights in a different way? Other questions then follow. Does the palpable gap between the formal
spelling out of human rights and the actual practices of nation-states, suggest anything about the value
of having a bill of rights? Does this gap suggest it is a bad idea because human rights talk involves unclear
or muddled thinking which means it can never be made to work? Or does this gap point to a good idea
whose advocates are condemned to pursue a search for good people possessing good will who work in a
good political system, a search rendered futile because these qualities are in very short supply most of
the time?

In what follows I want to think about some of the claims made about human rights, and the way people
have justified the idea that we have rights. I do this by identifying two important and still current ways of
thinking about human rights, each associated with two of the great political theorists, Thomas Hobbes
and John Locke.

One way of thinking about human rights is found in a powerful statement by Thomas Hobbes (1651) that
human rights are only ever what a state or a government chooses to define as a right. That proposition is
made in the course of Hobbes’ larger argument that unlimited state sovereignty (or power) is the only
secure basis upon which any kind of civil society is possible. This is an early and influential foundation ins
what came to be called the legal positivist tradition. Legal positivists insist that any claim made about
anything including rights that is not actually enacted by a government is meaningless. Put another way
legal positivists say only governments define what is lawful and only governments establish what rights
are to be taken seriously.

Another way of thinking about rights asserts that simply being human means we simply and inevitably
have natural rights. This view was artfully promoted by John Locke, who like Hobbes, lived most of his
life in the seventeenth century. This natural law tradition says that there is a moral or ethical basis of
human rights. Part of what is at stake is captured in a momentous debate that took place between HLA
Hart (1958) and Lon Fuller (1958) in the 1950’s. Hart and Fuller addressed the question were laws
passed by the Nazi state after 1936 which made criticism of the Fuhrer, Adolf Hitler a crime, lawful. Hart

22
seemed to imply that even a criminal state is able to make laws that are lawful, while Fuller argued that
laws to be lawful have to pass certain moral tests.

Both of these arguments are interesting because while being quite different in all sorts of obvious ways
that matter, they share one thing in common: both belong to a tradition which treats the way things
naturally are, including our human nature as the basis for thinking about things like rights. Hobbes of
cpurse that because we are naturally greedy, egotistical, disagreeable, violent and disorderly we need a
strong state to make our life worth living and that only such a state can and will enforce our rights. Locke
who doesn’t agree, claims we have rights just because we humans naturally live together in certain ways
and in the course of living together we identify rights which arise because of the way things ‘naturally’
are because we share certain ethical ideas.

Both of these arguments are also interesting because in a simplifying way these two arguments capture
something about the way we still talk about rights. The Hobbesian idea mirrors one modern idea ie the
legal positivist idea that rights can only mean anything when governments identify and protect them by
formal legal means. Locke’s idea that we naturally have rights parallel the modern liberal idea that we
have rights just because we are all humans. In offering this radically simplified and bifurcated
presentation I am not saying that Hobbes and Locke have said all that is to be said on this matter. (I am
certainly not saying that Hobbes and Locke provide the only justifications that can be or has been offered
to defend the idea that we have human rights, or that they offer the best defences of human rights).
However relying on Hobbes and Locke as I do here has one merit, namely that it both clarifies some
important issues while highlighting certain problems which persist into our time. What I do say is that
focussing on the relationship of human rights variously to state-made law and/or to some conception of
‘natural law’ helps provide a sense of part of the history of thinking about human rights as well as
suggesting how we might think more clearly about the claims and counter-claims about rights.

Finally both of these arguments are interesting because they illustrate a large but simple point made by
John Finnis (1980) which has certain substantive as well as methodological implications. Like Hobbes
and Locke, Finnis wants us to think about human nature and human conduct. If we think about our
nature, FInnis says we will see that we seem naturally and inevitably confronted by the need to think
about our collective lives and to establish the basis of authority for living, acting and choosing to do the
things we do and in the ways we do. This is because our nature is so ineluctably social in character: Finnis
takes the idea that we are thoroughly socialised quite seriously. In effect our human nature as social
beings is a fact which compels us time and time again to construct a principled and reasoned
specification of valued ends and ideas about justice and rights in our communities wherever and
whenever they are to be found. This Finnis says, makes us all theorists of ‘natural law’. 1 All this means is
1
The idea that ‘natural law’ is universal is put to interesting use. Finnis suggests that ‘modern’ writers from
Bentham to Raz have all criticized the very idea of natural law, but in their critique they all started with practical
grounds for their critique (which were either left inexplicit or else inadequately justified) which they simply

23
that any theory of ‘natural law’, says Finnis ‘claims to be able to identify conditions and principles of
practical reasonableness, of right mindedness and of good and proper order among men and in
individual conduct’ (1980: 18).

He says that there is an expectation central to any conception of natural law, that any exercise of
authority in any and all communities will properly require or generate a set of practical principles which
point to the basic forms of human flourishing as goods to be pursued and realised. In abstract terms,
Finnis says that any natural law will speak to certain basic principles which indicate the basic forms of
human flourishing as goods to be pursued and realised and which are used by everyone who considers
what to do -however unsound their conclusions. Indeed, he insists that there are also a set of
methodological requirements if we are to engage in any exercise in practical reasoning or ethical
deliberation which seek to distinguish between sound and unsound practical (ethical) reasoning. Finally
he says we may also see in the fact that every community large or small has established what might be
called a set of general moral standards.

For Finnis this means that expressions and articulations of what constitutes the ‘natural law’ are going to
be found across all human communities in time and space. It will be found he adds, in both formal
political and ethical theories as well as in all the daily practices of politics and social regulation. Finnis
says every one of our ethical and political theories from Confucianism, Roman Law, Lockean liberalism,
Marxism, fascism, or Green politics are examples of this ongoing project in generating ‘natural law’. In
short Finnis treats natural law as a kind of inbuilt aspect of our ‘species being’ where that species being
is construed as a collective or social phenomena. He is quite explicit about this social dimension putting
up some kind of expectation about how we will describe and evaluate our lives. Developing a theory of
natural law he says, ‘(1980: 18-9) cannot proceed securely without a knowledge of the whole range of
human possibilities and opportunities, inclinations and capacities, a knowledge that requires the
assistance of descriptive and analytical social science. In Finnis’ (1980: 23) view, no one discipline or
historical tradition (like Christianity, liberalism, Marxism etc.,) can legitimately lay claim to know or to say
what natural law is. He says that whatever their content, the principles of natural law can be found in
moral philosophy (or ethics) as well as in ordinary human conduct, or in political philosophy and
jurisprudence, in political action and in the life of the citizen. Finnis says what links all of these
heterogeneous dimensions is a common theme: each exercise of authority in a community involves or
requires that someone justify that exercise in authority by appealing to certain principles.

There is one important entailment of Finnis’ position for my later discussion of rights. This is that all our
modern ideas of justice attempt to make some kind of connection to the idea of human rights and do so
used or adopted as a ‘practical’ (ie., ethical) standpoint as their standard for relevance and significance in their
own description and critical analysis of natural law. In this way they were actually manifesting the pursuit of
natural law understood precisely as the pursuit of a critique of practical viewpoints done in order to distinguish
the practically reasonable from the practically unreasonable.

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in ways that embody a due respect for justice and a regard for some kind of common good in which the
promotion of rights play some part. Finnis says that typically all such exercises of justification will refer to
principles of natural justice and natural rights. That is natural law is evident when humans appeals to
principles whenever authority is exercised in any community.

The pertinence of these remarks will I think begin to be clear in the rest of this chapter.

THOMAS HOBBES: THE STATE AND RIGHTS

Though few of us have ever read Hobbes’ great work Leviathan (1651), a surprising number of us are
Hobbesians. I mean by this many of us hold to a dark view of our fellow humans as greedy, egotistic,
untrustworthy, potentially or actively violent and always threatening to cause trouble. This is a
circumstance for which we can never have enough police, law and order, moral consensus or military
might to deal with. It is a way of thinking which Hobbes did not originate, but to which he certainly gave
memorable expression. Ryan (2012: 413) rightly says Hobbes is ‘the greatest of British political thinker,
and the boldest, most exciting and most compelling writer on politics in the English language’.

Though not everyone who subscribes to the ‘legal positivist’ tradition starts with Hobbes, his great work
called Leviathan is one source which underpins that tradition (Jones 1994). This tradition found amongst
many practitioners in modern justice systems treats large ideas like ‘justice’, ‘fairness’ or ‘rights’ as
meaningful only to the extent to which state power through the legal system is prepared to define and
enforce those ideas. Legal positivists eg., treat human rights as extrinsic to individuals and groups,
preferring instead to say that the only rights which matter are those which governments and courts are
prepared to specify and protect by way of legislative or judicial processes. This is what Woodiwiss (2005:
xi) means when he suggests that the term ‘rights’ refers to a ‘legally enforceable set of expectations as to
how others most obviously the state, should behave towards rights bearers’. 2

What I want to do here is show how Hobbes addresses the quintessentially political question: under
what circumstances and by what kind of justification may some men come to exercise authority over
other men in a political order? Hobbes answers this question by arguing that political order requires a
contract by men to give over all power to a sovereign power which alone can secure the well-being of
people. In such a setting human rights can only be meaningful when a sovereign power -like a state- is
prepared to define and protect specified rights in a context where that sovereign power must exercise

2
By this Woodiwiss (2005: xi) means to specify two possible ways that people can be constituted as ‘rights
bearers’. On the one hand, ‘Rights bearers have to be entities legally considered to possess ‘personality’ – that is
legally deemed to be autonomous moral agents- and therefore capable of taking decisions and accepting
responsibilities, as in the case of adult persons, trade unions, corporations or states. However rights bearers may
also be members of groups ‘legally recognised as entitled to make claims to protection and or support on the
basis of the principle of reciprocity because they have been denied the possibility of autonomy as a result of
factors like age (children), race, gender, sexual orientation, poverty, mental or physical illness or indigenousness’.

25
largely untrammeled power. The Hobbesian solution to the problem of natural disorder turns out to
have some interesting consequences.

Thomas Hobbes (1588-1679) set in train a new way of explaining the origins of a political order based on
the use of power, coercion and even fear. His is possibly the greatest, and certainly the most nuanced
account of the role violence and power plays in constituting a state. For that reason he bequeathed a
legacy to liberal political theory akin to the receipt by the last person in the group playing ‘pass the
parcel’ in an Irish pub. Hobbes took up the question of how to establish or justify political order in a
context characterized by fundamental political disorder, and by no less profound uncertainty about how
best to establish what was true. Hobbes was deeply involved in an affected by both the political disorder
occasioned by England's civil war (1642-9), and by the three way contest about the basis of truth waged
by advocates of scientific method, logical reasoning and faith.

To be very clear, even though it seems to make everything I have said so far seem very unclear, Hobbes
did start with a framework of natural law and natural rights that originate in the primal ‘state of nature’.
Like Grotius before him and Locke after him, Hobbes argues that each of us has some natural rights, the
first of these being that 'every man may preserve his own life and limbs, with all the power he hath'.
This right Hobbes argued, arises out of:
... natural necessity which makes men desire that which is good for them and to avoid that which
is hurtful ... And that which is not against reason, men call Right or jus or blameless liberty of
using our own natural power and ability.
From this however it also followed that
... every man by right of nature is judge himself of the necessity of the means, and of the
greatness of the danger.
Yet this proposition far from leading Hobbes to argue to some idea about natural virtue as the basis for
political or social order becomes the point of departure for a radical recasting of political theory.

In effect the state of nature is a problem precisely because in it no one can agree about anything. In
Hobbes’ view this is because each 'natural man' makes his own assessment of the external world. The
exercise of the right of self-preservation leads to cognitive and ethical anarchy, a state of permanent
conflict. Says Hobbes this is because no-one is necessarily mistaken in what they think about it. Hobbes'
'state of nature' (cited Tuck 1993: 309-10) is first and foremost a space filled with epistemic uncertainty
and ethical relativism:
In the state of nature where every man is his own judge and differeth from other concerning the
names and appellation of things, and from those differences arise quarrels and breach of peace; it
was necessary that there should be a common measure of all things that might fall in controversy;
as for example what might be called right, what good, what virtue, what much, what little, what
meum and tuum ... For in these things private judgment may differ and beget controversy.

26
Each man may independently judge anything at all to be a threat or a danger to him and act accordingly
in pursuit of his own self-preservation.

Hobbes' famous 'state of nature' is not a moral space so much as a dark, bleak plain such as
Hieronymous Bosch might have painted. It is a space swept by fiery passions such as hate, envy, lust or
greed and blackened by pain, death and suffering. In the 'state of nature' the laws of nature which
sustain the few natural rights Hobbes acknowledges are not helpful. In such a state of nature, Hobbes
held that there was little point appealing to reason.
This common measure some say is right reason: with whom I should consent, if there were any
such thing to be found or known in rerum natura But commonly that they call for right reason to
decide any controversy do mean their own.

Faced with this situation Hobbes argues that only a political solution will suffice:
... seeing right reason is not existent, the reason of some men or man must supply the place
thereof; and that man or men is he or they that have the sovereign power ... and consequently
the civil laws are to all subjects, the measures of their actions whereby to determine whether
they are right or wrong, profitable or unprofitable, virtuous or vicious, and by them the use and
definition of all names not agreed on, and tending to controversy, shall be established.
Hobbes did not assume that humans are 'naturally' anything but fearful, proud, greedy, envious, lustful,
violent, cruel and aggressive. In the 'state of nature' there can be no moral order and no distinction
between good and evil. This is because each person is the judge of what will give them pleasure or
advantage, and there is no restraint on their egoism.

It was on this basis Hobbes (1952: 87) rejected the claim that ‘natural rights’ can ever be a basis for
security or justice;
... because the condition of man ... is a war of everyone against everyone ... everyone has a right
to everything, even to another's body. And therefore as long as this natural right of every men to
everything endureth, there can be no security to any man ... (1952: 87)
Time and time again Hobbes insists that men in the state of nature are possessed of 'nothing else but
sense, wherein men differ so little from another and from brute beasts' (1952: 66). In the state of
nature:
... the general inclination of All mankind [is] a perpetual and restless desire of power after power,
that ceaseth only in death (1952: 76).
In the state of nature:
... It is manifest that during the time men live without a common power to keep them all in awe,
they are in that condition which is called war (1952: 85)
Out of this account Hobbes constructs his famous imaginary of the 'state of nature':

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 Whatsoever therefore is consequent to a time of war where every man is enemy to every other
man, the same is consequent to the time wherein men live without other security than what their
own invention shall furnish them withal. In such condition there is no place for industry, because
the fruit thereof is uncertain: and consequently no culture of the earth; no navigation, nor use of
the commodities that may be imported by sea; no commodious buildings; no instruments of
moving and removing such things as require much force; no knowledge of the face of the earth;
no account of time; no arts; no letters; no society; and which is worst of all, continual fear, and
danger of violent death and the life of man, solitary, poor, nasty, brutish, and short (1952: 85)
In such a state of nature:
... nothing can be unjust. The notions of right and wrong, justice and injustice have no place.
Where there is no common power, there is no law; where no law, no injustice. Force and fraud
are the two cardinal virtues in war ... (1952: 85)

In the state of nature all persons are hostage to the basic conundrum set loose by the natural rights
which humans are said to have. Hobbes argues that in the state of nature every person has a right over
everything (or a jus in omnia). This is the right to seek power over the other, to coerce, to seize another's
property or to kill at will. Because the threat of violent death hangs over everyone's head, so everyone
goes about in a state of heightened readiness to kill and act aggressively. Generalised insecurity breeds
only more insecurity.

Even so the notion of natural rights does play a small part in Hobbes’ schema: it is in the other chief
natural right ('the right of self-preservation') that Hobbes sees a way forward by way of a justification for
his proposed solution: all we need is an all-powerful state. (Whether it’s a one person monarchy or
dictatorship, or a totalitarian state elected by the citizens doesn’t seem to matter to Hobbes).

Starting from with this ‘state of nature’ defined by the absence of ‘natural’ or ‘reasonable’ agreements
about what constitutes a danger and what constitutes a rightful defence of our lives, Hobbes argues that
there is only one solution. Hobbes bases his argument for this solution on the primal instinct or 'natural
right' of self-preservation as the motive to create civil society and a political order regulated by a
powerful state. Creating civil society and political order requires an 'artificial agreement' or contract
among all the independent individuals who make up the state of nature which can ensure that all men's
lives and safety are secured. In effect the will to self-preservation must destroy itself via a covenant to
surrender that independent will to a supreme sovereign power.

Having solved the problem of disorder by arguing the case for state power, Hobbes now faces the
problem of showing why it is that those who have given up their ‘natural’ power to a state with
unlimited sovereignty, can now confidently expect that the state will protect them from that state should
it turn on them. How does Hobbes address the problems his solution has set loose?

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Though it requires a leap of faith, Hobbes argues that the sovereign's absolute power is not in conflict
with his subject's liberty. In terms of the relations between what we might now call 'civil society' and 'the
state', civil society becomes a space where all citizens are equally powerless, while the state is the space
of unlimited, yet ‘representative’ power. As Manent (1995: 27) says of Hobbes solution:
Civil society is the locus of equal rights, and the state is the instrument of this civil society that
ensures order and peace. At the same time the paradox of the Hobbesian doctrine -that the state
arises from the civil society over which it exercises absolute power- reflects the fundamental
difficulty of the distinction and of the idea of representation ...

In the space that is ‘civil society’ the subjects of state power will have a small number of rights to do
whatever seems good to them provided it does not contradict the law. The only rights Hobbes allowed
in a severely limited 'private sphere' (or what we might call 'civil society') which secures rights like:
... the Liberty to buy and sell, and otherwise contract with one another; to choose their own
abode; their own diet; their own trade of life, and institute their children as they themselves see
fit, and the like.
In effect says Hobbes the liberties of the subject will have to depend on the 'silence of the law'. Where
the law is silent, the subject may do as they please.

Hobbes goes some way to ameliorating the possible harshness of this model of a weak civil society ruled
by a powerful state by arguing that an effective legal system will protect the citizens. Yet the effect is not
all that reassuring since Hobbes (1952: 146-47) treats legal punishment as a pedagogy of terror. Hobbes
insists that the legal system must pursue a pedagogic project to educate its citizens. Hobbes (1952: 155)
argues that the state's monopoly of violence must be complemented by explicit teachings and reminders
that private persons cannot and must not act violently to each other:
Every sovereign ought to cause justice to be taught, which, consisting in taking from no man
what is his, is as much to say, to cause men to be taught not to deprive their neighbours, by
violence or fraud, of anything, which by the sovereign authority is theirs ... Therefore the people
are to be taught to abstain from violence to one another's person by private revenges, from
violation of conjugal honour, and from forcible rapine and fraudulent surreption of one
another's goods.
Hobbes accepts that punishment is:
... an evil inflicted by public authority on him that hath done or omitted that which is judged by
the same authority to be a transgression of the law... (1952: 145)
On what basis does the right to punish exist?
... before the institution of the Commonwealth, every man had a right to everything ... And this is
the foundation of the right of punishing which is exercised in every Commonwealth. For the

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 subjects did not give the sovereign that right: but only, in laying down theirs, strengthened him to
use his own as he should think fit for the preservation of them all (Hobbes 1952: 145)
Hobbes goes on to identify a good law as one that is needful, is good for the people and perspicuous,
noting again that the 'good of the sovereign and the people', cannot be separated.

On such a fragile basis Hobbes rests his hope that an all-powerful state will work to secure the lives and
well-being of those protected by it. For Hobbes a stable, ordered peaceful society is what absolute
power can promote and protect. Yet ultimately there is no guarantee, nor does Hobbes offer one, that
such a state may not turn on those people if it thinks the security and well-being of the state demands
such action. Hobbes had closed off any independent or autonomous basis for identifying rights of
resistance or liberty outside of what the state itself will allow. This we can say is the 'Hobbesian turn'.

Accordingly any notion of subjects or citizens having rights to political liberties which would reduce the
absolute sovereignty or power of the state gets short shrift from Hobbes. As Hobbes (1952: 114) puts it:
... nothing the Sovereign Representative can doe to a Subject on what pretence soever, can
properly be called Injustice, or Injury; because every Subject is Author of every act the Sovereign
doth ... And therefore it may, and doth often happen in common-wealths, that a Subject may be
put to death, by the command of the Sovereign Power; and yet neither doe the other wrong.

Further there can be no such thing conceptually or by definition as an ‘unjust law’. As Hobbes (1952:
157) asks:
... what is a good law? By a good law I mean not a just law: for no law can be unjust. The law is
made by the sovereign power, and all that is done by such a power is warranted and owned by
every one of the people, and that which every man will have so, no man can say is unjust.
This is as classic a statement of the ‘legal positivist’ position which subsequently emerged in the
nineteenth century at the hands of writers like John Austin, as can be found. Equally as Fuller (1958)
argued the casual dismissal of the possibility that any law introduced by a sovereign state could ever be
‘unjust’, is too facile to be taken seriously. For reasons which will be discussed shortly the constant need
to secure the legitimacy of any civil order entails that the question of justice can never be banished from
any community.

In effect Hobbes’ ‘solution’ to the problems of violence, disorder and lack of consensus arising out of the
pursuit of individual rights, morphs into a new possibility, that the state deploying the resources both of
the law and its coercive powers might turn on some of its own people in pursuit of order and security.
Hobbes’ naivete -or candour- on this score is either astonishing -or refreshing.

On the problem of despotism perpetrated by the state, Hobbes (1952: 112) is brutal: life even in civil
society was never meant to be easy:

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 And though of so unlimited a power, men may fancy many evil consequences; yet the
consequences of the want of it, which is perpetual war of every man against his neighbour, are
much worse. The condition of man in this life shall never be without inconvenience ... And
whosoever, thinking sovereign power too great, will seek to make it less, must subject himself to
the power than can limit it; that is to say, to a greater.
In effect if, as he suggests, men give up their right to seek dominion over each other or to kill each other
to an absolutely powerful state, nothing can prevent that state from using torture, carrying out a
terrorist campaign or even indulging in genocide against some part of its citizenry.

After men contract to form 'civil society', the state provides the necessary authority to enable humans to
identify and practice the civic virtues. By this means Hobbes converts the good into the right. As
Manent (1996: 24) insists, Hobbes proposes that notions like 'morality', 'good' and 'evil' cannot exist in
the ‘state of nature’:
Good and evil do not exist by nature. They have meaning only once the state of nature has been
surmounted, once public authorities have promulgated laws that define these notions.
The state becomes the indispensable basis upon which all knowledge of both what is ‘real’, and what is
right and wrong can be identified and secured. In the political space constituted by the state, whatever
the state determines is the right, becomes the right.

This is the sharp bone on which all later liberals, beginning with Locke, have choked. It was symptomatic
both of the problems Locke (1952: 25) had with this account, and suggestive of how he proposed to
ameliorate the harshness of the Hobbesian account, that Locke rejected this emphasis on a politics
grounded in violence where:
... all government in the world is the product only of force and violence ... [where] men live
together by no other rules but that of beasts where the strongest carries it, and so lay a
foundation for perpetual disorder and mischief, tumult, sedition and rebellion (things that the
followers of this hypothesis so loudly cry out against)...

Hobbes' claim to be a liberal rests on a few slender points. At the heart of the family of liberal narratives
lies the basic proposition which Hobbes certainly articulates, that every political regime be it aristocratic,
despotic, or democratic, rests ultimately on the citizen's consent. Secondly there is his claim, shared with
Locke (1978: VI 57) that without a state there can be no liberties, rights or freedoms:
In all states of created beings, capable of laws, where there is no law there is no freedom. For
liberty is to be free from restraint and violence from others: which cannot be where there is no
law; and is not, as we are told, a liberty for every man to do what he lists.
Hobbes’ state is antagonistic to the tendencies of pre-contractarian human nature. It is the source of
civil restraint and moral order. Where Hobbes gets to be a difficulty for later liberals is the ruthlessness
with which he promotes the authority or sovereignty of the state. He does so at the expense of what

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would later become traditional features of the 'liberal' mindset in such ideas as individual rights, the
defence of the individual conscience and so forth. These Hobbes pushes out to the margins.

Hobbes, whose claims to be included in a liberal tradition are at best ambiguous, nonetheless insisted
with good effect, that the unconditional right of the state to compel obedience to its laws and to punish
those who fail to obey, is essential to the survival of the state. On this basis Hobbes concludes with a lack
of hypocrisy that can still be refreshing, that only a few things threaten states. These include not having
enough power or sovereignty. Seditious doctrines that involve private men claiming to be the judge of
good and bad actions are also a danger to any state. So too are claims that to act against one's
conscience is a sin. Hobbes (1952: 149) rejects this because 'the law is the public conscience by which he
hath already undertaken to be guided' attempts to make the sovereign subject to the civil laws! Hobbes
argues that this proposition sets loose the error that there is something higher than the sovereign - like
the civil laws. Such a belief will only cause the 'confusion and dissolution of the Commonwealth' (1952:
150). As for the free publication of 'democratical books' which praise the lawful killing of monarchs,
Hobbes can only froth: 'I cannot imagine how anything can be more prejudicial to a monarchy than the
allowing of such books to be publicly read' (1952: 150). In short anything that divides or weakens the
power of the state is not good for the state.

Such candor may be refreshing but it has proved to be a candor too few subsequent liberals have been
prepared to emulate. It is significant that the most fiercely conservative of modern political theorists like
Carl Schmitt look back to Hobbes. Equally theorist like Agamben of the states of exceptionality where
the law suspends the rule of law, all

If Hobbes is the Hieronymous Bosch of political theory, John Locke (1632-1704) is its Renoir.

JOHN LOCKE: NATURAL RIGHTS

Like political theorists before and after him, John Locke sought to identify the sources of legitimate
authority. His arguments about the rule of law, an idea of representative government and the
proposition that governments are ultimately accountable to the people, sponsored the development of
a liberal tradition which reaches into the twenty-first century. Among his most influential ideas is his
proposal that human beings naturally possess rights to ‘life, liberty and property’. The claim that these
were inalienable rights provided a theme that shaped both the American and French revolutions which
erupted at the end of the eighteenth century and continue to resonate powerfully in modern
approaches to human rights. How did Locke arrive at this argument?

Like Hobbes, John Locke (1952: 25) grounds his theory of politics and his account of natural rights in a
'state of nature’. Unlike Hobbes whose state of nature is morally, cognitively and politically anarchic even

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violent and disordered, Locke’s state of nature is a very nice place. Indeed it looks rather like a Garden of
Eden planned by Delfin. Like Hobbes, Locke faces the problem of how to get from that starting point to a
civil society. However if Hobbes’ problem was showing how it was that out of his truly bleak and dark
'state of nature' it was possible to construct any kind of civil order, Locke’s problem is showing why
anyone would ever want to leave the Lockean ‘state of nature’. Locke's 'natural man' is already fully
socialised, pacified and obedient to a law of nature which secures such basic natural rights as the right to
own property. Let us see how Locke makes his case.

Locke starts with the claim (found in his Second Essay Concerning Civil Government), that the original
state of nature was already populated by men who possessed certain inalienable rights and were
'governed' by the law of nature and by the principles of Reason. His state of nature is a God-centred
‘state of nature’ in which everything and everyone had a place and a purpose in that order. Locke's 'state
of nature' is already a well-ordered space, a quality designed to reinforce the point that 'civil society' is
simply the natural outgrowth of a Divinely-inspired order stocked with rational men and graced with
natural rights. Locke’s natural men are gifted by God with the power of reason and are subjected by the
same God to the law of Nature. Speaking eg., of the state of childhood, Locke (1952: 39) observes that:
... we are born free as we are born rational; not that we have actually the exercise of either: age
that brings one, brings the other ... The freedom then of man, and liberty of acting according to
his own will, is grounded on his having reason, which is able to instruct him in that law he is to
govern himself by and make him know how far he is to left to the freedom of his own will.

On Locke’s account those who live in a 'state of nature' men already live in a normative order, which is
the order of Creation, and live in equality with one another such that 'no man exercises authority over
another':
Men living together according to reason without a common Superior on Earth with authority to
judge between them, is properly the state of nature.
This 'state of nature' is
... a state of perfect freedom and a state also of equality wherein all the power and jurisdiction is
reciprocal, no one having more of it than another.
They are happy, albeit 'solitary' or profoundly individualized people. In pre-civil society, Lockean man is
governed too by the Law of Nature:
... which obliges everyone, and reason, which is that law, teaches all mankind who will but consult
it, that being all equal and independent, no-one ought to harm another in his life, health, liberty
or possessions ... (1952: 26)

Yet for these reasons it is also a space in which the quintessential political question has yet to be asked.
Like Hobbes, Locke needs to ask how may some men come to exercise authority over other men in a
political order and do so justifiably? Indeed as I have already hinted, Locke's problem is how to justify

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leaving the state of nature. Surely any political theory which starts with a 'state of nature' needs a
Hobbesian moment? After all if the state of nature is such a blessed state where everyone is equally
well-off or happy, why would anyone ever want to leave it? Locke acknowledges his problem:
If man in the state of nature be so free as has been said, if he be absolute lord of his own person
and possessions ... why will he part with his freedom, this empire, and subject himself to the
dominion and control of any other power?

Pressed to identify what it is that motivates the move to embrace the order offered by a political order,
Locke’s surprising answer is that it is not fear or the threat of violent death -as Hobbes had suggested-
but hunger that will drive natural man into co-operating in the state of nature and later into forming a
civil state. In effect Locke adopts one element of the Hobbesian position by allowing that while it is not
intrinsically a state of war by all against all, the state of nature nonetheless opens up the possibility that
the natural rights everyone possesses may not be enough. As Locke (1952: 53) puts it:
... though in the state of nature he hath such a right, yet the enjoyment of it is very uncertain and
constantly exposed to the invasion of others: for all being kings as much as he, every man is his
equal, and the greater part no strict observers of equity and justice, the enjoyment of the
property he has in this state is very unsafe, very insecure.

Characteristically Locke (1952: 26) stresses the consensual nature of this shift. The move into civil
society takes place only by means of an 'agreement mutually to enter into one community and make one
body politic ...' Equally Locke insists in terms that would resonate on through the centuries,
governments derived their legitimacy from the act of consent -and not coercion. As the US Declaration
of Independence put it, in terms that Locke would have approved, ‘governments are instituted among
men, deriving their just powers from the consent of the governed.’

Time and again we see how Locke, unlike Hobbes’, refuses to accept any argument about the historical
relevance of war, disorder, violence and conquest. Locke rejects Hobbes’ fundamental proposition that
violence and a pedagogy of fear are indispensable to state sovereignty. Instead Locke stresses the idea of
inalienable liberties and human rights to property and he finds these dispositions already present, if
embryonically in the ‘state of nature’.

In the state of nature a state already ordered by natural law, Locke finds evidence that there are certain
‘inalienable rights’ possessed by all persons. As Locke (1952: 69) put it:
Every man is born with a double right. First a right of freedom to his person which no other man
has a power over, but the free disposal of it lies in himself. Secondly, a right before any other
man, to inherit, with his brethren, his father's goods.
And because all humans must feed themselves or else go hungry, Locke's natural man labours, so he
picks plums off a tree in order to eat. He has the right to do so, so that he may not die. In this way the

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right to property enters the world. It does so courtesy of the activity called labour: 'What a man
labours to obtain or produce belongs to that man'. What was previously owned in common in the state
of nature becomes 'private property' once men labour to assuage their hunger.

Locke offers an ingenious account of how the activity of labour and the rights to property it enables,
ultimately gives rise to inequality. He makes a distinction between those who work hard and those who
are 'lazy and quarrelsome':
[God] gave the world to the use of the industrious and the rational ... not to the fancy of
covetousness of the quarrelsome and the contentious (1952:32).
Eventually labour is separated from ownership and the right to property is separated from the worker's
rights to the fruits of his labour. From this Locke concludes (1952: 35) that the growth of economic
inequality was inevitably and happily consented to by the inhabitants of the state of nature. Here too it
seems there was a natural and reasonable process of consent:
... since gold and silver, being little useful to the life of man, in proportion to food, raiment and
carriage, has its value only from the consent of men-whereof labour yet makes in great part the
measure- it is plain that the consent of men have agreed to the disproportionate and unequal
possession of the earth - I mean out of the bounds of society and compact ...

Consent matters too in the transition to a political community which is made by way of a contract. This is
the agreement:
… which makes the community and one political society ... [it] is the Agreement everybody has
with one another to incorporate and to act as one Body.

Again and again Locke uses the 'state of nature' to ground his claims about the model state. The political
state merely recognizes the state of affairs already existing in the state of nature. That rests on the basic
egalitarian premise that in the state of nature men are:
Furnished with like Faculties, sharing all in one Community of Nature [such] that there cannot be
supposed any such Subordination among us, that may authorize us to destroy one another, as if
we were made for one another’s uses as the inferior ranks of creatures are made for ours’ (Locke
1988:301)
Locke proceeds to draw out the implication that matters for him: if there is no natural subordination
between us, then we have obligations which are binding on each person to preserve their own life, and
that of others. This obligation rests on Locke’s belief that we possess an original right namely the right to
own ourselves. As Locke (1988:357) puts it:
For a Man, not having the Power of his own Life, cannot, by Compact or his own consent, enslave
himself to anyone nor put himself under the Absolute, Arbitrary power of another, to take away
his own life, when he pleases. No Body can give more Power than he has himself; and he that that
cannot take away his own life, cannot give another power over it.

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As Grayling (2007:124) puts it, the point of Locke’s argument is clear even if the reasoning is not
necessarily sound. What was already happening in the state of nature can now be more effectively
guaranteed. If we possess natural rights to property (beginning with the fact of self-ownership) and to
life and liberty, then creating a political order provides settled laws, which everyone knows, as well as
independent and neutral judges who can decide matters of legal import including upholding the three
basic natural rights and power to ensure the implementation of their decisions, then the problems of
ensuring that people fulfill their obligations under natural law are solved by the establishment of civil
law. This might include an obligation not to harm others on pain of punishment should we do so.

After that contract, the proper role of the state becomes the protection of those rights. Locke's state is
designed do just this and only this. Locke clearly rejects the Hobbesian solution of an all-powerful state
able to do whatever it wants to do in the pursuit of order and security. The state Locke (1952: 54)
envisages is one bound by an explicit rule of law, and to do so in the interest of ‘the peace, safety and
public good of the people’:
... whoever has the legislative or supreme power of any commonwealth, is bound to govern by
established standing laws, promulgated and known by the people, and not by extemporary
decrees, by indifferent and upright judges ... and to employ the force of the community at home
only in the execution of such laws, or abroad to prevent or redress foreign injuries and secure the
community from inroads and invasion. And all this is to be directed to no other end but the
peace, safety and public good of the people.

So far so good. Locke seems to have covered all the bases. Locke appears to have developed a
comprehensive doctrine of rights including the right to own property, a right grounded in the first great
right, namely that ‘every Man has a Property in his own Person’. And in his own lights Locke was
consistent up to a point in expressing his support in public for certain implications of these theoretical
points. For example he supported the passing of the Bill of Rights which accompanied the Glorious
Revolution of 1688. Locke also unsettled the growing number of English slave owners and traders whose
activities presumed that those who became slaves had no such right to own themselves. Locke
denounced slavery declaring that:
Slavery is so vile and miserable an estate of Man, and so directly opposite to the generous Temper
and Courage of our Nation, that ‘tis hardly to be conceived, that an Englishman, much less a
Gentleman should plead for it.
Yet Locke was directly involved in the slave trade, even as he seems to have abhorred that trade. He
invested eg., in the Royal African Company which was involved in shipping slaves across the Atlantic. He
worked under the Virginia ‘Act for Suppressing of Outlying Slaves’ which prescribed that no free people
of colour would be added to the colony to prevent:

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 … that abominable mixture and spurious issue which may increase in this dominion … as negroes,
mulattoes and Indians intermarrying with English … [the latter should] intermarry with a negroe,
or Indian man or woman, bond or free, shall within three months of marriage be banished from
this dominion for ever (Hulme & Jordanova, 1990: 264-5)

Yet there were deeper problems lurking in Locke’s Garden of Eden than this predictable instance of
hypocrisy. One problem Locke did not deal with at all well, was the problem that his egalitarian approach
to human rights went as it were only skin deep. There were clear limits to the extent to which he was
actually prepared to concede that all men were naturally equal and so could be said to possess equal
rights. Buried in the fine print of his philosophy was a problem that would haunt liberals for the next
three centuries. For Locke conceded that some humans were unequal enough to allow them to be
variously denied basic rights to liberty or to own property or worse, they might be used or destroyed as
others see fit.

To start with Locke had seemed to acknowledge that in his ‘state of nature’ everyone was naturally equal
and therefore possessed equal rights to ‘life, liberty and property’. This was possible because the
Lockean Garden was generously supplied with almost everything needed to satisfy human needs like
plenty of water, land and food. Yet he also allowed that over time the ‘state of nature’ saw a peaceful
and consensual growth in natural inequality. I have already shown how for Locke the invention of money
created an incentive for some to acquire more and more land or the means to hire the labour of others,
with the consequence that labour came to be separated from ownership even as the right to property
was separated from the worker's rights to the fruits of his labour. As we saw Locke concluded (1952: 35)
that the growth of economic inequality was actually consented to by the inhabitants of the state of
nature.

Yet there were other problems lurking in the detail of his arguments on behalf of natural rights. We have
seen how Locke believed that every human possessed an innate capacity to develop their reason and
industry. Yet he qualified this with several caveats that compounded his slide away from accepting the
natural equality of all humans. The first caveat was that there were some people who were ‘primitive’
and as such needed to be taught the ways of civilization before this ascent into a life of reason would be
possible. The second caveat and arguably the linchpin to his whole political theory (See Grant, 1987:
161) was his premise that while some men on the land merely collected the benefits of the land, others
improved it by their labour. In effect the ‘improver’ was not only more fully rational and civilized, but
established by their labour a right to own property including the lands which ‘nomadic peoples’ used to
gather food but who neither labored nor improved the land. Locke’s argument contributed to the
evolution of the doctrine of terra nullius. This doctrine which achieved a kind of commonsense status in
the eighteenth century courtesy of Locke’s advocacy, held that nomadic hunters and gatherers lived off
the land but because they established no permanent settlements or farms, they had failed to establish

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their right to own the land. This made the lands terra nullius (‘empty of people’) and legitimated the
seizure of these lands by those who were prepared to labour and improve the land.

Locke’s argument may have comforted those who like Locke himself were intimately involved in
England’s colonial expansion in North America. His arguments denied the any rights of the native
peoples of North America to own the lands on which they had lived. This doctrine had fateful
consequence for indigenous peoples everywhere. Granted the interdependence between the rights to
own property, to be free and to live one’s own life, the implications for indigenous peoples encountering
colonizers imbued with liberal doctrines in North America or Australasia would prove to be severe, and
in some instances fatal.

Usually implicit, but occasionally rendered explicit was Locke’s underlying premise that some people
lacked a fully human status thereby rendering them open to the abrogation of those apparently
inalienable rights. This striking possibility is clearly suggested by a number of observations made by
Locke. For example Locke indicates that among the natural rights in a state of nature is the right to self-
preservation against the threat of violence. In this state of nature the 'common law of reason' eg., allows
a man to destroy another who makes war upon him. Locke’s use of animal metaphors to describe the
‘other’ is striking:
… for the same reason he may kill a wolf or lion ... that will be sure to destroy him whenever he
falls into their power.

Locke's use of animal metaphors when he speaks of violence ought to be unsettling but has instead
become quite normal. In our time adolescents may be ‘feral’ or form puberty packs’ while speeding
drives may be ‘hoons’ from Swift’s hounyhyms). Locke understands 'violence' to be disruptive both of
the state of nature and of political society because violence is ‘the way of beasts’ and it reduces humans
who use it to the status of animals. As Locke writes:
... a Criminal who having renounced Reason, the common Rule and Measure God hath given to
Mankind, hath by the unjust Violence and Slaughter he hath committed upon one, declared War
against all Mankind and may therefore be destroyed as a Lion or Tiger, one of those wild savage
beasts with Men can have no Society nor Security...
Accordingly violent aggressors can be ‘justly’ dealt with by each and every other person because their
violence:
... being a trespass against the whole Species and the Peace and Safety of it, provided by the Law
of Nature, every man upon this score by the Right he hath to preserve Mankind in general may
restrain, or where it is necessary, destroy things noxious to them.
Assisted by what looks like an uncharacteristically Hobbesian premise about the limitless malevolence of
the violent aggressor, Locke justifies the right to kill a thief, even though he does no other injury,
because:

38
 I have no reason to suppose that he, who would take away my liberty would not, when he had
me in his power, take away every other thing as well.

More surprising because of the apparent limitless scope of the claims he made about the right to own
oneself, Locke went on to construct a defence of the practice of slavery. He argued that slavery and the
rights of the victor to use prisoners of war in any way they saw fit was legitimate because some people
have surrendered their status as humans, and have become in effect ‘semi-animals’ rendering them
suitable to be used as animal labour by the victors. In this way, and to take a broader view, Locke
exemplifies a persistent problem in the development of the great liberal tradition. While granting a
theoretical set of inalienable rights to all people, in practice liberals have for centuries been prepared to
deny full human status to certain groups of people and in consequence, render legitimate the denial of
basic rights to them on an equal basis. Only grudgingly and haltingly have liberal regimes allowed that
women, working-class people, people with disabilities, children and young people, old people, and
indigenous peoples actually possessed the rights Locke had said all men naturally possessed. Only slowly
was a small elite of white, wealthy, property-owning prime age men persuaded to accept that rights like
the right to vote, to own property, or to be free from forced labour did not belong to them alone.

If it is the right way to describe it, the ‘value’ of the liberal tradition which Locke did so much to fashion,
lies in its status as a Pandora’s Box. Once Locke had allowed that we do possess ‘inalienable rights’ to
life, liberty, property or simply happiness, there was no putting back what had been released. Claims
about these inalienable rights offered what proved to be an ultimately irresistible basis on which to
mount the claim that particular groups of people were indeed deserving of certain rights. Long, hard-
fought struggles over the rights of women, workers, indigenous peoples, people with disabilities, or
people both young and old have proved to be one of the important social dynamics at work over the
past centuries as people argued the case that democracy and human rights somehow went together For
that we can thank John Locke.

CONCLUSION

What does it mean to talk about human rights? Why do we think we have rights? If John Finnis (1980) is
right, one answer is that to think about rights is an example of an inevitable consequence of living in
communities. To live together is to confront the problem of how to order that community, define the
things that make a good life and to regulate our interactions with each other. Finnis argues that given our
nature as social beings, we are compelled time and time again to offer a principled and reasoned
specification of those valued ends which define a good life and that our ideas about justice and rights in
our communities reflect this exercise. There are many ways of thinking about these things and rights talk
is one of those ways. Is it a good way or a better way of thinking than other kinds of answers? To
determine that Finnis (1980: 18-9) says, any answer will need to be informed by a knowledge of the

39
whole range of human possibilities and opportunities, inclinations and capacities, a knowledge that
requires the assistance of descriptive and analytical social science. Finnis of course does not deny that
there are many answers and many principles appealed to. That fact that we do not agree is where
Hobbes comes into the discussion

Hobbes’ treats the state of nature as a bleak and violent state of disorder as his starting point. The basic
problem in his view with the state of nature is that no-one can agree about anything even down to the
meaning of words. To that ‘problem’ Hobbes proposes a singular solution: an all-powerful state that will
regulate civil order, to ensure civil order. In Hobbes’ view only a strong state possessing unlimited
sovereign power could produce order and identify certain rights which would allow civility to flourish. On
the possibility that the sovereign power of the state might be turned on its own people Hobbes is
benignly reassuring He doubts that the good of the state (or sovereign) and the people could ever be
different. What is good for the state will be good for the people. On such a fragile basis Hobbes rests his
hope that an all-powerful state will work to secure the lives and well being of those protected by it. For
Hobbes a stable, ordered peaceful society is the accomplishment of absolute power. Yet ultimately there
is no guarantee, nor does Hobbes offer one, that such a state may not turn on those people if it thinks
the security and well-being of the state demands such action. As we have seen from the twentieth
century the agent responsible for the most heinous of crimes against humanity and the most persistent
of abuses of human rights has been the state. The Hobbesian solution is also a problem.

Locke’s approach was grounded in a radically different account of the natural order. Locke’s ‘state of
nature’ was a very nice place indeed: in that state of nature humans were naturally cooperative and
understood they had inalienable rights to life, liberty and property. Leaving this state of nature was
warranted to solve a number of problems while the civil contract which established a form of
government, needed in Locke’s view to ensure that it represented the people’s interests within an
ongoing commitment to securing those rights to life, liberty and property. Locke’s vision has proven to
be more appealing in the past few centuries than Hobbes bleaker story. It has also sponsored the
modern shift in thinking about rights in terms that are both liberal and secular, just as it has promoted
the movement to recognise and protect human rights.

Yet the modern movement to promote human rights has also run up time and time against the
intractable problems posed by the fact that different groups and communities do not have equal
resources, equal powers and that sedimented privileges in the hands of small numbers of people provide
an incentive to protect those privileges. And whether these inequalities of resources and power explain
it or not, consensus and agreement has been very hard to find. Hobbes it seems was right after all: we do
not agree about very much including the matter of the rights that matter.

40
This fact has been well known for a long time. As Isaiah Berlin, Bernard Williams and John Gray have
reminded us, we live in a world where we do not agree about the facts about the circumstances we
confront, the ethical ideas that matter, or the rights we want to protect or. This irreducible plurality of
ideas and opinions about the circumstances we face and how we ought to live, confronts us with a
persistent challenge to find ways of getting on together. One thought obtrudes here: is the fact that we
don’t agree about very much a source of solace or of despair. Gray (2002:139) points perhaps obliquely,
to an appropriate response when he observes, ‘The diversity of ways of life and regimes is a mark of
human freedom, not of error.’

In effect Hobbes and Locke offer us two sharply defined, and yet still relevant ways of thinking about the
way forward. For Hobbes the answer was a strong state using its coercive powers to secure order and the
well-being of the people. In the next chapter I turn to consider the relevance of using the law, one of
the major sources of coercion, as a resource to promote human rights and the good life.

QUESTIONS

1. What key questions is the author asking here?

2. Can you get a grip on the major claims being argued for here?
3. Does it seem that this author is relying on any assumptions that you can spot at this stage?
4. Why are you being asked to pay attention to the arguments of Hobbes and Locke? Are they
both liberals?
5. Are you a Hobbesian or a Lockean? What eg., do you think about the basic nature of human
beings? Why does this matter for our feelings about or assessment of human rights?
6. How much do you on a daily basis rely on Hobbesian or a Lockean premises? Think for
example of the way you deal with others in the home or in the workplace.
7. What do you understand about ‘human rights’ now having read this chapter?

CHAPTER TWO: THE RULE OF LAW AND HUMAN RIGHTS

Human rights have neither substantive content nor moral weight until
their impact on human interests, their contribution to human well-
being has been specified.
John Gray (2007: 106)

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For that part of human history for which we have written records, there is evidence that human
communities have deliberated about what it is that makes a society good and how justice might be
secured. As we saw in the previous chapter the role of ‘the law’ occupies a central place in those
discussions. We need not at this point follow Finnis (1980: 6) who observing the semantic chaos
attending the concept of law (eg., ‘moral law’, ‘sociological law’, ‘law of nature’, ‘law of grammar’, ‘civil
law’ etc.,) wants to worry about this. Back in Athens around 650 BCE, Socrates wanted to worry about
justice which he memorably framed as one question: ‘what do we owe to each other?’ He wasn’t sure he
had a good answer, but this most skeptical of men knew one thing: ‘Might is never right’. He looked to
men made good by a combination of training and deliberative processes to promote justice. Plato who
was as skeptical as Socrates, but was more disposed to authoritarianism, thought justice was only
possible if the rulers of a state had the capacity and willingness to promote the peace and welfare of the
people. In seeming anticipation of Locke, Plato held that this required both a framework of law and a
preparedness to use coercion vested in the hands of –philosophers who knew the Truth. His student
Aristotle was not prepared to abolish politics in the way Plato judged necessary: for Aristotle the
equation was simple: ‘good laws make good men’ (Aristotle 1962: 313). The problem however was by
what means would good laws come about? (Ryan’s (2012) treatment of Aristotle’s attempt to address
this problem is suitably nuanced and reminds us that we cannot simply bring Aristotle into the twenty
first century).

Roman legislators took some of these Greek ideas to heart and made Roman law their most enduring
legacy. Under Roman law, justice (ius) was law: ius civile (or state law) regulated relations between
citizens while ius gentium (international law) was designed to harmonise relations between states. And
as we have seen Hobbes and Locke, two of the most important of early modern political theorists agreed
on the central role to be played by the ‘rule of law’ even if their vision of the foundations of that rule
differed radically. In the twentieth century the theorist Hans Kelsen (1964: 19) writing in the shadow cast
by Hobbes, insisted that the law provided a ‘specific social technique which consists in bringing about
the desired social conduct of men through the threat of a measure of coercion which is be applied to
the case of contrary conduct’. In homage to Locke, liberal theorists like Raz (1978: 151) insisted that the
law was less about monopolising force and more about giving citizens ethical reasons for compliance
with the law. As for the law it was understood as a set of norms providing ‘the general framework for
the conduct of all aspects of social life and set[ting] itself as the supreme guardian of society’.

In general terms it is this conception of the law which seems to inform the approach of many of those
who favour the use of legal practices like statutory legislation, litigation and tribunal processes when
they advocate for the identification or protection of our human rights. What should we think about the
capacity of the law to uphold our rights as part of some defensible conception of justice? The need to
ask this question is suggested by several sharply contrasting experiences drawn from recent legal history.

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On the one hand we might consider the response of the courts to Australia’s bi-partisan policy for asylum
seekers after 1990. The Hawke Labor government introduced mandatory detention of all asylum seekers
in high security camps, ostensibly while their applications for a refugee visa were assessed. (Successive
governments made it plain that the regime of mandatory detention was a ‘message’ designed to scare
off potential arrivals). In a succession of test cases between 1994 and 2006, the Australian High Court
found that it was lawful to detain men, women and children in high security camps for years without the
protection of habeas corpus or indeed any process at all: in one case it found that the Australian
government might lawfully hold an asylum-seeker for the entirety of his natural life in such a camp
without any legal process whatever. As Agamben (1999) argued, these camps, several of them in major
Australian cities, were effectively the same as the concentration camps set up in South Africa (after 1901)
or Germany (after 1933): in each case the rule of law was simply suspended. In effect the High Court’s
decisions rendered the suspension of the rule of law, lawful.

On the other hand, there is the case of Vicki Roach, an aboriginal prisoner in the Australian Capital
Territory who in 2007 took a case to the Australian High Court arguing that she had a right to vote in
elections, a right at that time denied to all serving prisoners. The Human Rights Law Resource Center
based in Melbourne drawing on pro bono support from a team of leading lawyers, argued that her right
to vote ought to be upheld. The High Court agreed. This was as striking a case of the value of a legal
approach to the protection of right as earlier High Court judgements on matters affecting asylum seekers
had involved a shameful collapse of a regard for the rule of law.

Woodiwiss has made some pertinent observations about the way the rule of law and the protection of
rights seems to work. He notes in terms that speak directly to the experience of asylum seekers in
Australia, that the very universality of the claims made in the foundational United Nations Declaration of
Human Rights (UNDHR) of October 1948 makes it possible for non-white people, women, sexual
minorities, and people from non-western countries to discover from time to time that they have been
excluded from the UNHDR. As he goes on to ask:
How then is it possible that human rights can be invoked both to deny and to criticise such
exclusions? How can human rights provide the bases for both the exercise of such power and its
critique?

Leaving aside the alleged universalism of human rights talk, the additional problem as Woodiwiss (2005:
xv) notes is that human rights ‘tend only to be enforced at the extremities of social life’. Yet to be truly
effective any legal specification of human rights ‘must mobilise the supportive elements and/or
processes present within the social routines of everyday life’. Yet as ambivalent supporters of human
rights like Douzinas (2007: 8) argue, this may be difficult given that the very idea of ‘human’ is a

43
‘floating signifier’ making human rights ‘a thin, underdetermined term’ replete with perplexing
paradoxes.

Considerations like these imply that we are warranted in asking some simple questions. The questions
that matte include: are legal approaches to identifying and protecting human rights all that reliable? Are
there limits to the reach of the law? What are we to make of the fact that the gravest abuses of human
rights are perpetrated by sovereign states? Is it possible to resolve conflicts between competing rights,
especially by legal means? We need to ask these questions because if we can think better about certain
matters we may end up doing better.

I want to start with a relatively formally analysis of what it means to assert that a person or a group has a
right framed in terms of what Scheingold (2007) has called the ‘legal paradigm’. To do this I draw on
Wesley Hohfeld’s (1919) unjustly neglected classic account of rights talk as a juridical practice. I do this
because I think Hohfeld’s account may reveal why given the relational quality of rights that legally
inflected rights talk can only generate both contradiction and paradox when left to its own devices.

HUMAN RIGHTS: THE HOHFELDIAN ANALYTIC

Wesley Hohfeld (1919) was a young American philosopher of law who died at the start of what would
surely have been a stellar career. He developed one of the most comprehensive analytics that we have
for thinking and talking about human rights both as a matter of juridical definition and practice, and in a
broader more ‘natural’ ie., social sense. Given that legal reasoning and juristic conceptions of rights
have played a major role in twentieth century attempts to embed human rights, we again need to clearly
appreciate both the strengths and weaknesses of relying on the law.

In essence the key question is the basis upon which any claim to have or to exercise a right can rest. The
two chief candidates historically have been firstly the legal positivist proposition that a person has a
right if the law says so. The other basis for making a right claim has been to ground such a claim in some
kind of idea of ethical obligation. This distinction itself may be less than clear cut. H.L.A. Hart (1961) for
example tried to clarify the basis for making this distinction between what he called ‘juridical acts’ and
‘natural acts’. Hart was fussed about whether the putative distinction between human rights as a matter
of juridical definition and practice, and the status of rights as a more ‘natural’ ie., ethical-cum-social
matter was all that clear. The result of his intervention is perhaps not as clear-cut as Hart thought, but
we can see what Hart is trying to get at when he says:
… an act may be called a natural act in the sense that it is not endowed by the law with a special
legal significance or legal effect … in the case of rights, which are powers such as the right to
alienate property, the act … is an act-in-law, just in the sense that it is specifically recognised by
the law as having legal effects in varying the legal position of various parties (Hart 1961: 96).

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One immediate problem as John Finnis (1980: 226) points out, is that many natural acts (eg., killing
another person) are not only defined legally but have legal consequences. For that reason Finnis adds
the refinement that a juridical act is an act usually involving one or more natural acts which is ‘… typically
done to affect legal relations and which is regulated or defined by rules …’ Another issue implicit here is
the extent to which legal ideas and juristic practices can be said to actually define or constitute social
relations and activities.

What does Hohfeld’s analytic suggest about this discussion?

Finnis makes the point that to be clear about what is at stake when engaging in rights talk, we need to
specify the details of various kinds of relationships between people, their choices, their obligations and
their activities. Turning to Hohfeld’s account of rights, we see that rights talk indeed involves a series of
relational claims which on Hohfeld’s account involves a three-term relation between person A, an act-
description (here called X) and one other person, person B. 3 In Hohfeld’s account, rights claims can be
analyzed into a number of propositions couched in which as a liberal Hohfeld assumes that the key
operative ideas are ‘rights’, ‘duties’ and ‘liberties’. For Hohfeld, all assertions or ascriptions of rights can
be understood as a claim-right made by person A that she has a right to do or to have X. This is
connected or matched to a duty or obligation) on B’s part to ensure that A can do or have X. Yet as a
liberal Hohfeld also assumes that person B is at liberty (ie., she is free) either to do X for person A or not
to do X for that person, irrespective of whether person A has a claim right to have or to do X or not.

These three-term relations can for all intents and purposes be understood as ‘natural acts’ occurring in
some kind of private civil space where the rule of law may not reach and where the character of the
rights and the duties of persons A and B we might say are essentially ethical in nature. Equally they may
also be understood as ‘legal’ or ‘juristic acts’ because there is some kind of legal frame operating to
regulate the relations of persons A and B. As we will see this interpolates issues like ‘power’, ‘immunity’
and ‘liability’ into the relationships we are thinking about.

However what remains unclear is precisely what any of these ideas like ‘rights’ or ‘duties’ mean or how
they are to be explained. That is, on what basis do we say that people either have a duty to recognize
someone else’s right claim or alternately that they are free or at liberty to do as they see fit, like doing
what another person wants them to do, or refusing to do so by exercising their liberty? Lack of clarity
about these matters may prove to be a permanent characteristic if we cannot say on what basis these
right claims, liberties or duties rest. I think that Hohfeld’s approach for all its clarity clearly registers the

3
As Finnis (1980:201) points out this three term relationship has been revised by lawyers who think in terms of a
two-term relationship between persons and one subject matter, a device designed to cut back on Hohfeld’s
recognition of the tremendous complexity his analytic model allows for.

45
inherent problems with a purely juristic approach to rights at the expense of trying to establish the
ethical basis of rights.

In Finnis’ (1980) analysis of Hohfeld, we get five possible kinds of three-term relationships.
1. We may say that person A has a claim right that person B should do X, if and only if person B has a
duty to do X. By claim-right is meant a right to be given something or assisted in some way by someone
else. We can think for example of a child having a claim-right on a parent for some kind of basic benefit
like food, shelter and care. Normally this assistance will be understood as conferring some kind of
resource, capability or benefit (Sen 2009: 225 51). As to what kind of benefit we are talking about, we
can rely ona somewhat watered down version of Berlin’s account of positive and negative freedoms.
For example we can confer on someone a positive benefit like giving or doing something that will help
someone else to be free to do things not previously possible and so to flourish in new ways. This might
for example involve providing new kinds of opportunities to get more education or better or cheaper
health care than was previously possible. Alternatively the benefit may be conceived negatively as a right
not to be abused or interfered with in some way so that simply being left alone confers a negative
benefit like freedom from some harm, abuse or unwanted interference. Again we may say that a child
has a claim right on a parent not to be physically, sexually or emotionally abused.

Acknowledging this the difficulty remains: upon what basis is the claim right to rely? In the instance
above we may simply assert that the child has a ‘claim right’ on their parent and that the parent is
morally obligated by virtue of their relationship to recognize and discharge their duty to that child of
theirs. It may also be the case that there is a framework of civic law in place to parallel that moral duty
which adds a layer of obligation. The question of what the moral duty is, or why person B might be said
to have that duty is much less clear.

It may complicate matters slightly if we note that the parent in this case may also be entitled to advance
claim rights against their child. We can think for example of a parent having a claim right on their child
such as helping out with household work so as to contribute to the wellbeing of the family. In this sense
we can begin to see that all claim-rights talk is inherently contestable because of the way person A and
person B can each legitimately be said to have claim rights. The mere fact that someone asserts a claim
right against another person in no way negates the possibility that the other person may also assert a
claim right against the first person.

2. Leaving aside the element of duty and the connotation of constraint it carries, we can also posit the
element of liberty. We may say eg., that person A has a liberty or a freedom relative to person B to do X
(ie., is free to do X) if and only if person B has a no-claim right (or a no-right) that person B should not
pursue against person A: this involves for example person B not acting against person A;

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3. Additionally and by extrapolation we may also say Person B has a liberty relative to person A not to do
X if, and only if person A has a no-claim right (a no-right) that person B should not do X.
In either case the idea of liberty seems to refer to a capacity to choose freely and to act freely, for
example to do X or not to do X. A liberty is the mirror-image of the idea of a duty. We may say that a
person has a duty to protect another from abuse or violation, though we are less likely to agree that a
person is at liberty to cause abuse or engage in violations of another. Inn the case of one person seeing
another person about to cause harm to another we would probably want to allow that person the liberty
to intervene or not, while hoping that the person would ‘do the right thing’.
Equally the idea of power here refers to the means whereby someone’s liberty is protected. In both
cases, as Finnis says, when the subject matter of one’s claim of rights is made in respect of one’s own
acts (variously things done or things not done) that is not a claim right: rights adhere to the relations one
has with other persons and not to one self. 4

4. We may also want to move clearly into a legal or juristic frame and say that person A has a right to
power relative to person B to do X if and only if, person B has a liability to have his legal position changed
by person A’s acting X’ly;

5. Finally we may also say that person B has a right to immunity relative to person A’s X’ing if and only if,
person A has no power ie., a has a disability to change person B’s legal position by X’ing.

In tabular form the analytic looks like this:

HOHFELDS ANALYTIC

PERSON A ACT DESCRIPTION PERSON B

claim-right -> to have X <- duty to

to confer a benefit

-> enjoy <- no claim-right

freedom from duty

4
In the case of propositions (1)–(3) Finnis suggests we can say that these relationships refer to the relations of
‘natural people’ while propositions (4) and (5) refer to juridical acts. I am not sure about this in that there is no
reason at any point to exclude the possibility that ‘natural’ persons can thwart liberty or use power to get what
they want either within or outside the law.

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no right-claim -> to liberty <- is free to

-> to power <-

<- immunity from A <-

What remains to be clarified in this Hohfeldian analytic is a specification firstly of the identity (a) of those
asserting a claim right as well as (b) a specification of the identity of those with a duty to meet the claim
rights.5 This will also (c) involve a specification of the content of the duty ie., what kinds of activities like
doing or not doing something are required. Critically we need to establish on what basis of authority any
duty or obligation is identified and rendered legitimate. Is it an ethical obligation or a legal obligation or a
mixture of both? Then (d) we need to know under what circumstances a claim right holder either forfeits
their claim right, or else can waive the making of claims. We also need (e) to know what happens if the
duty to secure a given right is not acknowledged and no action taken to discharge that obligation by
either the person making the claim right or by the legal system. Then again (f) we need to know what
limits if any there are to the liberties of the right holder: this may include identifying what duties he has
to fulfill which may have the unintended consequence of abridging his own liberty.

Then we are ready to repeat the process of specification in steps (a)–(f). This is because we need to go
through these steps one more time by recognizing that any and all claim rights do not simply belong to
person A but may also need recognizing any rights claims being advanced by person B. This entails, given
the Hohfeldian analytic here the need to reverse the positions of person A and person B and treat
person B as the claim right holder and person A as the person with a duty.

However while this Hohfeldian analytic is useful to those interested in formal analysis or juridical
reasoning it does rather beg two quite fundamental questions. Firstly what does Hohfeld think it means
to say that one has a claim-right? Is there some account of this, some explanation of what it means to
say that one has a right? Secondly what does it mean to say that some one has a duty or an obligation to
ensure that a claim-right is acknowledged which is then duly discharged?

Finnis (1980: 203-5) has proposed a formal way of addressing both questions. He suggests that there is
some merit in suggesting that rights talk is firstly about the benefits conferred upon persons.

Finnis suggests that rights of all forms refer to the benefits secured for persons by rules or agreements
regulating the relationships between those persons and others persons subject to those rules. That is
5
In many jurisdictions individuals are deemed to have rights and duties but the status of collectivities is less
clear. Some jurisdictions permit class actions recognising that groups of citizens may be able to take legal action.
Corporate entities like businesses and unions are dealt with in a range of ways which imply that occasionally the
entity qua entity has a legal obligation but on other occasions not. Governments and sovereign powers because
they make the rules are a special case when it comes to acknowledging rights and duties.

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rights of all forms are understood to be benefits secured for persons by rules regulating the relationships
between those persons and other persons subject to those rules. These benefits can be positive or
negative ie., something we do for some one or else they can be something we refuse to do but
understood in either case as acts designed to enable a person to live well or to be protected from harm.
As to the benefits, they may include being the recipient of other people’s resources, or services or
forbearance, conferring or enabling the capacity to be morally or legally free to choose a course of
action (liberty), being able to freely change one’s legal or moral status with immunities guaranteed
(immunity), or of being free to pursue action (power) through some legal process.

There is still the question of whether the basis of rights and duties is founds in legal principles or in
ethical principles arrived at by the exercise of practical reasoning. Among other things we can say that
the obligation to act on the part of person B is strengthened if there is a person A able and ‘willing’ to
seek remedial action by for example going to a court to require person B to discharge their duty, and
there is an institutional or procedural capacity in that community to enable this to happen. Yet I think
Finnis is correct to say that we can speak of rights and duties primarily because of the exercise of ethical
-or as he calls it ‘practical’- reasoning.

In formal terms Finnis argues that we can speak of rights and duties whenever a basic principle or
requirement of practical reasonableness, or a rule derived from such, gives to person A (and to each and
every member of a class to which A belongs), the benefit of (i) a positive or a negative requirement (ie.,
obligation) imposed upon person B (including among other things for example the requirement not to
interfere with person A’s activity or enjoyment of some other good or simply not interfere with their
freedom to choose and (ii) the ability (ie., the power) to ensure that person B is subject to such a
requirement and or (iii) the immunity from being himself subjected to any such requirement. As to the
basis of that practical reasoning we have possibly two main grounds, one being freedom, the other
some conception of the good life. For many liberals the premise that matters is the presumption that no
ethical theory can be such unless it is specifically concerned to determine whether one person’s freedom
of choice may be limited by another person’s freedom (Hart (1971: 196). Yet as Finnis (1980: 205) points
out, even H.L.A. Hart wavered on this point by acknowledging the need to think about quite basic issues
like ‘what was essential for the maintenance of life, the security, the development and the dignity of the
individual’? As Finnis notes, Hart in anticipation of later writers like Sen and Nussbaum, concluded that
what ultimately defined the core ‘notion of rights [was] neither individual choice nor individual benefit
but basic or fundamental individual needs’, ie., those needs which help to define a flourishing or good
life.

In effect, while liberals like Rawls (1971) insisted that ‘rights precede goods’ (to coin a phrase which I
return to later) Finnis is suggesting that ‘goods precede rights’. That is, the basis upon which we may

49
successfully make a rights claim is that it secures some valued end or a human good with which to lead a
flourishing life.

To be clear: it may well be the case that securing the right in question will be promoted by pursuing the
argument before a tribunal. But as Finnis suggests, ‘the explanatory justification of rights’ as well the
resolution of many conflicting claims about rights cannot be done only by using rights talk (Finnis 1980:
205). Rather we need to grapple with far more basic ethical ideas those idea about ‘goods’ and ‘bads’
which we use to answer questions like ‘what is the good life?’ ‘what is a just society?’ or ‘what is the
right thing for me to do?’ This is what Finnis (1980: 205) is getting at when he says that:
… the modern vocabulary and grammar of rights is a multi-faceted instrument for reporting and
asserting the requirements, or other implications, of a relationship of justice from the point of
view of the persons who benefits from that relationship … It provides a way of talking about what
is just from a special angle: the viewpoint of the other(s) to whom something is owed or due and
who would be wronged if denied that something (X)

That is, rights talk is one way albeit an oblique way of trying to sort out or express the demands of
justice. What does this mean? We can in effect suggest that rights are oriented to ensuring that people’s
basic needs to live well or to flourish and therefore go to the fundamental question of justice ie., what
do we owe to each other? One answer to anticipate a discussion found in the following chapters is that
we owe to each other the obligation to ensure that everyone flourishes and that the relevant obligation
or duty is the obligation of justice.

This conclusion I read as the main implication of a landmark exercise in legal sociology by Stuart
Scheingold (1974/2005).6 This exercise is useful because if the discussion of Hohfeld’s approach to rights
talk is useful, it is also somewhat abstracted. Scheingold’s work returns us to the social and political
world where we catch some of the many paradoxes of human rights talk which arise out of the relations
between people who make all sorts of claims on each other with little agreement about the rights that
matter or the goods which they seek to promote.

THE LIMITS OF LAW

As is well known, the American approach to rights was framed historically in the course of the epic
struggle by the thirteen colonies of North America which rebelled against what colonial leaders like
Franklin, Jefferson and Adams saw as a tyrannical attempt by the British government to extinguish
certain ‘ancient’ rights which they claimed to enjoy as Britons living under the rule of law. As a result of
an ultimately successful military struggle, the colonies created a new nation-state. To do this they

6
Scheingold published the first edition of this book in 1974. It was republished without change but with a new
Introduction in 2005.

50
framed in succession a Declaration of independence (1775) followed by a Constitution establishing the
United States of America, and by a Bill of Rights (1783/1791). Perhaps inevitably those cornerstones of
the new American polity were framed in eighteenth century terms and liberal understandings, and were
designed to protect certain individual’s rights against the state.

Notoriously these constitutional instruments provided for the continuing dispossession of ‘native
peoples’ by confirming the ‘natural’ inferiority’ of the indigenous peoples while affirming the rightness
of slavery by treating slaves as property and slavery as a property right enjoyed by white slave-owners.
No less serious was the proposition enshrined in the Bill of Rights that that government is best which
governs least. The various constitutional declarations presumed that minimum government intervention
was the desirable default position and that any interference ought to be tested against expectations of
due process and equal protection of the laws. Accordingly the various constitutional declarations
sought to protect the integrity of the individual by embodying the idea of equality before the law while
protecting individuals from excessive state intrusion for example in key aspects of the Bill of Rights.
Private property was protected by a prohibition on anyone depriving anyone else for ‘life liberty or
property without due process of law ‘ as well as prohibiting the taking of ‘private property for public
use, without just compensation. Further weighting the balance in favour of individual rights, the
Constitution deployed Montesquieu’s notion of a constitutional division of powers by setting the
executive, the representative assemblies and the judiciary against each other.

The net effect of this exercise in constitutional politics was firstly to institutionalise an immensely
conservative bias against change. As Scheingold puts it, constitutional values are as likely to be obstacles
to change as they are to facilitate change. The second effect was to silently institute what Scheingold
(2005:1-15) calls a powerful mythology about the role of the legal system and the courts as the core
defender of individual rights. He notes for example that federal court judges, unlike most of their lesser
brethren do not face election and are appointed for life, expressing what Judith Shklar (1964) saw as the
American love affair with legalism and expressed as a profound distrust of popular and political
processes. The effects as Scheingold (2005:1) argues are paradoxical. On the one hand the law
‘furnishes American politics with its most powerful symbols of legitimacy’ while on the other hand
‘these symbols reflect values which are the building blocks of a political ideology’. By ‘ideology’
Scheingold means to suggest that these are important if falsifying ideas in that they set loose what he
calls the ‘myth of rights’. This myth as he (2005: 13) notes, is rooted in a legal paradigm which is a:
… social perspective which perceives and explains human interaction largely in terms of rules
and of the rights and obligations inherent in rules

The prevalence of the myth of rights is paradoxically a consequence of what Alex de Tocqueville first
observed in the 1830s namely a deeply felt cultural disposition on the part of Americans to strongly

51
assert their rights and to affirm the generality of thoserights. The chief institutional effect has been to
privilege litigation as the most effective way of asserting or protecting rights. Not surprisingly:
The focus of the myth of rights is pre-eminently on courts and on the maintenance of a stable
system of rules. The ‘political’ branches of the government are, in contrast viewed with mistrust
(Scheingold 2005: 14).

Scheingold wrote his book in the 1970s. This was a time when American domestic politics was
convulsed by the great civil rights campaigns designed to give Afro-Americans the same kinds of rights
and entitlements as those which white Americans were believed to enjoy. Scheingold (2005: 95) argues,
perhaps surprisingly that ‘the civil rights experience makes us sceptics’. His is partly a negative argument,
directed against a narrow focus on legal approaches and practices oriented to securing rights, and partly
a positive argument in favour of the value of a broadly political approach to a process of rights-based
social change. As he notes twenty years on, and in spite of the famous Brown Supreme Court decision,
‘we are still struggling inconclusively with school desegregation’. (Parenthetically it might be noted that
the resurgence of neo-conservativism in the USA since the 1980s has confirmed this. Witness for
example a succession of Supreme Court decisions negating the affirmative action policies designed to
increase the intake of Afro-American students into universities). Yet as he observes, the myth of rights
remains powerful:
The continued vitality of litigation may be read as the triumph of myth over reality- as a lesson in
false consciousness. Or perhaps it is symptomatic of the willingness of middle-class lawyers to
settle for half a loaf –at least for their clients. Either way litigation emerges as a strategy of
desperation rather than hope.

Scheingold makes a strong case for the essentially ineffectual nature of an excessively narrow
preoccupation with legal reasoning and legal practices when applied to the promotion or protection of
rights. He argues for example that judges cannot be counted on to formulate a right to ‘fit all worthwhile
social goals’. Further even assuming that court determines that a right exists, a remedy need not be
readily available. He also argues that the preference for litigation manifests an excessive degree of
opportunism which counts against a long-term strategic or purposeful approach to change. The inutility
of relying on litigation is suggested especially when considering the often highly unequal resources
available to those groups seeking change compared with the resources available to those resisting
change. As Scheingold (2005: 6) insists, no framework is adequate if:
… it fails to attach primary importance to the redistribution of power. If litigation can play a
redistributive role, it can be useful as an agent of change. If not, its political utility must be heavily
discounted.

Lawyers he adds, are not very good at integrating their legal approach into a broader political program of
advocacy for change. Too often he says lawyers drive wedges between potential allies as they pursue the

52
course of litigation even as they confuse ‘the symbolic for the real’ thereby diverting attention from the
inertial tendencies which sustain the status quo (2005:6).

Scheingold’s preference is to shift away from the legal pursuit of rights and towards a politics of rights.
Instead of thinking of judicially asserted rights as accomplished social facts or as moral imperatives, they
must be thought of, on the one hand as authoritatively articulated goals of public policy and, on the
other, as political resources of unknown value in the hands of those who want to alter the course of
public policy.

This leads Scheingold to advocate for a broad project of political mobilisation oriented to social change.
In such a process legal processes can play a part in promoting human rights but only as one aspect of a
much more comprehensive strategy of change. Such a move acknowledges, even encourages the most
obvious fact about rights talk which Hohfeld’s analysis pointed to: rights talk is full of contradictory
claims and even a few paradoxes. This as I suggest now, perhaps best dealt with not as a basic stumbling
block so much as a stimulus to thinking better.

QUESTIONS

1. What key questions is the author asking here?

2. Can you get a grip on the major claims being argued for here?
3. Does it seem that this author is relying on any assumptions that you can spot at this stage?
4. Is relying on legislation and lawyers the best way of protecting our human rights?
5. Are human rights inevitably going to involve contradictory claims?
5.What do you think about Scheingold’s idea of shifting away from the legal pursuit of rights and
towards a politics of rights?

CHAPTER THREE: THINKING ABOUT HUMAN RIGHTS

Denken ist danken (Thinking is thanking)

Martin Heidegger

There is general agreement among many writers that a lot of talk about human rights is at best unclear,
at worst meaningless. Raymond Geuss (2001: 144) was crisp to the point of brutality when he noted that

53
the idea of a human right ’is an inherently vacuous concept’. Costas Douzinas (2001:21) too has written
how ‘the whole field of human rights is characterised by paradoxes and aporia’. Douzinas adds that the
‘many confusions of human rights theory’ stem from the semiotic and semantic variability of the term
itself. Douzinas (2007: 8) eg., points to the way the very idea of ‘human’ is a ‘floating signifier’ making
human rights ‘a thin, underdetermined term’. Charles Beitz (2009: 2) has said simply that so much
human rights practice is puzzling because it is unclear firstly whether the objects of human rights are in
any familiar sense ‘rights’, or what responsibilities attach to human rights let alone what reasons
should motivate us to care about them. Finally James Griffin (2008) has put the same point quite
sharply, when he claims that so much contemporary talk about human rights is variously ‘vapid, unclear,
or confused’. He adds that the notions of human rights that we have inherited ‘suffers from no small
indeterminateness of sense’ because the term has been left with so few criteria for determining when it
is used correctly, that we often have a plainly inadequate grasp on what is at issue.

This is an important problem given that promoting human rights requires that anyone wishing to
promote or protect human rights is able to do so in ways that are both accessible and credible.

As I will argue here there is much to support these critical observations: it is plain that a lot of rights talk
is confused. That this confusion and variability exists seems to have a lot to do with the failure to pay
attention to something J.O. Urmson, (1968: 10-11) suggested when he said that if you want to know
how some assertion about matters like ‘human rights’ can ‘be reasonably arrived at or defended’, it is:
… necessary to determine the general character of such assertions, to make it explicit what sorts
of claims in what sort of field they make … we need to be clear what sort of claim is being made.
This is also what Griffin (2008: 92) means when he says that for ‘the discourse of human rights to be
improved’ the ‘criteria for correct and incorrect use of the term must be agreed’. This requirement
underpins his decision to ‘derive human rights solely from certain values constitutive of human nature
which involves stipulating conditions like normative agency, autonomy and liberty’. This can be done eg.,
by asking when people, agencies or governments assert that there is a human right to privacy, or to
vote (or to X) what sort of claim is being made?

Here I want to pay some attention to the ways a lot of talk about human rights is unclear or worse. It
seems that many ordinary Australians are confused about human rights is evidenced in the research. 7 If
research done by Colmar Brunton (2009) done for the Brennan National Human Rights Consultation is
right the good news is that 75 percent of Australians seem well disposed to talking about rights. The bad
news is most are also very confused. 58 percent of those surveyed said individual rights should never be
sacrificed to the greater good of the community but 55 percent said the safety of our society was more
important than individual rights! Equally most respondents felt that there were some people and groups
who did ‘fall through the cracks’ and had less positive experiences but 57 percent of respondents also

7
I discuss some of the ways this is so at much greater length in the next chapter.

54
agreed or strongly agreed that there are ‘so many rights given to minorities’ that ‘the government is
forgetting to protect the values of mainstream Australian society’. In this respect we also see some quite
basic discriminatory attitudes at work. Respondents to the survey most strongly felt that people with a
mental illness (75 percent), the elderly (72 percent) and the disabled (71 percent) required more
protection than they currently get. Likewise more respondents felt that Indigenous (57 percent) and non-
indigenous (53 percent) people in remote areas required more protection than did Indigenous people in
urban areas (33 percent). However only 51% percent felt that children needed more protection while
asylum seekers were the only group which as many respondents felt should get less protection (30
percent) than they currently do as felt they should get more (28 percent). Finally only 32 percent felt that
gay and lesbian people needed more protection of their human rights. This confusion and welter of
attitudes which as I indicate shortly affects politicians as well, does not bode well.

Implicit in my approach to overcoming some of this confusion is a simple idea: we need to be much
more explicit about our ethical vocabulary and to use that vocabulary in public spaces, workplaces and
households. It ought to be clear to many of us that what passes for contemporary public opinion or
deliberative processes in our workplaces is done without much reference to ethical ideas.

Apart from attending to this task of clarifying what is often missing in action or unclear and confused, we
have also to acknowledge the consequences of the ongoing contest between philosophers and legal
scholars, each wishing to privilege a particular way of thinking about human rights.

Each of these ways is different. The insistence that we choose either a philosophical-normative approach
or a legal-jurisprudential approach is unhelpful: both approaches constitute different but overlapping
intellectual ‘practices’ -albeit different kinds. I will argue the need to bring together the philosophical-
normative approach and a legal-jurisprudential approach to establish a minimal consensus about how to
talk about and protect rights. It will be useful to develop an overlapping consensus about linking a
normative approach to rights which talks about the goods which rights promote with a regard for the
impact of legal and policy-based practices. The point of doing this is to enable different ways of
promoting human rights to be got on with. This is important in a country like Australia where the legal
approach to human rights does not have a strong statutory basis while the promotion of an ethically
framed regard for human rights seems to have barely begun.

John Finnis (1980: 205) has argued that a dual focus is both necessary and feasible given as he says, that
‘the explanatory justification of rights’ as well the resolution of many conflicting claims about rights
cannot be done using just a legal version of rights talk (Finnis 1980: 205). Rather we need to grapple with
a far more basic ethical vocabulary which we use to answer questions like what is the right thing for me
to do?’ ‘what is the good life?’ or ‘what is a just society?’. As Finnis (1980: 205) observed:

55
 … the modern vocabulary and grammar of rights is a multi-faceted instrument for reporting and
asserting the requirements, or other implications, of a relationship of justice from the point of
view of the persons who benefits from that relationship … It provides a way of talking about what
is just from a special angle: the viewpoint of the other(s) to whom something is owed or due and
who would be wronged if denied that something.

To the pursuit of an overlapping consensus which treats the law and ethics as working together, we can
also add the approach Beitz has proposed. Beitz, who has acknowledged why we might be skeptical
about human rights given the confusion and vacuity of a lot of human rights talk, proposes to focus on
the way human rights talk works in the field of human rights practice. He (2009: 9) argues that if we
treat human rights claims as ‘reason-giving for various kinds of political action’, we will better
‘understand the concept of a human right by asking for what kinds of actions, in which kinds of
circumstances, human rights claims may be understood to give reasons.

CONTRADICTIONS AND PARADOXES

A good starting point is to establish why Costas Douzinas says the ‘many confusions of human rights
theory’ stem from the very semiotic and semantic variability of the term itself. This matters deeply.
Thinking about what we do is a vital capacity. One things humans do a lot of is talking. Talking makes up
so much of our daily interactions with each other. What is striking is the extent to which daily practice is
so ‘unconscious’, ie., it depends on us not thinking about what we want or mean to say.

Pierre Bourdieu was a great French sociologist who drew attention to the way so much human activity,
which he called ‘practice’, was grounded in repetitive and often unthinking ideas feelings and
dispositions to act which he called ‘habitus’. Habitus refers to those everyday highly embodied rituals by
means of which a community both produces and confirms its own ‘obviousness’. (Butler 1999: 114).
‘Habitus’ is human conduct or behaviour that becomes a kind of second nature, and so much of it
depends on unreflective even clichéd thinking, talking and writing. This is because these activities are
typically ‘unconscious’ in the sense of ‘unknowing’: we say things without always knowing what we are
meaning to say. Hannah Arendt (1963) in her famous account of the trial of Adolf Eichmann pointed to
the way bureaucrats like Eichmann who made the Final Solution project to kill all the Jews of Europe
after 1941 into a bureaucratic reality, insisted this depended on their inability to think what they were
doing. She insisted that what she called the ‘banality of evil’ depended on people being constrained by
their own clichés and delusions. If we are ever to have and live in a culture of human rights, we will need
to be much more thoughtful about what we mean to say when we use words: we will need to make
thinking much more common a practice, including thinking about the words we use and what we mean
to think and to say.

56
As Douzinas (2007: 8) suggests the very idea of ‘human’ is a ‘floating signifier’ making human rights ‘a
thin, underdetermined term’. In consequence, in terms first used by a protean feminist Olympe de
Gouges in her 1791 Declaration on the Rights of Women, human rights have ‘only paradoxes to offer’
(Douzinas 2000: 21: Scott 1996). Douzinas (2007: 7-13) shows that there are at least six different ways
in which people now use the language of human rights. Each of these ways of thinking about human
rights the historical play of power, politics and social interests.

For one thing human rights are a legal category or claim, the creation initially of early modern legal
systems and now embodied in various domestic and international legal or treaty frameworks. The study
of such rights claims, belong to the doctrinal and institutional discipline of the law, and is especially
congenial to ‘legal positivists’ who treat as ‘real’ only those things produced in and by legal systems
established by states. However and as I have shown Hohfeld (1919) demonstrates, rights claims are
relational and so likely to be contested. That is, evident eg., when for example a property right is claimed
by a ‘right holder’ (ie., a person or a group who owns a property) and a ‘duty bearer’ who is obligated to
act or refrain from acting in ways which infringe that right (like a tenant) who may in turn however have
competing rights which are turned back on the property-owner.

Secondly, human rights can also be moral claims which may or may not be recognised by a legal system.
People may make claims to a minimum standard of treatment which they claim as an entitlement, and
so establish a moral framework to evaluates the performance of states and their policies and laws. This
sense of a human right is captured in the claim made by someone living under an oppressive regime who
claims a right to freedom of political expression when the state in question does not recognise such a
right. Douzinas suggests this is where the ‘real’ and the ‘ideal’ get very confused quickly, instancing
declarations like Article 1 of the UN Declaration of Rights which asserts that ‘all human beings are born
free and equal of right’. This is plainly not descriptively true in a world marked by radical inequality and
un-freedom. However it can be read as a prescriptive claim, namely that all human beings ought to
treated ‘as if’ they are free and enjoy equal rights. (In terms first spelled out by Bentham (Ogden 1930)
and elaborated by Vaihinger (1935) this points to the valuable role played by fictions). This category of
human right belongs to moral and political philosophy.

Thirdly, human rights are a topic in jurisprudence which itself as Douzinas says has a history. That history
originally grounded talk of rights variously in nature, revealed religion or in anthropological claims about
the nature of humans. The intellectual pedigree of human rights comes out of what he calls an:
… unlikely combination of Classical [ie., Greek and Roman] natural law, Jewish and Christian
theology, the ideas of the Enlightenment, modern rationalism and post-modern multi-
culturalism.
Unfortunately as Douzinas argues, recalling Hannah Arendt’s (1951) early and powerful formulation of
the same point, these claims have lost much of their force or their legitimacy, as states have moved to

57
only recognise rights they were prepared to identify and protect. In consequence as rights become
matters which politicians were prepared or forced to recognise, groups like refugees or the stateless,
who lack a state to protect them, have discovered they have very limited, if any, human rights. The
result is a further layering of contradiction or paradox inherent to the category of human rights, with
liberal jurisprudence for example all too often appearing to function as ex post facto rationalizations of
the effects of power in which states deny rights to people like asylum seekers, or women in India plainly
in need of having those rights protected.

Then there is the way human rights work as ‘ideology with a moral inflection’. This is captured vividly in
the very ‘modern’ way states like America deploy a language of rights in the pursuit of their own foreign
policy ends. This kind of rights talk was manifest in 1991 when US President George Bush Sr. announced
his government’s commitment to promoting a ‘new world order’ committed to the principles of justice
and fair play, while chastising various ‘rogue’ regimes like China, Iraq and North Korea for their human
rights abuses. In this way Bush conveniently ignored America’s own record of contemporary human
rights abuses in foreign policy interventions perpetrated for example in Nicaragua -which in that case
brought America before the World Court of Justice in 1988 on a variety of charges of human rights
abuses- and found the American government guilty.

Fifthly, human rights talk is part of what Douzinas treats as the debased contemporary vocabulary of
claims by those who live in advanced Western consumer societies. He instances the kinds of claims like, ‘I
have a right to X’, as being effectively a high falutin’ way of saying, ‘I want or desire X’. This kind of rights
claim indicates, ‘that the public recognition and satisfaction of individual desire have become major ways
for the subjective, economic and ideological organization of late capitalist societies’. As Douzinas puts it
colourfully, ‘The only human rights violation most human rights experts, international lawyers and
diplomats have ever experienced is being served a bad bottle of wine at their working lunches’ (Douzinas
2007: 14)

Finally, there is the sense in which human rights talk continues to be a major strategy for ‘speaking truth
to power’ and resisting the dictates of power or dissent from the intolerance of public opinion. Yet even
here there is always says Douzinas, a paradox about this way in which rights talk is actually able to
contest the play of power. The French Declaration of the Rights of Man and Citizen (1789), for example
declared the higher status of natural rights while ushering in the age of the omnipotent sovereign. The
commitment to sovereignty was expressed in Article 3, which declared, ‘The principle of all sovereignty
rests essentially in the nation’, a principle which conjoined with the principle that the law is the
expression of the general will (as outlined in Article 6) made possible the legal imposition of the Jacobin
Terror of 1793. And even as this Declaration celebrated the universalism of humanity, it also upheld the
interests of the rising bourgeoisie, by declaring in Article 17 that:

58
 Property being an inviolable and sacred right, no-one may be deprived of it except when public
necessity, certified by law obviously requires it, and on the condition of a just compensation in
advance’ (Hunt 2007: 222).
What Douzinas forcefully reminds us in short is this: those who wish to deploy a language of human
rights do so within a discursive field characterised by a plurality of historically evolving meanings,
inflected by diverse social economic and religious interests. It is hardly surprising that contradiction and
paradox abound.

As Anthony Woodiwiss (2005: xiii) has insisted, we are compelled to ask ‘If human rights are rooted in
our common humanity, why do they remain controversial especially among intellectuals on the left and
in many parts of the developing world?’ He answers his own question this way:
The most current obvious answer would be to point to what many consider to be the unfortunate
association between human rights and the ‘coalition of the willing’ that presently occupies Iraq –
a coalition unilaterally willing to deploy massive military force and therefore to intentionally
sacrifice uncounted (literally) thousands of innocent lives in the defence of human rights of
those same innocents …
Woodiwiss proceeds to develop the larger point that many groups since the United Nations issued its
Universal Declaration of Human Rights (1948) have drawn attention to the way they have been excluded
from the terms of that Declaration. As Woodiwiss argues, the emergence of a discourse of human rights
took place as a consequence of a shift in the traditional way of speaking about rights as either ‘natural
rights’, or the ‘rights of man’ to talk of ‘human rights’.

As Lyn Hunt (2007: 22-3) shows, that shift took place during the eighteenth century as talk of ‘natural
rights’ and ‘the rights of man’ jostled with early talk, for example by Voltaire ca., 1763 of ‘human rights’.
That a decisive shift had taken place was evident in Franklin D. Roosevelt’s famous declaration on 6
January 1941, of his so-called ‘Four Freedoms‘ which set the scene for the later UN Declaration of
Human Rights. In that speech Roosevelt (cited Woodiwiss 2005: 87-8) made a ringing declaration that:
… we look forward to a world founded upon four essential human freedoms.
The first is freedom of speech and expression – everywhere in the world
The second is freedom of every person to worship God in his own way – everywhere in the world.
The third is freedom from want, which translated into world terms means economic
understandings which will secure to every nation a healthy peacetime life for its inhabitants –
everywhere in the world. The fourth is freedom from fear, which, translated into world terms
means a world wide reduction of armaments to such an extent and in such a thorough fashion
that no nation will be in a position to commit an act of physical aggression against any nation –
anywhere in the world. That is no vision of a distant millennium. It is a definite basis for a kind of
world attainable in our own time and generation …

59
However in terms which possibly few noted at the time, Roosevelt then added a gloss:
Since the beginning of our American history we have been engaged in change, in a perpetual,
peaceful revolution which goes on steadily, quietly adjusting itself to changing conditions without
the concentration camp or the quicklime in the ditch. The world order which we seek is the co-
operation of free societies working together in a friendly civilized society … freedom means the
supremacy of human rights.

Woodiwiss goes on to make two points. Firstly at ‘the deepest discursive level’ he suggests that there is
‘uncertainty about what such a world would have to look like for even the aspirations represented by the
present array of human rights to be realisable’. Secondly, and as a descriptive proposition, Woodiwiss
points to an ongoing struggle since 1945 between an increasingly parochial American reading of a
‘universalist’ discourse of human rights, and a ‘much more literally cosmopolitan discourse’ coming from
many groups and countries other than America, stressing a reciprocal view of human rights which
Americans have found convenient to deride as manifestations of ‘cultural relativism’.

In effect the play of power and the fact that western (ie., American) resources and influence drove the
actual development of the UN Declaration of Human Rights, and did so in ways that failed to take
account of the interests or values of the rest of the world community, has thwarted any efficacy that
the promotion of rights might have been expected to secure. The UN Declaration of Human Rights as:
… the founding text of international human rights law represents another instance of the pre-
emption of the possibility of a global consensus by a western one … the UNDHR replicates the
discourses paradoxical character in that it too has turned out to offer protection only on the basis
of the acceptance of inequality, this time on a global scale (Woodiwiss 2005: 91).

To be clear, American influence has meant that human rights were situated within a clear hierarchy. The
effect was that civil and political rights trumped social, economic and cultural rights. In historical terms
the first wave of ‘blue’ rights ie., civil and political rights oriented to the idea of freedom, have been
overtaken by ‘red’ rights ie., social and economic claims animated by the idea of equality of conditions
and by ‘green rights signified by attention being given to rights to self-determination, and increasingly
to the claims made on behalf of environmental sustainability. The civil and political rights covenant
spelled out a clear duty on states to respect and ensure too people all of the civil and political rights
identified while the economic and social rights covenant merely asked states to try to progressively
realise the covenanted rights.

Given the semiotic contradictions and analytic conundrums which rights talks generates, it should not be
surprising that when we turn to the attempts made since 1945 by many people and organizations to give
effect to human rights we will find plenty of contention even acrimony, some consensus but not much
real progress. From the start it seems that not all human rights were taken equally seriously nor all

60
members of the global community equally able to determine the shape the debate about human rights.
Unequal power and the inherent contradictions of rights talk have conspired to thwart the promise of a
truly global consensus about human rights.

Always at issue were fundamental differences, even antagonisms, between advocating for civil and
political rights, and those advocating for social, economic and cultural rights. Though it oversimplifies
matters somewhat, one way of seeing the basis of this antagonism is to recall the distinction made by
Isaiah Berlin (1969) between ‘negative liberty’ and ‘positive liberty’. In the simplest sense ‘negative
freedom’ referred to a right to be free from state tyranny, coercion or interference by others. ‘Positive
liberty’ referred to the right to be free to enjoy a decent, long, healthy life. If we keep this simple
distinction in mind, we can see how it was to play out as a political idea in a post-1945 world shaped by
the Cold War struggle between American ‘democracy’ and the Soviet Union’s ‘socialism’.

Though it might add a lot to our understanding of the issues at stake, Berlin’s account of the two
freedoms did not have much practical effect. Arguably the greatest liberal theorist of the century, Berlin
treated what he called ‘negative liberty’ as the indispensable foundation for the good life.

In a simple sense, Berlin distinguished between being free from coercion or restraint and being free to
achieve autonomy or the good life. Yet as John Gray (1996: 5-37) shows, Berlin’s position is extremely
nuanced. Berlin was clearly suspicious of all claims to promote ‘positive’ freedoms and on balance clearly
preferred a ‘negative’ account of freedom conceived of as the absence of constraints imposed by others.
In part, this reflected Berlin’s deep skepticism about the capacity of any kind of philosophical analysis to
resolve the basic nature of our condition, namely that as humans we live in communities where we
confront an inevitable and essentially incommensurable plurality of ideas about what the good life looks
like and how we should live it. Those who promoted ‘positive’ freedoms he feared were committed to
various kinds of rationalist and single-minded ideas about the ‘good’ however ‘expressed eg., as Marxist
ideas, or market liberalism, utilitarianism - or whatever. Equally Berlin treated the human capacity for
choice itself as the ‘basic freedom’ (or what Kant called ‘willkur’). This is why Berlin also allows that ‘both
kinds of freedoms are both perfectly valid concepts’, and that ‘positive liberty is essential to a decent
existence (Jahanbegloo 1992: 41). Yet he held to the idea that negative liberty was ultimately a more
secure way of holding on to the insight that ultimately we need to preserve the capacity for choice given
that there is no ultimate way of reconciling different ideas about the good whether by calculative metrics
or by rational arguments. As Berlin (1969: 130) put it:
Negative liberty is something the extent of which, in a given case is difficult to estimate … The
extent of my freedom seems to depend on a) how many possibilities are open to me …
Possibilities of action are not discrete entities like apples which can be exhaustively enumerated;
b) how easy or difficult each of these possibilities is to actualise, c) how important in my plan of
life, given my character and circumstances these possibilities are when compared with each

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 other; d) how far they are closed and opened by deliberate human acts; e) what value not merely
the agent but the general sentiment of the society in which he lives, puts on the various
possibilities. All these magnitudes must be ‘integrated’ and a conclusion necessarily never
precise, or indisputable drawn from this process. It may well be that there are many
incommensurable kinds and degrees of freedom and that they cannot be drawn up on a single
scale of magnitude (my stress).

While Berlin’s account is a rich and important one, it seems to have not made much of an impact on the
way politics or policies got made in many liberal democracies. This was so even though we could say in a
crude way, that the difference between ‘negative freedom’ and ‘positive freedom’ sat at the heart of the
post-1945 ‘cold war’ between the USA and the Soviet Union. The USA made much of the Soviet capacity
to attack core civil and political rights: the Soviet Union made much of the negation of social or
economic freedom characterised by poverty and high rates of mortality arguing that a free press was all
very well and good, but it was essentially irrelevant to starving peasant farmers. (The Soviet leaders may
also have acknowledged that their use of famine, political terror, mass executions and forced labor were
key mechanism which they relied on to create ‘socialism in one country’).

In a fundamental sense there is indeed no way of avoiding the basic contradiction at the heart of this
debate. For all practical intents and purposes the advocacy for civil and political rights after 1945
invariably centred on the sacred liberal right to own property, while the redistributive ideal that
animated those concerned to promote greater economic and social equality, clearly required some
move by states to redistribute economic resources like land or capital held in ‘private’ hands. This
fundamental conflict has as Douzinas (2007: 24) argued, always stymied attempts by the United Nations
to draft a common international bill of rights.

What Douzinas forcefully reminds us in short is this: those who wish to deploy a language of human
rights do so within a discursive field characterised by a lack of clarity and unanimity. The result can be a
good deal of confused thinking.

As just one example of this I turn to a conventional exercise by James Nickel (2010) who set out to
‘clarify’ how we might think about human rights. Nickel starts off by saying that human rights are
‘international norms that help to protect all people everywhere from severe political legal and social
abuses’. Straightaway it is unclear whether this statement is to be understood as a prescription or as a
description of what actually happens. (Some minimal awareness of what goes on in our world (eg.,
Power 2004) suggests that the initial proposition must be more a prescription of what would be nice to
have happen rather than a description of what happens). It is more likely that Nickel meant to say that
‘Human rights are international norms intended to (or perhaps which it is hoped will) protect all people
everywhere from severe political legal and social abuses’.

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Nickel then suggests that human rights include ‘the right to freedom of religion, the right not to be
tortured and the right to engage in political activity’. However it is not quite clear what this list actually
means until Nickel adds:
… these rights exist in morality and in law at the national and international levels. They are
addressed primarily to governments, requiring compliance and enforcement (My stress).

The proposition that humans rights ‘exist in morality and in law’ is unhelpful. This is because if we accord
due recognition to his use of the existential verb (ie., ‘is’) this statement implies that there is something
existentially real about rights in the same fashion as a sentence which reads, ‘There is a dog there’, or
‘The Smith book is on the bookshelf’. It is not clear that Nickel has fully grasped the significance of this.
Worse Nickel’s claim that human rights are both moral claims and legal regulations simply muddies the
water. Observing that a given instrument of statutory law like a Charter of Human Rights ‘creates a right’
is quite different from observing that someone has made a moral argument in favour of recognising that
eg., a human right to freedom of religion is a good idea. That is, we are talking about two different
orders of ‘existence’. This initial confusion is amplified in the discussion of the ways human rights ‘exist’
which follows.

Nickel claims that human rights are existentially real, because the first and most obvious way in which
human rights exist ‘is as norms of national and international law created by enactment and judicial
decisions’. Granting that however Nickel then allows that the other idea ie., that human rights ‘exist as
norms’ is open to at least three different treatments or understandings.

Firstly as Nickel admits, many people have wanted to find a way to support the idea that human rights
‘exist’ on a richer and deeper basis than simply existing as a legal statement embodied eg., in a Charter
of Rights. This he notes has sponsored the idea that human rights are more than what this or that
government declares by law to be a human right. It has led to claims that rights are in some sense
natural to our human status and that :
… people are born with rights, that human rights are somehow innate or inherent in human
beings. One way that a normative status could be inherent in humans is by being God-given. The
U.S. Declaration of Independence (1776) claims that people are ‘endowed by their Creator’ with
natural rights to ‘life, liberty, and the pursuit of happiness.’ On this view, God, the supreme
lawmaker, enacted some basic human rights.
This we might say is an echo of the oldest of ideas about human rights namely that human rights are in a
special sense of the word best understood as ‘natural rights’ given to us by the God of Jews, Christians
and Muslims. This proposition as Nickel allows is tendentious in the extreme if you do not happen to be
a faithful member of these religious communities and believe among other things that there is a God
able and willing to confer rights.

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In addition Nickel acknowledges that some proponents of rights unhappy about the stipulation of
needing to believe in a rights-conferring God, have claimed that human rights are empirically real
because they are embedded in ‘… actual human moralities’. This idea is more like a philosophical
anthropology of the kind developed by John Finnis (1980). This is also represented as a natural rights
story but one grounded in what Finnis calls the empirically observed world of human societies. As Nickel
puts it:
It appears that all human groups have moralities, that is, imperative norms of behavior backed by
reasons and values. These moralities contain specific norms (for example, a prohibition of the
intentional murder of an innocent person) and specific values (for example, valuing human life.)
In effect a different approach to a natural rights view of human rights which does not rely on the
existence of a ‘God’ would say that human rights exist apart from divine or human enactment as norms
accepted in all or almost all actual human moral orders found in all sorts of human communities. The
difficulty that this claim throws up of course is that anyone making such a claim would need to make
some empirical effort to demonstrate that such a consensus existed in all or almost all societies.

Finally Nickel acknowledges the repeated efforts by philosophers to construct a robust discursive basis
for rights. In this sense human rights exist when philosophers and others construct good or true
arguments in their favour:
On this account, to say that there is a human right against torture is … to say that there are strong
reasons for believing that it is almost always wrong to engage in torture and that protections
should be provided against its practice.
Nickel almost immediately however observes that, ‘One problem with this view is that existence as good
reasons seems a rather thin form of existence for human rights’.

Indeed. What Nickel has ended up demonstrating as part of his exercise in clarification is that the
existential status of human rights, far from being both clear and simple is much as Douzinas has argued
it is, namely confused and unclear. it is simultaneously grounded in law, in religion, in philosopher’s
arguments and grounded in the actual morality of diverse societies. And then the confusion gets worse
as Nickel goes on to advance several other propositions about the existential status of rights. Firstly it
seems Nickel wants to add that human rights are chiefly political norms ‘dealing mainly with how
people should be treated and not moral norms’ applying to interpersonal conduct. This he then
immediately overturns by allowing that ‘a human right can exist as a shared norm of actual human
moralities’. He adds to that confusion by arguing that human rights are chiefly ‘much more concerned
with avoiding the terrible than with achieving the best. Their dominant focus is protecting minimally
good lives for all people’. However human rights are also ‘high-priority norms’ because Maurice Cranston
held that human rights are matters of ‘paramount importance’ and their violation ‘a grave affront to
justice’ (Cranston 1967). And if human rights are rights, Nickel says they are not necessarily so ‘in a strict

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sense’. At this point the hapless reader might well be inclined to agree with Jeremy Bentham and his
peremptory dismissal of rights talk as ‘nonsense on stilts’.

The chief effect of this exercise in clarification has been to sow endless confusion demonstrating if
nothing else why Griffin was right to suggest that our talk about human rights ‘suffers from no small
indeterminateness of sense’. Enough has been said to indicate why modern rights talk seems to be
characterised by semiotic contradictions and some basic confusions.

OTHER PROBLEMS WITH HUMAN RIGHTS?

Two other things may be added to embellish the point that the contemporary status of human rights
discourse is contradictory and/or confused. One relates to the resurgence of a laissez-faire liberal legal
discourse, the other goes to the weak or nonexistent legal remedies available to people or groups facing
the abuse of their human rights.

The resurgence of various strands of neo-liberalism has had a major impact on the way legal scholarship
regards human rights. In particular, we can note the work of members of the Law and Economics
movement like Ronald Coase (1960) and Richard Posner (1981). Coase and Posner have reinstated a
fundamentalist version of a rampant individualism embedded in market mechanisms and logics at the
expense of any idea of social reciprocity. The idea of ‘social reciprocity’ here entails the recognition that
we live in society and depend on relations of reciprocity and mutuality for our individual capacities to
lead flourishing lives. The essential point made by Prime Minister Margaret Thatcher when she declared
that ‘There is no such thing as society’, was not to deny the empirical reality of ‘society’ but to affirm the
supremacy of individual autonomy, choice and effort. This is done by ignoring that ‘I’ depend on lots of
largely invisible ‘you’s’ who provide food water and sanitation, public transport, buildings that don’t fall
down, safe roads, street lighting, education, health care, and employment all of which enables ‘me’ to
lead a decent life.

As neo-liberals like Coase and Posner have argued with increasing rhetorical effect over the past
decades, the traditional premises and practices of conventional legal systems, including the idea of a
large array of rights needs to be transformed in such fashion as to allow the market maximum play. All
that the law needs to do is uphold the basic property rights and ensure free competition and this will
literally solve all human problems. On this account a truly ‘just society’ will be one based entirely and
fundamentally on free market principles. For Coase (1960) the market can only work effectively if literally
everything from the air we breath to the water we drink, is owned privately and is brought into a market
established by relations between ‘buyers’ and ‘sellers’. Remodelling the law as a purely market activity
will allegedly produce benefits such as reducing the scale, cost and complexity or running a legal system.

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As Woodiwiss (2005: 101) argues this ‘marketisation’ of human rights has given rise to moves
dominated by the USA to construct juridical mechanisms on a global scale which privilege a new kind of
‘global constitutionalism’ which protects, perhaps even enhances corporate power and wealth. This is
evident for example in the formal mechanisms and rules set up by entities like the World Trade
Organisation, the World Bank, the IMF and the increasing array of free trade agreements such as the one
Australia entered into with the USA since the 1980s. These arrangements have the effect in David
Schneiderman’s (2000: 758) words, of restructuring the state and institutionalising political forms that
emphasise market credibility and efficiency while limiting the processes of democratic decision making:
By limiting state action with regard to key aspects of economic life, the new constitutionalism
confers privileged rights of citizenship and representation on corporate capital, while at the same
time constraining democratic processes.

This concern to strengthen these kinds of governance arrangements run in parallel with the continuing
weakness of legal remedy when human rights abuses occur. When human rights abuses occur, it is plain
that any international legal framework set up to provide effective legal remedy, has been at best weak or
pusillanimous.

At the core of this problem is the brutal reality that the most significant sources of human rights abuses
are governments and their agencies, and governments have been extremely reluctant to surrender any
aspect of their sovereignty that would enable serious and sustained intervention by an international
juristic agency to prevent those human rights abuses. Samantha Power (2003) has made the striking
point that not once has the UN or the USA, the most powerful state on earth between 1945 and 2000
moved to either declare that ‘genocide’ was underway let alone intervene to try to prevent the score of
major assaults on people’s lives which reference to genocidal projects in Pakistan, China, Nigeria,
Rwanda, Kosovo or Darfur signify. (It is significant that the American regard for upholding its sovereignty
has meant it has yet to sign the UN Covenant on Genocide). For the most part the UN itself has relied on
mechanisms like regular reporting on human rights abuses. Equally the 1950 European Convention on
Human Rights (ECHR) has established a system of remedies allowing aggrieved Europeans the
opportunity to bring cases before the European Court in Strasbourg.

THINKING ABOUT HUMAN RIGHTS?

Does this argument so far imply that we should give up all talk about human rights or cease advocating
for regimes of practice oriented to some conception of human rights? I think not. Beitz has said what
matters on this question when he argues that despite all these difficulties we are still better off with a
framework of rights talk and practice than without. I think that two things need to be thought about.

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Firstly whether this is always spelled out or not, human rights have something to do with securing
human goods. It is clear as Beitz says, that we have some good reasons to regard the practice of human
rights as valuable. Beitz (2009:9) makes a good case for treating human rights in connection with our
ideas about human goods. To be very clear there is an ethical dimension to human rights doctrines and
discourse. That ethical dimension provides as it were certain action guiding reasons. This means that we
always need to establish as Beitz (2009: 45) insists that we do, the kinds of reasons that constitute the
basis for making human rights the object of a particular kind of action (Beitz 2009:11).

Those reasons will have something to do with protecting important human interests and human goods
in the face of state-sponsored thuggery or state-sponsored neglect. Because of the work of
contemporary philosophers like Griffin (2008) Sen (2009) and Kateb (2011) we can say what those
norms and goods look like.

It should be added that to insist on this requires us to say to politicians, policy-makers, lawyers and
activists that it is not enough to simply assert that an individual or a group has a certain human right by
stamping their feet. It is important to identify the goods which the protection of that rights will secure.
This is currently not a common aspect of public life or deliberative practices in a place like Australia.
Here the use of an ethical vocabulary is too often simply left unstated. Or else it becomes part of a tacit
code where asserting that ‘x is good for the economy’ or ‘doing y is in the national interest’ will have to
suffice as an ethical proposition or justification.

Secondly, Beitz argues that apart from having an ethical dimension, human rights also constitute a kind
of human practice. To be specific human rights are a ‘global practice that is both discursive and political’.
Beitz says that to think in terms of a practice is to acknowledge that human rights are a real aspect
politically of most societies. This means we can pay attention to the forms of practice which can have
both a doctrinal component as well as a variety of institutional mechanisms that have evolved to protect
human rights. This is especially useful if we wish to assess the effectiveness of those institutional
mechanisms.

I want to discuss these two propositions starting with the idea that we can find in certain descriptive
evaluations of human beings a basis for action. In what follows I can only summarise the considerations
that seem most important -without supplying the buttressing of argument that would take several books
to provide.

HUMAN RIGHTS INVOLVE HUMAN GOODS

If we ask on what ethical basis are we to ground human rights, Griffin (2008), Sen (2009), Beitz (2009),
Nusbaum (2011), Dworkin (2011) and Kateb (2011) all agree that we can best do so by grounding human

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rights in a description of what it means to be human and what is required for living a good life in
common with other humans. Equally there is an emphasis on the value of freedom, something which is
central to the liberal tradition.

This emphasis on freedom is central modern liberal writers like Isaiah Berlin (1959), Bernard Williams
(2006), John Gray (2002) and Amartya Sen(2009).8 These liberals believe that we live in a world where
we humans tend not to agree about either the ethical ideas that matter or the facts about the
circumstances we confront. Gray (2002:139) adds that this is a very good thing because, ‘The diversity
of ways of life and regimes is a mark of human freedom, not of error.’ However as Grayling (2011) has
pointed out, this does not necessarily entail acting as if the truthfulness of various moral claims is
irrelevant or a misguided criterion: to say that ‘all normative claims are equally true’ is as self-denying
and contradictory a proposition as saying that ‘there is no such thing as truth’. In neither case can we
take these propositions seriously. Recently Dworkin (2011) has argued even more vigorously against
the moral scepticism Berlin and Gray have supported, claiming that the liberal skeptical view about
moral truth ‘is based on a misunderstanding, and that moral and political judgments can be true or false’.
(He also allows that ‘we must still recognize that arguments about which are true and which false cannot
easily be resolved’ (2010).

Even if Dworkin is right, the plurality of ideas about the circumstances we face and the goods we wish to
pursue, present us with a persistent challenge to find ways of getting on together. To achieve this we
need a capacious framework of ethical ideas that speak to our interest in defining the elements that
make a life worth living and yet which are sufficiently inclusive that no one could fail to reasonably
accept them. This is the task which writers like Griffin and Sen have taken on as they consider what it
means to be a human person.

To be human eg., Griffin says (2008: 32) involves noticing initially that we are different from other
animals because we have a conception of ourselves and of our past and future. Many of us reflect on
our lives, assessing the choices that can make our lives better or worse before acting on the basis of
those thoughts and assessments. To be human also involves understanding that we are persons able to
do these things. Griffin says that human rights protect our capacity to achieve our personhood or
humanity. Human rights matter because protect our capacity to be an agent, possessing enough
autonomy to be able to do these things freely ie., think, choose and act.

It is also clear that the idea of personhood needs to take account of what Griffin (2008: 37) has called
‘the practicalities’. By ‘practicalities’ eg., Griffin only means we need a solid grasp of our nature, the

8
One important point to make here is that these writers while liberals do not necessarily share the
usual liberal regard for utilitarianism. Williams has done much to rehabilitate the virtue ethics
tradition while Sen has developed a critique of utilitarianism while developing a human capabilities
approach and Gray has developed Berlin’s idea of value pluralism into a critique of utilitarianism.

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nature of society and the world. These practicalities refer to a mixture of internal and external factors
which diminish or enhance people’s capacity to live well. To be able to do things like reflect, choose and
act well we must be able to make real choices based on having enough knowledge to make good
choices. (We cannot choose to fly like a bird eg.,). It is no less important to accept as part of grasping
what Griffin calls ‘the practicalities’, that not every human will have the capacity to reflect, choose and
act well and to do so autonomously. For example babies and infants do not have it, but children
increasingly have it: profoundly brain damaged people do not have this capacity and many organizations
like corporations and universities set out to deny it to their workforce.

Thirdly, being a person is to lay claim to being a certain kind of being who has a fundamental quality
called dignity. Dignity signifies that each of us has unique value and that we have no equivalents.

Fourthly being a person is also about the capacity to choose how to live and being able to do so, a
capacity understood as an end in itself. This idea is often referred to be philosophers as having agency
or being an agent. Being an agent means possessing the capacity to make choices about the valued ends
of our lives. Griffin (2009: 45) calls this ‘normative agency. Sen agrees about this core idea about being
human. Sen (2009) calls it ‘processual freedom’.

Like Berlin and Gray, Sen accepts as a basic premise that we live in a world where there are multiple,
possibly even incommensurable ways of evaluating the elements that make up a good life or that put
content into our idea of justice. As Sen (2009: 395) puts it:
Judgments about justice have to take on board the task of accommodating different kinds of
reasons and evaluative concerns. The recognition that we can often prioritise and order the
relative importance of competing considerations does not however indicate that all alternative
scenarios can always be completely ordered, even by the same person. A person may have some
clear views on rankings and yet not be sure enough about some other comparisons.
It is upon this fundamental recognition that Sen (2009) argues for a conception of freedom which
accepts both a plurality of values, while worrying about people’s actual capacity to both choose freely
and be able to pursue the valued ends that matter:
In assessing our lives, we have reason to be interested not only in the kind of lives we manage to
lead, but also in the freedom that we actually have to choose between different styles and ways
of living. Indeed the freedom to determine the nature of or lives is one of the valued aspects of
living that we have reason to treasure (Sen 2009: 239).

Sen says that being a person involves the capacity to reflect on our lives as well as assessing and
selecting from among the goods that matter to us that can make our lives better or worse. This is why
freedom is valuable. Freedom matters for several reasons. First if we have freedom, we have more
opportunity to pursue the goods that we value. This is the ‘opportunity’ aspect of freedom. Secondly

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freedom ought to mean that we are free from constraints imposed by others to identify and choose the
goods that matter to us. This is what he calls the ‘process’ approach to freedom. 9 We need not only to
be free procedurally to make these assessments but as Sen and Nussbaum have noted we also need to
have the actual ‘capability’ to act on those choices. That is why freedom both as a process and freedom
as capability (ie., having the actual means to act out our choices) matter so much. This informs the
distinctive emphasis given to capabilities by Sen and Nussbaum.

We might intuit that talking about and acting to protect our human rights might be connected to these
freedoms and capabilities. As Beitz (2009:64) has noted, the ‘personhood’ and ‘capabilities’ approaches
to grounding human rights normatively and descriptively share a lot of common ground. These include a
common insistence on what makes us human and the emphasis on effective freedom and normative
agency. From this comes the core idea that that there ought to be minimum provision to enable people
to choose the valued ends that matter. Nussbaum agrees observing that:
The common ground between the Capabilities Approach and human rights approaches lies in
the idea that all people have some core entitlements just by virtue of their humanity, and that it
is a basic duty of society to respect and support these entitlements (Nussbaum 2011: 62)
The shared features of being human including the idea that dignity is a central capability creates the
entitlement to have that capability protected as a right

Nussbaum like Sen, talks a lot about human capabilities understood as those goods and opportunities
for living which should be protected by human rights. As Nussbaum has noted, talking about capabilities

9
Sen uses three scenarios to identify the distinction between the opportunity aspect of freedom and the process
aspects of freedom. John wants to stay at home one night rather than go out. That is his clear and freely chosen
preference. In Scenario A, John stays at home as he has intended to do. In this case he has exercised the
‘opportunity’ aspect of freedom and has exercised the process aspect of freedom because no-one else has
stopped him from so doing. Under Scenario B however a gang of thugs enters his home and drag him out into the
street and insist on pain of death that he stay out all night. In this case he has been denied both the opportunity
and the process aspects of freedom. He has been denied the opportunity to stay at home and he has had not
enjoyed processual freedom. In Scenario C the same gang of thugs invade his home and on pain of death tell him
he is not to leave the house. On this scenario he gets to exercise his preference ie., the opportunity to stay at
home, but has lost his process aspect of freedom. In this case he gets to do what he wanted to do but not under
circumstances in which he was able to exercise his free choice free of constraint. This says Sen points to an
important consideration when thinking about the value of freedom. Can we only think about opportunities in
terms of whether or not we end up in the circumstances we have chosen. What eg., of the possibility that there
are other significant alternatives that we might have considered –but did not? Take Scenario C: the difference
between it and Scenario A is that in Scenario C John comprehensively lost the opportunity to choose between
other options, a choice which in Scenario A he still possessed. That is in Scenario C John has lost an important
aspect of freedom, namely the capability to choose between more than one option. Sen says this points to the
value of distinguishing between a narrow view of freedom in terms of the ‘culmination outcome’ and what he calls
a broader or ‘comprehensive’ view of freedom. In effect we need to ask whether we assess a person’s capability
to lead the kind of life they value in terms of what they actually end up with (ie the ‘culmination outcome’) or
adopt a broader view that takes into account the process whereby they can choose between actually available
possibilities which they could also have chosen. What Sen calls a ‘comprehensive outcome’ approach to freedom
necessarily takes into account people’s actual capacity a) to choose between various valued ends and then b) be
able to pursue those ends.

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is not a theory about human nature and does not therefore read out capabilities from innate human
nature:
Rather it asks among the many things that humans beings might develop the capacity to do,
which ones are the really valuable ones which are the ones that a minimally just society will
endeavour to nurture and support (Nussbaum 2011:28)
Consequently human rights involve a:
… morally justified claim that a person has simply by virtue of being a human adult and
independent of membership in a particular nation, or class, or sex, or ethnic or religious or sexual
group (Nussbaum 1997: 292).
The idea of capability itself is tied to the idea of human dignity because the core capabilities support
human dignity. It is integral to our thinking about human rights because it emphasizes the idea of a
fundamental entitlement grounded in a simple yet fundamental idea of basic justice

Sen and Nussbaum argue that a person’s well-being or ability to lead a good life both requires and is
best assessed in terms of the achievement of valuable actions and states of being which they call
‘functionings’ which are what the realisation of ‘capabilities’. Capability means as Nussbaum (2011:25)
insists, that we have the opportunity to select. She points to the difference between a person who is
starving because they are caught up in a famine, and a person who is fasting as a way to grasp the
difference. They both:
… have the same type of functioning where nutrition is concerned, but they do not have the
same capability because the person who fasts is able to eat and the starving person has no
choice.

Among the core functionings is the capacity to reflect freely about those things that will secure the
valued ends that matter. This is the core freedom ie., the freedom to choose. Yet the point of focussing
on capabilities is to emphasise a conception of freedom as ‘effective choice’. As Sen and Nussbaum have
insisted, we need to be free to choose well and we need to be able to make good choices which are
actually achievable. Nussbaum goes on to argue that there are a number of basic capabilities which
include life itself, having bodily health, possessing bodily integrity, being able to think and imagine, being
able to have valuable emotions, being able to make ethical choices and judgements, being able to form
valuable relationships with others, being able to show concern for other species, being able to play, and
finally being able to have control over one’s environment (Nussbaum 2011:33-4). 10

A conception of personhood and dignity enable us to derive most of the basic human rights (Griffin
2008). For example we have a right to life without which no personhood is possible. We have a right to
security of person because it gives us the possibility to choose freely and achieve the goods that matter.
10
These ‘capabilities’ share an affinity with Finnis’ account of the human goods which includes life (which takes in
Nussbaum’s three categories of life, bodily health, and bodily integrity), knowledge, play, aesthetic experience,
sociability or friendship, practical reasonableness and religion (Finnis 1980: 85-90).

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We have a right to a voice in political processes something most of us would regard as a key exercise in
autonomy. We also have a right to freedom of expression and to assembly because these are also
exercises in autonomy. We have a right to basic provision and education to enable us to choose and
enjoy the goods we value for ourselves.

In short this descriptive-evaluative basis of what it means to be human provides us with a basis for
talking about human rights. This matters because it helps to determine those human rights which will be
both effective and socially manageable and acceptable when claims are made on others about the
human rights that will secure those qualities of personhood or the capabilities which Nussbaum has
identified. Beitz (2009) is right to say that any practice of human rights is ethically oriented. By this he
means only to refer to ‘a set of norms for the regulation of the behaviour of states together with a set of
modes or strategies of action for which violation of norms’ may count as a reason compelling enough for
actors to agree to take action (Beitz 2009:11).

This also points to the value of a small but useful clarification suggested by Brian Barry (2006) in the
course of discussing what social justice entails. Barry suggests that we should treat ‘rights’ as part of a
triad of claims that we make on each other. We can make claims he says variously for ‘rights’, for
‘opportunities’ and for ‘resources’. This presentation clearly assumes that these are not the same things.
What then are the differences between ‘rights’, ‘opportunities’ and ‘resources’?

Barry says we can treat rights as part of a statement of claim when we assert eg., that ‘X has a right to
education’, or ‘X has a right to vote’, or ‘X has a right to peaceful assembly’. Barry says that when we
assert such a claim we are saying that it is no longer acceptable to deny to X access to education, the
exercise of a vote or the ability to assemble peacefully. That is having a right means only that the rights
bearer in question cannot be prohibited from having the thing or doing the thing the right refers to. As
Barry (2005:19) puts it:
A woman’s right to appear in public dressed as she chooses and in the company of anybody she
like is simply the absence of any such prohibition (of the kind common around the world) on
doing such a thing. Again the right to make a contract or a will is the absence of any prohibition
on exercising a certain kind of legal power.

Though he does not say much in defence of this proposition, it seems that he wishes to both clarify the
content of a rights claim and to do so in ways that avoids any inflated or excessive claims. The kind of
excessive claim Barry has in mind treats a statement like ‘I have a right to education’ as effectively
unlimited in its reach and one which if exercised in this fashion may even have the effect of diminishing
others people’s claims to have an education.

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The point of framing rights claims in this somewhat restricted and ‘negative’ fashion is further clarified
when we consider the matter of opportunities. Opportunities are matters about which we might wish
to discuss in terms of how equitably a range of relevant opportunities are distributed within a given
community. We can also think about opportunities as enabling or necessitating a second kind of
demand that might be made on others in the community or government. The point of the idea of
claiming opportunities is made clear from examples offered by Barry. Having a right to education does
not matter much eg., if schools charge fees which parents cannot afford even though no one is denying
them access to the education system. Equally having a right to abortion does not mean much for
women if they do not have the opportunity to access safe, dependable and affordable abortion services
As Barry says:
Opportunity means that an opportunity to do or to obtain something exists if there is some course
of action lying within my power such that it will lead if I choose to make use of that opportunity, to
my doing or obtaining the thing in question. (Barry 2006: 20)
In effect we not only need to demand rights but also demand opportunities.

Opportunities are often complex matters. Barry makes this plain when he talks about the opportunities
needed if someone who is wheelchair-bound is able to access a lecture theatre. To start with, this does
not mean only that there should not be any laws prohibiting access to a given building or institution. It
also means that there ought to be physical means for accessing a space like a lecture theatre like ramps
or elevators. People with disabilities can make demands for these sorts of opportunities. Bt in some
cases even that may not be enough:
Even if the lecture is wheelchair accessible that means only that it will be physically possible for
me to get a place in the theatre once I arrive. I still have to arrive (Barry 2006: 20).
In effect opportunities often tend to come in somewhat complex arrangements. In each case what is
involved in securing opportunities needs to be sorted out on a case-by-case basis.

Finally we may also need to demand that resources be made available. It is after all resources which can
convert opportunities into activities or states of affairs which enable people to achieve the valued ends
they care about. The category of resources is very heterogenous. Some resources are external to us like
money, land, or cars while others are internal to us like the kind and quality of education and
intellectual capital we have had available. As with ‘opportunities’ there are basic questions about the
justness involved in the distribution of resources, especially those that are external to us and directly
shape our capacity to choose among a range of valued ends and to lead good lives. Some resources we
can try to arrange to make more available on a more equitable basis while other resources may be
harder to evaluate using ideas about just distribution. It is not immediately clear how we should think
about resources like having parents who have a large vocabulary, have plenty of books and other
cultural resources available to them, who encourage a home environment that values curiosity, the
value of being well informed and how to think. The point perhaps is that more of us need to follow the

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lead set by the Victorian government (2009:2) when courtesy of its Early Years Learning and
Development Framework for Children from Birth to Eight Years set out to encourage the idea that:
Every child has the ability to learn and develop. Having high expectations is especially important
in achieving better outcomes for the most vulnerable children. Some children require additional
supports and different learning experiences and opportunities to help them to learn and develop.
Those who drafted this plan then urge all those groups working with young children :
•commit to high expectations for all children’s learning and develop
•ensure that every child experiences success in their learning and development;
•recognise that every child can learn, but that some children require quite
different opportunities and supports to do this;
•work with families to support children’s learning and development
at home and in the community.

In this way Barry proposes a somewhat more analytic approach to thinking about what is entailed when
saying that people have rights, and may need both the opportunities and resources to translate the
statements about rights into more effective political and policy interventions. In this fashion too we can
begin to see more clearly what kind of activities will flesh out the often abstracted idea that we have
rights. It is this sense that we can now consider the practice of human rights which adds to and
complements the evaluative-descriptive argument mounted so far.

HUMAN RIGHTS AS A PRACTICE

Beitz says we need to acknowledge that human rights are a practice (or ‘an emergent practice’) because
it is now a fact that international human rights requires:
… that states are responsible for satisfying certain conditions in their treatment of their own
people and that failures or prospective failures to do so may justify some form of remedial or
preventative action by the world community (2009: 13).
As a practice it has both a doctrinal component as well as various institutionalised mechanisms that have
evolved for the protection of human rights. Among those mechanisms we might note the various kinds
of juridical processes as well as various reporting processes. As Beitz notes it is an interesting fact that
even in the United States, one of the serious human rights laggard because its formal regard for human
rights has been notoriously weak, domestic courts have found that even ‘aliens’ have a right to have
cases heard by US courts when a violation of human rights is alleged (Beitz 2009:13). Let me note
quickly some of the key features of the doctrinal and institutional mechanisms that make up human
rights practice.

The doctrinal basis has its modern origins in the passage of the UN Universal Declaration of Human
Rights (UNDHR) of December 1948. The UNDHR acknowledges the normative basis already discussed

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namely that one of the grounds of human rights is the ‘inherent dignity’ of human beings. (As Beitz
(2009: 20)has noted this proposition was simply asserted without further elaboration). Central to the UN
Universal Declaration of Human Rights is the proposition that international recognition of human rights
is essential to the protection of the equal dignity of all human beings while respect for human rights
would also be a condition for global peace. The Universal Declaration of Human Rights was followed by a
good deal of work and a lot of political conflict set loose as the UN designed what became two
International Covenants, including the International Covenant on Civil and Political Rights (1966) and the
International Covenant on Economic, Social and Cultural Rights (1966) designed to serve as binding
international conventions. Together the UN Universal Declaration of Human Rights, the International
Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural
Rights constitute the ‘International Bill of Rights’. They engage rights to protect liberty and personal
security, a range of political and civic rights in civil society, and a broad range of economic, social and
cultural rights.

They have been followed by a plethora of other conventions. Together these provide a framework for
what has become the practice of human rights. It is plain from the language used in the International
Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural
Rights that the designers of the International Bill of Rights had in mind from the start a juridical model of
implementation in mind. It was clearly expected that human rights would be embodied in domestic
legislation and enforced by domestic courts leaving the UN to function the international auditor who
would monitor compliance at the local level (Beitz 2009: 32).For example the Covenant on Civil and
Political Rights (Art. 2) requires states who have signed onto the Convention ‘to adopt such laws or other
measures as may be necessary to give effect to the rights recognised in the present Covenant’.

As scholars like Donnelly (2003), Nowack (2003) and Greer (2006) have shown, what has actually
happened is a good deal more complex. Human rights as a practice has tended since the 1960s to
involve a mixture of juridical and political action with a clear bias in favour of political interventions. The
judicial model has only been partly implemented. For example the European Union has established a
European Human Rights Court. Europe may well have set the standard to date with the its Human Rights
Court able to invalidate the legislation of member states if non compliant with the European Convention
on Human Rights. However there is no equivalent international Court of Human Rights. What has
actually evolved globally is a complex layering of international, governmental and non-governmental
agencies that monitor report and try to influence governments everywhere to be more compliant with
the stipulated international Bills of Rights. What emerges as Beitz (2009) has shown are various kinds of
human rights practice which includes accountability, inducement, assistance, domestic contestation,
engagement and compulsion.

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Accountability refers to the use of reporting and auditing processes carried out by UN human rights
agencies (like the UN Human Rights Council) usually in partnership with domestic governments and
selected NGO’s. This involves ‘treaty bodies’ in reviewing and auditing the periodic reports that states
parties are required to carry out documenting their compliance. For example in Australia the Attorney-
Generals Department produces a draft report on Australia’s compliance with the UN Convention on the
Rights of the Child every three years. This draft report is then reviewed by a number of NGOs before the
Australian government considers the feedback from the NGO’s and submits a final report on its
compliance with the Convention on the Rights of the Child to the UN Human Rights Council.

Inducement involves the judicious use of incentives to governments to comply with human rights
standards. Typically this has involved the management of access to valued resources like foreign aid or
cultural resources, in effect making such access conditional on demonstrated compliance with human
rights standards. Assistance can look a lot like inducement but recognises that many poorer countries
will need assistance offered through agencies like UNDP to enable them to protect human rights.

Domestic contestation and engagement involve interventions by international agencies and NGO’s as
they put pressure on governments to comply with human rights standards. Efforts by Amnesty
International over decades to ‘name and sham’ regimes engaging in the use of illegal detention, torture
or the death penalty are a classic example of this process. It can also involve NGO’s offering support to
local political campaigns.

Compulsion involves the most dramatic attempts by the international community to force compliance
with human rights. For examples of such interventions we can point to military interventions in Somalia
(1991-3), Bosnia (1996), Kosovo (1998) and East Timor (1999). Humanitarian interventions can also
involve everything from the use of blockades to economic bans on trade. Equally as cases of intervention
like the UN engagement in Bosnia (1996) as well in Rwanda (1995) suggest the results of such
interventions can be humiliating: in both cases UN ground forces were on duty in Rwanda and Bosnia as
major crimes against humanity were committed in full view of these forces who were forbidden by the
UN in each case from intervening (Power 2004).

Taken collectively these modes of juridical and political intervention constitutes a ‘practice’ because we
see here a:
… a set of rules for the regulation of the behaviour of a class of agents, a more or less widespread
belief that these rules ought to be complied with, and some institutions, quasi institutions and
informal processes for their propagation and implementation (Beitz 2009: 42)
It is says Beitz, less a regime and more an emergent discursive practice. It has too many weaknesses and
escape clauses in regards to adjudication and enforcement to be regarded as a regime. It also remains

76
as he says, very much more about aspiration and a site of political criticism and mobilisation than a
predictable site of enforcement.

Even so it is clear that as a practice it serves to intervene in three ways. Firstly the practice of human
rights establishes a requirement that governments protect vital individual interests against threats like
political oppression or terror that can cause persons serious harm. As Shue (1996) points out this
requires protecting the underlying interests of citizens subject to the state’s jurisdiction against threats
from state agents. Secondly the practice of human rights applies initially to the political institutions of
state (ie., the constitution, laws and general public policies) by eg., ensuring that very basic rights like the
right to vote are promoted and protected. Finally human rights have become matters of international
concern featuring in diplomatic processes.

CONCLUSION

It is pretty clear that an inherent feature of rights talk and rights practice is the highly contestable and/or
contradictory nature of human rights. Rights talk is an inherently contestable and sometimes
contradictory matter if only because we see all too often that as one person or group asserts their rights
this is seen to affront another person’s/group’s rights. This tendency perhaps helps to explain in part why
rights talk itself seems so often to be not only contestable but confused and contradictory.

While this may irritate even infuriate those who think human rights is a ‘no-brainer’ or who like their
politics simple, the challenges involved in thinking about developing a culture of human rights require us
to pay attention to those things that matter. The paradoxes that inevitably swirl around human rights talk
matter. They compel us to acknowledge why John Gray (2007) is not alone in suggesting that a pure
rights-based political philosophy, to say nothing of a politics of rights, is in one sense an impossibility.

Equally we can and should take rights seriously both as ethical talk and as political practice. This is
because human rights provide a strong and defensible ethical framework for securing the condition for
humans to live a life of dignity and freedom. Human rights has also become a fact because it constitutes
a definite kind of ‘global practice that is both discursive and political’. It is with these thoughts in mind
that we need to ask what ordinary Australians know about and think about human rights before turning
in the following chapters to a recent exercise in making human rights a reality in Victoria.

QUESTIONS

1. What key questions is the author asking here?

2. Can you get a grip on the major claims being argued for here?
3. Does it seem that this author is relying on any assumptions that you can spot at this stage?

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 4. Are human rights valuable when they are given legal specification and protection? Or is the
law more trouble than it is worth?
5. On what basis should we, or could we ground human rights?
6. Are human rights inherently troublesome because contradictory or paradoxical? Why does
this matter for our assessment of human rights?
7. What do you understand about ‘human rights’ now having read this chapter?

CHAPTER FOUR: HUMAN RIGHTS IN AUSTRALIA: WHAT AUSTRALIANS THINK ABOUT HUMAN RIGHTS

‘She’ll be right, mate,

Burridge and Mulder 1999: 47.

At the beginning of 2014 Australia continues to be the only western liberal democracy without a
national human rights act or bill of rights. Even though two sub-national jurisdictions introduced

78
legislative Charters of Human Rights in 2004 (ACT) and 2006 (Victoria), it can be argued that human
rights continues to leads a fugitive existence in Australia (Galligan and Larking 2009). On the one hand
as Chappell et al. observe, the political nature of Australia’s protection of human rights is not well
recognized, something which has led ‘human rights studies to be somewhat captured by legal
academics and practitioners’(Chappell et al. 2009, 1). On the other hand when they say that ‘the
articulation and protection of human rights are legal processes’ (Chappell et al 2009, 1) this claim itself
is ambiguous. The Commonwealth Parliament has no specific constitutional powers to legislate with
respect to human rights, a constraint which has tended to reinforce Australia's reliance on
international human rights covenants (Eckersley and Zifcak 2001; Charlesworth 2006). Yet for over a
century Australian judges have adhered to the principle that treaties, including international human
rights treaties, do not have the force of law, nor do they confer rights on individuals under Australian
law unless those rights have been given statutory form (Case 2009). Occasionally the High Court has
appealed to international human rights law to ‘find’ a right. 11 This happened in the second Mabo case
when the High Court determined that indigenous people have a right to occupy their traditional lands
(Behrendt 2003).12 More typical is the way the High Court found in the 2007 Roach case, that there
were some constitutional restrictions on parliament removing the franchise from citizens, thereby
providing a precarious basis for finding that some prisoners had a right to vote (Hill & Koch 2011).
However even these kinds of cases have hardly been a common practice (though see Gauja and
Gelber 2010).

Finally a long history of failed attempts to pass a Parliamentary bill of rights for Australia suggests
that resistance to embracing a formal declaration of rights in Australia has been as longstanding as
public discussion about it (Charlesworth 2002, 2008; Williams 2006). Every effort to introduce
national ‘bills of rights’ in the past three decades has failed. Commonwealth Attorney-General
Murphy introduced a Human Rights Bill in 1974 that went nowhere after a burst of controversy. In
1983 and 1984, the Hawke-Keating Labor government drafted two Australian bills of rights both of
which lapsed when it became clear they faced overwhelming opposition. In 1988 the

11
Gibb CJ in Kioa v West (1985) 159 CLR 550, 577 and Simsek v McPhee (1982) 148 CLR 636, 641.

12
. The most famous example of the willingness of Australia’s High Court to look to international human rights to
open up a space in common law was Mabo v�Queensland (Mabo No�2) 9. Here some of the judges drew on
international norms with spectacular effect. In Mabo (No�2) Brennan�J Mason�CJ and McHugh�J argued that
human rights law provided the basis for recognizing the continued existence of traditional native title:
The expectations of the international community accord in this respect with the contemporary values of the
Australian people. The opening up of international remedies to individuals pursuant to Australia’s
succession to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear
on the common law the powerful influence of the Covenant and the international standards it imports. The
common law does not necessarily conform with international law, but international law is a legitimate and
important influence on the development of the common law, especially when international law declares the
existence of universal human rights. A common law doctrine founded on unjust discrimination in the
enjoyment of civil and political rights demands reconsideration. It is contrary both to international
standards and to the fundamental values of our common law to entrench a discriminatory rule which,
because of the supposed position on the scale of social organisation of the indigenous inhabitants of a
settled colony, denies them a right to occupy their traditional lands (Cited in (1992) 175 CLR

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Commonwealth government tried but failed to amend the Australian Constitution in various ways to
protect certain rights (Charlesworth 1993). In 2008-9 the Rudd government sponsored a national
Human Rights Consultation. The Brennan committee received 35,014 written submissions -by far the
largest response to a national consultation in Australia. Of the 35,014 submissions received and of
the 32,091 which addressed the question of the value of having a human rights act, 27,888 were in
favour of a Human Rights Act and 4,203 against. Among its thirty one recommendations the
Committee recommended that Australia adopt a federal Human Rights Act. The Rudd government
declined to adopt that recommendation though it adopted a number of the minor
recommendations. This history seems to reflect a mixture of community sentiment vaguely
favouring human rights and persistent opposition by Australia’s political and legal elite to formally
establishing a constitutional or statutory basis for protecting human rights (Williams 2006: 883-4).

All of these circumstances suggest the value of exploring what Australians think about human rights.
This means in effect working out what polls of Australian public opinion tell us about human rights.
The value of doing so is warranted by several considerations.

Firstly the need to think about this is suggested when we recall the extent to which political theorists
operate with a presumption both of a general link between a democratic polity and liberal norms, and
a more specific link between democratic polities, deliberative practices and public opinion. As Harf
(1987) argues, though governing elites often lag behind what ‘democratic’ public opinion will
support, public sentiment favoring human rights plays a part in sustaining political morality. As she
put it, ‘Though the immediate effects of public opinion on decision-making are problematic, the
general tendency in Western democracies is for policy-makers to be grudgingly responsive to strongly
expressed public views’ (Harf 1987, 1).

This proposition informs the deliberative democratic tradition exemplified for the purposes of this
paper by the work of Habermas (1987, 2004) and writers like Uhr (1998), Guttmann and Thompson
(2002) and Dryzek (2010). Set against that tradition is an alternative perspective which treat public
opinion formation as a manipulative exercise in propaganda or ‘spin’ in highly unequal social settings
in which governments and business interests play a very significant role in shaping public opinion
(Lippman 1922; Mitchell and McCormack 1988; Pierson 1993; Wohlin 2008; Landman 2012: 332).
Some attention to the issues in contention here seem warranted.

Secondly as a literature review suggests, we do not know as much as we should about the relationship
of public opinion and human rights in Australia. This matters because if an Australian government is
ever to formally embrace a human rights bill there will need to be evidence of strong public support
for such a move. As Goot and Rowse (2007,10) argue public opinion research and polling have
become part of the political process and have played a significant role in informing government

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decisions Hertel et al (2008: 3) concur arguing that ‘understanding what the public does -or does not-
think about particular human rights can … promote democratic efforts to reconcile citizen attitudes
and public policy.’ Yet we do not know very much about the state of public opinion on human rights. It
seems that little has changed since Pritchard observed, after her careful literature survey:
There is very little research on the role played by mass public opinion, and perhaps even less on
factors that shape and influence that opinion in the field of human rights (Pritchard 1991, 124).
Notwithstanding a small number of outstanding international studies like Anderson et al. (2002) and
Carlson and Listhaug (2007) this conclusion was confirmed recently by Hertel et al. (2008). This
absence is replicated in Australia. Australian public opinion is most often researched using survey-
based methods but there is a surprisingly small body of survey data (Galligan et al 1991; SSDA 1998;
1999; Colmar Brunton 2009).13 Other methods of determining public opinion concerning the rights
(eg., of Aboriginal people) have used ‘mobilised opinion’ such as advocacy and letters sent to
newspapers (Goot & Rowse, 2007:20).

Worse it seems Australian political science has not given much consideration to teasing out the
relationship between public opinion, conceived of as a process of deliberation in a public sphere, and
attitudes towards human rights. (Parenthetically this absence appears to be part of a more general
disposition to avoid systematic theoretical or empirical consideration of public opinion formation. This
extends even to the modest attention given to ‘political marketing’ which as Young (2002:82)
reminds us, has received little attention from Australian researchers. It is noteworthy that the
relationship of public opinion to human rights has simply not been considered in the first major study
of the politics of human rights in Australia (Chappell et al 2009). Chappell et al (2009, 65-75) treat the
debate about human rights as a process involving various legal and political elites and intellectual
traditions while failing both to discuss the state of public opinion per se and completely ignoring any
larger role for the public sphere. This appears to be the dominant approach in Australian political
science as exemplified by Galligan and Morton (2005) and Campbell et al. (2005). As will be clear the
national consultation on human rights (Brennan 2009) was implicitly critical of this approach given its
assumption that the state of public opinion was a vital issue.

In short this suggests the need to think further about both the role of the public sphere and the state
of public opinion about human rights something which this paper attempts to do. This suggests as I
argue here that there are some major puzzles about the state of public opinion about human rights,
some of them to do with the way different traditions of political theory think about public opinion,
and some of them to do with what the surveys indicate what Australians think about human rights.

13
It is interesting that Australia was not involved in a recent World Public Opinion poll (Council of Foreign
Relations 2008). There is some good American research which suggests eg., that human rights has been a
strikingly unimportant issue for US public opinion (Geyer & Shapiro 1988: 386-7). Equally a small body of
international research demonstrates that increased public awareness of human rights abuses has benefits for
people at risk of rights violations (Davis et al. 2012).

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I begin by outlining some of the competing paradigms involved in thinking about public opinion and
the idea of a ‘public sphere’. Given there is evidence from public opinion surveys which needs to be
taken into account I then assess what the public thinks about human rights in Australia drawing on a
number of surveys (Galligan et al 1991; Colmar Brunton 2009). Given that the survey-based evidence
from the 1990s up to 2012 points to a degree of support for human rights as well as a lot of
misinformation, ignorance, complacency and confusion, I address some of the implications of this for
thinking about human rights and public opinion. Let me start with the theoretical issue.

HOW DOES THE PUBLIC THINK? PUBLIC SPHERE - OR SPIN?

It seems liberals everywhere have long believed that political decisions need to be grounded in norms
whose ultimate justification flows variously from some kind of natural law, from our innate capacity
for reasoning, or from a founding constitution (Ryan 2013). 14 Western liberals from Locke and Kant
through to Kelsen and Rawls have insisted that norms undergird all political decisions and that the law
provides the state with its ultimate legitimacy (Dyzenhuus 1991, 1998). The state is understood as
bound to the rule of law which in Kantian terms is ‘the rule of the rule’, or in Benthamic terms involves
the rational pursuit of utility.

It also seems to be a taken-for-granted assumption among many liberal political theorists that there is
a conceptual link between rational public discourse, the public sphere and democracy. As Critchley
notes, there is here an absolute conviction that ‘all political decisions have to be derived from norms,
and that the procedure for decision–making is deliberation’(Critchley 2011,106). It is not too difficult
to see why those advocating the deliberative democratic model draw on some version of Habermas
(1987, 1991, 2004) account of deliberative rationality. Deriving or invoking a rule surely requires some
kind of reasoning process to elucidate the relevant good reasons. Habermas links this rational
deliberative process to constitutional processes resulting in a ‘two-track’ model of political legitimacy.
This two-track account of democracy represents the operationalization of popular sovereignty (or rule
by the people) by pointing to the role played by both institutionalized procedures of parliamentary
decision-making and the deliberative public opinion forming role of the ‘public sphere’ as that ‘space’

14
The major alternative tradition is what can be called the ‘realist’ tradition (eg., Forsyth 1980; Lichbach 1997;
Landman 2012) which argues that political decisions either are not, or ought not be informed by ethical ideas or
by ideas like human rights and proposes that politics is simply what people do when they rationally pursue their
own interests by exercising whatever power they have. This is an essentially fashionable albeit incoherent and
contradictory ‘world view’ which as one famous realist acknowledged makes tyranny into the moral-political
virtue:
Since the causes and effects of instability persist, a policy committed to stability … is compelled by the
logic of its interpretation of reality to suppress … all manifestations of popular discontent and stifle the
aspirations for reform. Thus, in an essentially unstable world, tyranny becomes the last resort of a politics
committed to order as its ultimate standard (Morgenthau cited in Stoessinger 1976, 112).
My own view tends more to the ‘republican’ position spelled out by Pettit (1997:1) when he observes that
institutional politics are determined as much by the interests of the political actors involved and ‘by their views
on empirical matters’ as they are ‘by their ideas about how things ought ideally to be’.

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where citizens gather to make up their minds about the issues of the day or inform themselves
through various media. Tsekeris claims eg:
The conception of the policy sphere is most commonly employed to signify the open realm of
rational public discourse and debate, a realm which is conceptually linked with the very
democratic process and in which individuals can freely discuss everyday issues of common
concern.( Tsekeris 2008, 12)
Gimmler likewise insists that Habermas account of deliberative democracy has a robust normative
foundation:
… that enables the legitimacy of the constitutional state and civil society to be justified. This
justification is the result of a discursive practice that provides the framework for solving
political conflicts rationally. The validity of the justification is produced by rational discourse
and bound up with the un-coerced consent of all those potentially involved. (My stress)
(Gimmler 2001, 23)
Tsekeris asserts that the characteristic kind of discourse constituting the ‘public sphere’ has several
functional attributes. One is that collective rational deliberation creates a new space ‘where the
authority of the better argument’ could ‘be asserted against the established order (status quo). This in
turn ‘holds out the possibility of reforming the asymmetrical relations of force’ (Tsekeris 2008: 13).
Gimmler adds that ‘there is no plausible alternative model to rational and un-coerced discourse as the
normative basis for democracy’ (Gimmler 2001:23).

Yet we cannot ignore the obvious contest between Habermas’ austerely rational account of public
opinion and that account of public life shaped by propaganda or ‘spin’ (Wolin 2008).

In 1962 Jurgen Habermas (1962) published his Strukturwandel der Offentlichheit. Habermas (1962;
1989) offered an account of the rise and fall of what he called the ‘bourgeois public sphere’. It was a
story of how the salons, coffee houses, journals and proto-newspapers of eighteenth century Europe
constituted a ‘public sphere’ and thereby facilitated a practice of rational discourse and debate which
sponsored the rise of democracy. In spite of the fact that no English translation surfaced unto 1989, his
The Structural Transformation of the Public Sphere has gone onto become one of the most widely
discussed texts in contemporary political theory, accreting a vast and ever-ramifying literature about
it. Benson (2009: 175-97) reminds us how Habermas’s ‘powerful narrative of the rise and fall of
democratic institutions across the industrialized west in the modern era’ has sponsored a good deal of
research and theoretical analysis and debate (Ferree et al 2002; Sicakkan 2010).

Even at the start of his project Habermas was hard to pin down. As Nowotny (2003) has shrewdly
pointed out, there were basic conceptual issues revealed in the translation of the German word
Öffentlichkeit. That process of translation began in the late eighteenth century as German writers
read French texts in which the French word publicité needed to be translated. In English the German

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Öffentlichkeit was translated in certain contexts as public or publicity. However when Öffentlichkeit
was used to signify a general category of social organization, then the category ‘public sphere’ (or
‘public space’) was used. Yet as Nowotny insists while this pointed to a certain ambiguity it also
expressed a problem: translating Öffentlichkeit as ‘public sphere’ repressed one way of thinking about
the modern idea of the public:
… Öffentlichkeit not only refers to a category in political modernism, but most of all a principle
of social organization. This means that it is not simply a given ‘sphere (or plurality of spheres) -
regardless of how it is organized - of modern societies, but rather a central mode of their
organization and constitution (Nowotny 2003,3).
Others like Negt and Kluge (1972, 20) and Hansen (1993, xxvii-xxviii) were more brutal in pointing to
the mess Habermas had created. Negt and Kluge said Habermas was:
Alternating between an idealizing and critical view of ‘publicity’ [which] does not lead to a
dialectical, but rather to an ambivalent result: ‘publicity’ sometimes seems to be something
that can be used, at other times something that one has no use for (Negt and kluge 1972, 20)

Apart from insisting on the unstable mix of different kinds of publicity, Negt and Kluge had also
understood the way the public sphere deployed ‘an abstract principle of generality deployed in the
fight against all and any particularity’ (Negt and Kluge 1972, 21). Further they understood that the
public was actually a mix of different and often unequal groups. Whilst it may seem commonsense to
suggest that the ‘public’ is constituted of all those citizens holding opinions about specific issues, as
Harf (1987, 1) notes, not every citizen either cares to, or is able to participate in the opinion-making
process. While some citizens are either uninformed or unconcerned:
… other citizens who hold opinions, may have access to distributive channels of
communication, and are able to influence opinions at the decision-making level. Journalists,
ethnic and religious leaders, and experts in a wide area of fields are likely to be influential on
the decision- and opinion-making level (Harf 1987, 1).

In effect and as many others noted Habermas failed to give enough weight to the play of unequal power
(Landes 1988; Fraser 1990; Eley 1991; Flyvbjerg 1998). The public sphere’s claim to represent ‘a general
will’ and thereby function ‘democratically’ may turn out to actually ‘function as a powerful
mechanism of exclusion’ whether of substantial social groups (like the working-class, indigenous
people, sexual minorities and women), and/or of vital social issues (Negt and Kluge 1972, 21).

Habermas reliance on an account of rational communicative practice has proved to be as problematic.

Critics like Fraser (1990, 61) had early identified major problems with the normative assumptions
Habermas relied on, while Mouffe (2009: 550) sharply criticized Habermas’s assumption that consensus
is always to be preferred to dissensus in a democracy. Other critics of Habermas point to conceptual
shortcomings like the tension between Habermas’s treatment of ‘facts’ and ‘norms’ (eg. Benhabib

84
1996; Bohmann 1996; Dryzek 1996; Young 2000). As Habermas (1992: 463) subsequently
acknowledged he had conflated ‘norm and description’. Calhoun (1992: 39) points to Habermas’s
dilemma when he observed that ‘Habermas constitutes the historical category of the public sphere in an
attempt to draw from it a normative idea’. Finally we cannot ignore the way Habermas has stripped the
world as it is, out of his account of social communication ignoring the actual ‘asymmetrical relations of
force’ found in that world. This point is summed up brutally by Fish when he said that ‘Habermas
preaches the theology of talk - the elevation of philosophy department seminars to a mode of public
life’ (Fish in Stephens 1994:12).

Another quite different perspective-cum-tradition offers a bracing alternative to Habermas’

perspective. This kind of perspective emphasises the way public opinion is shaped by manipulation
and propaganda as social elites engage in various communicative practices which don’t look very
much like Habermas’ ideal speech situation at all. To be fair this account parallels Habermas’ own
account of the decline and fall of the original ‘public sphere’ in the eighteenth century as
communication practices were increasingly marketised and commodified in the nineteenth and
twentieth centuries (Habermas 1964, 1989).

By the early 1920s Lippmann (1922) was already pointing to difficulties in thinking about any kind of
public opinion that did not take its cue from government officials or business elites. By the late 1920s
Bernays (1928) the so-called father of propaganda aka ‘public relations’, went a step furtherwhen he
argued that democracy ‘needed’ propaganda if ‘society’ was to function in a coherent way:
The conscious and intelligent manipulation of the organized habits and opinions of the masses
is an important element in democratic society. Those who manipulate this unseen mechanism
of society constitute an invisible government which is the true ruling power of our country ...
We are governed, our minds are molded, our tastes formed, our ideas suggested, largely by
men we have never heard of. …Vast numbers of human beings must cooperate in this manner if
they are to live together as a smoothly functioning society (Bernays 1928,37).
Others like Arendt (1958, 1967), Ellul (1973) and Hermann and Chomsky (1988) adopted a less
approving account, while writers like Pierson (1993, 595) were pointing to a process of ‘policy
feedback’ in which government policy shapes public opinion which is then ‘reflected’ back at the
government via the media. For my purposes Wolin (2006) offers an exemplary contemporary version
in his account of ‘inverted totalitarianism’. 15

15
Wolin’s treatment is far removed from the older literature on the links between totalitarianism and
propaganda. Ellul (1965) mindful of the use of modern media made by totalitarian states in the 1930s, insisted
eg., on the totalising reach of propaganda which:
… reaches individuals enclosed in the mass and as participants in that mass, yet it also aims at a crowd,
but only as a body composed of individuals. Propaganda must be total. The propagandist must utilize all
the technical means at his disposal- the press, radio … Propaganda tries to surround man by all possible
routes, in the realm of feelings as well as ideas, by playing on his will or on his needs, through his
conscious and his unconscious, assailing him in both his private and his public-life. It furnishes him with a
complete system for explaining the world, and provides immediate incentives to action.

85
Wolin belongs to a classic tradition of critical inquiry which worries about the effect on democratic
politics of the increasingly managed flow of political opinion and information in whatever passes now
for the ‘public sphere’ (Calhoun 1992; Dahlgren 2005). Although Wolin assumes that America is the
only nation-state to manifest all of the key features of what he calls ‘inverted totalitarianism’ and
‘managed democracy’, it is hard to ignore the more than passing resemblances between his account
of the US and the contemporary political culture of other western societies like Australia and the UK.

Wolin insists that three key feature distinguish contemporary ‘inverted totalitarianism’ from earlier
state-centric models of ‘totalitarianism’ found in Italy, Germany or the former USSR in the 1930s and
1940’s. In formal terms those features include the proposition that while the state dominated the
market in the totalitarian models of the 1930s, under ‘inverted totalitarianism’, business interests use
contributions, public relations and lobbying to ensure that the government acts to promote the
interests of large corporations, and ‘the market’ more generally. This is considered ‘normal’ rather
than corruption (Wolin 2008, 51). Secondly and again unlike the original totalitarian forms which
sought to mobilise the people continuously or to elicit their will through plebiscites, managed
democracies seem to prefer to keep the mass of the population in a persistent state of political apathy.
The only type of political activity expected or desired from the people is voting. Wolin treats low voter
turnouts in England or the USA as evidence that everyone accepts the situation rather than treating
it an indication that the bulk of the population has given up expecting that the government will ever
represent their interests (Wolin 2008, 64). Finally while the totalitarian states of the 1930s openly
ridiculed the democracies, modern managed democracies claim that democracy is the only political
form to have proved its legitimacy (Wolin 2008, 52). That Wolin’s is a normative conception of politics
is clearly suggested when he writes:
It is all politics all of the time but a politics largely untempered by the political. Party squabbles
are occasionally on public display, and there is a frantic and continuous politics among factions
of the party, interest groups, competing corporate powers, and rival media concerns. And there
is, of course, the culminating moment of national elections when the attention of the nation is
required to make a choice of personalities rather than a choice between alternatives (Wolin
2008, 66).
As Wolin insists the only thing missing is the ‘political’ which he defines in terms drawn from Strauss’
(1959) account of the classical tradition, as the commitment to finding where ‘the common good’ lies
(Wolin 2008, 66).

While Wolin’s part in a tradition marked by concern for the effect on politics of managing the flow of
opinion and knowledge is clear, it does not mean that it is trouble-free. Arendt’s (1993) complex
account of the relation between truth and politics is emulated somewhat by Mayer (1994) in offering

86
a more provoking view of what in our time has come to be called ‘spin’(Ward 2003; van Onselen and
Errington 2005; Stockwell 2007). Mayer explores the relationship of spin to the normative idea that
public opinion ought to inform policy making and do so rationally and with a regard for truth telling.
He does this when he suggested pointedly:
… political advertising is necessarily full of deception, half-truths, exaggerations and falsities. It
is that way because all forms of politics are that way, but political lies are not like lies about
soap or cornflakes. Politics does not deal with ‘products’ which can be checked and evaluated
in the way a car can be ... If worried enough to care, you can compare brands of way you can
compare soft appeals which rely on fantasy, pride, ego-boosting, fear or alienation (Mayer
1994, 119)
Mayer goes on to make one unsettling point:
If you found a way to make all political advertising rational and accurate, or even if you
improved its rationality and accuracy greatly, what would you have to do? … You would have to
eliminate politics as we know it (Mayer 1994, 116)

If nothing else Mayer opens up important questions about the state of public opinion in Australia and the
relationship of whatever passes for ‘public opinion’ and the likelihood that Australian governments will
take the human rights agenda sufficiently seriously as to give a regard for human rights statutory
expression only when public opinion has swung in behind that agenda.

Between the austere rationality of Habermas’ ethically compelling account of communicative action as
deliberative rationality, and Wolin’s empirically compelling account of a duplicitous and managed
consensus, there is a third way which accepts that ethical ideas do matter in both public opinion and
political processes even as the processes of public opinion formation are themselves political and subject to
the unequal play of power to persuade.

This understanding is found in a small but critical literature which does not accept that public opinion is
either amoral or simply whatever state and business elites deem it to be. A number of studies have
demonstrated that the public is capable of developing views that do not correspond with the policy
narratives ‘spun’ by government officials or published by the media (Holsti 2004, 234; Zaller 1994,
271–72). Other studies demonstrate that political elites are highly sensitive and responsive to the
views of the electorate suggesting that public opinion can and does influence policy making (Burstein
1998: 27; Erikson, MacKuen and Stimson 2002: 284–324). Finally there is a small body of Australian
work which argues that public opinion informed by various normative ideas plays a role both in
shaping the basic parameters of policy making, and in influencing the thinking and decision-making of
the foreign policy community (Jaensch 1987; McDougall et al. 1987; Goot 2007, 253–304). Han and
Rane (2011) insist public values do influence policy making. Gyngell and Wesley define the normative
ideas found in values in foreign policy, as ‘goals that are less narrowly self-interested, more normative

87
and more concerned with a nation’s sense of self and responsibilities to people and institutions
beyond its borders’(Gyngell and Wesley 2007, 273).

This suggests that there is value in examining the evidence about contemporary public opinion over the
past two decades and the extent to which it favours human rights. As becomes clear the evidence points to
certain difficulties. In what follows I focus on two important surveys carried out by Galligan et al (1991) and
Colmar Brunton (2009).

PUBLIC OPINION AND HUMAN RIGHTS: WHAT THE PUBLIC THINKS

The first major study of public opinion about human rights was carried out by Galligan et al. (1991). The
project was designed to establish the level of support for civil liberties and civil rights among
Australians as well as to determine the strength and consistency of Australians' attitudes to civil
liberties and to identify key characteristics which might affect the support or rejection of certain civil
liberties. The project included a representative sample of the Australian population (N= 1505)
consisting of a telephone interview, followed by a questionnaire distributed by mail. 16 The telephone
interview began with questions designed to establish a general measure of the person’s attitudes to
rights and their tolerance of actions against the government. This was followed by questions dealing
with more specific rights issues (eg., freedom of speech, racial discrimination, and freedom of choice
to do with censorship, euthanasia, abortion and homosexuality. Further sections dealt with legal
rights (like the right to trial, right to trial by jury, contact with the police) as well as with sexual
discrimination, racial prejudice towards Asians and Aboriginals and the value of a Bill of Rights for
Australia. The mail survey consisted of additional questions covering the same range of issues.

The good news for human rights advocates in 1991 was that 72 per cent of those surveyed wanted a
bill of rights setting out basic rights and freedoms for individuals. Further, more than half of the 1,505
Australians surveyed in 1991 believed that their rights were not well protected against unfair
government action.

Equally we get some sense of the ambiguous regard for basic rights like free speech. When people
were asked whether members of ‘extreme’ political groups should be allowed to hold public rallies, 42
per cent of people responded that they should not. In the same survey, when asked whether the

16
The study aimed to achieve 1400 telephone interviews, consisting of 400 in ACT/NSW and 50 from each of
Victoria, Queensland, SA/NT, Western Australia, and Tasmania. A random sample of 6000 telephone numbers was
selected by Telecom from their White Pages (Condor) listings, excluding known business numbers and all silent
numbers. The sample comprised 2000 numbers selected from NSW and the ACT, and 800 numbers from each of
Victoria, Queensland, SA/NT, Western Australia, and Tasmania. Demographic information collected about the
respondent included age, sex, country of birth and year of arrival in Australia, citizenship status, age starting and
leaving school, type of school attended, highest qualification, religion and frequency of church attendance,
marital status, numbers of children and numbers in the household, occupation and labour force status, trade
union membership and household income.

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government should be able to ban a political party if it saw it as a danger to Australia, 55 per cent
answered yes (Galligan et al 1992:telephone survey, questions b3, b1). The same survey asked
whether free speech should be allowed for all political groups, even if some of the things those groups
believed were highly insulting and threatening to particular segments of society. On this question the
answers were relatively evenly divided with 47.7 per cent agreeing and 49.2 per cent disagreeing
(Galligan et al 1992, telephone survey, question h2). In effect nearly half those surveyed did not
believe free speech should be allowed in these circumstances.

As the survey drilled deeper into popular sentiment it began to reveal deep confusion. In the survey 43 per
cent believed there was too much emphasis on individual freedom while 94 per cent of the sample said it
was important to strengthen respect for and obedience to authority.

No less worrying was the evidence from the supplementary survey of a sample of 'decision-makers'
including members of the legislature, the judiciary and the executive like public servants, public
prosecutors and police officers. The members of this elite group did not agree with ‘ordinary
Australians’: 65 per cent of lawyers and 79 per cent of legislators (both Labor and Coalition) eg.,
believed that human rights were well-protected against unfair government action.

The second major survey of public opinion was carried out as part of the National Human Rights
Consultation launched in December 2008 by the Rudd government. Consultants (Colmar Brunton
Social Research) were employed to conduct a survey which addressed three questions: (1) Which
human rights (including corresponding responsibilities) should be protected and promoted? (2) Are
these human rights currently sufficiently protected and promoted? (3) How could Australia better
protect and promote human rights? The research project included focus groups (including one
metropolitan and one regional group in each state), and a national telephone survey of attitudes and
preferences. The telephone survey had a total sample size of N=1200, and was stratified as n=150 in
each state and territory.17

The good news from the focus groups was that human rights were important. Indeed 75 per cent of
respondents considered human rights to be ‘important’ or ‘very important’. Yet what this meant is far
less clear given that the focus groups also suggested that human rights was ‘not often given a great
deal of thought by Australians’. After that finding the rest of the survey results again point to a good
deal of confusion and ignorance.

17
To maximise the representativeness of the survey sample, true random digit dialling was used; and age, gender
and metropolitan/regional quotas were used to structure the raw sample, with statistical weighting used to
correct any final discrepancies to the actual population.

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Focus groups reported that they had had no experience of having their rights violated, or had ever
even felt that they were under any particular threat. Most said they saw an absence of formalised
protections as posing no real threat to their long-term welfare. Most were ‘satisfied with the current
level of protection’. But they also had little awareness that many of the rights they identified and
experienced were either poorly protected or completely unprotected by law. Worse most focus
group participants also indicated that they had only very limited ability to distinguish between the
concrete experience of their daily experiences of human rights, and the more abstract concept of
formal protection. Most people appeared unable to distinguish readily between their daily experience
of life with the benefit of the rights they said they valued and the formal protection of these rights.
The bulk of participants had very limited knowledge of human rights and were generally unable to
distinguish the concept of rights protection from service delivery or their daily experiences of
receiving the benefits of human rights. To that extent the fact that only 45 per cent of respondents
agreed that ‘people in Australia are sufficiently educated about their rights’ probably got it right.

So it was perhaps unsurprising that while 64 per cent thought that ‘human rights in Australia were
adequately protected’, only 45 per cent of respondents agreed that ‘people in Australia are sufficiently
educated about their rights’. Most of those surveyed mistakenly thought human rights in Australia
were protected by a number of mechanisms. Many people thought ‘the government’ and the courts
had the main responsibility to protect human rights in Australia – with ‘the government’ (ie., both the
government of the day and Parliament) seen as the main protector of rights. 86 per cent of those
surveyed thought that ‘the government’ had a ‘high’ or ‘very high’ responsibility, with 47 per cent
choosing the very high category. 84 per cent thought the courts had a ‘high’ or ‘very high’
responsibility: 35 per cent chose the ‘very high’ category. Others thought that government
departments and the social welfare system provided access to some rights: it is surely odd, especially
for anyone who has had to deal with Centerlink that access to the welfare system was actually seen as
right in itself by some (eg., Fernandes 2002; Mackay 2004; Marston & McDonald, 2008: Chester
2011).

Confusion seems to best characterise the attitude of Australians to human rights. Only a bare
majority -57 per cent- thought a specific human rights law was needed. Paradoxically there was
strong support for the idea that improvement in protecting human rights would follow if parliament
paid more attention to human rights when making new laws.

There was also significant confusion when focus groups discussed drawing the balance between the
rights of individuals and the good of the community. On the one hand, 54 per cent of people in the
focus groups thought that ‘the safety of society was more important than individual rights’: on the
other hand nearly the same proportion said ‘the rights of individuals should never be sacrificed for
the greater good of the community’! That confusion extended to the discussion about who was

90
deemed worthy of having their rights protected. Respondents to the survey identified people with a
mental illness (75 per cent), the elderly (72 per cent) and the disabled (71 per cent) as requiring more
protection than they currently got. On the other hand 57 per cent of respondents ‘agreed’ or ‘strongly
agreed’ that too many rights were given to minorities and that ‘the government was forgetting to
protect the values of mainstream Australian society’. Worse a large number of non-indigenous focus
group participants said they experienced a form of reverse discrimination, with indigenous
Australians allegedly getting benefits that they themselves were not able to access. Equally 72 per
cent of those surveyed did not favour protecting the rights of asylum seekers while 68 per cent of the
same did not favour increased support for the rights of gays and lesbians.

DISCUSSION: PUBLIC OPINION AND HUMAN RIGHTS

Notwithstanding the attractive normative character of Habermas’ account of the public sphere, it
seems that a more persuasive case has been made since Lippmann (1922) first argued it, that public
opinion is often a somewhat, if not entirely derivative effect of government and media
representations of policy problems. Though it is difficult to demonstrate how the ‘causality’ works
conclusively, there seems to be a powerful affinity at work between what governments say, what the
media reports and the state of public opinion. This affinity has been demonstrated time and time
again with respect to media reportage of crime and popular fears about the crime rate. 18

A number of contemporary studies have confirmed the significant role played by both government
political discourse and media reporting in generating misperceptions and misunderstandings of
controversial public policy issues, such as asylum seeker policy (Klocker and Dunn 2003, 88–9;
Pedersen, Watt and Hansen 2006, 120), and foreign policy interventions like the 1991 Persian Gulf
War (Morgan, Lewis and Jhally 1991) and the 2003 US-led invasion of Iraq (Kull 2003, 2–20). This
pattern has serious implications for the way human rights are thought about in Australia.

In what follows I consider some of survey research addressing this link in respect of the rights of
asylum seekers, indigenous people and freedom of speech, all issues identified in the 2009
consultation on human rights.

Research has shown the tabloid media (print and electronic) have deployed a barrage of metaphors
masquerading as nouns to misrepresent asylum seekers (Pickering 2001; Gale 2004 Dunn et al 2004).

18
Careful research (eg., Roberts and Indermaur (2009) and Davis and Dossetor (2010) points to a consistent
mismatch between public anxiety about perceived increases in the crime rate while the evidence points to
declining crime rates. Roberts and Indermaur (2009) eg., using the AuSSA 2005 survey, concluded that
individuals who depended on information gathered via talkback radio, family and friends, and commercial
television were likely to have less accurate perceptions of crime than those who relied on other sources of
information.

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Pickering’s (2001) study of the Australian press demonstrated how binary representations informed
both a discourse of deviance and government policy responses. According to the Brisbane Courier
Mail and the Sydney Morning Herald 'we' are soon to be 'awash', 'swamped', 'weathering the influx',
of 'waves', 'latest waves', 'more waves', 'tides', 'floods', 'migratory flood', 'mass exodus' of 'aliens',
'queue jumpers', 'illegal immigrants', 'people smugglers', 'boat people', 'jumbo people', 'jetloads of
illegals', 'illegal foreigners', 'bogus' and 'phony' applicants, and 'hungry Asians' upon 'our shores',
'isolated coastlines', and 'deserted beaches' that make up the 'promised land', the 'land of hope', the
'lucky country', 'heaven', 'the good life', 'dream destination' and they continue to 'slip through', 'sneak
in', 'gathering to our north', 'invade' with 'false papers' or 'no papers', 'exotic diseases', 'sicknesses' as
part of 'gangs', 'criminal gangs', 'triads', 'organized crime', and 'Asian crime'. In response, 'we' should
have 'closed doors' only sometimes having 'open doors', we should respond 'nationally' with the 'navy
and armed services at the ready', 'we' should 'send messages', 'deter', 'lock up' and 'detain', 'we'
should not be 'exploited' 'played for a fool', be seen as 'gullible' or be a 'forelock-tugging serf.

Secondly studies like Gale (2004) found that certain immigrant groups and asylum seekers were being
represented in the media as a ‘threat to whiteness, and western, core values or democracy itself’.
Pedersen at al. (2008) found that there was a strong relationship between prejudice against Muslim
Australians and negative media-derived beliefs. Griffiths and Pedersen (2009) in a study based on a
sample survey of Perth residents (N= 223) pointed to a disproportionate level of prejudice against
Muslim Australians given the very small number of Muslims then living in Perth. As to the source of
this prejudice Pedersen et al (2006) showed, people who report negative attitudes toward asylum
seekers also tend to demonstrate that they accept as true what is factually incorrect (or what these
academics calls negative 'false beliefs'). They also showed that the same beliefs were expressed by
Howard Government representatives (Every and Augoustinos 2007; Wilson and Weber 2008).
Pedersen et al (2006) matched negative and government statements with negative attitudes toward
asylum seekers, as well as examining the presence of these misrepresentations in politicians'
statements. (To do this they analyzed survey data collected from 602 Western Australian participants).
Three false beliefs were frequently cited ('boatpeople are queue jumpers', 'asylum seekers are illegal'
and 'people who arrive unauthorised are not genuine refugees'). As predicted, the total number of
false beliefs correlated closely to negative attitudes.

Other studies have established that what governments say tends to be reflected in the media
representation of the news (O’Doherty and Lecouteur 2007; Wilson and Weber 2008). Klocker and
Dunn (2003) set out to establish if one set of discourses influenced others (eg., government impacts
on media, or media impacts on public opinion). Between mid-2001 and early 2002, Dunn et al. (2007)
collected data on the representation of asylum seekers by the Howard Government and in the print
media before surveying public opinion in the South Australian provincial city of Port Augusta. (Port
Augusta was selected as a site for analyzing public opinion because it was close to the desert-based

92
Woomera Immigration Reception and Processing Centre (IRPC) and even closer to the new Baxter
IRPC. This data collection took place when events like the ‘Tampa affair’ were attracting significant
media attention.19 Klocker and Dunn (2003) concluded that the negative media representations of
asylum seekers had depended heavily upon, if not been directed by, the representations deployed as
part of Howard Government public statements.

A similar pattern is found in the state of media reportage and public opinion about the rights of
indigenous people. Attitudes to Australia’s indigenous people have long been generally negative which
Meadows (2001) traced back to equally persistent negative media representation (Mellor 2003). This
has affected public responses to indigenous rights claims. For example while opinion-polling began in
1941 with the Australian Public Opinion Poll, it is noteworthy that before the 1980’s ‘there was no
nationally-based survey research on public support for aboriginal land rights legislation’ (Goot &
Rowse, 2007, 65-6). The first nationwide public opinion research regarding Aboriginal Land Rights
conducted in 1984 found that 47 per cent of the respondents indicated ‘greater support’ for
Aboriginal Land Rights while 39 per cent were ‘unsupportive’ (Goot & Rowse, 2007, 67). Twelve years
later, a study surveying public opinion about the Mabo case which established that there was still no
significant public support for returning land to the Aboriginal people (Marks and McDonnel 1996, 34).
By 2004 the Australian Election Survey found that almost half of the sample thought that promoting
aboriginal land rights had ‘gone too far’ (van den Eynde and Dharmalingam 2006)

Finally the Australian media and governments of the day have been uniformly dismissive, if not
downright hostile to any signs of political activism and protest with serious consequences for
protecting a fundamental right to freedom of speech (Mcleod and Hertog 1992; Scalmer 2002, 139-
156). Numerous studies have confirmed that free political speech in Australia is both poorly
protected and under frequent attack (Celermajer 2008: Gelber 2011). Celermajer’s (2008) survey of
the Howard coalition government (1996-2007) documented the way that government muzzled the
public sector NGO’s, academia and the press in the name of protecting Australia from threats to its
security while claiming to end the ‘tyranny of political correctness’ (also Sawer 2002; Hamilton and
Maddison 2007; Lynch and Williams 2006).

The construction of a ’climate of fear’ after the 9/11 terrorist attacks in the USA saw a dramatic
abridgement of free speech. The Howard government wittingly or otherwise, sponsored a marked
increase in public fear about the threat of terrorism. Australian polls subsequently reflected a

19
All Federal Government statements (N=56) on refugees and asylum seekers during the six-month study period
were subjected to content analysis for their content, tenor and context. The same analytical frame was applied to
articles regarding asylum seekers in two metropolitan newspapers (The Adelaide Advertiser and The Sunday
Mail) and one Port Augusta newspaper (The Trans-continental) (N= 491 articles). Content analysis revealed that
Howard Government statements were overwhelmingly and consistently negative (90.9 per cent), ie., as
‘illegitimate’, illegal’ or ‘threat’ Only three (out of 56 statements) were coded as offering a positive
representation of asylum seekers (Klocker and Dunn, 2003). The Howard government also emphasized the
ethnicity of these threatening and un-desirable asylum seekers. Ie as Pakistani (28 per cent), then Afghan (26 per
cent), followed by Middle Eastern (7 per cent), Iraqi (7 per cent) and Sri Lankan (7 per cent).

93
heightened fear and anxiety about possible terrorist attacks in Australia. One poll published in the
Sydney Morning Herald in April 2004 eg., suggested that 68 per cent of Australians believed that
Australia was under threat of a terrorist attack (Aly and Green 2010). The Howard government
progressively introduced a range of counter-terrorism and security measures including the revival of
the crime of sedition in 2005 (Celermajer 2008, 500-2) and overt attempts to regulate political
advocacy by NGO’s (Mowbray 2003). These measures impacted severely on an array of traditional
civil liberties and rights, largely with little if any public criticism except from civil libertarians, academic
and rights activists.20 Nor is it surprising that as Aly and Green (2010) demonstrate in their national
study that the fear of terrorism has real effects even if it is a response not proportionate to the actual
level of risk.

The media have played their part in downplaying the value of free speech. Macfarlane and Hay (2003)
offer a careful analysis of the way political dissent was reported in The Australian by representing the
Seattle WTO protestors in ways which delegitimized, demonized and marginalized the protestors.
Protest stories frequently include explicit or implicit references to public opinion as a means of
representing protestor actions as an infringement of an implied social consensus. The forms of
reference include devices such as opinion polls, eye-witness observations and other bystander input.
The inclusion of comments of bystanders and ‘concerned citizens’ serve as a metaphor for public
opinion and can shape individual behaviors and perceptions. McLeod and Hertog (1999) identified
eight varieties of narrative structure including narratives which emphasize violence and property
crime and the carnivalesque and freakish aspects of protest and claiming to see in protest activity
evidence of moral and social decay. Macfarlane and Hay (2003: 213-219) use this analytic to show
how The Australian’s stories about WTO protests in Seattle served to marginalize and demonise
protestors by using many of the narrative structures identified by McLeod and Hertog.

CONCLUSION

The few systematic surveys of Australian sentiment about human rights points to a worrying level of
confusion, ignorance and complacency which is not warranted. That this is so seems to reflect in part
at least, a degree of antagonism to human rights of specific kinds, like the right to free speech, or to
rights which ought to be extended to particular vulnerable groups like indigenous people or asylum
seekers.

The point of this is simple. Gelber (2011) argues that the fundamental value of free political speech is
best grasped when considering that rather than asking the question ‘do you think X should be stopped
from expressing her views on Y?’ the question better addressed is ‘do you think it right that you are
20
This includes over 30 legislative amendments to the Criminal Code, Crimes Legislation (2006), the Australian
Security Intelligence Organisation Act, the Telecommunications Act (2004, 2005, 2006 and 2007), Customs Act
(2006) the Anti-terrorism Act 2004, the Surveillance Devices Act 2004, the National Security Information (Criminal
Proceedings) Act 2005 and the Aviation Transport Security Act 2003.

94
being stopped from hearing about Y?’ The real value of free speech is that the public can be exposed
to ideas, opinions and information about issues that the powerful (or indeed anyone who thinks they
might be judged to be wrong) would sooner they did not hear about. Free speech matters because as
Dworkin puts it citizens have:
… a moral responsibility… not only to form convictions of one’s own, but to express these to
others, out of respect and concern for them, and out of a compelling desire that truth be
known, justice served, and the good secured (Dworkin 1992: 15).

The pitiless policy adopted by successive Australian governments since 1991 to deal with asylum
seekers, which has involved reframing the problem as ‘protecting our borders’ reminds us too of
Arendt’s (1986:277) point that refugees were the ‘most symptomatic group in contemporary politics.’ By
this she meant only that the very existence of stateless refugees illuminated the primary contradiction
between the professed commitment of liberal democratic states to uphold universal individual rights
while claiming to promote and defend national sovereignty. That principle of national sovereignty is
realized in the right of sovereign states to exclude anyone it likes from citizenship or entry. Arendt’s
solution was to insist on the right to have rights. She argued for one supra-national law that would
consist of just one human right: the right to belong to a political community:

We became aware of the existence of a right to have rights … and a right to belong to some
kind of organized community, only when millions of [refugees] emerged who had lost and could
not regain these rights (Arendt 1986, 295-6).

The evidence of an unusual and persistent degree of misrepresentation and hostility from interests
and institutions hostile to human rights seems to have been silently assimilated into the view and
attitudes of many ordinary people. This suggests quite a challenge and something of the political task
confronting those of us who want to promote human rights.

QUESTIONS

1. What key questions is the author asking here?

2. Can you get a grip on the major claims being argued for here? How would you critically evaluate
these claims?
3. Does it seem that this author is relying on any assumptions that you can spot at this stage?
4. What is your everyday experience of how Australians understand and think about human rights?
5. If the opinion polls are right and Australians appear to be both complacent about and quite
confused about human rights how would you explain this?
6. To take a specific case like the history of Australian governments’ approach to asylum seeker
policy, how would you describe this treatment and what it says about our regard for human rights?

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CHAPTER FIVE: HUMAN RIGHTS IN AUSTRALIA: THE VICTORIAN CHARTER, 2006-2012

A human rights activist walks into an Australian hospital and goes up the
nurse at the reception desk,
“I want to see the eye-ear doctor.”
“There is no such doctor”. she tells him. “Perhaps you would like to see
someone else?”
“No, I need to see an eye-ear doctor,” he says.
“But there is no such doctor,” she replies. “We have doctors for the eyes
and doctors for the ear, nose and throat, but no eye-ear doctor .”No help.
He repeats, “I want to see the eye-ear doctor.” They go on like this for a
few minutes and then the nurse says: “Listen … there is no eye-ear doctor,
but if there were one, why do you want to see him?”
“Because,” he replies, “I keep hearing one thing and seeing another.”

In July 2006 the Bracks’ Labor government in Victoria introduced and passed an Act of Parliament (No.
43 of 2006) called the Charter of Human Rights and Responsibilities Act 2006. In passing this legislation
the Victorian government followed precedents set in the United Kingdom (when the Blair government

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passed its Human Rights Act in 1998), and by the government of the Australian Capital Territory which
passed its Human Rights Act in 2004.Whether the Charter of Human Rights has been a ‘success’ is the
large question which I want to address here.

This is done mindful of a point made some decades ago by Chou En-Lai. On his 1972 visit to China, US
President Richard Nixon asked Chou En-Lai, then premier of China to assess the impact of the French
revolution which began in 1789 on western civilization. Chou’s reply was memorable and succinct: ‘Too
early to tell’.

Even more plainly with the effective full roll out of the new Charter only beginning in January 2008, it is
far too soon to say from the vantage point of 2012 what kinds of effects the new Charter has had on the
operations of the Victorian public sector, let alone on the broader community. Nonetheless as I want to
indicate here, we can begin to assess its impact. In what follows I have drawn the line at the end of 2010
partly because we need a terminus point however arbitrary and partly in recognition of the loss of
government in November 2010 of the Labor government which had auspiced the Charter back in 2006. 21

As will become clear the fact that Victoria has adopted the core elements of the United Nations
International Covenant on Civil and Political Rights as a form of domestic legislation is a very important
innovation. In this respect one state in the Australian federation has now acknowledged formally that
some Australians have a right eg., to freedom of expression or freedom of assembly which constitutes
both a claim on governments and a rationale for certain kinds of political action to be taken by
governments and their officials. In this minimal sense as Beitz (2009:8-9) has noted, adopting the Charter
represents a decision to render the actions of government accountable to ideas about human rights.
Equally as will become clear precisely what kinds of reasons the identification of a human right
constitutes, or what kinds of actions governments and their employees are required to make by the
Charter is far less clear or certain in the Victorian case. That alone makes the task of assessing its value a
somewhat more complex task.

To begin with it is relatively easy to say why the Victorian Charter is a bold exercise in the Australian
setting.

THE CONTEXT

21
As is now clear in spite of repeated public declarations of hostility to the Charter by the new Attorney-General
Robert Clark in 2010-12, the Baillieu government carried out a review of the Charter and made no serious
changes to the Charter.

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As is well known Australia is the only modern liberal democracy in the world still without a bill of rights. 22
It is not going too far to say that just as Australia has established an unenviable reputation as a ‘welfare
state laggard’ so too do we have a reputation as a human rights laggard.

As Williams and Charlesworth point out, though ‘white Australia’ was slowly dismantled in the 1960s and
1970s, every effort to introduce national ‘bills of rights’ in the past three decades has failed.
Commonwealth Attorney-General Lionel Murphy introduced a Human Rights Bill in 1974 that went
nowhere after a burst of controversy. In 1983 and 1984, the Hawke-Keating Labor government drafted
Australian bills of rights which lapsed when it seemed that opposition to them would prove
insurmountable. In 1988 the Commonwealth government tried but failed to amend the Australian
Constitution in various ways to protect certain rights (Charlesworth 1993). Most recently, the Law
Council of Australia debated a draft Australian Charter of Rights and Freedoms in 1995-6, but the draft
likewise failed to win parliamentary support.

Proposals to introduce bills of rights have also been considered by a number of Australian states. In
1988, the Victorian Parliament debated the adoption of a legally unenforceable Declaration of Rights and
Freedoms as a guide for the legislature, but the Bill eventually lapsed (Moran 1990). In 1998, a
committee of the Queensland Parliament recommended against Queensland adopting a bill of rights
(Queensland Legislative Assembly 1998). Most recently, in 2001, the New South Wales Parliament’s
Standing Committee on Law and Justice made a similar recommendation for New South Wales (NSW
Standing Committee on Law and Justice 2001).

The opponents of bills of rights have used many arguments to thwart these reform exercises. They have
argued that it is wrong to place the protection of rights in the hands of unelected judges, claiming this
will reduce the power of a democratically elected legislature while enhancing the power of an
‘unelected’ judiciary (Campbell 2001; Allan 2003). (As we will see this objection is completely irrelevant
to the Victorian Charter). Some opponents have argued that bills of rights will encourage frivolous
litigation, or are not needed in a truly democratic society. Others again have argued that human rights
are more effectively secured either by specific statutes or by specialized institutions established by
parliaments (Allan 2002, 2003). Many of these arguments were relied on in August 2009 by former Prime
Minister John Howard in a major attack on the very idea that Australia needed a bill of rights. (The Age
27 August 2009). As is well known this view is not found only among some liberal politicians: another

22
The term ‘bill of rights’ is not to be construed narrowly. The term refers to two broad kinds of ways human
rights can be specified and protected. One approach involves inserting into a constitution a catalogues of rights.
Epp (1996) argues that this typically confer significant legal status and gives effect to guarantees of rights.
Examples of constitutional bills of rights include the United States Bill of Rights (1791), the Canadian Charter of
Rights and Freedoms (1982) and South Africa’s Bill of Rights (1996). The other way of identifying and protecting
rights involves parliaments enacting legislative statements of rights which can be subsequently amended by the
legislature). Examples of statutory bills of rights include New Zealand’s Bill of Rights (1990) and the United
Kingdom Human Rights Act (1998).

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former political leader this time from the Labor Party, Bob Carr has made many of the same points in his
campaign to thwart the introduction of a bill of rights.

Advocates for bills of rights have responded by arguing that our parliaments have failed to protect
human rights or to undo persistent discriminatory practices. There is eg., abundant evidence that some
Australians face persistent discriminatory treatment which affects their capacity to be safe, to be
respected, to secure full time employment or to have access to valued community goods others take for
granted. Those groups include women, indigenous people, people with disabilities, gay men, lesbian
women and transgendered people, and children and young people, and people with criminal records. 23
Some headline VEOHRC (2008: 21-4) data catches this point:
 Women with dependent children are much less likely to be employed than men with dependent
children, and women continue to experience a gender pay gap of up to 18.4 percent.
 People with disabilities are far less likely than people without a disability to complete year 12, go
to university or find work. It is impossible for people with disabilities to fully participate in
society unless they can fully access the built environment and public transport which a third of
people with disabilities report difficulties using or accessing
 Full time employment in 2001 for Indigenous people was much lower that that for non-
indigenous people in all age groups and geographic regions. Nationally, 41.5 percent of
Indigenous people were in full time work compared with 60.2 percent of non-Indigenous people
while Indigenous people are less likely to complete year 7
 HREOC’s Isma Inquiry into the experiences of Arabic and Muslim Australians indicated that they
had experienced some form of racism, abuse or violence at work or at school (66 percent
compared with 86.9 percent of all students)
 Nearly two in five of NESB had experienced discrimination in the workplace (three times as likely
as those born in Australia)
 44 percent of those from gay, lesbian, bi-sexual and transgender and intersex communities
reported verbal abuse and 16 percent reported physical abuse because of their sexuality, figures
that are largely unchanged since 1998 (VEOHRC 2008 21-24).

Scholars argue that the courts can play a positive role in promoting human rights (Klug 2000). They point
to research on the effects of introducing bills of rights in other countries as evidence that they do not
give rise to serious problems of frivolous or vexatious complaints. Indeed as some British writers who
have researched the introduction of the UK Human Rights Act (1998) have argued, such legislation may
actually lead to better public policy-making or to more effective delivery of public services to members of
the community (Lord Chancellor 2002; UK Audit Commission 2003). Proponents of bills of rights will also

23
It says a lot that the VEOHRC’s (2008) Discussion Paper submitted to the Equal Opportunity Review omitted
discussion of children and young people per se, and people with criminal records in their discussion of systemic
discrimination. Children and young people are acknowledged but only in the course of discussions of other
groups like indigenous or culturally and linguistically diverse communities.

99
point to the important symbolic value such instruments play as statements of community values. They
suggest that these instruments can play a significant role in enhancing critical scrutiny of long-
established laws as well as requiring governments to accord a higher profile to human rights
considerations (Byrnes 1999).

Against this historical backdrop of debate and controversy, and In spite of the fact that we still do not
have a national bill of rights, parliaments in both the Australian Capital Territory (2004) and in Victoria
(2006) decided to pass legislation introducing ‘charters of human rights’. These decisions represent a
striking break with what had begun to seem like an Australian ‘tradition’. Even granting the fact as some
critics point out that these two Charters identify only a ‘limited’ range of civic and political rights, the
introduction of statutory bills of rights in these two jurisdictions constitute major innovations in
Australia’s constitutional arrangements.

How far-reaching, even ‘radical’ these two exercises look in 2011 is suggested by how little progress has
been made in other jurisdictions since 2006. Other legislatures in Tasmania and Western Australia
thought likely to follow Victoria in 2007-8 have declined to do so. A new Rudd Labor Government ran a
national consultative process in 2008 using a committee headed by Professor Frank Brennan, SJ., to
examine the desirability of introducing a national bill of rights (Brennan 2009). In spite of the enormous
level of popular support for introducing a national Bill of Rights revealed in the tens of thousands of
submissions which the Panel received, the Rudd government decided that the proposal lacked
‘mainstream support’. Sources ‘close to the key participants’ tell how PM Rudd took Brennan, the Panel
Chair on a midnight walk around Lake Burleigh Griffin in Canberra to break the news that the Brennan
Committee’s report would not be acted on because it lacked ‘community support’. 24 By this Rudd meant
that the NSW right of the ALP had vetoed any positive response to the panel’s recommendations.

As a sop, the Rudd government launched the Australian Human Rights Framework on 21 April 2010
(Attorney General 2010). This Framework spoke of:
 reaffirming a commitment to Australia’s human rights obligations;
 the importance of human rights education;
 enhancing our domestic and international engagement on human rights issues;
 improving human rights protections including greater parliamentary scrutiny;
and
 achieving greater respect for human rights principles within the community.

24
Interview with a ‘source close’ to the Panel Chair Fr. F. Brennan, SJ., August 2010.

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Practically the Framework committed the government to spending $12 m. on human rights education as
well as introducing some modest ‘measures’. 25 A month later Deputy Prime Minister Gillard led a party
room coup that dumped Rudd as Prime Minister.

At the time of writing there are no plans by the national Gillard Labor government to do anything else to
promote human rights. In Victoria a non-Labor government was elected in November 2010. The Baillieu’
government’s Attorney-General Robert Clark made his antagonism to the very idea of a bill of rights like
the Charter quite plain but that hostility has produced any practical consequences for the Charter as of
December 2012. All that acknowledged, it is nonetheless time to think hard about the Charter and what
it has achieved to date

THINKING ABOUT THE CHARTER

As I indicated in the previous chapter there are quite fundamental conceptual questions and difficulties
associated with human rights talk which cannot be ignored or evaded. As Geuss (2001), Griffin (2008)
and Beitz (2009) have all argued, there are quite basic difficulties associated with human rights discourse
and practice. These difficulties go to basic issues about whether ‘the objects’ called ‘human rights’ ‘are
in any familiar sense ‘rights’, and why certain standards should be rights but not others (Beitz 2009:2).
Yet as Beitz has also shown, we should no longer be in doubt that human rights are real in the sense that
they now constitute forms of practice which can have both a doctrinal component as well as the form of
various institutional mechanisms designed to protect human rights. Recognising that rights are forms of
practice is especially useful if we wish to assess the effectiveness of the institutional forms of practice
which they inform.

However thinking about the effectiveness of legislation like the Victorian Charter forces us to think about
how we would know whether there has been an positive change. This raises central questions about
what constitutes evidence that an instrument like the Victorian Charter of Human Rights has -or has not-
transformed some aspect of ‘public’ or civic life in Victoria. Civic life eg., embraces the various forms of
politics, law-making and policy-making as well as the administration and delivery of a wide array of
services. We would also need to be clear about the criteria to be used to determine whether there have
been beneficial or negative effects. To be clear: like all research projects, we need to be very clear about

25
The other measures include establishing a new Parliamentary Joint Committee on Human Rights to provide
greater scrutiny of legislation for compliance with our international human rights obligations;
 requiring that each new Bill introduced into Parliament is accompanied by a statement of compatibility with
our international human rights obligations;
 combining federal anti-discrimination laws into a single Act to remove unnecessary regulatory overlap and
make the system more user-friendly; and
 creating an annual NGO Human Rights Forum to enable comprehensive engagement with non-government
organizations on human rights matters.

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what was meant by the idea of ‘human rights’ and by what was going to count as evidence that the
Charter is having ‘positive’ or ‘beneficial’ effects, and for whom.

For example this might mean among other things that we need to think hard about how we can establish
what public sector workers in a particular agency know about the Charter or whether and how the
introduction of the Charter or the injunction eg., to ‘Think Charter’, has had any effect on their work. It
is also quite likely for example that the things that would constitute evidence or transformation will need
to change as we change the focus say from ‘politics’ to the ‘delivery of services to clients’. For example
let us say that we want to gather evidence that ‘politics’ in Victoria has been transformed by the
Charter? Is that understood in terms of the number of times politicians engage publicly in more ‘pro-
rights’ or more ‘anti-rights’ talk. Would we look to parliamentary debates, or to party platforms or to
the attitudes of politicians or to the disposition of NGO’s and lobbyists to promote or attack the Charter?
In like fashion we would need to be clear about what sorts of things would count as evidence that
human rights talk has changed attitudes to ‘clients’ or turned into some kind of action. We might eg.,
need to establish what kinds of attitudes were there to human rights before the Charter was introduced
and what changes have taken place if any since its introduction. Is it possible eg., to speak about changes
in workplace culture or to wondering what an applied culture of human rights look like in agencies?

Given the need to say and do something that is cognisant of these difficulties and that can contribute to
the kind of public discussion that the introduction of the Charter quite properly raises and which the
formal review of 2011 will require I have decided to focus on just a few basic questions.

Firstly any assessment of the Charter does need to take into account what its progenitors wanted or
intended to be some of its beneficial effects. That is, while the Charter can be criticised for all sorts of
things it has not done, if those criteria of success did not figure in the original design of the Charter the
criticism is to that extent somewhat misplaced. We do not eg., criticise a Chopin piano prelude by
observing that it is not a Beethoven-scale symphony. Accordingly we need to ask what were the
intentions of those who introduced the Charter? we need to ask what did the Bracks Government hope
to achieve by introducing the Charter in 2006? This will require attending to both any formal declarations
of intent as well as to the key design features of the Charter. It will also assist to establish as appropriate
how and in what ways the Victorian Charter compares with relevant international exercises in the United
Kingdom, Canada and New Zealand.

Secondly we do need to take into account the problems with rights talk itself. Research done for the
Brennan Human Rights Consultation eg., revealed a significant degree of confusion on the part of
ordinary Australians both about what they ‘knew’ about human rights and what aspects of human rights
they valued. (That confusion seems to parallel the higher order confusion found in the relevant juridical
and philosophical scholarship already surveyed here: Griffin 2008; Beitz 2009). That problem will not be

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made to go away by well-intentioned advocates for human rights insisting that they really do ‘know’
what human rights discourse is all about. Those who support the progressive implementation of human
rights discourse do need to be able to provide a clear account of what human rights is about and why it
is valuable if they are to secure popular support and to reply to the strong vein of position to bills of
rights which is found in Australia’s legal and political communities.

If we are to carry out any kind of assessment of its value, we need to begin by describing the Charter,
and establishing what the Bracks Government expected to achieve when it introduced the Charter in
2006.

VICTORIA’S Charter of Human Rights and Responsibilities Act 2006.

In July 2006 the Victorian Labor government introduced and passed an Act of Parliament (No. 43 of
2006) called the Charter of Human Rights and Responsibilities Act 2006. In doing this the Victorian
government followed precedents set in the United Kingdom (when the Blair government passed its
Human Rights Act in 1998), and when the government of the Australian Capital Territory passed its
Human Rights Act in 2004.

Though it was hardly the work of one person, Rob Hulls, the Victorian Attorney-General (1999-2010)
deserves a lot of credit for the passage of the Victorian Charter. No less deserving of credit were a
number of influential bureaucrats, policy-makers and feminist activists, people like Diane Sisely, Helen
Szoke and Joan Kirner who had urged on Attorney-General Hulls the merits of such a measure. Its
passage through the Victorian parliament began in May 2004 with the release by Attorney-General Hulls
of a Justice Statement which made protecting human rights a priority and announced his intent to
consult with Victorians about how best to protect human rights. In May 2005 the government released a
Statement of Intent and announced that it was setting up a Human Rights Consultation Committee. That
committee was chaired by Professor George Williams of the University of New South Wales (Williams
2006) and duly carried out a careful process of consultation. The Committee sought and received some
2,524 submissions, the vast majority of which recommended strengthening the legal specification and
protection of human rights in Victoria. The result, as Hulls noted with justifiable pride in his Second
Reading Speech, was the first such legislation passed by any Australian state. As he noted while it drew
on the experience of the United Kingdom, New Zealand and the Australian Capital Territory, it also
sought to reflect, ‘the aspirations, values and circumstances of the Victorian community’. While it would
be nice to agree with Hulls, the truth of this proposition is open to serious doubt (Brennan 2009). For if
the Charter did indeed reflect ‘the aspirations, values and circumstances’ of Victorians we may well ask
why would the Victorian government have thought it needed to introduce such a piece of legislation.
This observation catches one of the essential paradoxes or contradictions that sits at the heart of the
drive to legislate for human rights.

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As Anthony Woodiwiss (2005: xiii) has observed:
… it has gradually become clear that issues such as what should count as a human right, the
universality or otherwise of the present array of rights, and indeed the very idea of a common
human humanity, are not simply matter of intellectual controversy but also matters of power, not
simply matters of philosophy and law, but also matters of social structure and politics.
Woodiwiss has caught one paradox at the heart of human rights talk. As Woodiwiss goes on to observe,
the very universality of the claims made in the foundational United Nations Declaration of Human Rights
(UNDHR) of October 1948 has led non-white people, women, sexual minorities, developing countries
and non-western countries to discover from time to time that they have been excluded from the UNHDR.
As he goes on to ask:
How then is it possible that human rights can be invoked both to deny and to criticise such
exclusions? How can human rights provide the bases for both the exercise of such power and its
critique?
Leaving aside the alleged universalism of human rights talk, the additional problem as Woodiwiss (2005:
xv) notes, is that human rights ‘tend only to be enforced at the extremities of social life’. Yet to be truly
effective any legal specification of rights ‘must mobilise the supportive elements and/or processes
present within the social routines of everyday life’. It is in this sense that there is a problem accepting
Hulls’ claim that the Victorian Charter reflects ‘the aspirations, values and circumstances of the Victorian
community’.

For if there is already a sentiment of regard for the kinds of rights which such a Charter of Rights sets out
to specify and protect, it might be thought that there would be no need for such an instrument. If on
the other hand there is little if any actual regard for human rights in the social routines of everyday life,
then there have to be questions asked about the capacity of such an instrument doing much either
quickly or easily to create such an ethos.

These remarks aside and assuming that the things the Charter spells out are very far from being already
embedded in the work practices of the Victorian public sector, let alone the wider community, there is
value in addressing one simple questions: what did those who drafted the Charter identify and sanction
as key forms of practice that would make the identification and protection of a range of human rights a
valuable and practical exercise?

WHAT DOES THE VICTORIAN CHARTER OF RIGHTS SAY?

In a simple descriptive sense, the Victorian Charter is an act of Parliament which identifies some twenty
one civil and political rights and declares that these rights will now be protected. The Charter specifically
focuses on requiring government in Victoria to acknowledge and protect the human rights identified. It

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does this by enjoining a very large number of people working for the state government and local
government to take into account these rights when they interact with each other or other people living
in Victoria. Those entities include the Parliament itself, the Executive and what are called ‘public
authorities’ ie., government Departments (and their ministers and civil servants), statutory authorities
and their work force, local councils and their workers and any organization that provide services of a
public nature including for-profit and non-profit organizations delivering services under contract on
behalf of the government. This affects everything from church agencies working on a contract basis
providing educational, health or welfare service to companies that run public transport. The reach of the
Charter is therefore potentially very large.

As for the human rights it has identified, the Victorian government has drawn on a conventional range of
civil and political rights. These rights have been represented in a matrix as follows. (This should not
disguise the somewhat arbitrary and even contradictory taxonomy suggested by the acronym). The
Victorian government has used the acronym FRED (a mnemonic standing for Freedom, Respect, Equality
and Dignity) to group these rights. These Under the rubric of ‘freedom’ for example the Charter
identifies some eleven rights. These include:
 Freedom from forced work
 Freedom of movement
 Freedom of thought, conscience religion and belief
 Freedom of expression
 Peaceful assembly and freedom of association
 Property rights
 Right to liberty and security of person
 Right to fair hearing
 Rights in criminal proceedings
 Right not to be tried and punished more than once
 Protection from retrospective criminal laws

Under the idea of ‘Respect’ the Charter speaks of such rights as:
 Right to life
 Protection of families and children
 Cultural rights including recognition that human rights have a special importance for the Aboriginal
people of Victoria

As for ‘Equality’ the Charter refers to:

 Recognition and equality before the law
 Entitlement to participate in public life (including voting)

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Finally under the heading of ‘Dignity’ the Charter spells out a commitment to such things as the
 Prohibition of torture and cruel , inhuman or degrading treatment
 Protection of privacy and reputation
 Humane treatment when deprived of liberty
 Appropriate treatment of children in the criminal process.

In this simplifying way the Charter seemingly gives characteristic expression to the ‘legal positivist’
tradition (Jones 1994) which treats rights as extrinsic to individuals and groups, preferring instead to say
that the only rights which matter are those which governments specify and protect by way of legislative
or judicial processes. This is what Woodiwiss (2005: xi) means when he suggests that the term ‘rights’
refers to a ‘legally enforceable set of expectations as to how others most obviously the state, should
behave towards rights bearers’.26 Equally and characteristically the Charter confuses the matter
somewhat in its opening Preamble by observing that the Parliament [of Victoria] ‘enacts this Charter’,
and in so doing recognises ‘that all people are born free and equal in dignity and rights’. The training
material promoting the roll out of the Charter has confused matters in similar fashion by asserting for
example that ‘Human rights are the basic rights that belong to all of us because we are human beings’
(DSE 2007:6).

Leaving aside the debate between e.g. ‘legal positivists’ and those who argue that rights are inextricably
linked to the fact that we are humans, the question that forces itself to be asked is this: how is the
introduction of the Charter expected or designed to work?

Those responsible for drafting the Charter envisaged the Charter working in a number of ways which
relies on dialogue, persuasion, the value of publicity and education and less, or even not at all on courts,
sanctions or penalties. It is an example of what Hiebert (2006: 7) has called a ‘parliamentary rights
model’ which in this case has been justified on the grounds that it ensures ‘the continuing sovereignty of
the Victorian Parliament’. As Carolyn Evans (2007) has put it, the Victorian government adopted the
‘Commonwealth model’. Saunders (2003: 83) had used this term to identify three distinguishing features
of the approach adopted by the Victorian government: the reliance on a statutory basis for identifying
human rights rather than embedding this into a constitution; the inability of judges to strike down
legislation or to award damages to people whose rights have been breached; and finally the retention by
Parliament of the power to amend, alter or even abolish the bill of rights.

26
By this Woodiwiss (2005: xi) means to specify two possible ways that people can be constituted as ‘rights
bearers’. On the one hand, ‘Rights bearers have to be entities legally considered to possess ‘personality’ – that is
legally deemed to be autonomous moral agents- and therefore capable of taking decisions and accepting
responsibilities, as in the case of adult persons, trade unions, corporations or states. However rights bearers may
also be members of groups ‘legally recognised as entitled to make claims to protection and or support on the
basis of the principle of reciprocity because they have been denied the possibility of autonomy as a result of
factors like age (children), race, gender, sexual orientation, poverty, mental or physical illness or indigenousness’.

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That notwithstanding and in the Australian context, the Victorian Charter is a relatively bold exercise,
and one that may over time turn out to be as momentous an innovation in the basic mechanisms of
governance in Australia as the introduction of universal suffrage proved to be. Equally and especially in
comparison with relevant bills of rights in the United Kingdom or Canada, the Victorian Charter is not
an especially robust human rights instrument. Absent any sanctions such as a capacity for courts and
tribunals to enforce the Charter obligations, it relies on what has been called a ‘dialogue model of
rights’.27 Let me spell out what this is all about.

THE INTENTIONS

The Charter works first as a declaration beginning with an identification of the principles of human rights
which it says defines a democratic inclusive society ‘that respects the rule of law, human dignity, equality
and freedom’. It is claimed that the Charter will work ‘as a form of insurance to ensure that human
rights are a priority for the government when it sets about making laws and decisions’. It is designed to
function as a law and is designed ‘to protect all people in Victoria’ (DSE 2007: 9). This in turn leads to a
listing of the rights that are identified and protected. These are the twenty one rights outlined above.
This includes definitions and additional information that help to further specify the twenty rights.

Having declared that the Charter is a law and will work ‘as a form of insurance to ensure that human
rights are a priority for the government when it sets about making laws and decisions’ the critical
question is by what means does the government intend to pursue that aim? Typically asking this
question can be understood as asking firstly who is bound by the legislation and what are they obligated
to do? Secondly we would also need to establish what, if any, sanctions might apply should the rights
specified by the Charter be breached. Finally we would also need to establish if the Charter has provided
for any remissions or ‘let outs’ from obligations it has imposed to be compliant with the Charter which
may have the effect of reducing the government’s obligations to be compliant with its own Charter.

OBLIGATIONS

The answer to the first question is that the Charter imposes certain obligations on ‘the government’ by
which is meant the three elements of government, namely the legislature (or Parliament), the judiciary,
and the Executive. If we take each of these seriatim we will find the following.

Firstly, the Parliament is required to consider the impact of all new legislation on those human rights
specified in the Charter. This is done by requiring MPs or departments drafting legislation, to prepare
and table Statements of Compatibility for each new bill introduced into Parliament. This statement is

27
There is a good deal of debate about the meaning of this idea especially in Canada where the idea seems to
have been initiated (See Hogg and Bushell (1997): See also Manfredi and Hall (1999) and McDonald (2004).

107
required to establish the effect that the Bill is, or is not compatible with the Charter accompanied by a
statement outlining the ways in which the Bill is, or is not compatible. The Charter eg., requires (in Part 1
(2) (d) that ‘statements of compatibility with human rights … be prepared in respect of all Bills
introduced into Parliament and enabling the Scrutiny of Acts and Regulations Committee to report on
such compatibility’. The government has spoken about the ‘requirement’ that all of the existing array of
statutory provisions represented by current Victorian laws and regulations need (as per S. 32 of the
Charter) to be interpreted ‘so far as is possible’ in ways that are ‘compatible’ with human rights,
‘international law as well as relevant court judgements. That is S.32 of the Charter provides that ‘so far as
it is possible’ all legislation must be interpreted in a way that is compatible with human rights, but that
notwithstanding this requirement, any legislation that is not compatible with human rights is still valid
law.

As I have indicated the Charter begins with the proposition that all new laws and regulations need to be
checked for their ‘compliance’ with the Charter. This is also understood as the requirement that if laws
and regulations can be interpreted in a number of ways including ways that respect human rights, then
the Charter ‘requires’ that any interpretation that takes into account human rights is to be preferred.
What is not immediately clear is what precisely words like ‘possible’, ‘compliance’, ‘requires’ or
‘preferred’ actually signify.28 As Evans and Evans (2006: 267) have indicated S.32 of the Charter does
‘not authorise those who interpret and apply the law to give effect to human rights in all circumstances’,
and further that if any statute is not compatible with the Charter it remains lawful and valid law. As
Simon Evans (2005:7) has pointed out, while S. 32 requires that people interpreting legislation do so in
ways that are compatible with human rights, this section also provides for a qualification, namely that
any interpretation also needs to take into account the ‘purpose of the legislation being interpreted’. As
the Explanatory Memorandum to the Charter noted, this reference to statutory purpose:
…is to ensure that in doing so courts do not strain the interpretation of legislation so as to
displace Parliament’s intended purpose or interpret legislation in a manner which avoids
achieving the object of the legislation.

(Part 1 (2) (e) ‘confers jurisdiction on the Supreme Court to declare that a statutory provision cannot be
interpreted consistently with a human right and requiring the relevant Minister to respond to that
declaration’. Other than allowing for a declaration to be made, the Courts cannot invalidate legislation
that runs contrary to the Charter. The only possible form of legal redress as per S.33 and S.36 is ‘a
declaration of inconsistent interpretation from the Supreme Court’. (This follows on from S. 36 where
the Charter refers to the capacity of the courts ie., the Supreme Court, or the Victorian Court of Appeal

28
Stern (2007: 5) notes there is a high level of ambiguity in the use of the word ‘possible’. As she says ‘possible
may mean if the words are ambiguous a human rights compliant interpretation should be chosen or it may mean
that if the unambiguous meaning of the legislation is clear, nonetheless the courts should strive to reach a
human rights compliant interpretation.

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issuing a ‘declaration of inconsistent application’)29. This is only possible if there has been no override
declaration made in the legislation: if such an override declaration has been made the Supreme Court
cannot make any declaration of incompatibility. Finally there are no legal consequences if the Supreme
Court does issue a declaration of incompatibility.

The Charter only requires (in Part 1 (2) (d) that ‘statements of compatibility with human rights … be
prepared in respect of all Bills introduced into Parliament and enabling the Scrutiny of Acts and
Regulations Committee to report on such compatibility’. As a reading of the Charter suggests, there are
no sanctions to be applied if these things do not happen. Indeed any statement of compatibility made
about any Bill introduced into the Parliament is deemed not to be binding on any court or tribunal, while
a failure to comply with the need to prepare a statement of compatibility is deemed not to affect the
validity, operation or enforcement of that Act.

All of this is consistent with the Attorney-General Rob Hulls has indicated, namely that the Charter works
by setting up what has been called a ‘dialogue model of rights’:
It is a model which encourages and promotes dialogue about human rights between all the
institutions of government – the Parliament, the courts and the executive. It ensures that human
rights are taken into account wen developing new rights and policies. It ensures that the courts
consider human rights when interpreting laws. And above all else it promotes the need to respect
and promote human rights across the government and in the community

The judiciary are likewise required to interpret all statutory provisions in ways that are compatible with
the Charter so far as at (Part 1 (2) (e) the Charter confers:
… jurisdiction on the Supreme Court to declare that a statutory provision cannot be interpreted
consistently with a human right and requiring the relevant Minister to respond to that
declaration.

Finally the Executive is required to be compliant with the Charter. By ‘the Executive’ is meant all ‘public
authorities’. The use of the term ‘public authorities’ refers to all Ministers and public service workers, all
statutory bodies, local councils and Victoria Police as well as all organizations which may include
charities, churches, NGO’s and businesses which provide public services on behalf of the government.
By ‘compliant’ with the Charter it is intended that public authorities are required to interpret ‘so far as is
possible’ all of the existing array of statutory provisions represented by current Victorian laws and
regulations need (as per S. 32 of the Charter) in ways that are ‘compatible’ with human rights,
‘international law’ and all relevant court judgements locally or internationally.

29
Debeljack (2007:13) notes this differs from the relevant section of the UK Charter of Rights (C 42 s 4) where
the reference is to a ‘declaration of incompatibility’.

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LEGAL REMEDIES

The second question we need to ask addresses the sanctions available to enforce the Charter. It is
important to recall what the International Covenant on Civil and Political Rights (ICCPR 1966) which came
into force in March 1976 says about this. The Civil and Political Rights Covenant is the key international
legal instrument from which the Charter is derived. The ICCPR clearly ‘obliges States Parties to provide
effective remedies for no compliance with the rights that it protects (Evans 2006b: 11). How well does
the Victorian Charter do in meeting this obligation?

It is important to note as a number of legal scholars (eg., Evans 2006a; Evans 2006b; Debeljack 2008)
have done, that the people who drafted the Victorian Charter went to some lengths to ensure that the
Charter per se does not provide any legal remedies if someone believes that a breach of Charter rights
has taken place. As Debeljack (2007: 18) has put it, the remedial provisions under S.38 and S.39 of the
Charter are ‘weak’. She (200x: 10) has pointed out that from the start (as indicated in the 2005
Statement of Intent) the government made it plain that the principle of Parliamentary sovereignty would
be upheld and that Victoria would look to the British model rather than the US model of rights
embedded in the constitution and the reliance on the courts which it provides for. That message was
reinforced when the Statement of Intent made it plain that the government would privilege ‘education’
and ‘dialogue’ over litigation. As Evans and Evans (2006: 274) observe, the Victorian government had no
intention to allow for legal remedies for breaches of the Charter (Department of Justice 2005). In this
respect the Victorian Charter is in breach of the International Covenant on Civil and Political Rights.

To be clear then, the Charter specifically excludes the possibility of any citizen pursuing a case for
damages based on some alleged breach of the Charter (see Evans 2007: 4). This is in contrast to the UK
Human Rights Act eg., where citizens do have a ‘free standing right’ to pursue a claim that the UK
government has breached its Human Rights Act. As Evan and Evans (2006: 281) observe, ‘The Charter is
clearly not a statute that gives dominance to legal remedies as a way of making rights effective.’ This
extended even so far as to not allowing the Human Rights and Equal Opportunity Commission to take
and handle complaints or to engage in any conciliation tasks. As Debeljack (2007: 12) shows, while there
are no remedies under the Charter, citizens are still able to seek a remedy but only by referring to a
pre-existing, non-Charter relief or remedy like that provided for by statutes like the Administrative Law
Act 1978.

It is very significant that the Charter excluded courts from its definition of public authorities. That is, the
Charter excludes courts and tribunals from the definition of a ‘public authority’, except when they are
acting in an administrative, as opposed to judicial, capacity. When acting judicially, courts and tribunals
are not required to comply with S.38 of the Charter, which imposes duties on public authorities to act
compatibly with human rights and give proper consideration to relevant human rights when making a

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decision. However section 6(2)(b) applies the Charter to courts and tribunals when they are acting
judicially ‘to the extent that they have functions under Part 2 and Division 3 of Part 3.’
In short if the Charter is strong in exhorting public sector employees to ‘think’ Charter, it is relatively
weak when it comes to ensuring compliance on the part of the government.

This also goes to the way the Charter has defined the role of the Victorian Equal Opportunity
Commission which became the Victorian Human Rights and Equal Opportunity Commission after the
Charter was introduced. The Commission has been given a number of roles in relation to the Charter. The
Commission for example as per S. 40 of the Charter has the right to intervene in legal proceedings
initiated by other parties where questions arise concerning the application of the Charter or the
interpretation of another statutory provision in accordance with the Charter. The breadth of this power
was acknowledged in the Explanatory Memorandum to the Charter:
Clause 40 establishes the Commission’s unqualified right to intervene in proceedings involving the
Charter … Whether the Commission exercises the right to intervene is a matter for its discretion. 30
To undertake this function, the Commission needs to be aware of the matters before courts and
tribunals where the Charter arises for consideration. The Charter has made this possible by requiring
that the Commission must be notified by a party to any proceedings in the Supreme or County Court
where a question of law arises regarding the application of the Charter or the interpretation of another
statute pursuant to the Charter.31 In addition to this provision, S.36(4) also provides that the Supreme
Court may not make a declaration of inconsistent interpretation unless satisfied that the Commission has
been given notice that the court is considering doing so and has been given a reasonable opportunity to
intervene or make submissions. The Commission is also required to submit an annual report to the
Attorney-General which accounts among other things for the operation of the Charter, details all
declarations of inconsistent interpretation during the relevant year, and details all override declarations.
The Commission is also empowered to review statutory provisions and the operations of public
authorities.

EXEMPTIONS

I turn now to the second question namely has the Charter provided for any remissions or ‘let outs’ from
obligations it has imposed? It is clear that the Charter has provided for such ‘let outs’. The Charter
specifically gives the Parliament the right to make an ‘override declaration’ which basically says that an
Act is lawful even if it has one or more provisions which are incompatible with the Charter. S. 31 (1) of
the Charter provides that:

30
Pages 28-9
31
Section 35(1)(a) Charter

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 Parliament may expressly declare in an Act that Act or a provision of that Act or another Act, or
a provision of another Act has effect despite being incompatible with one or more of the human
rights or despite anything else set out in this Charter.
This part of the Charter allows the Parliament to ensure that legislation which is not compliant with the
Charter can nonetheless be valid at law. That is, when an override declaration has been made that the
legislation in question can be interpreted in the normal way that all statutory interpretation is done, the
S 32 requirement in the Charter that a human rights interpretation be favoured is suspended. It also
has the effect of preventing the Supreme Court from finding that a statute is inconsistent with the
Charter.

In mitigation the Charter suggests (Part 31 (4), that, ‘It is the intention of the Parliament that an override
declaration will only be made in exceptional circumstances’. As Evans and Evans (2006: 272) point out
this provision for an override has:
… no counterpart in any other statutory bills of rights such as New Zealand or the UK. In the
Canadian context, a similar proviso gives the national and provincial Parliaments the ability to
legislate notwithstanding a determination by the courts that legislation is incompatible with the
charter and is therefore invalid’.
Stern (2007) has pointed out that in this way the authors of the Charter clearly intended to signal their
commitment to the idea that parliamentary sovereignty ultimately mattered more than a regard for
human rights, because the Charter allows the Parliament to legislate in ways that are contrary to
fundamental principles of human rights. As Evans and Evans (2006: 272) note, there is nothing to stop
any government from treating the requirement that there be ‘exceptional circumstances‘ as an exercise
in spin except as they say for the political consequences. They add that those consequences ‘are likely to
be slight unless the human rights values of the Charter become part of Victorian political culture’.

With Evans and Evans (2006) we can summarise the intentions of the Charter in these terms. Firstly it
seeks to engage all branches of government requiring in particular that those drafting legislation take
responsibility to be aware of the rights impact of that legislation. The Charter works also by setting out a
clear set of human rights and a clear standard against which legislation is to be assessed a role which is
given to the Scrutiny of Acts and Regulations Committee, to focus on when considering proposed
legislation. It emphasises the role of the Parliament in ensuring the legislation that it passes complies
with human rights by way of processes of deliberation and scrutiny. The Charter does not provide for
legal remedies in instances where someone believes that a breach of the Charter has taken place. The
Charter does not allow courts to strike down legislation requiring only that Ministers alert the
Parliament when the courts find that legislation cannot be interpreted in a way that is consistent with
human rights. The Charter also allows the government in ‘exceptional circumstances’ to issue an override
declaration when making legislation which allows the Parliament to ensure that legislation which is not
compliant with the Charter can nonetheless be valid at law.

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DIALOGUE MODEL

As Williams (2006: 901) has noted the Charter sets out to ‘foster a dialogue both within and between the
arms of government as to the consistency of laws and government on the enacted civil and political
rights’. What this means only is that the dialogue model encompasses all of those design features
already adumbrated including the requirement at S. 32 of the Charter that ‘so far as it is possible’ all
legislation must be interpreted by the Executive or ‘public authorities’ as well as by courts and tribunals,
in a way that is compatible with human rights. As we have also seen this includes various design features
that enables the government to seek exemptions from or make override declarations about legislation
that is not compatible with human rights ensuring that such legislation is still valid.

As has already been noted the Victorian decision to adopt a ‘dialogue model’ drew on the Canadian
experience. In saying that however, it needs to be acknowledged that the Canadian charter of rights
has proved to afford a very different approach to that operating in Victoria. For one thing the Canadian
Charter is embedded in the Canadian Constitution. Secondly the Canadian Charter while affirming the
principle of Parliamentary sovereignty, enables courts to strike down legislation. Between 1982 and 1997
Canadian courts made some 65 decisions to strike down Canadian legislation (Hogg & Bushhell 1997:
80). They did so on the grounds that there was some incompatibility with the Canadian Charter (Hogg &
Bushhell 1997). As Bushell and Hogg (1997: 48, 82) put it the ‘dialogue model’ refers to a situation in
which ‘a judicial decision striking down a law on Charter grounds is followed by some action by the
competent legislative body’. Central to the Canadian idea of ‘dialogue’ is the notion that:
Legislative action is a conscious response from the competent legislative body to the words
spoken by the courts … The legislative body is in a position to devise a response that is properly
respectful of the Charter values … identified by the Court, but which accomplishes the social or
economic objectives that the judicial decision has impeded (Hogg & Bushhell 1997: 79-80).

In the Canadian case Hogg and Bushell claim that a legislative response followed the court action in
about 80 per cent of the cases, and in most cases involved parliaments amending the legislation to bring
it into line with the Canadian Charter. Hogg and Bushell’s work has sponsored a good deal of discussion
and analysis, with critics claiming that they have given expression to a judicial-centric account by tacitly
arguing that the courts get it right and the legislature gets it wrong. (Manfredi & Kelly 1997; Morton &
Knoppf 1992), Bushell and Hogg have replied that they make no such supposition.

Apropos the Victorian Charter, Debeljack (2007; 2008) who has made the most detailed analysis of the
dialogue model in the Victorian Charter argues that four elements together make up the Victorian
approach. They are (i) the open textured statement of rights, (ii) the non-absoluteness of rights, (iii) the
judicial remedies available, and (iv) the mechanisms available to the parliament to respond to judicial

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assessments. Debeljack (2007: 25) argues that taken together these elements ‘illustrate how the limits
and override mechanisms adopted in Victoria can contribute to dialogue’. Her argument relies on
making virtues of most of the things others might think were serious problems. She claims that human
rights instruments have to be vague and indeterminate because :
… rights are indeterminate, the subject of irreducible disagreement, continuously evolving and
as tools to critique governmental actions, rights are intended to orient discussion rather than
prescribe institutional arrangements processes and outcomes.
While this claim is asserted, it is nowhere argued for by Debeljack. As we have seen any number of
writers (Woodiwiss 2005; Dzouinas 2006; Griffin 2009; Beitz 2010) are inclined to agree that there is a
degree of ineffability. Equally this has not been generally used as a mark of favour it also ignores the
point that about the specification of some rights about others there is no dispute like the right of
citizens to vote or the right not to be tortured.

Debeljack also asserts that because the Victorian dialogue model acknowledges that rights are not
absolute, that this is another merit of the Victorian approach. That is, because rights are indeterminate,
irreducibly debateable and constantly evolving, and because human rights are ‘not ends in themselves’,
we need a plurality of institutional perspectives provided for by the dialogue model. Granting that
plurality of perspectives is a good idea this still does not seem to absolve any government seriously
concerned about human rights to provide for some remedies when there is a clear breach of one or
more human rights That is, it is not clear why she moves from the proposition that those features she
has identified (indeterminacy, debateability and so forth) should inform a dialogue model to the idea
that it is also acceptable that governments can routinely decide not to make the regard for its own
charter of rights a mandatory and sanctionable matter. Her (2007:27) proposition that where there is an
obligation on all the arms of government to dialogue ‘when conflicts over rights arise … [and that this]
should provide better answers to conflicts over rights’, seems to rest on nothing more than a mixture of
futility and naivete. That is it seems that Debeljack is trying to make a virtue out of the fact that as per
S.32 of the Charter, the Victorian Parliament can under S. 36 reverse or modify a legislative provision
following a judicial declaration of incompatible application. Equally however the legislature can override
such a declaration, or simply override or ignore S. 32 and S.36 altogether. Debeljack argues that this
provides for dialogue and also structures that dialogue. However whatever force this arguments has is
vitiated somewhat when Debeljack (2007: 29) allows that because the Executive is the first to contribute
to the dialogue, ‘the Executive is in a prized position because it sets the agenda by initially assessing the
parameters of the rights debate and thereby potentially influencing the legislature’s and judiciary’s
analysis of the issues’, seems to involve a restoration of some political realism into what had largely
been an abstracted argument.

Debeljack also seems to want to make a virtue out of the fact that the Charter has conferred severely
limited powers on the judiciary. She argues again that this contributes to the dialogue model. She (2007:

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35) says in effect that the dialogue model will confer benefits because it will promote an ‘honest, robust
and respectful exchange of institutional perspectives’ which will lead to a ‘more complete understanding
of the competing values, interests and issues at stake’ and this ‘should allow better resolution of conflicts
to emerge.’ She has made this case having acknowledged that it was never clear why the Victorian
government, having made it impossible for the courts to overturn legislation on the grounds of
incompatibility with the Charter, should also have made it possible for the Parliament ie., the
government of the day, to choose to override a specified right which has the effect of preventing the
courts from even making a non-enforceable finding of incompatibility with the Charter. 32

We can agree with Debeljack that ultimately the success of the Charter will depend on parliamentarians
and governments taking rights seriously as a constraint on government action. Acknowledging that
Debeljack was writing even before the Charter came into effect in January 2008, it is only fair to ask how
well has her analysis of the dialogue model stood up since 2008? To do this we need to ask questions
like: how often in a Ministerial declaration about the compatibility of new legislation with the Charter
has a Minister/Department notified SARC that it some aspect of that Bill is not compatible with the
Charter and what has been the outcome of this declaration? How often has an override declaration
been made? How often has the Supreme Court made a declaration of inconsistency? Drawing on a body
of evidence has a dialogue model characterised by an ‘honest, robust and respectful exchange of
institutional perspectives’ happened? Those questions will be addressed in the next chapter.

QUESTIONS

1. What key questions is the author asking here?

2. Can you get a grip on the major claims being argued for here?
3. Does it seem that this author is relying on any assumptions that you can spot at this stage?
What assumptions do you rely on as you read?
4. Are you persuaded by the evidence presented and the conclusions drawn?

32
The issuing of an override is subject to certain qualifications: it is to be used only in extraordinary
circumstances and its it is subject via sunset clause to review every five years.

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CHAPTER SIX: THE CHARTER IN ACTION: MEASURES OF SUCCESS

They have rights who dare maintain them.

James Lowell 1844

We have before us a whole new jurisdiction. We, as the judiciary of Victoria,

have before us the opportunity to take the common law, foreign
jurisprudence and every ounce of our intellectual capacity to develop the
first Australian jurisprudence of human rights law. It is a moment of
excitement and exhilaration but also one of trepidation and reservation.

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 Chief Justice Marilyn Warren, 2007 33

Victoria’s adoption of core elements of the United Nations International Covenant on Civil and Political
Rights as a form of domestic legislation in its Charter of Human Rights and Responsibilities in 2006,
introduced an important innovation. But what was the nature of that innovation and how effective has it
been?

The authors of the Charter back in 2005-6 were keen to ensure that it worked as ‘as a form of insurance
to ensure that human rights are a priority for the government when it sets about making laws and
decisions’. Attorney-General Hulls made what seemed to be a ringing endorsement about the value of
human rights:
It ensures that human rights are taken into account when developing new rights and policies. It
ensures that the courts consider human rights when interpreting laws. And above all else it
promotes the need to respect and promote human rights across the government and in the
community.

Yet the mechanisms contained in the Charter to ensure that these objectives were met, are to put it at
its most benign, quite modest. The authors of the Charter seem to have privileged the arguments
tirelessly repeated by Australian opponents of bills of rights that such instruments typically give too
much power to courts. The result is a Charter eg., which does not provide effective legal remedies to
citizens who believe their human rights have been abrogated. It is a Charter which does not allow
Victorian courts any capacity to have legislation that breaches human rights to be withdrawn and
redrafted. Indeed it is a Charter that does not even require the courts when engaged in judicial business
to be compliant with the Charter. The Charter also gave the Executive and the Parliament the capacity to
seek exemptions from the Charter or to simply override the Charter. The Bracks’ government only
insisted that whenever it became apparent that new legislation ion or policy measures were
incompatible with the Charter, the relevant parties should engage with each other as part of the
‘dialogue model.’ The actual nature of the mechanisms provided for protecting human rights of course
has not stopped the opponents of bills of rights from insisting that the Charter gives too much power to
the courts and has undermined parliamentary democracy. Nor has it stopped critics like James Allan
(2011) from claiming that all talk of human rights is, as Bentham famously put it, ‘nonsense on stilts’.

In regards to this particular point, the critics have some grounds for concern. I have shown that there are
many problems with thinking about human rights, and that we need to accept as James Griffin (2008)

33
The Hon. the Chief Justice Marilyn Warren AC, Introduction to Human Rights Law – Opening Remarks, 19
February 2007, p.4, accessible via
http://www.judicialcollege.vic.edu.au/CA256902000FE154/Lookup/JOIN_Files_2007_Jan/$file/Cover%20for
%20CJ%20Opening%20Remarks%20on%20JCV%20Website.pdf

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has suggested, that a lot of the contemporary talk about human rights is variously ‘vapid, unclear, or
confused’. This clearly translates into certain cultural and political effects. As Evans and Evans noted,
their interviews with members of parliament pointed to a mish-mash of ideas and evaluations of rights.
Some … said that rights were very abstract and vague notions that couldn’t really be pinned
down. Others gave an extremely minimalist definition of rights being ‘common sense’ or ‘common
decency’ – boundaries that reasonable Australians would never transgress (and which thus did
not need to be articulated or codified). A number linked rights with laws prohibiting
discrimination, while others took a basic civil liberties approach that focused on the criminal
justice system. A number referred to Australia’s international human rights obligations – some
vaguely and others by naming the particularly treaties. For those who took this approach, the
majority focused on civil and political rights as the core obligations with some dismissing
economic and social rights altogether and others saying that they were important but not as
important as civil and political right (Evans & Evans 2006: 12-13).

This kind of incoherence on the part of our politicians is probably to be expected. Yet as I have also
showed philosophers like Griffin (2008), Sen (2009), Beitz (2009), Nusbaum (2011), Dworkin (2011) and
Kateb (2011) give us reason to believe that we can confidently and credibly ground our regard for human
rights in various kinds of practical reasoning. That discussion begins by saying what it means to be
human, and what is required for living a good life in common with other humans. One clear implication
of this is that we need to be much more explicit about our ethical vocabulary and to use that vocabulary
in public spaces, workplaces and households when we engage in human rights talk.

I have also argued that we need to resist the idea that we must choose between a philosophical
approach or a legal approach. Both approaches constitute different but overlapping ‘practices’. It is
important to develop an overlapping consensus which begins with an explicitly ethical approach to rights
by talking about the goods which rights promote, and then linking this to various legal and policy-based
practices. The value of this approach is that it recognises that human rights can be talked about by
philosophers and lawyers: it also means that we can think about human rights as a definite kind of
‘global practice that is both discursive and political’. In this way we can also point to the practice of
human rights. As a practice human rights has both a doctrinal component as well as various
institutionalised mechanisms that have evolved for the protection of human rights. Beitz (2009) e.g. has
pointed to the various kinds of human rights practice which includes accountability, inducement,
assistance, domestic contestation, engagement and compulsion. It is on this respect that we can
evaluate the Victorian Charter by treating it as a discursive and political practice.

In this chapter I want to do several things. Firstly I want to establish something of the methodical
approach to be adopted to evaluating the Charter by asking what criteria ought to be used to assess the
success or otherwise of the Charter of Human Rights. I then want to apply those criteria to the Charter

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of Human Rights and Responsibilities to make some initial assessments. I propose to use the terms of the
Charter itself. I do this on the basis of one assumption namely that we need to take into account the
intentions of those who drafted by the Charter as the initial basis for assessing its success to establish
some initial assessments of success of the Charter. I will deal first with the way the scrutiny of new
legislation has been carried out by the Scrutiny of Acts and Regulations Committee. I then turn to
consider the role of the Courts.

ESATABLISHING THE EVALUATIVE CRITERIA

What criteria are we to use to assess the Charter of Human Rights? It has been pointed out that there is
a relatively straightforward basis for assessing the Charter. That basis rests on the case for addressing
the prior question namely did the institutional and political mechanisms in place prior to the
introduction of the Charter of Human Rights adequately protect human rights. Evans and Evans (2005:
2-3) have pointed out in much of the debate that has taken place in Australia, about the value of
adopting a bill of rights it has been frequently asserted and/or assumed by opponents of this idea, that
the status quo was doing a perfectly adequate job. As Evans and Evans (2005) argue, what has been
missing has been ‘any serious and systematic attention’ to the actual performance of parliaments in the
protection of human rights. Their advice is to use the international Covenants (ie., International
Covenant on Civil and Political Rights and the International Covenant on Social Economic and Cultural
Rights) to provide an appropriate framework to assess the actual performance of Australian parliaments.
To this extent their advice is consistent with Beitz’ use of human rights as a form of international practice
which understands that these covenants obligate the Australian government ‘to … take steps to the
maximum of its available resources with a view to achieving progressively the full realization of the
rights recognised in the present covenant by all appropriate means’. Given that the Victorian Charter of
Human Rights essentially installs the ICCPR as local legislation in Victoria, it seems a reasonable course of
action to treat the Charter itself as pointing to the appropriate standards for assessing the Charter -at
least as an initial evaluative framework. This seems preferable to using some other set of criteria which
might be based on assessing it against other criteria and on what the charter is not like the idea that the
Charter is wanting in important respects e.g. it has not installed the ICESCR as domestic legislation.

We can adopt this approach as the basis for an initial assessment. If we do this we can say that three
things stand out. Firstly it seems that the Charter can promote human rights by requiring policy to be
developed in light of the Charter, subject to provisions allowing for exemptions and overrides from that
Charter. The Charter can also promote human rights by drafting and passing legislation so that it
complies with the Charter, subject again to provisions allowing for overrides and exemptions from the
Charter. Finally the Charter can also protect and promote human rights by providing remedies when
rights are abused. Accordingly assessing the Charter requires us to (i) assess the extent to which policy
making has been done in ways that comply with the Charter, (ii) the extent to which legislation has been

119
drafted in line with the Charter, and (iii) the extent to which abuses have been identified and remedied.
(To all intents and purposes it is possible to treat (i) and (ii) as if they are the same).

Before the passage of the Victorian Charter, Evans and Evans (2006) investigated the extent to which
parliamentary scrutiny committees identified human rights issues in legislation presented to parliament.
As they pointed out, the brief of committees like Victoria’s Scrutiny of Acts and Regulations Committee
included the capacity to identify whether legislation trespassed unduly on personal rights or freedoms.

Evans and Evans (2006) set out to establish whether applying that mandate resulted in these
committees identifying possible breaches of the International Covenant on Civil and Political Rights and
drew attention to those breaches. In effect they were trying to establish whether a committee like
Victoria’s Scrutiny of Acts and Regulations Committee was working effectively as a de facto human rights
scrutiny committee. As they reported, their analysis of the Victorian Scrutiny of Acts and Regulations
Committee for the year 2003 showed that the Victorian Parliament considered 115 Bills in 2003. They
noted that the Victorian Scrutiny of Acts and Regulations Committee identified some 45 Bills as raising:
… possible breaches of ICCPR rights. The Scrutiny of Acts and Regulations Committee identified
a rights issue (under its ‘trespass unduly on rights and freedoms’ term of reference, or
otherwise) in 41 of those 45 instances. The high strike rate is probably not surprising. Most of
the ICCPR rights issues presented by Victorian Bills fall within the civil liberties orientation of the
rights-conception employed by Australian Scrutiny Committees: right of privacy, right to silence,
presumption of innocence, appeal rights (Evans and Evans 2006: 5).
Evans and Evans concluded that the Victorian scrutiny committee performed strongly in identifying a
significant number of issues of compliance with the International Covenant on Civil and Political Rights
in 2003.34 At the same time they argued that ‘if the objective of scrutiny was to give proportionate
attention to possible breaches of ICCPR rights’ then some changes in the approach of the scrutiny
committee would be needed because the scrutiny committee had at best an ‘indistinct human rights
focus’ (Evans and Evans 2006 : 7).

We can say that since 2007 the passage of the Charter removed any possibility that the scrutiny
committee would have at best an ‘indistinct human rights focus’.

Under the terms of the Charter, SARC was given formal responsibility to assess the compatibility of new
legislation with the Charter. In what follows I provide a brief descriptive assessment of the way the

34
Evans and Evans also interviewed members of the Victorian Parliamentary SARC. They concluded that human
rights only made a difference if the government did not hold a majority on the scrutiny committee and that
scrutiny committees would better take account of human rights if governments did not hold a majority on the
committee One committee was said to be ‘stacked’ with Labor government MPs. One member reported that the
work of scrutiny did not interest most MPs and suggested that scrutiny committees were a low-status committee
posting.

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Scrutiny of Acts and Regulations Committee of the Victorian Parliament has handled its responsibilities
using their annual Register of Compatibility statements (SARC 2008; 2009; 2010; 2011). I also draw on
the annual reports by VEOHRC on the operations of the Charter and their assessments of the Charter’s
role in promoting an increased regard for human rights evidenced in the design of new legislation
(VEOHRC 2008; 2009; 2010 2011a).

BY way of overview it can be noted that by and large the Victorian Labor government (ca 2007-2010)
broadly accepted the need to demonstrate compliance with the Charter. Since January 2007 e.g. when
the Charter became operational, the Labor government has used the power granted it by the Charter to
issue an override declaration on only two occasions claiming as required to do so that on both occasions
this was warranted by ‘exceptional circumstances’. Equally government departments have supplied
Statements of Compatibility as required by the Charter, but have not issued many statements of
incompatibility when putting new legislation to Parliament. However it is also plain that SARC has
pointed to a number of issues with a substantial body of legislation which its members judged raised
issues of compliance with the Charter. It is in this area that we see something of the contested nature of
human rights with SARC seeming to want not to cause too much trouble for the government as it found
on a number of occasions like the Graffiti Offenders Bill 2007 that clear breaches of human rights were
reasonable.

YEAR ONE: 2007

VEOHRC concluded its first annual review of the Charter by claiming that because the Charter made
transparent assessment of new laws against a human rights framework into a formal requirement, this
had had a significant and beneficial impact. VEOHRC summarised its generally positive view of events by
asking, ‘if it was not for the Charter, would the human rights dimensions of these 93 Bills have been
identified, analysed and debated?’ VEOHRC answered its own question by saying that, ‘in all but a very
few cases, the answer is clearly ‘no’.’ , by working with SARC ‘in a considered manner, making a positive
contribution to the human rights dialogue’. The sorts of considerations that weighed on VEOHRC’s
judgment are fairly easy to specify.

For example by the end of the first year of the Charter’s operation, no bill submitted to the parliament
had been accompanied by a Statement of Compatibility identifying any kind of incompatibility with
human rights. Likewise no override declarations were enacted by Parliament. VEOHRC claimed that this
reflected the spirit and intent of the Charter given that override declarations were only meant to be
enacted in the event of ‘exceptional circumstances’.

VEOHRC also noted that SARC was doing what it was charged with doing, by identifying incompatibilities
between the Charter and new legislation. For 2007 a total of 88 bills were tabled in Parliament.

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Analysis suggested in almost half of these cases, SARC formed the view that there were either no issues
raised of compliance with the Charter or else the legislation actively promoted human rights. Another
21 bills raised issues of compliance. The Commission noted that in relation to these Bills, comments by
SARC highlighted important issues that had not been specifically addressed in the statement of
compatibility. On each occasion SARC judged that rights were either not limited or the limitation of
rights was reasonable In some 13 instances SARC was not impressed either by the statement of
compatibility or saw issues needing further discussion and resolution. That is SARC reported differences
of view with regard to 13 Bills. In these cases SARC wrote to the Minister requesting further information
or discussion in relation to Charter compatibility.
 No engagement of human rights = 46 bills
 Engages and promotes human rights = 8 bills
 Possible engagement discussed, rights not limited = 12 bills
 Engages and limits human rights, however the limitation is
Reasonable = 9 bills
 SARC unhappy with the SOC and seeks further dialogue = 13

VEOHRC commended SARC for trying to ensure community involvement in the dialogue a about human
rights. SARC sought public comment on Bills in the course of reviewing Charter compatibility and in
2007 in relation to two Bills35.

However several caveats might be made. Firstly the generally positive assessment ignored the finding of
Evans and Evans (2006) that back in 2003 when there was no Charter in place, SARC had been assessing
the passage of new legislation for compliance with the ICCPR and had found that in 43 cases there were
issues of compliance. Secondly the Commission expressed concern that SARC’s comments did not simply
become an end in themselves, but were part of ‘a robust, genuine exchange on human right’s. Though
VEOHRC did not say why they felt impelled to make this comment, it seems that it had to do with the
fact that while VEOHRC noted that SARC had raised concerns about the Charter compatibility of a
number of Bills, it seemed that only one Bill appeared to have been amended in response to these
concerns. The Commission promised to monitor this aspect more closely in 2008.

Thirdly this positive finding depends on the assumption that SARC’s responses to statements of
compatibility were well-grounded especially when they concurred with the government view that there
were ‘reasonable grounds’ for exemptions from the Charter.

It is not possible or desirable to review every one of SARC’s findings about apparent incompatibility
between a bill and the Charter. One bill however did stand out. This was the Graffiti Prevention Bill 2007.

35
The Infertility Treatment Amendment Bill 2007 and the Justice and Road Legislation Amendment (Law
Enforcement) Bill 2007.

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SARC expressed some major reservations about it and sought further deliberation on the issues it raised
with the government -but without success.

SARC drew attention to the fact that the Graffiti Prevention Bill, appeared to conflict with the Charter on
a number of grounds. The Bill in question discriminated against a specific age-based group by proscribing
the sale of spray cans to any person under the age of 18 years. It also breached the right to freedom of
movement for persons under 18 years of age. The Bill enabled police to prevent what was described in
an extraordinary turn of phrase as ‘would-be graffiti offenders’(!) from entering public spaces should a
police officer think they might spray paint graffiti (VEO&HRC 2007, p. 64). The Bill also breached the right
to privacy which asserts that people ought to be free from government intervention or excessive
unsolicited intervention, a right breached for example by the Bill allowing police to lawfully stop a young
person and prevent them from moving while they searched them for evidence. Finally the Bill breached
the right to a presumption of innocence. In each case the Department of Justice successfully claimed
exemptions from the Charter.

The Department of Justice claimed that it was reasonable to discriminate against young people
beginning with its intention to restrict the sale of a specific item, namely spray cans of paint to any
person under the age of 18 years. The Department of Justice used S.7 of the Charter which reads:
A human right may be subject under law to such reasonable limits as can be reasonably justified in
a free and democratic society based on human dignity and freedom, and taking into account all
relevant factors …(s 7(2) (VCHRR Act 2006, p. 10).

The Department of Justice claimed that breaching the right to freedom of movement for persons under
18 years of age was ‘reasonable’. This was entailed in the provision for preventing young people from
legally entering certain areas while they possess or are ‘suspected’ of possessing ‘a spray-can or related
supplies’.

The Department also claimed that it was reasonable to enable police officers, when they believed they
have ‘reasonable grounds’ for suspecting a young person of possessing graffiti paraphernalia or if they
feared that evidence might be lost or destroyed if a search is delayed, to lawfully detain a young person
and prevent them from moving while they searched them for evidence. (A young person who appears to
be over 14 and under 18 years of age can be searched (‘pat down search’). This exemption from a legal
requirement that they protect the right to freedom of expression was ‘justified’ by reference to lawful
restrictions reasonably necessary for public order’, public health and public morality (S. 15(3) of the
Charter). Certain kinds of property rights and public order were also deemed to have priority and
provide grounds for an exemption to the right to freedom of expression.

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Exemptions were also sought and granted in regard to overriding the right to private property by reason
of recognising a need to maintain public order. A police officer for example could seize spray-cans and
other related items if they have ‘reasonable grounds for suspecting that the young person has in their
possession a ‘graffiti implement’ or evidence that may be lost or destroyed.

Finally the bill gave police the right to search without being required to show they had a ‘reasonable
suspicion’ or some other legitimate reason to search. This overrode the traditional legal principle
concerning the presumption of innocence. According to S.25 (1) of the Charter, a person ‘charged with a
criminal offence has the right to be presumed innocent until proved guilty according to the law. The
Graffiti Bill made it possible for young people under 18 to be stopped and searched by police and to have
their possessions seized. The seizure of property without a finding of guilt is a penalty and as such an
abrogation of the presumption of innocence.

This exemption was consistent with other parts of the Bill which enabled police to prevent what was
described as ‘would-be graffiti offenders’ from entering public spaces should that police officer think
they might spray paint graffiti (VEO&HRC 2007, p. 64). Prohibiting certain people from accessing public
space is a penalty which means the young person is effectively given a sentence despite the fact there is
no finding of guilt. In this way it abrogates the right to be presumed innocence until its proven
otherwise.

In both cases an exemption was granted by referring once more to S. 7 of the Charter. The justification
for the exemption is said to ‘assist the prosecution in securing graffiti offenders because relevant and
adequate evidence is ordinarily very difficult to obtain and consequently convictions are difficult to
secure’ (VEOHRC, 2008:.65-66).

The deeply prejudicial nature of the basis for seeking exemptions from the Charter is revealed if we ask
what evidence and analysis was used to support the claim for an exemption? The prejudicial nature of
the exemption is also suggested when it is understood that no such abrogation of the presumption of
innocence is conceivable in cases where police might well believe that an adult might be about to
commit a crime -like rape or a financial fraud. Equally we see that securing a prosecution apparently
overrides both the right of a young person to be presumed innocent until proven guilty and their right to
access public space in ways that would never be countenanced if the person in question was an adult.

Codifying the denial of rights to people under 18 years to access public space is a problem. The pursuit
of an exemption is clearly in breach of the point of the UN Convention on the Rights of the Child.
UNCROC itself has (at Article 2) enshrined the principle of non-discrimination based upon the notion of
substantive equality.

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 Importantly, it not only provides that children and young people shall not be denied their rights
based on their own characteristics or status (including race, gender, language, religion and
disability), but also that they must not be denied their rights based on the characteristics or status
of their parents or guardians.

Equally Article 3(1) of UNCROC) indicates that the ‘best interests of the child’ are deemed to be a
primary consideration in all actions concerning children. This is not intended to make the best interests
of children and young people the only consideration in decision making. Rather it is intended to ensure
dedicated, genuine and rigorous consideration be given to the best interests of children and young
people. Essentially, it aims to ensure that the interests of children and young people are not ‘buried’ or
left until last on agendas that are determined mostly by adults.

It says a great deal that most Australians by a slender majority do not like the idea that children have
human rights: in the 1998 inquiry of the Commonwealth Parliament’s Joint Standing Committee on
Treaties, 51 per cent of submissions to the inquiry opposed the Convention. 36 As VEOHRC noted. using a
human rights framework to articulate the rights of children and young people involves recognition of
their autonomy. Such recognition is not blind to the reality that a person’s age has some bearing on their
capacities and can gives rise to particular vulnerabilities. Equally it does require that the starting point of
decision-making and conduct that impacts upon children and young people must be a genuine
acknowledgement of them as being the holders of rights. This presents a strong challenge to what
might be categorised as the more traditional, welfare-oriented understanding of children’s and young
people’s rights. While a welfare approach is very comfortable with the obligation of adults to protect and
safeguard children and young people, it struggles with the principle of autonomy. A ‘welfare approach’
is problematic because it tends to allow those in authority to define their obligations and standards by
reference to what they determine themselves as being able to do, and not what they are obliged to do in
order to fulfill independently defined rights.

Although the Charter seems to promise much when it specifies a large number of rights and freedoms,
the capacity to seek exemptions presents a general problem. As we have seen here, this provision
seriously affects the capacity of the Charter to protect the rights of young people. It seems that the
Charter continues to allow for and indeed in some circumstances legalize age-based discrimination. As
VEOHRC noted the UN Convention of the Rights of the Child could be used to illuminate the breadth
and practical meaning of the provisions of the Charter which the Graffiti Bill clearly breached especially
when it enabled police to prevent what was described in an extraordinary phrase as ‘would-be graffiti

36
Parliament of the Commonwealth of Australia, Report of Joint Standing Committee on Treaties, United Nations
Convention on the Rights of the Child, 17th Report August 1998, p ix The Report notes (1998:2) that ‘At the time
of ratification, the Convention aroused significant misgivings within some sections of the Australian community
who considered that it gave children and governments too many rights, thereby inhibiting parents' rights to raise
their family in the way they considered appropriate’.

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offenders’ (!) from entering public spaces should a police officer think they might spray paint graffiti
(VEOHRC 2008: 64) or the right to privacy when the Bill allowed police to lawfully stop a young person
and prevent them from moving while they searched them for evidence.

I commented previously (In a footnote) that in its discussion of the roll-out of the Charter after 2007,
VEOHRC did not specifically address or acknowledge the quite poor record of promoting the human
rights of children and young people. However it is the case that in its 2008 Annual Report VEOHRC did
address the rights of children and young people in a substantial discussion. There VEOHRC (VEOHRC
2009:145) noted that:
Children and young people hold the same rights as everyone else, with some additional
protections, and subject to some legitimate limits based upon their age and evolving maturity. As
with other thematic conventions, the Convention on the Rights of the Child (CROC) does not
articulate a different or ‘special’ category of human rights for children and young people: it
articulates universal human rights according to the context and experience of children and young
people.
VEOHRC adds that this is confirmed by the Charter that:
It is important to avoid creating the impression that they do not enjoy rights under the Charter in
its present form – they do (VEOHRC 2009: 145).
VEOHRC also seems to acknowledge that attending to the rights of children matters because:
… there is value in elaborating on the protection of human rights by specific reference to those
groups whose historical experience is one of rights infringement rather that rights realization
(VEOHRC 2009: 145).

This reflects the problem that while gross generalisations based on gender, race, disability and other
characteristics are much less acceptable, this continues to be acceptable in relation to children and
young people’ (VEOHRC 2009: 148). Too often as writers like Bessant and Watts (2009) have noted, the
use of generational comparisons often lead to broad, prejudicialand sometimes harmful generalisations
that are not challenged sufficiently. Reminiscent of phrases such as ‘those type of people’ and ‘not like
us’, the phrase ‘young people of today’ to say nothing of metaphors like ‘puberty packs’ or ‘feral
adolescents’ can foster a view that children and young people exercising their rights (through, for
example, gathering together and using public space37) pose threats to public order and civility. These
attitudes and views suggest that recognizing and promoting the human rights of children and young
people is about far more than simply changing the law. Like all other advances in human rights, including
the enactment of the Charter in its current form, progress is essentially about fundamental cultural
change. Bernie Geary, Victoria’s Child Safety Commissioner, summarised the shift that needs to occur in
the following terms:

37
A right already guaranteed to all Victorians, including children and young people, under section 12 of the
Charter

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 There is a big difference between positively owning rights and being protected. It is incumbent
on adults to protect children from abuse of their human rights, but children also need to be
given an opportunity to actively own and enjoy rights. Adults should act as bridges between
what children and young people want and need, rather than directors. 38

In this respect there is a real risk that the Charter itself will compound popular prejudices about young
people’s moral status (eg,. as not quite human or deserving of human rights and thereby deserving of
the full protection of the law). In particular there is a risk that seeking exemptions, as is permitted by the
Charter, will not only override young people’s rights, but will make things worse by embedding and
reinforcing prejudicial assumptions, many of them widely held in the community, in current law and
policy. In other words the mechanism for seeking and granting exemptions for the rights specified in the
Charter clearly rely on and reinforce stereotypical beliefs about the adolescent or teenager as potential
or likely delinquents or ‘would-be graffiti offenders’ (VEOHRC 2008).

The point is simple: paradoxically Victoria’s Charter may well embellish the very problem it was
ostensibly established to address namely the fact that young people were, and in many contexts are still
not entitled to certain human rights that all other citizens are. This aspect of the Charter’s operation, in
conjunction with the various regulatory practices already in place that override young people’s rights,
combined with inequitable inter-generational power relations will mean that young people will not be
any more able now to use legal and other protective mechanism to defend themselves than they were
before. Indeed the Charter contributes to the continued possibility of abuse of power. The conditions
for producing ‘docile bodies’ subject to the power and whims of adult-authority figures have been
historically created through an amalgam of regulatory mechanisms and narratives about children and
young people. In this way the ‘lost generation’ becomes a tragic metaphor not only of the realities of
harm and neglect but also for abuses that arises when potent power is accorded to some over
vulnerable others. These long-standing presumption have for too long sanctioned an absence of respect
which in turn has in some instances systematic enabled cultures of abuse and maltreatment of young
people, in the guise of ‘welfare’ at the hands of their ‘carers’ (Briggs 1996).

TWO YEARS ON: 2008

In its report for 2008 VEOHRC concluded that ‘two years into this new aspect of legislative scrutiny, it
appears that the Victorian Parliament is beginning to actively engage with the ‘territory’ of human
rights’. It argued that Victoria’s engagement with human rights ‘continued to evolve, with positive
developments occurring during 2008’. It noted that SARC dealt with an expanded number of new bills
(ie.98 bills) assessing all of them for compatibility with the Charter during 2008.

38
Interview with Bernie Geary OAM, Child Safety Commissioner, 8 October 2008 cited in VEOHRC 2009:149)

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Apart from the fact that like the previous year, no override declarations were enacted by the Victorian
Parliament, VEOHRC also claimed that in general, the statements of compatibility accompanying Bills
were ‘rigorously prepared, with a number of statements standing out for their accessibility … [and]
clarity ... This it said, owed much to the work of the Scrutiny of Acts and Regulations Committee (SARC)
which ‘continued to approach its role diligently and thoroughly, delivering a high standard of scrutiny.
SARC also provided more opportunities for community input into the human rights implications of Bills’.
VEOHRC’s analysis of the legislative program for 2008 pointed in summary form to the following

No engagement of human rights = 16

Engages and promotes human rights = 2
Possible engagement discussed, rights not limited = 16
Engages and limits human rights, however the limitation is
reasonable = 19

VEOHRC also observed approvingly that ‘there was active parliamentary debate about the human rights
implications of a number of bills’, suggesting that the Victorian Parliament as a whole was ‘beginning to
engage with the implications of the Charter and human rights principles in relation to legislation.’ This
acknowledged the fact that during 2008, some eighteen bills generated active discussion about the
human rights implications of those bills. Equally VEOHRC allowed that it was not possible to establish
whether this number represents too few, too many or the ‘correct amount’.

Among the bills selected for detailed attention was the Summary Offences Amendment (Tattooing and
Body Piercing) Bill 200. This bill again effectively made it legal to engage in age-based discrimination by
regulating the conduct of body piercing, tattooing and ‘like processes’ in relation to young people. Both
the government and SARC agreed that it was ‘reasonable’ to restrict the availability of tattooing and
body piercing procedures in relation to young people, because these limitations, which were ‘potentially
discriminatory’ were ‘reasonable’ because it promoted their health and well-being. It is always a worry
when people wanting to prevent a whole class of people from doing something they may wish to pursue
by using an age marker and then defend their actions on the basis that this is only ‘potentially
discriminatory’: this is akin to saying that a woman in her third trimester is only ‘potentially pregnant’.
No evidence was led or the case made that the health risks associated with tattooing or body piercing
were somehow greater for people under 18 than for older people. SARC contented itself by observing
that the ban on all intimate body piercing on the part of 16 to 17 year olds ‘may be disproportionate to
the goal of protecting young people’ and may lead individuals to pierce themselves or obtain services
from non-commercial providers.

Even more serious concerns were raised about the Major Crime Legislation (Amendment) Bill 2008. This
bill extended the definition of 'organised crime offence' to ensure that serious and organised crimes

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involving the abuse of children and pedophile networks were brought within the reach of the legislation
while prescribing procedures for revocation of coercive orders.

The members of SARC expressed concern that the government’s statement of compatibility did not
address the question of whether the extension of the coercive powers scheme conflicted with Charter
human rights. In its Alert Digest No 9 of 2004, SARC identified numerous concerns about the scheme
restricting privacy rights and rights in criminal proceedings.

SARC also referred back for parliamentary consideration those clauses allowing a court to determine
certain proceedings on the basis of evidence that was being kept secret from a party and their lawyers.
In some instances, this could result in the matter being determined without a fair hearing. The statement
of compatibility did not ask why less intrusive measures were not available. SARC indicated that it would
write to the Attorney-General seeking further information as to whether less intrusive schemes in other
jurisdictions could reasonably achieve the purpose of protecting confidential intelligence information. As
VEOHRC noted the Attorney-General’s response to SARC had not been tabled when VEOHRC was
completing its annual review.

Finally VEOHRC acknowledged some major concerns about the government’s extraordinary decision to
extend the exclusion of the Adult Parole Board and the youth Parole Board from the reach of the Charter.
The Commission argued that the government had failed in particular to provide sufficient information to
explain why the functions of these Boards was so different to that experienced by many other public
authorities as to warrant their exemption from the Charter.

THREE YEARS ON: 2009

2009 proved to be a more interesting year. VEOHRC observed somewhat benignly that the human rights
dialogue was progressing ‘relatively positively’ in 2009. Departments had ‘generally tabled well-drafted
Statements of Compatibility, some containing a robust analysis of human rights issues’. SARC had
continued to ‘provide vital all-party scrutiny of Bills’. Parliamentary debates had made increasing
reference to the Charter, ‘sometimes articulating complex and considered comment in relation to human
rights issues’. VEOHRC also saw this as evidence that the ‘dialogue model’ was alive and well, as
members of the political community were making increasing reference to international jurisprudence in
addressing whether and how legislative provisions may limit human rights, an encouraging development
that the Commission said it would continue to monitor in 2010. VEOHRC also noted that back In 2008, it
had urged that greater public consultation about the human rights implications of draft legislation be
pursued. VEOHRC noted that a total of 29 Bills or legislative proposals had seen some form of public
input in 2009 – including DHS/DH’s extensive consultations in relation to its review of the Mental Health

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Act 1986, during which more than 200 submissions were received. As in previous years no override
declarations were made by the Victorian Parliament.

Formally in 2009 there were 109 statements of compatibility tabled of which 40 generated active
exchanges involving differences of view. SARC itself identified 33 bills for which it requested ministerial
responses.

On a more critical note, the Human Rights Commission noted that SARC and some members of
parliament had emphasized the need for Statements of Compatibility to more ‘rigorously address the
elements of S. 7(2) of the Charter when it is being asserted that limitations on rights are reasonable and
permissible’. VEOHRC (2010:10) noted that in spite of the work of the Victorian Parliament’s Scrutiny of
Acts and Regulations Committee (SARC), a number of Bills were ‘still being introduced into the
Parliament without sufficient scrutiny and consultation’. (This occurred typically when the speedy
passage of Bills precluded SARC from reporting on the compatibility of a particular Bill before it was
subjected to a vote). This criticism was relevant to the controversial Summary Offences and Control of
Weapons Acts Amendment Bill 2009 It pointed to ‘the failure to undertake community consultation prior
to enacting legislation acknowledged as being incompatible with the Charter.’ VEOHRC also commented
that while steady progress was ‘occurring across government, reports from departments indicate varying
levels of integration of the Charter into departmental processes’.

However 2009 also saw the tabling of the first statement of (partial) incompatibility since the
introduction of the Charter. This triggered a major fuss erupted over the Summary Offences and Control
of Weapons Acts Amendment Act 2009 (amending the Summary Offences Act 1996). The introduction of
The Summary Offences and Control of Weapons Acts Amendment Act 2009 followed a lot of tabloid
media discussion about safety on the streets. The legislation empowered police to direct people to
move on from an area if they were ‘reasonably suspected’ of breaching the peace, endangering safety
or damaging property, or if there was ‘a likelihood’ of this occurring. The Act also amended the Control
of Weapons Act 1990 to strengthen an existing power to search for weapons. Amendments allowed a
search on reasonable suspicion to include the power to strip search. The amendments also give police a
new power within temporarily designated areas to randomly search persons or cars for weapons without
suspicion that someone is carrying a weapon. That is this power was not premised on police having first
formed a ‘reasonable suspicion’ that a person was carrying a weapon but only on there being a
likelihood of weapons-related violence occurring in the designated area. 39

39
The legislation allowed police to declare that an advertised ‘planned’ designation of a search area could be
made where there had been more than one incident of weapons-related violence or disorder in the proposed
area over the previous year or where weapons-related violence or disorder had been associated with a particular
event or celebration and is likely to recur. ‘Unplanned’ designation of a search area dealt with situations where
police received intelligence that it was ‘likely’ that violence or disorder involving weapons would occur in the
area.

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The statement of incompatibility accompanying the Bill acknowledged that it was incompatible with the
Charter to the extent that it would limit privacy rights in providing powers for police to randomly search
persons (including children) and vehicles, even if the police had not formed a reasonable suspicion that
the person or vehicle was carrying a weapon. These provisions would also be incompatible with the right
of children to protection of their best interests (VEOHRC 2010: 119). A modest furore erupted over the
Bill. Prior to tabling its own report, SARC accepted 34 submissions from a range of organizations in the
government and non-government sectors. Criticisms of the legislation were also aired in Parliament.
VEOHRC took the view that the government had not demonstrated that the curtailing of rights through
these increased police powers would result in a reduction in alcohol-related violence or knife-crime, or
lead to any improvement in community safety. VEOHRC also took the view that while a case might have
been made for such powers, the government did not undertake the kind of rigorous assessment of
human rights issues that might have been expected given that this legislation was the first bill to be
identified formally as incompatible with the Charter (VEOHRC 2010: 9).

Indeed VEOHRC noted that the Minister for Police and Emergency Services had acknowledged that
various provisions of the Bill involved limitations on human rights that were not reasonable and justified
even as he confirmed the government’s intention to push the legislation through. The Commission put
the view quite strongly that the statement of incompatibility ‘lacked the necessary detail and level of
explanation required by the Charter’ (VEOHRC 2010:119). VEOHRC noted that ‘despite acknowledging
certain incompatibilities, little explanation was provided and the statement did not appear to fully
address the requirements of section 28(3)(b) of the Charter – namely, that the nature and extent of an
incompatibility be disclosed’. It was a sorry episode, testimony of nothing else to the capacity of tabloid
news outlets to shape a government’s agenda at the expense of a proper regard for human rights
legislation. VEORHC poked through the ashes of this event looking for some saving grace, finding it in
idea that at least the minister chose to ‘be forthright about the Bill’s incompatibility with the Charter’
and ‘did not seek to strain a section 7(2) analysis in order to assert that the relevant amendments comply
with the Charter’. VEOHRC also approved of the fact that the Minister did not issue an override
declaration (under S.31(1) of the Charter) which it said would have ‘set a low threshold for such
declarations in the future’ (VEOHRC 2010: 120).

FOUR YEARS ON: 2010

In its final review of what proved to be the last year for a series of Labour governments first elected in
1999, VEOHRC expressed its view that whilst the dialogue model was continuing to develop, there were
still occasions to worry. VEOHRC concluded eg. that SARC, continued to provide ‘a sensible, balanced
and transparent mechanism for assessing the human rights impacts of proposed laws and informing
parliamentary debate.’ In formal terms a total of ninety bills were introduced in 2010 There was no

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engagement with human rights or else the legislation promoted human right in forty eight cases. SARC
also agreed that while there were possible limitation of rights these were reasonable in another forty
two Bills. There were also forty SARC requests for Ministerial responses to Charter issues which elicited
thirty one Ministerial responses. Again the Victorian Parliament did not make any override declarations
in 2010.

However VEOHRC commented that while the scrutiny process was functioning reasonably well, the need
for speed sometimes trumped careful assessment of the human rights implications of legislation.
VEOHRC pointed to examples where legislation, such as the Sentencing Amendment Act 2010, which
‘was passed before SARC was able to provide its report to the Parliament’. There was also an example
where SARC was asked to undertake a special inquiry in possible amendments to exceptions and
exemptions in the Equal Opportunity Act 1995 (a reference from the Governor in Council), and the
Government introducing changes to the legislation in March 2010 before responding to the SARC report.

In 2010, the Government also tabled another statement of incompatibility in respect to the Control of
Weapons Amendment Bill. This was the second such statement. The bill among other things relaxed the
circumstances in which the Chief Commissioner may make a planned or unplanned designation of an
area for the purpose of enabling weapons searches to be conducted in that area. The Chief
Commissioner of Police was entitled to make an ‘unplanned’ designation if satisfied that ‘more than one
incident of unlawful possession, carriage or use of weapons, or of violence or disorder involving
weapons, has occurred in the area in the previous 12 months’, or that ‘it was likely that such an incident
would recur’. The ‘unlawful possession, carriage or use of weapons’ could therefore provide a basis for
making the unplanned designation, rather than merely ’violence or disorder involving weapons’. The
Second Reading Speech acknowledged that unplanned designations were therefore not limited to only
the most urgent of circumstances. The Bill also relaxed the requirement that weapons searches of
children or those with impaired intellectual functioning be conducted in the presence of a parent,
guardian or independent third person. The statement of incompatibility acknowledged that the Bill
‘exacerbated the ‘incompatibility of the control of weapons scheme with the right to privacy, the right to
liberty and security and the right of children to protection of their best interests’ (VEOHRC 2011: 21).

In what seemed to be an exercise in looking for a silver lining with a magnifying lens, the Department of
Justice observed that while its Bill was partially incompatible with human rights:
… the Charter helped frame discussions within government in the development of the Bill and
required that the Government publicly explain its reasons for departing from rights in this
context. In this way, the Charter has had an impact in increasing government transparency and
accountability.

The Minister’s explanation again pointed to the power of tabloid news outlets, referred to here as

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‘community opinion’. He argued that:
Whilst the random search powers introduced in late 2009, as used in planned designated areas,
have been effective in the detection of offenders and in deterring others from offending, the
community's concern about the level of violence involving the use of knives and other weapons in
public places has not abated. It is necessary to ensure that police are empowered to do
everything that they need to do to prevent and deter weapons-related offending. Whilst the
amendments in this Bill will not alleviate the incompatibility of the existing provisions, they are
necessary to ensure the operational effectiveness of these critical police powers. The
government strongly believes that effective and workable random search powers are important
for preventative and deterrent reasons, including the protection of children.

Critics of the legislation like Liberty Victoria, the Law Institute of Victoria and youth legal services argued
that that the bill was unwarranted and would be an ineffective adjunct to the Control of Weapons Act
1990. Critics pointed out that the Summary Offences and Control of Weapons Acts Amendment Bill 2009
had already allowed for the designation of ‘planned’ and ‘unplanned’ search areas. The legislation
allowed for sweeping stop-and-search powers in those areas. Equally and prior to 2009, under the
Control of Weapons Act 1990, the Crimes Act and other associated acts, the police had the power to deal
with weapons and knife-related crime. Those powers involved being able to search people with or
without a warrant when there was ‘a reasonable suspicion’. Other critics raised concerns about the
ability of police to search children including the use of strip searches, and the absence of any limit on
the age of a child who could be strip-searched under the existing act, as amended. Again the
Government pushed the legislation through without amendment apparently content that it had got the
balance right between ‘community opinion’ and human rights.

More worrying was the way another major piece of legislation saw politics trump human rights enabling
the government to legalize the practice of discrimination. This took place when the government
introduced its Equal Opportunity Bill 2010 which repealed the Equal Opportunity Act 1995.

The politics around this bill was both fierce and unrelenting. 40 On the one side civil rights groups were
astonished by the decision to legalise discrimination based on a person’s religious beliefs or activities,
sex, sexual orientation, lawful sexual activities, marital status, parental status or gender identity. On the
other side the Catholic Church and the Bailieu Coalition Opposition denounced the legislation in both
houses of Parliament. For its part the Catholic Bishops moved quickly to frame the inquiry as an attack
on the right to religious freedom. In a Pastoral Letter the Catholic Bishops (2009) pointed out that:

40
One hint of the hard-ball politics being played had already occurred in December 2008 over the government
move to legalise abortion. Late in December Attorney-General Rob Hulls went to take communion at his local
Catholic church but was refused communion by an extraordinary minister (Herald-Sun 31.12.2008), Hulls had
actually voted against his own government’s legislation.

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 The exemptions protect the particular priorities that the Church gives to the importance of
marriage and sexual ethics in establishing the security of families as the basic unit of society, and
respect for human life from conception to natural death. It is important that religious people are
able to uphold a theological understanding of gender and of sexual ethics and life matters and
that they not be prevented from giving witness to those authentic values that are essential to
community life.
As the Bishops also noted they ‘only’ wanted exemptions with respect to:
… seven attributes – religious belief or activity, sex, sexual orientation, gender identity, lawful
sexual activity, marital status and parental status or status as a carer.
What was at stake was made clear in the Pastoral Letter when the Bishops noted firstly that:
…the religious identity of Catholic schools has a particularly formative role given that the
formation of students is the purpose of the activity. Parents choose a religious education for their
children in the expectation that the institution will educate their children according to the
teachings and traditions of that religion.
The Bishops then criticised the argument made by SARC that it was unacceptable:
… for a church to refuse to employ a receptionist on the basis that he or she is in a de facto
relationship (pages 113-114). A receptionist in a religious school is in a position to influence the
formation of students and if he or she were to make known to the students, a lifestyle matter …
which clearly contradicted the teaching of the Church, the religious identity of the school may be
compromised if the situation were to continue.

The Opposition took a much broader swipe at the legislation as it rejected changes like the
Commission’s expanded investigatory and inquiry functions, the capacity of the Commission to issue
compliance notices, the ability of the Commission to issue practice guidelines which could be considered
by VCAT or a Court introducing a proactive duty for employers, businesses and others bound by the act
to take what it refers to as ‘reasonable and proportionate measures' to eliminate discrimination.
Astonishingly the Opposition were critical of what it took to be a restriction of the exemptions for
schools and other bodies in respect of freedom of religious belief to specified attributes. This involved
narrowing the exemption from employment discrimination to cases ‘where conformity with the
doctrines, beliefs or principles of the religion is an inherent requirement of the particular position’. The
Opposition claimed fancifully that it would be almost impossible, ‘based on established cases’, for faith-
based schools or other bodies ‘to demonstrate that any degree of conformity in either beliefs or lifestyle
with the doctrine of the faith [was] an inherent requirement of any position that exists to perform a
secular function such as teaching maths or science’ (SARC 2011: 31).

The proposed Bill re-enacted and extended the law relating to equal opportunity and protection against
discrimination, sexual harassment and victimization. (It also amended the Racial and Religious Tolerance
Act). In all sorts of ways this was important legislative reform. It acknowledged the close links between

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anti-discrimination and equal opportunity legislation and the regard for human rights embodied in the
Charter. It acknowledged the force of criticism by scholars like Thornton (1990), Hunter (2002), Gaze
(2002) and Charlesworth (2009) who have documented the long-standing problems with anti-sex
discrimination and equal opportunity legislation in Australia like its reliance on complainants and the
lack of capacity to address systemic discrimination. Charlesworth (2009) e.g. pointed out that:
… close analysis of case law has highlighted the narrowness and complexity of the Sexual
Discrimination Act’s direct and indirect discrimination provisions, which together with its
individual complaints-based model and ineffectual enforcement processes have emerged as
major structural problems…
As she noted:
All these problems [have been] exacerbated by the increasingly narrow judicial interpretation of
anti-discrimination statutes and of the international law on which they draw ... Empirical studies
of the operation of the [Sexual Discrimination Act] suggest its implementation is also flawed
-highlighted by growing formalism and a ‘creeping legalism’ with a concentration on procedural
fairness that ignores the power disparity between complainants and respondents, as well as a
more time-consuming and less transparent conciliation process than has historically been the
case in the industrial relations jurisdiction …

This is why the legislation clarified the role of VEOHRC giving it a clear mandate to enhance its research
and educational roles. It also gave the Commission the ability to investigate serious systemic
discrimination in the absence of individual complaints and the power to conduct a public inquiry with
the consent of the Attorney-General ‘engaging directly with duty holders to reach enforceable
undertakings and issuing compliance notices where systemic discrimination is found to have occurred’.
These were important and major refinements to the older Equal Opportunity Act. So too was the
clarification of what discrimination looked like and what the remedies should look like. The legislation
provides that ‘direct discrimination occurs if a person treats, or proposes to treat, someone with an
attribute unfavourably because the other person has the attribute’. (This clarification removed the
‘technical difficulties’ associated with the requirement in the Equal Opportunity Act. 1995 to ‘compare
the treatment of the person with a person in the same or similar circumstances’). It even made clear that
taking special measures to address the disadvantage of a particular group protected by the Act was not
discrimination.

Given all this, it is astonishing that the legislation also made it lawful for religious organizations, religious
schools and individuals to lawfully practice discrimination.41 The government argued that:

41
The government noted that Clause 82(1) allowed discrimination in relation to the training and appointment of
priests, Ministers of religion or members of a religious order. This limits the right to equality. However, it
promotes the right to freedom of religion. Likewise it claimed that Clauses 82(2) and 83(2) allowed religious
bodies and religious schools to discriminate on the grounds of religious belief or activity, sex, sexual orientation,
lawful sexual activity, marital status, parental status or gender identity, where this is required to avoid conflict
with their religious doctrines or where it is reasonably necessary to avoid injury to the religious sensitivities of

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 … framing the religious exception involve[d] striking the balance between freedom of religion and
freedom from discrimination.
While discrimination by religious bodies and religious schools would no longer be allowed on grounds
such as race, age and impairment, discrimination would continue to be lawful on other grounds
including religious beliefs, sex and sexual orientation when ‘justified’ by particular religious doctrines.
What was at stake was the status of people whose religious beliefs or activities, sex, sexual orientation,
lawful sexual activities, marital status, parental status or gender identity were deemed to affront some
aspect of a religious organization’s ‘religious beliefs’. The government claimed that this:
… limitation of human rights was warranted because to be lawful the discrimination in question
‘either must conform with the religion's doctrine or must be reasonably necessary to avoid injury
to the religious sensitivities of adherents of the religion. The addition of the word 'reasonably' in
clauses 82(2)(b) and 83(2)(b) incorporates an objective element in the provision so that action
must not only be necessary to avoid injury to the religious sensitivities of adherents of the
religion, but also must be reasonable (Cited SARC 2011:26).

In South Africa the great human rights judge Albie Sachs noted (in Christian Education South Africa v
Minister of Education (2000) 9 BHRC 53, (at [35]) that there is always a question in any open and
democratic society based on human dignity, equality and freedom and where both the play of
conscience and religious freedom have to be regarded with appropriate seriousness, as ‘to how far such
democracy can and must go in allowing members of religious communities to define for themselves
which laws they will obey and which not’. As Sachs noted, what was at stake was a question about the
extent to which secular law applies to religious employers which impacts on a large number of
employees. How large? It is quite difficult to say with any clarity or accuracy how many people
Australian churches employ but there is certainly a large number of people affected. The Australian
Productivity Commission (2010) eg., estimated in 2010 that there were some 890,000 people employed
by Not-for-Profit organizations -not all of whom were churches. There were at least 40,000 designated
‘religious employees’ to which we can safely add several hundred thousand employees working in the
healthcare , hospital, education, and social service sectors who are employed by Church-based
organizations. The Catholic Church alone is a significant employer with employees engaged in diocesan
and parish administration, pastoral care and the provision of schools and universities, health and
community services.

Secondly we are talking about a fundamental idea namely the idea that in a society committed to the
rule of law a government has outlined a set of human rights. To be very clear as a minimal idea the idea
that there are now in Victoria human rights spelled out by an Act of Parliament means this: it is now
unlawful to prevent someone exercising the relevant right. As Barry (2005:19) puts it:

adherents of the religion. This limits the right to equality but protects the right to freedom of thought,
conscience, religion and belief, important in a pluralistic society that values freedom of religion (SARC 2011: 26-7).

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 … to say that people have a right to do something is to say only that they are not prohibited
from having it or doing it. A woman’s right to appear in public dressed as she chooses and in the
company of anyone she likes, is simply the absence of any such prohibition … on doing such
things.
Or to assert that children have a right to formal education is to say minimally that no one lawfully is able
to prohibit children from receiving such a formal education.

In Victoria this means that it is unlawful to try to prevent people from exercising their right to ‘freedom
of thought, conscience religion and belief’ just as it is unlawful to deny to people their right to equality
before the law. That of course is precisely what a few church groups are seeking to do namely deny to a
substantial number of people (including divorced people, people living in de facto relationships and non-
heterosexuals) their right to equality before the law.

Some have claimed to see an inherent conflict between two sets of rights. This is a puzzling claim. The
Bishops representing the Victorian Catholic Church have claimed that there is some kind of theological
problem involved in recognising or employing people like divorcees, people living in de facto relations or
non-heterosexuals. When the Victorian Bishops claim that there is some ‘theological matter’ at stake, it
is not clear what this means. Many leading Christians do not support seeking exemptions from anti-
discrimination legislation by some churches. Anglican Bishop John McIntyre (2009) eg., pointed to the
theology at stake when he comment=ed that it is:
… bizarre that the followers of Jesus Christ would oppose, and ask for exemptions from, a legal
instrument that has at its heart a declaration of the dignity and value of every human life and the
basic rights of every person. Jesus of all people, would champion an affirmation of fundamental
human rights, which especially benefits marginalised groups in society and those least able to
protect themselves … it is even more perplexing … that … [i]n Victoria, the churches are arguing
for the continued right to be exempted from obligations under the Equal Opportunity Act that
would require them to uphold universally recognised human rights in matters of employment by
church organisations.
Indeed it is quite clear that the Catholic Church opposes the very discrimination which its Victorian
Bishops now wish to practice. We should not forget that the Catholic Church has consistently affirmed
the dignity both of all humans and of all workers beginning in 1891 with Rerum Novarum by Pope Leo
XIII, and continuing to recent times with Gaudium et Spes, Laborem Exercens and Centesimus Annus. To
be really clear the Catholic Church itself outlaws the kinds of discrimination based on the relevant
operational Apostolic Constitution. That Apostolic Constitution is called Gaudium et Spes. It says:

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 … every type of discrimination, whether social or cultural, whether based on sex, race, colour,
social condition, language or religion, is to be overcome and eradicated as contrary to God’s
intent.42

Again the Australian Bishops' Committee for Industrial Affairs (BCIA) issued a clear statement (Industrial
Relations – The Guiding Principles) in 1993 to draw attention to fundamental principles of morality and
social justice. This was set against the new industrial framework of workplace reform and enterprise
bargaining. (ACCEER 2002). ACCEER (22002) eg notes
At any level, Church organisations should develop policies that prohibit discrimination (direct and
indirect) and harassment (physical, emotional, racial, religious and sexual). This includes working
towards a balance of men and women in the workplace, and especially of women in leadership
positions. This might require the adoption of policies and practices that are flexible and
accommodate the demands of family and personal life.
In Victoria it seems that the government took the view that the whole point and purpose of both anti-
discrimination law and human rights law, namely to uphold the dignity of all humans including women,
single parents and gay and lesbian people could be bypassed. It also seems to have ignored much of the
relevant contemporary Christian thought about the same issue.

THE CHARTER AND THE COURTS

In 2007 President Maxwell of the Victorian Court of Appeal in the course of an important case (Womens
Hospital v. Medical Practitioners Board of Victoria) observed that there were three important ways in
which international human rights law and jurisprudence could be relevant to Victorian law 43. He noted
that firstly statutes should be interpreted and applied, as far as language permitted in conformity with
international human rights treaties. Secondly International human rights law could be used as a
legitimate guide to the development of the common law. Finally the provisions of an international
human rights treaty to which Australia is a party may serve as an indicator of contemporary values and
the public interest. As President Maxwell also acknowledged the development of Australian
jurisprudence informed by human rights principles was ‘still in its early stages’.

That this is so is suggested by the anomalies which the Charter has set loose and have already been
noted. Among those anomalies is the way the Charter defines Victoria’s courts. The Charter treats
Parliamentary committees, courts and tribunals as ‘public authorities’ for the purposes of the Charter
only when they are acting in an administrative capacity. Otherwise when they are doing what they are
supposed to do, they are excluded from the obligations imposed on public authorities. That is when

42
Gaudium et speces (Latin for Joy and Hope) is the Pastoral Constitution on the Church in the Modern World,
was one of the four Apostolic Constitutions resulting from the second Vatican Council. Approved by a vote of
2,307 to 75 of the bishops assembled at the council, it was promulgated by Pope Paul VI.
43
Paras 75-77.

138
acting judicially, courts and tribunals are not captured by the duty imposed on public authorities (at S 38
of the Charter) namely to act compatibly with human rights and to give proper consideration to relevant
human rights when making a decision.

This means eg that when a court issues warrants or lists cases that court is fulfilling an administrative
role and only then in this circumstance is it obligated to be compliant with the Charter. On the other
hand when it is carrying out its normal judicial functions, like running a trial process to determine the
guilt or innocence of a defendant charged with committing a criminal offence the decisions made by a
judge through the course of that hearing is a judicial function and so is not bound by any obligation to be
compliant with the Charter.

However at S.6, which deals with the application of the Charter to courts and tribunals when they are
acting in their judicial capacity The Charter (at S.6 says):
(2) This Charter applies to–
(b) courts and tribunals, to the extent that they have functions under Part 2 and Division 3
of Part 3
Here the Charter specifies the role of courts and tribunals when interpreting statutory provisions and
determining whether or not to refer relevant questions of law to the Supreme Court. The Charter applies
to the Supreme Court in relation to its discretion to make a declaration of inconsistent interpretation.
The point of uncertainty and debate is the implication of the Charter applying to courts and tribunals ‘to
the extent that they have functions under Part 2’. This is where a crucial ambiguity appears to lurk which
has led VEOHRC (2009) to see three possible interpretations available. Part 2 of the Charter sets down
and defines the rights that are protected by the Charter. Accordingly, the question that arises in relation
to section 6(2)(b) is whether it puts obligations on courts and tribunals to:
 All the rights set down in Part 2 (the broad approach)
 Those rights set down in Part 2 that are inherently linked to, and potentially impacted upon, by the
role of courts and tribunals (the middle-ground)
 Only those rights in Part 2 that are solely directed to courts and tribunals (the narrow approach
(VEOHRC 2009: 123-4)

As VEOHRC noted it hoped that an early adjudication on this matter would resolve this question
However as VEOHRC (2009: 124) explained this did not happen.44 In 2009 a number of cases before the
Victorian Civil and Administrative Tribunal provided a response. VCAT held in the matter of Kracke v

44
In early 2008, the Supreme Court was set to consider and make a decision on the meaning of section 6(2)(b) in
the matter of Kortel v. Mirik and Mirik. Both the Attorney-General and the Commission intervened in this matter;
however the question lapsed and the Court was not required to express a view on section 6(2)(b). In a matter
before the Mental Health Review Board, 09-003, the Board endorsed the narrow approach; however, the Board
expanded the scope of the narrow approach beyond that proposed by a number of commentators to include the
right to a fair hearing. This decision was appealed to the Victorian Civil and Administrative Tribunal (see Kracke v.
Mental Health Review Board & Ors and the decision was still pending at the end of 2008.

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Mental Health Review Board & Ors [2009] VCAT 646 (Kracke), that the human rights in Part 2 of the
Charter that potentially applied to courts and tribunals under S.6(2)(b) were those specified in sections
10(b) (in its reference to punishment), 21(5)(c), 21(6), 21(7), 21(8), 23(2), 23(3), 24(1), 24(2), 24(3), 25,
26 and 27. That is to say using VEOHRC’s taxonomy that VCAT upheld a slightly modified version of ‘the
intermediate interpretation’ of S.6(2)(b). AS VCAT noted this list was not intended to be definitive or
final. Justice bell as the President of VCAT, noted that ‘[t]he actual engagement and application of these
human rights for courts and tribunals depends upon the scope of the right concerned and the facts and
circumstances of the individual proceeding.” 33 This view was not tested or approved by the Supreme
Court through 2009.

Notwithstanding the apparent lack of clarity, and the vwry odd definition of ‘public authority’ being used
to constrain any capacity to bring Victoria’s judicial system into the modern era of human rights
practice, VEOHRC maintained a cheerful optimism. In 2007 it bravely insisted that the Charter would
affect the way the courts worked in a number of beneficial ways. VEOHRC insisted e.g. and without
explaining itself that the Charter’s ‘procedural and compliance provisions’ matter as does the fact,
likewise unexplained, that ‘a broad range of civil and political rights now forms part of the law of
Victoria’. This VEOHRC (2008: 81) says is because:
From 1 January 2008, all Victorian statutes must be interpreted in a way that is consistent with
the rights enshrined in the Charter (within the parameters of their purpose). 45 There is an express
mandate to consider international human rights law and jurisprudence when seeking to interpret
Victorian laws consistently with Charter rights.46 The Supreme Court is empowered to issue
declarations of inconsistent interpretation where it is of the opinion that a statutory provision
cannot be interpreted consistently with the Charter. 47
The question is how much of this has actually happened. Granting that the Charter was not fully
operational until 2008 which meant that the relevant procedural provisions of the Charter had not
commenced operating until January 2008, there were no cases heard by Victorian courts in which
Charter rights were raised explicitly.
However several matters that were dealt with in 2007, began to indicate the way the Charter might
begin to have an impact in some court processes. How much these cases reflect an imaginative response
by individual judges to the possibilities of using human rights frameworks is not immediately clear. For
example in the case of R v White [2007] VSC 142 (Supreme Court of Victoria 7 May 2007) Justice
Bongiorno made reference to the Charter in suggesting that the experiences of one defendant were not
compliant with the Charter though his thinking on this mater had no practical legal effect. The
defendant who had been found not guilty of murder on the grounds of mental impairment and had been
in custody since his arrest in 2005. The intention was that the defendant would be placed in an
appropriate hospital. However, at the time of the hearing there was no bed available and one would
45
Section 32(1) Charter
46
Section 32(2) Charter
47
Section 36 Charter

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potentially not be available for more than two months. This meant that the defendant would be
confined in prison, even though he had been found not guilty. Justice Bongiorno noted the
inappropriateness of imprisoning people who had been found not guilty on the grounds of mental
impairment and that this was contrary to the spirit, if not the letter, of the Charter.

in another case (Tomasevic v Travaglini & Anor [2007] VSC 337 (Supreme Court of Victoria 13 September
2007) the appellant was a self-represented litigant who sought leave to appeal out of time. In
responding to this request, the presiding judge, Justice Bell gave consideration to his duty to assist a self-
represented litigant. Justice Bell noted that the International Covenant on Civil and Political Rights
formed the basis of the human rights set out in the Charter, particularly such rights as the right to
equality before the law and access to justice. Justice Bell stated that:
Apart from the Charter, the ICCPR does not ‘operate as a direct source of individual rights and
obligations’ because it has not otherwise been incorporated into Australian law. But unlike other
international instruments to which Australia is a party, the ICCPR has an independent and ongoing
legal significance in Australia and therefore Victorian domestic law, a significance which is not
diminished, but can only be enhanced, by the enactment of the Charter. 48
Justice Bell confirmed that international instruments such as the ICCPR could be used to inform the
interpretation of statues, the exercise of statutory and judicial powers and discretions, the application
and operation of the rules of natural justice, the development of the common law; and judicial
understanding of the value placed by contemporary society on fundamental human rights.

During 2008, a relatively small number of cases came before Victorian courts and tribunals involving
consideration of and engagement with the Charter. That there were not many cases was partly explained
by courts and tribunals not being presented with Charter-related submissions or arguments. The
Commission received 35 notifications of court and tribunal proceedings involving a question of law in
relation to the Charter and exercised its power to intervene in four matters. Concerns by some that the
full operation of the Charter would generate an abundance of litigation were shown to be unfounded.
No declarations of inconsistent interpretation were made by the Supreme Court during 2008; nor was
there a referral of a question of law involving the Charter to the Supreme Court. Equally however Justice
Bell as president of VCAT set about trying to provide some clarity about a method for interpreting
statutes in accordance with S32 of the Charter. Early in 2009, Justice Bell outlined a process for
interpreting legislation in accordance with section 32:
[W]hen interpreting legislation having regard to the Charter, the questions are: whether the
legislation limits human rights, having regard to its interpretation and their scope; if so, whether
the limitation is justified under the general limitations provision in s 7(2); if not, whether it is
possible to interpret the legislation compatibly with human rights under the special interpretive

48
Para 60

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 obligation in s 32(1); and if not, whether the Supreme Court should exercise its power to make a
declaration of inconsistent interpretation under s 36(2). 36

Justice Bell proposed that four steps to be taken could inlude engagement, justification,
reinterpretation and a declaration of inconistnce between the Charter and the statutes in question.
Later in 2009, the Supreme Court considered this issue in Re an application under the Major Crime
(Investigative Powers) Act 2004 [2009] VSC 381 (Major Crime). On this occasion Chief Justice Warren
noted that there was no single way to approach the interpretive task raised by section 32. However she
affirmed the direction provided in RJE v Secretary to the Department of Justice [2008] VSCA 265 (RJE)
that ‘the first step is to ascertain the ordinary meaning of the legislation according to normal principles
of statutory construction and to determine whether a result may be reached without recourse to the
Charter.’ The Chief Justice went on to note:
Where a result cannot be achieved in the usual course of interpretation, and recourse to the
Charter is necessary, a variety of interpretative methods have been applied. In RJE, Nettle JA
endorsed the approach of Mason NPJ in HKSAR v Lam Kwong Wai for its simplicity. It is an
approach I would apply and which will be significant later in my reasons as to the construction
and application of s 7 of the Charter (Cited VEOHRC 2010: 125).
In effect Chief Justice Warren was exploring whether any limitation of protected rights was justified
before undertaking ‘human rights interpretation’. This decision is consistent with Justice Bell’s four-step
approach though it does not rule out other approaches
In 2009, VEOHRC insisted that as in previous years Victoria’s experience with the Charter continued to
indicate that there was no cause for concern about an ‘avalanche of litigation’ that might ‘upset the
balance of power between an elected parliament and an unelected judiciary’.(VEOHRC 2010: 123).
Indeed if anything the evidence of the last two years made it clear that advocates, courts and tribunals
were all taking a cautious approach to the Charter. As for the Commission, it received 52 notifications
(up from 35 in 2008) of court and tribunal proceedings involving a question of law in relation to the
Charter and exercised its power to intervene in five matters.
On just one occasion the Charter enabled a significant reinterpretation of a statutory provision. This
occurred in the course of an application by a member of Victoria Police to question a person under
section 39 of the Major Crime (Investigative Powers) Act 2004 (MCA). Under that act, a member of the
police could apply to the Supreme Court for a coercive powers order if he or she suspected ‘on
reasonable grounds’ that an organised crime offence had been, or was likely to be, committed. Once
summoned under this legislation, witnesses are compelled to attend and give evidence. The Major Crime
Act prohibits the direct use of such testimony against the person giving evidence, but allows indirect or
derivative use of that testimony.

Before the Court considered the application, it requested that Victoria Police make submissions in
relation to the Charter, querying whether the indirect use of compelled testimony would limit Charter

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rights. VEOHRC intervened to make submissions on this issue and ultimately the Court accepted many of
the Commission’s arguments. Chief Justice Warren concluded that the ordinary interpretation of the
coercive powers order provision breached sections 24(1) [fair hearing] and 25(2)(k) [protection from
testifying against oneself] of the Charter, the scope of which require a derivative use immunity for
compelled testimony. The decision resulted in a reinterpretation of the coercive powers order provision
in the Major Crime Act. The provision was reinterpreted, consistently with that Act’s purpose, to protect
an individual compelled to give incriminating evidence from the tender of evidence against them that
was ascertained or discovered as a result of their testimony.

2010 proved to mark a modest watershed in the life of the Charter. The highlight came when the Court
of Appeal decided that the Drugs, Poisons and Controlled Substances Act was inconsistent with the
Charter in the case of R v Momcilovic. R v Momcilovic [2010] VCSA 50. The case began in 2006 when
Vera Momcilovic was arrested for drug trafficking after the banned substance methylamphetamine was
found in her Melbourne apartment. Momcilovic denied the charge. Her partner who lived with her, later
admitted he was in possession of the drugs for the purpose of trafficking. They both denied that
Momcilovic had any knowledge of the drugs or the trafficking operation. However, under section 5 of the
Drugs, Poisons and Controlled Substances Act, Momcilovic was deemed to be in ‘possession of the drugs’
because they were found on her premises unless she ‘satisfie[d] the court to the contrary’. That is the
onus of proof was on her. When she failed to prove otherwise, a Victorian County Court jury convicted
Momcilovic of trafficking.

Momcilovic subsequently appealed the judgement and argued before the Victorian Court of Appeal that,
in light of the Charter, the Drugs, Poisons and Controlled Substances Act should be interpreted in a way
that is compatible with human rights; in particular, her right to the presumption of innocence. The Court
of Appeal ultimately refused her appeal, saying that it was not possible to interpret section 5 consistently
with the right to the presumption of innocence. (See VEOHRC 2011: 44). This case has been appeal to
the High Court of Australia through 2011 with hearings scheduled for July 2011. This is the first time that
the High Court has considered the interpretive mandate in an Australian human rights statute. If the
decision is upheld by the High Court, the declaration must be provided to the Attorney-General within
seven days after the finalisation of the appeal (in accordance with section 36(6)(b) of the Charter).

As VEOHRC (2011:43) noted a number of other cases decided by the courts and VCAT added some
additional clarity and transparency about the scope and operation of the Charter. VEOHRC has cited one
case which lead an agency to review its service delivery practices in order to address systemic issues like
Castles case (Castles v Secretary to the Department of Justice [2010] VSC 310). This case has contributed
to a broader consideration of policies and practices around access to health services by prisoners.
Likewise the Sudi case (Director of Housing v Sudi [2010] VCAT 328), lead to a review of policy for
residential tenancies.

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In 2010, the courts have also used the Charter to look at the interaction between the Charter and the
common law. In areas where the common law is well developed, such as the fair trial rights guaranteed
in criminal matters, it is appropriate for the courts to continue to apply the common law where the
protection mirrors the rights in the Charter.

VEOHRC has also noted how in some criminal matters the Charter has helped the courts to consider the
content of the common law citing cases like Antunovic v Dawson & Anor [2010] VSC 377 where the
Supreme Court addressed the right to liberty and security of a person (section 21 of the Charter) subject
to involuntary mental health treatment. Equally not everyone in the judicial system has been pleased to
address human rights issues. As VEOHRC noted jurisdictions such as the County Court have said argued
that interlocutory appeals on Charter grounds can fragment the Court’s processes (VEOHRC 2011: 52).

CONCLUSION

It may safely be concluded that the Charter has been as successful as those who drafted it, wanted and
designed it to be.

Debeljack (2007) rightly argued that ultimately the success of the Charter would depend on
parliamentarians and governments taking rights seriously as a constraint on their actions. If recent
experiences have suggested anything, it is that governments are swayed as much by a regard to pander
to ‘public opinion’ as they are by a desire to do the right thing, and that if public opinion is careless
about rights so then will parliaments be careless of rights.

A good case can be made of course that across a large body of legislation government ministers and their
departments have found it relatively simple to abide by both the spirit and the letter of the Charter. It is
also true that SARC between 2007 and 2010 carried out an heroic program of legislative scrutiny. Yet it is
possible to argue that on too many occasions the members of SARC agreed with departments when
Ministers said that any incompatibilities between the legislation and the Charter were ‘reasonable’ or
necessary to meet public expectations. In too many cases this appeal to reasonableness simply meant
that prejudices spread widely through the community were deemed to be more important than those
things which human rights protect like the dignity of persons and the expectation that their interest in
living flourishing lives are as worthy of promotion and protection as anyone else’s. On occasion as we
saw, the passage of some legislation made possible the most awful possibility, namely that the Charter
was used to render discrimination and prejudice based on people’s age, gender or sexuality a lawful
matter.

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The Victorian government had always stressed that its preference was to give priority to the dialogue
model. In this respect the fact we might conclude that the dialogue has been perfunctory at best. The
fact that we have had only two Ministerial declarations about the incompatibility of new legislation with
the Charter between 2007 and 2010, suggests that government departments formed the view early that
they would be able to secure passage of their legislation even when they know aspects of it to be
incompatible with the Charter, by simply not pointing to that incompatibility. If SARC noticed any
incompatibilities the chances were that SARC would accept the departmental explanation .

Likewise the fact that to date the Supreme Court has made just one declaration of inconsistency suggests
that Victoria’s courts and tribunals do not feel strongly impelled or empowered to protect Charter
rights. In this respect the design flaws of the Charter become all too plain. This is a Charter that gives
citizens nowhere to go to seek remedies when they believe that their human rights have been breached.
Likewise the courts have been given a severely reduced and constrained role by the Charter. The Charter
treats courts and tribunals as ‘public authorities’ only when they are acting in an administrative capacity.
When acting judicially, courts and tribunals are not required by the Charter (at S 38) to act compatibly
with human rights and to give proper consideration to relevant human rights when making a decision.

In these ways the Charter has delivered pretty much what it was designed to achieve in terms of the
modest powers conferred on various agencies like SARC and the Courts to uphold the Charter. When
the Labor government went to some pains in its Statement of intent (2005) to insist that its Charter was
a low-key approach to introducing a bill of rights into Victoria they meant to be taken seriously,

QUESTIONS

1. What key questions is the author asking here?

2. Can you get a grip on the major claims being argued for here?
3. Does it seem that this author is relying on any assumptions that you can spot at this
stage? What assumptions do you rely on as you read?
4. Are you persuaded by the evidence presented and the conclusions drawn?

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CHAPTER SEVEN: STALKING HORSE OR TOOTHLESS TIGER? OBSERVING VICTORIA’S CHARTER OF
HUMAN RIGHTS IN THE WILD

Human rights is still an amorphous idea in the community and this

diminishes its effectiveness.
Bruce -Focus Group Participant, 2010.49

In 2007 the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) claimed in its first
annual report that one of the things those who drafted the Charter wanted to do was to build ‘a culture
of human rights’. While that is a worthy aim, it is hard to believe that VEOHRC also wanted us to accept
that we already have ‘a healthy human rights culture’, et that is what they said:
While they represent exciting changes and developments, they can be difficult concepts with
which to engage. In large part, this is due to the fact that Australia’s systems of government and
broader public administration already contain the foundations of a healthy human rights culture
(VEOHRC 2008:89)
Why the second sentence supports the first sentence is not made clear. It is not at all self-evident that
we already have the foundations of ‘a healthy human rights culture’.

Indeed one reason why we need a Charter of Human Rights and Responsibilities is the abundant
evidence that we do not have a healthy human rights culture. There is plenty of evidence that too many
Australians both working in government or living in the broader community find it easy to give
expression to persistent discriminatory beliefs and forms of behaviour and to do so persistently. In this
chapter I want to suggests some ways of thinking about culture as part of an exercise in thinking about
how the Charter might begin to change the culture of practice before turning to a case study of how one
organisation in Victoria has addressed the Charter in its own practice.

49
In referring to the research carried out in 2010, all names of the participants in the study have been changed.
Likewise the identity of the agency and most of the departments named in the research have been de-identified
in accord with the conditions on which the research was conducted.

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Let me start with the idea that we do not have ‘the foundations of a healthy human rights culture’ but do
have problems with persistent discrimination. Just two instances which support this proposition will
have to suffice.

WHY DISCRIMINATION IS A PROBLEM

In 2006 in response to the UN Secretary General’s Study on Violence Against Children, the UN General
Assembly set October 2009 as the target date for achieving the universal abolition of corporal
punishment of children. By 2010 when this deadline had come and gone, Australians in general, and
legal officials of the various Australian governments in particular were still debating whether it should be
lawful or not to ‘[Cause] or threaten to cause harm to a child that lasts more than a short period’ or that
‘causing harm to a child by use of a stick, belt or other object ‘ should be lawful or whether only a smack
with an open hand should be seen as legally acceptable?

Australians have yet to agree that corporal punishment of children ought to be prohibited in our homes,
schools, penal systems and alternative care settings. The normal legal prohibition of unlawful assault
apparently does not apply to our children since it is deemed appropriate that people including parents
and other guardians have a right to use ‘reasonable’ degree of punishment or chastisement. In spite of
all that we know about the effects of violence on children, it seems that many adult Australians still have
no trouble accepting the proposition that hitting, smacking, shaking, punching, pulling hair, scratching,
burning, scalding or washing kid’s mouths out with soap is acceptable and implies neither a will to
humiliate or degrade the children or teenagers to whom this is done. The situation in Australia is very
simply summed up in one table:

Table 1: Summary of Legality of Corporal Punishment of Children By Jurisdiction In Australia

State Prohibited In
Territory Home School Penal system Alternative care
ACT No Yes Yes No Some
NSW No Yes Yes Yes Yes
NT No No Yes Yes No
Qld No No Yes Yes Yes
SA No Some Yes Yes Yes
Tas No Yes Yes Yes Some
Vic No Yes Yes Yes Yes
WA No Some Yes No Some

NB: The sheer variability of what is/isn’t allowed by way of terms like ‘reasonable chastisement’ and
the different options allowed eg., when distinguishing between child care centres, different kinds of

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 schools, residential care, foster care arrangements (etc) makes summary difficult.

One survey of parents conducted in Queensland by the Parenting and Family Support Center at the
University of Queensland reported in 2007 that 71 per cent of parents smacked their children
occasionally: of these 43 per cent said they would use their hand, 10 per cent said they would use their
hand or a hard object (Herald-Sun 15 May 2007). In another survey of 720 adults (ie., people aged 18 +)
in 2006 (for the Australian Childhood Foundation and the National Center for Prevention of Child Abuse
at Monash University) 45 per cent said it was reasonable to leave a mark on a child as a result of
physical punishment -down from a 2002 survey which found 55% believed that this was acceptable.
One in ten respondents thought smacking a teenager was also acceptable. One in ten of these people
said it using something like a cane, belt or stick was acceptable while 14 per cent suggested a wooden
spoon was a good implement (Tucci, Mitchell & Godard 2006).

The second instance is possibly more dramatic. Late in 2006 members of the Victorian Armed Offenders
Squad, a police unit were found to have resorted repeatedly to torture to beat confessions out of
suspects (OPI 2008). As the Office of Police Integrity (2008:7) commented later:
It is hard to imagine a situation in any civilized society in which there is a greater
imbalance of power than when a person is taken into police custody. [The Ombuds] report [has
already] documented how members of the now defunct Armed Offenders Squad ‘acted in an
uncivilised manner and exploited that power imbalance for a so-called ‘noble cause’’.
The OPI report included audio-visual recordings of three instances of serious and sustained torture
including this one;
At about 6:05PM, a purported ‘welfare check’ occurs when an unidentified police officer
introduces the Squad Inspector to the suspect. The Inspector can be heard saying: “It’s going to be
a long hard day for you, pal. It’s going to be a long day for you. Alright. I suggest you listen to
some of the advice that the boys are going to give you. It might be a lot less painful. A lot easier
for you, alright?”

At about 6:17PM, the suspect is dragged from his chair and assaulted by the two members of the
Squad. During the assault, Officer One told the suspect to “Show us some fucking respect here”
and, between slapping or punching the suspect, he said the words “Fucking … Armed … Robbery …
Squad”.

At 6:21PM, shortly after the assault recorded above, an unidentified police officer enters the
interview room and throws a box of tissues on the table and says words to the effect of “Don’t
bleed everywhere”.

At about 6:50PM, in the presence of Officer Two, Officer One again assaults the suspect

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 by slapping him to the left side of his face numerous times with his right hand. As he was
assaulting the suspect, Officer One says words to the effect of “That ear is coming off by the end
of the day”.

As the OPI (2008: 33) concluded: it seemed that too:

Too many of [the members of the Armed Offenders Squad believed that ‘the end justified the
means’ and that bashing a ‘crook’ was a community service. The Squad, through a lack of
appropriate monitoring and accountability within Victoria Police, was allowed to develop its own
culture, out of step with the organisation’s direction. Its members drew comfort from the strong
support they received from the Police Association.
In this respect ‘public opinion’, as evidenced in media commentary and letters to the editor suggested
that ‘the public’ agreed with the Armed Offenders Squad. The public seemed to accept that police
sometimes had to resort to beatings ‘to get results’ and that this enabled ‘the public’ to feel safe.

These two instances suggest that we should not take the idea that we already have ‘the foundations of a
healthy human rights culture’ too seriously. Rather we can and should agree with VEOHRC (2009:63)
when it said that:
The enactment of the Charter is a catalyst for change in the culture of government - in terms of
how government approaches its role and functions, as well as how it builds its relationship with
the community. By the idea of a culture of human rights the Commission [means] to emphasize
four things it wishes to promote including participation, accountability, non-discrimination and
attention to vulnerable groups, empowerment and linking planning, policies and practices to
human rights principles and standards.

If nothing else, the idea of linking planning, policies and practices to human rights principles and
standards gives us a basis for asking whether this is actually happening inside the various agencies that
make up the Victorian government since the Charter came into effect. One of the fundamental reasons
we need a Charter and have a Charter is to address persistent discrimination. The formal identification
and protection of human rights is integrally connected to trying to prevent the various harms that occur
when people discriminate against other people.

One way of thinking about discrimination is to follow the modern idea that a particular person or even a
whole group of people ought not be treated any less favorably than another person or group because
those people have certain distinguishing characteristics. Those characteristics may include everything
from skin colour, and national or ethnic origin, through their marital status, age, physical or mental
disability, and on to their religion, sexual preference or trade union activity (HREOC 2011). These
characteristics are typically understood in ways that implies people with those characteristics are less
intelligent, less competent and so less worthy or even less ‘human’. Australian governments have moved

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since the 1970s to make this kind of behaviour illegal.

Yet there is another more subtle, even insidious form of discrimination which the Victoria police use of
torture points to. Gelber (2011) e.g. points to this kind of discrimination in her discussion of the right to
free speech and freedom of expression. As she notes, ‘free speech is a vital democratic freedom’ and is
something most Australian take for granted: ‘If you were to ask most of us whether free speech exists in
this country most of us would say yes’. However, as she goes on:
When you scratch the surface, this consensus on freedom of speech fractures, demonstrating that
Australians are not as comfortable with free speech as we profess. From the burning of the
national flag to preventing political protests to censoring artworks we consistently show a
willingness to trample on this vital human right (Gelber 2011: 1).

Here we see another version of discrimination which focuses on certain kinds of behaviour especially
what is thought to be aberrant behaviour. In the case of the Armed offenders Squad, the police took the
view that the use of violence, the carrying of armed weapons and ‘standover’ techniques by criminals
warranted them using violence, armed weapons and ‘standover’ techniques to stamp out that
behaviour. When the OPI investigated these cases, this belief and the use of torture it sanctioned had
long sedimented into a culture of practice. If there is one thing we do know it is that it very hard to
change cultures of practice. Let me turn to a discussion of what I mean by these ideas of ‘culture’ and
‘practice’.

CULTURE AND PRACTICE

We frequently encounter other people who do things collectively in a particular way. For example we
also belong to groups or organizations. This might involve being part of a particular family, being a
member of a football club, being employed in a community health center, or working as teachers in a
school. One of the things we notice either very quickly or else after a long time about these groups is
that the characteristic beliefs and ways of doing stuff which defines these people and what they do, is
that their beliefs and behaviour are deemed to be normal, natural and right. This is so irrespective of
any particular beneficial or harmful effects occasioned by their beliefs and behaviours. This is so even
when certain attitudes and feelings lead to attacks on people’s dignities, or breaches of their rights,
which may extend to really serious things like the use of torture or even mass murder. 50 That is we
humans have a capacity to treat what we do as being normal and right.

The Victorian Equal Opportunity and Human Rights Commission (2008) captured the naturalness of
50
Claudia Koonz (2006) in her study of The Nazi Conscience eg., shows how Nazi behaviour followed logically and
easily from a set of assumptions and beliefs about ‘traditional" institutions, and traditional values like honor,
dignity, Christianity, and the threat to tradition posed by ‘non-Aryans’, homosexuals, coloured people, teenagers
and the like. Similar ideas continue to appeal to conservatives today in countries like the USA, the UK and
Australia.

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discriminatory beliefs and activities when it drew on the Attorney-General’s Justice Statement to point
out that discrimination occurs:
… when processes and practices become entrenched in organizations and are viewed as neutral
and acceptable, but in fact result in discrimination against various groups who are often
disadvantaged in other areas of their lives.

Discriminatory treatment experienced by groups like women, indigenous people, people with disabilities
or children and young people rest on a bedrock of prejudicial beliefs which too many people simply treat
as commonsense. This is because too many of us start with the premise that ‘they’ (e.g. women, young
people or people with disabilities) lack certain abilities ‘we’ have, and therefore need to be protected in
ways which deny them basic respect and rights. The arguments made in 2000 in the parliamentary
debates about why age-based discrimination involved in a youth wage appealed to ‘common sense’. It
was said e.g. that young people were ‘inexperienced’, ‘ethically immature’, and not as intelligent as
adults. It is noteworthy that these same arguments had been trotted out in the 1960s to justify not
paying women equal pay for equal work.

Finally another difficulty is that all too frequently, as in the case of the Armed Offenders Squad, is that
the discriminatory attitudes and behaviours are often wrapped up in a thick veil of good intentions. A
lot of ordinary, well-intentioned behaviour on the part of perfectly decent, even well-intentioned
professionals like teachers and human service workers, persists because of the assumption that they
both know better than their students or ‘clients’, and who get easily miffed when their practices are
queried. This gives rise to the practice of ‘social ventriloquism’ as professionals use words to describe or
explain their ‘clients’, ‘patients’ or ‘students’ which are deeply offensive to these people even as they
also talk for them as if they were not able to speak for themselves.

To put all this simply we confront here the problem of long-held prejudicial beliefs and practices which
have sedimented culturally into a ‘practice’. Pierre Bourdieu is one writer who has contributed a lot to
our understanding of human conduct – and to the problem of how to try to change some of this.

ON PRACTICE

Pierre Bourdieu’s theory of practice is the linchpin of all his work. In it we see his distinctive refusal to
embrace any way of understanding which pits ‘the individual’ against ‘the social’. Thinking about issues
using an idea like ‘the individual’ versus ‘the social’ is to rely on an unhelpful binary: Bourdieu thinks
this is a bad way to think about social life. In his work we see what it means to focus on relations as the
central conceptual ‘object’ if you like of a properly conceived social science. It also produces some quite
remarkable insights and arguments deploying his idea of habitus.

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One basic point Bourdieu makes is the same simple one Mary Midgley (2001) makes. The mainstream
social sciences to date, have broken up what is whole and created false choices or binaries like
‘individual’ versus ‘the social’, or ‘genetic’ versus ‘social’ factors when it comes to explaining things like
human conduct, or what he calls ‘practice’. Bourdieu is critical of this tendency. He is concerned that
people insist on distinctions between ‘objective’ and ‘subjective’ knowledge used eg., to sustain a
bifurcation between ‘objective’ methodologies used in the real sciences (like physics, chemistry,
economics and psychology) and those more inclined to use ‘subjectivist’ methods like interpreting
reading or listening. This both rests on and informs the no-less basic binary created between ‘facts’ and
‘values’. A strong case can be made that these binaries are unhelpful because profoundly confused. (On
‘theory’/’practice’ see eg., Dewey 1960; Bourdieu 1990; Schatzki 1996; on ‘facts’/’values’ see Putnam
2002).

Bourdieu says these binaries are not helpful because they fail to understand the character of human
practice. They do so for example by separating out ‘thinking’ from ‘action’, ‘theory’ from ‘practice’ and
by confusing use of values with competencies and skills and encouraging object-subject dualism. From
Aristotle (1965) through Weber (1978) and Dewey (1977) to Taylor (1985), Bourdieu (1990) and Rorty
(2002), it has been well understood that human action is thought-filled at once rational, ethical and
purposeful in character.

Human action is sometimes informed by human intentionality. It can be purposeful because humans
design or imagine what it is they way to say, build or do before they do anything which gives effect to
that thought. ‘Rationality’ can and does mean many things, but at the least it always means that a social
actor can give an account of (or a reason for) what they did and why they did it after the event. They
may do this in terms of motivations arising out of intentions, the desire to give effect to ethical values, or
to pursue some rational calculation of self-interest, or they may appeal to ‘causes’ acting on them
because they felt that they were impelled to act eg., by ‘forces’ external to them. (Whether we are
obliged to accept any such account as true is an entirely different matter).

This is because as philosophers of language like Wittgenstein (1953) and Austin (1962) first pointed out,
so much human action and interaction is a form of practice that is habitual and often not all that
reflective. Bourdieu argues that much human activity is both unthinking and habitual. The ‘linguistic
turn’ as it has been called reminded us that speech-making/listening or writing/reading, activities central
to teaching, medicine, welfare work, administration, counseling and so forth are often habitual, even
ritualised. That is we rely on clichés and stock phrases and even words whose meaning we don’t actually
understand. As Thevenot’s (2001) work suggests there is a complex interplay within any site of practice
(like the domestic activities that make up a household or the activities of teaching, timetabling, holding
meetings and appointing new staff that make up a school or a university) in any field between the

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pragmatics of the habitual, and the demands which some new situation sets loose. And then there are
the ethical issues that demand attention.

Bourdieu helps to unpack a way of thinking about our social lives. As is now well understood Bourdieu
(1977) set lose his ideas about habitus and field as his way of designating the whole network of relations
and practices which make the social world what it is.

A habitus consists of a set of historical relations deposited within individual bodies in the form of mental
and embodied schemas of perception, appreciation, judgment and action. Habitus is in effect the idea
that what we do when we do it, is experienced as natural: it is that sense we have what we do and how
we do it is the only way things can be done. Bourdieu insist that so much human practice has this
quality. That is so much of what we do is a kind of second nature: we do things because literally we can
think of no other way of doing things. The result is that so much of what we do has a kind of
‘unconscious’ or ‘unknowable’ quality. When we are acting we are in effect acting unconsciously we
suspend reflexiveness and operate almost as if in a state of amnesia. The effect as Bourdieu suggests is
that:
The agent engaged in practice knows the world too well … takes it for granted, precisely because
he is caught up in it, he inhabits it like a garment … he feels at home in the world because the
world is also in him, in the form of the habitus (2000: 142-3)

A field on the other hand refers to a set of objective historical relations between positions anchored in
certain forms of power or capital. In this way he argues we can carry out the kind of ‘double reading’ that
makes a real social science possible. What does he mean by a ‘double reading’?In Bourdieu’s view if we
are to make a ‘science of the social’ possible than we need to:
Uncover the most profoundly buried structures of the various social worlds which constitute the
social universe, as well as the mechanisms which tend to ensure their reproduction or their
transformation (1989:7)

In constructing his social ontology Bourdieu distinguishes between the first order world, the world as
made by the distribution of the material resources and the means of the appropriation of socially scarce
goods and values (ie., all the forms of capital he acknowledges) and the second order world, the
systems of classification and symbolic meaning that function as schemata for the characteristic activities
of feeling, thinking and judgment engaged in by human actors.

To adequately map these two orders we need says Bourdieu a double reading or a ‘double focus set of
analytic lenses’. The first reading treats society in the manner of a social physics, constituting the social
world as an objective structure best grasped from outside. This reading is ‘objectivist’ and ‘structuralist’
and is the kind of approach on offer in Durkheim of Suicide (1897), a reading that treats the world as a

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world of ‘social facts’. This first reading accepts that human actors are constrained by unwritten,
invisible and objective determinants. As he puts it, there is:
… an unwritten musical score according to which the actions of agents each of whom believes he
or she is improvising her own melody, are organized (1992:8)
But if this reading is left to its own devices, it produces a decidedly odd account of the world, treating
individuals or groups as passive supports to more ‘real’ ‘structures’ or ‘forces’ that mechanically work
out their independent logic. That is makes us into puppets of ‘structures’ which jerk our strings:
suddenly we lose any sense that we are the people we are. To overcome this we also need a second
reading that recognizes that the experience of meanings is part and parcel of the total experience.
This means however that we don’t overstate the importance of the way we make meaning or make
sense as if we were entirely free to do so. As we saw earlier there has been on the other side of the
binary a ‘symbolic interactionist’ tradition represented by Garfinkel (1967) or Ciccourel (1967). These
writers offer another one-sided account of the second order saying that social reality is whatever the
actors who constitute it, want it to be. On this account social reality is the work of social actors who
construct ‘their social world via the organized artful practices of everyday life’ (Garfinkel 1967: 11). Yet
as Bourdieu insists, this one-sided reading cannot account for the resilience of the resulting institutions,
the power that they have and use, nor can it explain by what principles the work of social construction of
reality proceeds, nor can it explain the genealogy of the categories used in the work of world building.

Bourdieu argues that a ‘total science of society’ must reject both an objectivist stress on causality and
mechanical ‘structuralisms’ as well as the ‘social constructivist and phenomenological individualism’ of
the ‘symbolic interactionists’.51 As Wacquant (in Bourdieu and Wacquant 1992:10) put it:
Objectivism and subjectivism, mechanicalism and finalism, structural necessity and individual
agency are false antimonies. Each tern of these paired opposites reinforces the other: all collude in
obfuscating the anthropological truth of human practice.
Thinking about practice requires that we stop using binaries and that we engage in a weaving together of
‘objectivist’ and ‘constructivist’ readings. We are both free and not-free to make sense: we are both free
and not-free to choose how to behave. This is because we are social creatures who are born into a pre-
existing world of beliefs, knowledges, and well-established way of doing things which we have to fit into:
at the same time was we follow rules and act out of habit we also face new puzzles and problems which
arise in the circumstances of our shared live with others. To do this we need to be able to think what we
do. This is what Bourdieu’s other important contribution found in his theory of reflexivity emphasises.

To be reflexive is to think critically about one’s own beliefs and behaviours. It is a very important
capacity but how are we do it? Given his observations about habitus it seems that most of us will never
engage in it. This indeed often seems to be Bourdieu’s conclusion.

51
This relationalist rejection of the either/or binary of objectivism/subjectivism is remarkably similar to the work
of Ian Hacking eg., his Historical Epistemeology (2002).

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There are, says Bourdieu, three ways we may not ‘get it’. The social co-ordinates of class, gender and
ethnicity may well help to blur our sense of self and help close down reflection on why we think what we
think. The second problem lies in the inability to understand how the position we occupy within a given
field (like a school or a government agency providing health care) may affect out thinking especially given
the way the may also be being shaped by the larger dispositions of social power, like the way a given
budget affects the number of teachers that can be employed in a school. Another problem, and this is
one of Bourdieu’s strongest concerns is the is the intellectualist bias itself which seduces us into treating
the world, as Manent suggests, as a spectacle where we are simply a spectator. This is what many
intellectuals scientists and researchers do: they love reading and researching the world as if they are
outside it looking in. This may for example encourage them to treat the world as ‘a space full of
significations to be interpreted rather than as concrete problems to be solved practically’. This is a
problem because it may lead us to entirely miss the defining features of a given field of practice. As
Bourdieu (1992:38) puts it:
Whenever we fail to subject to systematic critique the presuppositions inscribed in the fact of
thinking the world of retiring from the world, and from action in the world in order to think that
action, we risk collapsing practical logic into theoretical logic.

The only antidote to this is to subject all of our work to persistent and relentless reflexive critique. We
should do he says whether we are relying on policy documents, legislation, statistical data, or ethno-
methodology. Reflexivity means and requires a ‘systematic critique’ of all and any of these techniques
and assumptions. And as Bourdieu (1990:14) adds this requires:
… subjecting the position of the observer to the same critical analysis as that of the constructed
object at hand [ie., the topic of social scientific research].

This is not then something best done by thinking about ‘the ego at work’ -as Garfinkel and Giddens
seems to imply making reflexivity an exercise in endless introspection. Rather it requires a rigorous even
‘scientific’ reflective practice that makes the fundamental shaping of thought itself as a social activity
shaped by objective factors including both the conscious as well as the unconscious aspects into its
central object of research and thought. This is required since it involves:
… thinking out the unconscious or un-thought categories of thought which delimit the thinkable
and predetermine the thought (1990: 10).

This requires far more that an attention being paid to our inner life by means for example of some kind
of ‘diary-keeping’. Reflexivity calls for rigorous attention being given to the places in which we work like
universities and their disciplines, their journals and research grant practices, or to kindergartens and
their staff and their pedagogies, addressing both the conscious and unconscious aspects of the practice
in that place.

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This involves paying attention to the way people in a given organisation or institution use language
categories and metaphors as they talk about and make sense of what they do in ways that takes account
of the theories, the assumptions, the paradigms, problems and the judgments at work within a given
field. That is the subject of reflexivity must be the entire field of practice which includes the language
categories, the intellectual assumptions and beliefs as well as the way relationships are established or
space used. One classic study that does this is the work of Connell et al (1982) as they studied the way
students parents and teachers set up a space called ‘schools’ and establishes s various kinds of practises
that become habitual and unconscious but reflect the play of different kinds of power.

We see here precisely why Bourdieu’s is right when he says that the chief obstacle to engaging in the
kind of reflexivity he speaks of is not epistemological, so much as social and political. Promoting
reflexivity cannot help but raise other people’s hackles beginning with intellectuals and academics who
cling to their idea of academic status and authority. This is no less the case for teachers or public sector
workers who will raise the hackles of their managers or policy makers if they start to press for reflexivity.
There is also a practical difficulty: how are we to enable reflexivity to happen. Given that the normal
disposition of many of us is to defend the way we think feel or act as normal and right what steps can be
taken to start the process of reflexivity as a prelude to changing the way things get done -like taking
human rights more seriously? This work helps to frame a difficult question: if our characteristic attitudes,
likes and dislikes have hardened into habitus how can we promote any change?

Do we eg., start an educational process and present people with facts that challenge their habitus? One
usual and often enthusiastic response is to insist that education will fix this problem. As one
government training manual observes:
… to make the Victorian dialogue model work, it is important that the courts, the parliament and
public authorities understand the Charter. This is why education is important. It is envisaged that
every employee of a public authority will ‘THINK CHARTER’ and consider human rights in all
aspects of their work. (DSE 2007:10)
This enjoining of public sector workers ‘to actively THINK CHARTER’ and to think of this as the major
change ‘you need to make to the way you work’, clearly signals that the process of implementing the
Charter has been defined as a cultural project grounded in an educational process.

Yet does this really address the problem of change and how to promote it?

As cognitive theorists like Lakoff (1999) have pointed out, humans tend to search for or interpret
information in a way that confirms existing preconceptions. Cognitive psychologists call this ‘motivated
cognition’ - a tendency to select or interpret facts to fit an existing mental map of the world we wish to
believe is true. Research by Nyhan and Reifler (2006) found e.g. that experiments which focused on

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assessing the effectiveness of corrections, show that presenting people with facts that contradict what
they believe simply ends up strengthening their existing beliefs.

I want to explore the implications of this by turning to some research carried out in 2010. I conducted
focus groups in one organisation which seems to be doing a really good job of embracing the Charter. I
spoke with this organisation’s frontline workers to discuss their first-hand experience working with the
Charter -in this chapter I present the findings of that research. In effect as I suggest here there is no
problem when an organisation has within it a culture or practice that is already well-disposed to human
rights.

RESEARCH

The nameless agency is a statutory public authority. It is independent from, but funded by a major
government department. Its officials works on behalf of ‘clients’ all of whom are weak and vulnerable
in particular ways. The operations of this agency and its employees fall under the purview of the
Victorian Charter. Their work also includes engaging other key public authorities, including some of the
biggest government agencies in Victoria. This means that their workers have an interesting perspective
from which to form a view of the way these other agencies have engaged with the Charter.

Focus group discussions were conducted with some two dozen of the agency’s frontline workers to
discuss their first-hand experience working in a context shaped by the Charter. 52 The research was done
in June 2010 following a process of recruitment of participants which was supported strongly by senior
managers in the agency. We ran a series of focus groups with staff eager and willing to talk about their
experience of the Charter since its Parliamentary passage in July 2006. Ethical consent was sought and
appropriate protections and guarantees were given to participants, including non-specification of either
the names of participants or the use of details of cases handled by the agency.

The research questions were designed firstly to elucidate the way staff in this agency experienced the
training provided by the Victorian government. We also wanted to know what effects if any the Charter
has had both on their practice and, for want of a better term, what we can call their ‘organizational
ethos’. Finally, we wanted to establish how they experienced and judged the effect of the Charter in
relation to work done by staff in other agencies with whom they interact, as well as what changes if any
they see in the ethos of other organizations.

I do not claim that the propositions reported here are true. However, they certainly seem to reflect a set
of strongly and broadly shared views by a significant number of staff who work in the agency. I am

52
I acknowledge here the invaluable work of my research assistant Danu Poyner.

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inclined to treat the findings of this research as important and subsequently I believe that if the
observations do indeed have merit then some further action is warranted.

Preparing for the Charter

The agency was already up and running on rights for some time before the Charter.
Henry - Focus Group Participant.

A number of the participants and especially people already working in the agency in late 2006, and
throughout 2007 and 2008, were fully aware of the Charter in the months running up to the introduction
of the legislation in early 2006. Those participants who were already working at the agency were
variously ‘optimistic’, ‘expectant’, ‘excited’ or ‘looking forward’ to the day the Charter became
operational. Most indicated strong, enthusiastic, optimistic support for the Charter. Expectations ran
high, as did the hope that this would make their work ‘easier’ or else would help to refine their work and
the work of the agency. Some who recalled having less enthusiasm about the Charter’s introduction said
they were skeptical that the lofty goals of the Charter would translate into meaningful outcomes. One
participant had mixed feelings, concerned that as some of the agency’s work involved ‘removing people’s
rights’, the Charter might be used as a device against the agency. Others admitted that since the
Charter’s introduction, they felt that their expectations had not been met, though they still preferred to
have the Charter rather than have no Charter at all.

Several of the participants who were working in other parts of government or other agencies in the
period between 2007 and the start of 2008 said they were favourably impressed upon starting work at
the agency at how widespread the regard for the Charter was and how much it seemed to have changed
the language and the way the agency employees approached their work and how senior staff and
management at the agency took the Charter so seriously.

A number of these participants stressed how much this was in ‘quite stark contrast’ with the perfunctory
or ‘compliance-only’ approach adopted for example at the biggest department they dealt with, even in
one of that department’s branches. As one participant said, people in that place liked to talk up the
way ‘they’ had adopted a ‘cutting edge’ human rights framework for the services they offered. One
participant said there had been no training or workshops run in her department and she felt that the
Department of Justice had grossly under-resourced the rollout of the education and personal
development training process inside the public sector. There was agreement about this point from
several of the participants and some criticism about the relative paucity of resources coming from the
Department of Justice to support workshops, training and preparation.

Participants were both aware and supportive of the ‘highly pro-active’ steps taken inside the agency by
senior staff to prepare for the introduction of the Charter. They pointed to many instances the agency

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had conducted training using in-house resources along with some training provided by the Victorian
Human Rights and Equal Opportunities Commission (VHREOC) to help staff get in touch with the Charter.
Participants pointed to the eagerness with which the agency mangers and workers had set up working
groups to analyze the Charter and to try to assess their work against its likely impact. They noted the
energy and passion brought to bear in the early days of getting ready for the Charter.

There was further criticism by several participants of the paucity of resources coming from the
Department of Justice to support workshops, training and preparation. Participants pointed to the
ongoing commitment inside the agency to resource the continuing rollout of the Charter and specifically
noted the careful and persistent effort put into reviewing and revising the agency’s practice manuals for
giving effect to rights talk and rights-based criteria for staff to draw on in doing their work.

Making use of the Charter

I wouldn’t call the agency a human rights organisation, but we do use the
Charter as a touchstone in what we do.
Abigail -Focus Group Participant.

When asked how the Charter had affected daily practice since its introduction, most of the focus group
participants said the it had not done anything dramatic or new to their work or the functioning of the
agency. Many highlighted the high level of passion for rights that had characterised the agency and that
they had been committed to the acronym FRED (freedom, respect, equality and dignity) in their work
before the Charter.

Most participants agreed that the Charter had worked best by encouraging a sharper and more refined
approach to the already existing culture within the agency to make human rights a core part both of the
agency’s work and in the decision-making process by workers in individual cases. The Charter did assist
in increasing their leverage in places like the Victorian Civil and Administrative Tribunal (VCAT) and in
some of their interactions with ‘big agencies’.

All pointed to the much more explicit and consistent use of human rights talk and ethical criteria both in
individual case decisions and policy. One spoke in terms of the ‘extra flesh’ the Charter had put on the
legislation under which the agency operates. Interestingly, one participant who started working at the
agency after the Charter’s introduction did not recall receiving much in the way of rights training. As a
result, she said working with the Charter could be frustrating because many of its implications were
vague, especially when it came to ‘balancing’ rights. Nonetheless, she found the Charter ‘reassuring in
terms of decision-making’.

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Several participants reported that the Charter had been helpful in dealing with VCAT, with decisions
being taken that increasingly reflect a more explicit regard for human rights, which in turn had helped
further the work of the agency. One participant said that as far as they were concerned the Charter was
there to be used to hold major agencies much more accountable. They described the biggest
department they dealt with as simply having too many systemic and structural issues getting in the way
of taking the Charter even a little bit seriously. This proposition received unanimous support.

Many participants also pointed to the general lack of awareness on the part of the general community or
support for human rights ‘out there’. They said this made their work much more difficult, especially with
families and various professional groups, and thought that the government should be more proactive in
promoting a culture of rights generally than they were currently.

The discussion segued at this point to a more general problem with human rights. Many participants
pointed to a central and ongoing conflict in their own work between promoting and protecting their
clients’ rights to various freedoms versus their right to be protected from harm and abuse even if and
when this involved serious loss of their freedoms. Some participants described this conflict as a
perennial problem and said it was difficult to negotiate in each case, especially as the problem is not well
understood in the community or by many of the people they dealt with in their work.

Many participants also spoke about their need to treat carefully and sensitively the tensions between
competing rights, for example between the rights of their client and competing and legitimate rights of
other family members or other people in the health care system. There was strong group agreement that
trying to resolve these often intractable conflicts is the most challenging and stressful part of the job. As
one participant put it, ‘You don’t resolve, you just agonise’.

Participants also pointed to the high level of collegial support they received to deal with these tensions,
through team meetings, consultation with their team leaders and personal development workshops.

Problems with the Charter

The Charter hasn’t changed the day-to-day trench fighting. It’s still
about dollars and resources.’
Jimmy - Focus Group Participant.

Many participants pointed out in fairly forceful fashion that the Charter had, as of 2010, not produced
the kind of far-reaching reviews of statutory frameworks that they had been hoping for given the
Charter’s scope. They felt this to be especially true in areas like child protection, aged services or mental
health which connected with the agency’s work, especially as parts of the relevant legislation were
‘clearly within the scope of the Charter’.

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As an example, participants cited aspects of enabling legislation dealing with disability services which
in their view, was clearly in breach of the Charter. According to one participant, this was something the
agency had drawn attention to ‘on more than one occasion’ by writing to the relevant department
requesting appropriate legislative review change and had been told politely but firmly to ’go away’. This
participant said there was ‘significant Ministerial blockage or resistance’ to taking humans rights
seriously. As another participant put it, the biggest department they dealt with sometimes seemed not
familiar enough with its own legislation and indeed in some cases less familiar with it than the agency.
Equally, as another participant put it, that big department seemed ‘overwhelmed by their own
organisational maintenance issues and problems’. Another participant insisted that even though the
rhetoric of rights was ostensibly strong in some areas like disability services there was no actual long or
practical history of their taking human rights seriously.

Another instance was raised where again it seemed that there had been a serious breach of the Charter
but the agency had been ‘pissed off’ by the relevant department. One participant reported how the
agency had been told by another major department to not ‘overuse the Charter’, a stance which
concerned people in the agency deeply. (A number of serious cases then under review or in process in
2010-11 were raised but cannot be described here).

One participant pointed to the difficulties faced by some potential clients with serious mental health or
physical health issues in terms of being able to access the agency He cited one instance where relevant
professionals had actively blocked one very vulnerable person from accessing the agency and exercising
their right to get support from it.

Another participant mentioned how she and the agency more generally had been criticised heavily for
referencing the Charter in a case where a government department appeared to be in serious breach of
it. There was repeated reference by many of the participants to their concern that the Labor
Government’s ‘softly softly’ approach to rolling out the Charter had over-emphasised the ‘soft law’
elements of the Charter and not sufficiently provided for the use of a ‘hard law’ approach.

The Charter’s status as ‘soft law’ was the subject of the strongest and most consistent criticisms from
participants. This criticism pivoted on two issues -lack of resourcing and lack of effective legal remedies.

As participants pointed out, if rights protected by the Charter were breached, there was no provision for
remedial action. There was much discussion as to whether this made the Charter in effect ‘a toothless
tiger’. One participant said she did not find it useful to argue from a rights position when dealing with
other agencies and organisations because ‘they don’t listen to human rights arguments’. Such arguments

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are regarded as ‘soft’ and ‘do-goody’ and ultimately ‘it’s more effective to look at where they’re coming
from’ and build up a more ‘concrete argument’ based on that, she claimed.

Participants said lack of adequate resourcing meant the Charter had not brought about enough changes
in practice in major areas where government intervened in people’s lives. There was fervent discussion
about how little had changed when it came to ‘shoving people into nursing homes’. One participant said
‘it’s too easy in our work to justify limitations of people’s rights’. The Charter has not produced better
options, others said, and ‘too often, decisions are about least worst alternatives’. For example, the choice
frequently came down to taking away a client’s independence by putting them in care, or maintaining
their freedom and independence even though they might be a danger to themselves. Some participants
lamented the lack of a viable care option. ‘I wish we didn’t need [our kind of intervention]’, said another.

It seemed that people working at this agency turned its frustrations outwards. Expressing what they saw
as the futility of the ‘soft law’ approach to human rights, they said one of the reasons it was so hard to
get traction on rights was that ‘people in the community’ simply either don’t talk in terms of rights, or
use them semantically to suit their own agenda. The general public, as one participant put it, either
regard rights as inconvenient or by and large just ‘don’t give a shit’. As a result, the group wondered if
the Charter was actually intended to change things, and if so, where that change was supposed to come
from.

Service agencies and the Charter

[The biggest department] is a classic case of an organisation ‘talking the
talk’ but not ‘walking the walk’…
Emily-Anne - Focus Group Participant.

Participants said too many of the agencies and organisations they worked with or interacted with on
behalf of their clients, seemed far more fussed about everything else than human rights. Participants
uniformly reported that almost every agency and organisation they dealt with treated rights talk, when
used by or advocated the agency as a ‘luxury’ or as an ‘irrelevance’.

The biggest department was picked out as a case where the idea of personal freedom seemed often to
be used as a basis for deflecting or rejecting the agency’s advocacy for the right of their client to be
protected. DHS was accused of ‘hiding behind the rhetoric of autonomy’.

Participants drew frequent attention to the way the use of language employed by these organisations
had not changed to reflect the idea or priority that now needed to be given to human rights. This was
something participants said they had often remarked on among themselves given the agency’s high
priority towards rights generally.

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Several participants observed that the Charter had not been taken seriously by one major department
which had the capacity to release extra resources so as to make aspects of some of the rights spelled out
in the Charter more real and achievable. Rights talk has not yet made it into the most powerful
department said one participant. Another said it was even worse inside Victoria’s child protection
system.

The failure to shift to rights talk was a theme to which participants often returned. They pointed to the
way the ‘organisational discourse’ of places like aged care facilities was still preoccupied more with
managing beds, managing waiting lists and addressing financial and budget issues rather than rights.
Other participants drew attention to the way doctors and psychiatrists were more worried about their
clinical judgments and managing waiting lists than the rights of severely disabled and vulnerable people.
They noted too how some of these organisations and personnel ‘cleverly played on’ the theme of human
rights to freedom, but only so as to avoid their obligations to respect the rights of some people to be
protected from grossly abusive circumstances. In effect so these participants aid the rhetoric of
freedom was used to defeat or offset the claims of rights to protection.

The biggest department that the agency dealt with came in for sustained criticism. It was noted by some
participants that the biggest department lived up to its reputation as a big, chaotic, poorly managed,
under-funded and under-resourced behemoth –hence its nickname the ‘Evil Empire’. What was
especially noticeable was the way the language of human rights seemed hardly to ever be heard in the
corridors at this department and how quickly even some key branches were able to push aside all talk
about rights as a luxury or an irrelevance when the agency was representing a client. One participant
said the gap between the rhetoric of rights in the biggest department and their actual practice was
simply huge and mentioned one branch specifically as being constantly in breach of basic human rights.
Another participant, who had worked at the biggest department prior to working at the agency argued
that there had been almost no attempt to systematically introduce rights-based practice or train workers
in her unit in readiness for the introduction of the Charter. Many of these participants said staff at the
biggest department seemed more preoccupied with maintenance of their own machinery and processes
and that people working in the agency got a lot of ‘pushback’ from that department when they tried to
raise rights issues on behalf of the people they were representing.

One participant eg., pointed to very serious breaches both of procedural justice and of the Charter as
operational issues took over, leaving vulnerable clients technically facing the expiry of their rights to be
looked after for months and months, a very serious breach of the rule of law which the biggest
department simply ignored or denied.

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The health care system and hospitals were also subjected to persistent criticism. As one participant put
it, there are whole regions especially in rural Victoria where the hospital system was ‘stuffed’ and there
were simply no beds that meet the needs of their clients. Arguing rights in a context where there were
no resources was an exercise in frustration, said one participant.

The Workplace culture

[Our agency] leads the pack in Victoria in terms of making human rights
central to daily practice.
Heloise - Focus Group Participant.

There was strong consensus that the agency was a supportive and caring workplace with plenty of
passionate people deeply committed to human rights. There was a high level of agreement that issues
of rights were debated fiercely and frequently and a lot of time and effort was put into supporting staff
with personal development skills training. Another participant agreed but said that he was critical only
of one aspect of the agency He said that he thought that many of the people in the agency were good at
‘intellectualising’ about human rights, but were less good at dealing with the emotional and embodied
nature of human rights especially when issues like sexuality were involved. He said he thought there was
too much recourse to technical talk or to equity talk when what was needed was more attention being
paid to the emotional dimensions of human rights. (There were some nods of agreement from other
people at this point but no one took up the issue any further).

Another participant noted that one ‘nice aspect of the agency ethos’ was the use of staff awards to
recognize the work done by workers in the agency. Some participants noted wryly that occasionally there
were ‘quite emotional blow-ups inside the office’ but that this mostly took place over minor issues.

Some participants wondered if as the agency got bigger, the capacity to support the psychological care of
staff might diminish. It was pointed out that the work was often highly stressful as clients killed
themselves, died or had to endure distressing housing or residential care that were ‘grossly inadequate’.
In addition, agency workers frequently found themselves caught in highly stressful conflict situations
with family members, with tribunal processes or in their interactions with agencies and organisations.
Many participants felt there would be more cases of worker burnout.

There was also concern expressed by all present about the inadequate resourcing of the agency. Too few
people were employed which meant a waiting list had been established for clients who had been
granted access the service but for whom there weren’t any spare workers to take up their case.
Participants said at the time of the focus group this queue contained around 80 clients. This means that
the agency was technically in breach of its statutory obligations to represent clients who had been
assigned to it.

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Next steps?
Things won’t change until Treasury starts taking rights seriously.
Janice - Focus Group Participant.

Many of the participants reiterated their support for the government extending the Charter by adding
social, economic and cultural rights to the existing array of civil and political rights. Some participants
added that they were less than optimistic about the likelihood of this, given the Australian Labor
Government’s refusal to proceed to introduce a national Charter of Rights in late 2009. (This observation
was made some months before the state election which voted the Labor government out and installed
the Baillieu Coalition government).

That said, participants also recognised that ‘some of the most glaring instances of abuse of rights’,
especially in ways that affected the most disadvantaged and marginalised people in the community,
reflected lack of adequate resourcing by government, specifically Treasury. There was no disagreement
on this point this by any participant.

Other participants wanted to see the Victorian Government and/or Department of Justice refine the
Charter to make it more of a ‘hard law’ than a ‘soft law’. Some participants indicated that they wanted
the Charter to have more teeth and to be used in a more mandatory fashion.

TOWARDS A CULTURE OF HUMAN RIGHTS?

What then can be said about the Charter and its effectiveness, especially with regard to the promotion
of a culture of human rights?

Firstly it is plain the VEOHRC has tried to emphasise the positive features of the culture change process
set loose by the Charter. Possibly VEOHRC needs to believe that this is occurring. It has relied on surveys
to arrive at some relatively positive conclusions. VEOHRC (2009: 61) e.g. noted that the 2008 People
Matter Survey provided ‘the first opportunity to test application of the values and principles relating to
human rights within Victorian public sector workplaces’. It noted that Paul Eate (Executive Director -
Standards and Equity at the State Services Authority), advised the Commission that the following
conclusion could be discerned from survey responses:
Any pre-existing understanding of human rights in the public sector has been amplified and
brought into focus with the introduction of the Charter in Victoria. The Charter has encouraged
employees to see human rights as relevant to their work. 53

53
Interview with Paul Eate, Executive Director – Standards and Equity, State Services Authority, 29 September
2008

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How much or how widespread this sentiment was, was not clarified. VEOHRC has persistently claimed,
possibly bravely and in the face of little good evidence, that public awareness of the Charter and of
human rights generally is in good shape.

By 2010 VEOHRC (2011:30) was claiming e.g. that a community survey carried out by Colmar Brunton
showed three things.54 Firstly the Charter was believed to have:
… helped bring about a positive cultural shift in government especially at senior and strategic
levels. There was a strong sense that ‘training, guidelines and the obligations of the Charter have
changed the way that policy issues are analysed, created opportunities for advocacy and made
government more transparent and accountable’
However this positive impact was not perceived to have ‘fully flowed through to front-line functions,
with respondents noting disparities about the performance of different public authorities’. Reference
was made e.g. to expressions of concern about disability services while those working in housing and
homelessness services tended to be more positive about the impact of the Charter’. Finally among
organisations in particular, the Charter was ‘credited with delivering better, fairer outcomes for
Victorians, with approximately 60 per cent of respondents agreeing or strongly agreeing that this was the
case.’(VEOHRC 2011: 30). Since this last conclusion summarised a whole lot of sentiment grounded
neither in any evidence about ‘better, fairer outcomes’ let alone clarity about what weasel words like
‘better, fairer outcomes’ could possibly mean, this ‘finding’ does not deserve to be taken all that
seriously.

In 2008, VEOHRC had also asked all departments how they were monitoring their performance against
the Charter and whether it had been integrated into strategic and operational plans, and performance
management systems? Among the departments which responded the Department of Education and
Early Childhood Development replied that in 2008:
A dedicated project officer co-ordinates ongoing implementation and compliance strategies and
progress is monitored by the Implementation Group.
The Charter is specifically referred to in some organisational plans (such as the Human Resources
Business Plan) and its principles form the basis of a range of other planning documents that
address social inclusion, cultural diversity and anti-discrimination.
Human rights principles are reflected in many of the department’s performance standards that
are used to measure performance (VEOHRC 2009: 64).
A year later DEECD was reported as providing:
… Induction training includes a session on Charter obligations, with new departmental and
teaching staff, as well as staff in related entities being encouraged to complete an online training

54
Without doubting the integrity of the research process itself its is noteworthy that the community consultation
carried out by Colmar Brunton relied on ‘in-depth interviews with representatives from relevant peak bodies,
non-government organisations, academics, legal bodies and advocacy organisations identified by the Commission’
as well as an online survey to gauge community perceptions of how well the Charter is working in practice’.

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 module within four weeks of joining the department. The online training module launched in
August to promote Charter awareness has been completed by more than 4500 staff. Staff
continue to attend Department of justice tailored training courses (VEOHRC 2010: 23)
Anyone who has completed the increasingly widespread use of online training modules will have their
own view about the value of such exercises. Having attending one major regional work-planning
conference in DEECD in mid-2011, it can also be reported that a more complete absence of human rights
or reference to the Charter could not be imagined. This matters since the bulk of those in attendance
were not front line workers so much as middle managers. The key drivers in the two-day conference
seemed to be damping down increasing demand for services in a region crunched between already
lengthy waiting lists and major budget cuts introduced by the new Government, and anxiety about how
to implement new national curriculum and literacy and numeracy standards. This is to say nothing of the
apparent near-complete ignorance by many teachers about the existence of the Charter let alone the
need for their paying some attention to it.

In 2009 VEOHRC (2010: 22) continued to be optimistic noting that signs like ‘the growing use of human
rights audits, human rights ambassadors and performance management systems incorporating Charter
values’ suggest that culture of human rights change is emerging. Yet VEOHRC (2010:22) also noted
more soberly that:
… progress in achieving such a culture will continue to be gradual and nuanced. In particular,
encouraging attitudinal change towards the relevance of human rights protection is an enormous
task, the pace of which will vary across different sectors and portfolios.
It is just as likely that many government departments and service agencies have been slow to adopt a
rights-based framework, and that too many professionals and employees are unable or unwilling to
‘think Charter’ or have simply resisted engaging with human rights altogether. A good deal m0re careful
research may elucidate the extent to which the Charter is affecting the workplace culture of Victorian
government.

Secondly if we turn to the experience of the agency I have reported on, one clear conclusion is that
where there is a strong existing commitment to human rights the Charter will be successful in promoting
the growth and deepening of a culture pf human rights culture. This point was supported by the Ombuds
office when its compliance officer noted that:
The codification of the Charter into workplace practices through training, website development
and publications is the straightforward step. The more difficult step is changing people’s attitudes.
This will happen relatively easily in organizations where there is already a strong human rights
based approach. It will happen through necessity in service areas that are subject to public
scrutiny. Where it will take time is in those areas of the public sector that are neither traditionally
rights driven, nor particularly controversial in their service provision

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It also matters that in that particular instance the agency is relatively small and homogenous
organisation. This makes it possible to both frame q conclusion abut the state of the workplace culture
and to see it as possibly more amenable to systematic attempts to change the culture of the
organisation. Neither of these things can be said of big complex organisations.
It is plainly difficult e.g. to assess the state of a large organization’s workplace culture in general or in
terms of its ‘culture of human rights’. VEOHRC has said that in regard to a big department like the
Department of Human Services/Department of Health that three years into the Charter the Department
still faced the challenge ‘to help staff understand, through further education and training, how the
Charter relates to their work and its impact on practice and procedure.’ It faces this challenge because
as VHEORC (2009: 64) pointed out one human rights audit carried out in the Health Development Unit,
revealed that while staff displayed a high level of interest in the Charter they did not feel ‘well informed
about its application in decision making and planning. They also identified the need for strong human
rights leadership and support from senior staff’.

The point of this observation is that there is enough evidence that the Victorian Government, having
passed the Charter legislation, was always going to face an uphill battle in embedding the ethos of
human rights in the culture of the public sector workforce to say nothing of the broader culture of the
Victorian community. One story will have to suffice here to catch the problem.

The story. Having completed one workshop on the Human Rights Charter for one departmental agency
executive in early 2008, the most senior figure thanked me and my colleague for the workshop. He said
he could reassure us that we had very little real work to do, as his agency was already committed to the
ethos of human rights. There were just two women in the group of 20 or more executives and as this
man spoke I saw them both look at my colleague and I with some intensity. As the meeting broke up,
they approached us and said quietly so as not to be overheard, that they both worked in an intensely
hierarchical and deeply ‘blokey’ culture where they daily experienced a profound lack of regard and
respect as women and as colleagues and that nothing that their senior manager had said should be
believed. They invited us to a quiet coffee away from their workplace and over the next hour or so told
us many stories about their workplace and the diminished lives they led in it. This story is exemplary in
this way.

The long term roll-out of the Charter faces two large challenges. One is the overt scepticism possibly
even antagonism on the part of some public servants up and down the hierarchy about the relevance or
value of the Charter. Far worse is the basic denial implicit in the statement that we are already ‘doing
human rights’ and so the Charter is to that extent ‘more or less redundant’ because ‘we are already
doing it’. The far deeper problem is the problem that large numbers of us who think and do what we
have long grown accustomed to thinking and doing may no longer be able to ‘think what we do’, and
therefore cannot ‘see’ any problems with the way we do things. This loss of perspicacity amounting to a

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loss of consciousness which Pierre Bourdieu says is typical of much human ‘practice’ is both deep and
utterly conventional. It may well be the price we pay for living in social arrangements which confer a
sense of order and propriety. If these propositions have any weight, then the roll pout of the Charter as a
process of cultural change faces very real challenges indeed.

QUESTIONS

1. What key questions is the author asking here?

2. Can you get a grip on the major claims being argued for here?
3. Does it seem that this author is relying on any assumptions that you can spot at this stage?
What assumptions do you rely on as you read?
4. Are you persuaded by the evidence presented and the conclusions drawn?

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CHAPTER EIGHT: CULTURES OF HUMAN RIGHTS AND THE PROBLEM OF HUMAN CONDUCT

Monsters exist but they are too few in number to be truly dangerous.
More dangerous are the common men.
Primo Levi (1965: 214)

The lack of the power of judgment is that which is properly called

stupidity and such a failing is not to be helped …it is not at all uncommon
to encounter very learned men who in the use of their science
frequently give glimpses of that lack which is never to be ameliorated
Kant (1781/1997: 268)

The burden of this book so far has been to show that whatever else might be meant by developing a
‘widespread regard for human rights’, it involves more than simply listing a range of human rights or
promoting those rights by a combination of legal and educational means – though these things need to
be done. The essential problem with relying on rights talk is that it is variously too thin, too abstracted,
and too contradictory when left to its own devices to provide the basis of a broad and deep culture of
rights.

Yet if the ascent into universalism provided by a philosophical prejudice which favours abstracted legal
and/or philosophical reasoning, and the privileging of rights over goods, is the problem, perhaps the the
recognition of these problems helps to point us towards what we need to do.

I begin my discussion here with the premise that we are not starting from a zero base. By this I mean
only that when we look about our community we are not staring into a moral abyss or vacuum. All
things being equal, many of us do have a reasonably strong grasp of what some of the basic ‘goods’ and
‘bads’ look like. Most of us know that killing people is bad, or that taking other people’s property without
their approval is bad. We know too that courage is good, that respecting other people is good, or that
caring for our children or our elder family members is good. It may be that we could know these things
better and more comprehensively. Yet as Bernard Williams has insisted acting and thinking are not the
same practice.

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The larger and more usual problem we face begins when we need to make practical decisions which
involve lining up our ethical beliefs or values with our actions. We may experience for example a sense
that there are competing values or goods which we do not quite know how to reconcile or resolve. We
may have just discovered for example that our employer is doing something very bad, perhaps even
criminal. We know that honesty is a good thing and believe that behaving lawfully is also a good thing,
but we worry about the effect on our family if we ‘blow the whistle’ and run the quite real risk of losing
our job and the income it supplies to our family upon which their welfare and security depends. This
may well call for an heroic exercise. Perhaps more commonly we may find ourselves sliding slowly into
doing things which bear little resemblance to the values we say we believe in. As Wolfgang Sofsky, (2003:
21) puts it: ‘In general people know perfectly well what they are doing and why they do it, but they know
very little about the results of their actions.’
There are two problems here, namely knowing what the good thing to do is, and then trying to align
what we know to be the good thing to do with actually doing it. These are both very serious yet
common problems. Together they constitute a central problem of human conduct.

While there might be a number of ways of thinking about how we might make this happen, I propose
here that we need to understand better how we actually engage in ethical deliberation and/or interact
with each other. This as I suggest here involves some novel kinds of inquiry in ways crystallized by a story
told by an anthropologist called Ruth Linn.

Ruth Linn (1996) provides a thought provoking account of how a small number of Israeli soldiers, faced
with orders by their commanding officers to fire on unarmed Palestinian civilians, many of them
teenagers, in the course of the first Intifada (1989-1994), refused to do so.

Linn forces us to think about how and why it is that men who have been ordered to shoot people decide
to exercise moral choice and refuse to carry out that order. Linn’s (1996) study is a subtle and searching
inquiry into how a small group of Israeli soldiers, usually referred to as ‘selective resistors’, came to
exercise their conscience inside a large military setting shaped by the authoritative command structures
typical of all military units in an active zone of military operations. These men were young uniformed
soldiers already on active duty, who refused lawful military orders form their officers to shoot at young
Palestinians during the Lebanese war (1982-1985) and the first Palestinian Intifada (1987-1994).

Linn interviewed these soldiers to try and understand the processes whereby these men took the
extremely courageous and painful decision to refuse to obey those orders. Their non-compliance is
completely at odds with the ‘Nuremberg defence’ used by those Nazi leaders and defendants on trial for
crimes against humanity, namely they were merely ‘obeying orders’. To give voice to their conscience,
these men had to stand against both a dominant or at least an authoritative moral consensus that

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existed in their national political community (Israel) as well as disobey the requirement normal in, and
perhaps indispensable to any military organization, namely the requirement that subordinate members
of a unit to obey those orders given to them by their superiors and do so without hesitation or
unquestioningly.

Linn argues convincingly that conscience was at the heart of these soldier's moral resistance because it
was both an incentive as well as the source of an explicit account of why they did what they did. Her
account of how these men’s conscience manifested itself is striking and illuminates the way this process
worked emotionally and practically. It suggests one basic question worth pursuing: if these soldiers
knew what the right thing to do was and then acted in accordance with their conscience and did so in
circumstances quite unfavorable to them acting on that insight, why does this seem so difficult for so
many of us in far less confronting circumstances? It raises large questions about why we do bad things
and why we do good things.

In what follows I draw on the work of three great philosophers, Hannah Arendt, Mary Midgley and
Tzetvan Todorov. They remind us as George Orwell said in his Animal Farm (1948) that ‘not all pigs are
equal’. If my animadversions against some philosophers has substance, it does not mean that we can
safely ignore all philosophers. Arendt, Midgley and Todorov remind us that if we are ever to build a
‘good society’ using a framework of rights, we will need to understand better how real people live their
lives and seek to live good lives but do not always succeed. If we are to make any progress we will need
to know more about how people both know and do the good – or know and avoid the bad. They tell us
that sometimes the circumstances in which we find ourselves make it difficult to know good or bad, let
alone do the good or avoid the bad. Unlike so many other ethical philosophers who practice a certain
kind of rigorous rationality from the safety of their study, they remind us that most of us have to make
the ethical choices and decisions we do on the run and not always in ideal circumstances.

KNOWING AND DOING GOOD

Hannah Arendt (1963) drew attention to our normal disposition to commit trespasses against others.
Arendt’s inquiry into what she called the ‘banality of evil’ took that insight and deepened it. Attending
Adolf Eichmann’s trial in Jerusalem in 1961 for his role in the murder of millions of Jews, Arendt was
struck by the clichés which littered his testimony, and by the banality of his understanding of what he
had done. She formed the view that Eichmann had never truly thought or known what he was doing. In
coming to this possibly surprising conclusion, Arendt was reprising an old debate first initiated by
Socrates when he asked, can we knowingly commit a wicked act? Socrates was asking if we truly know
that something we are thinking about doing is wicked, will we proceed to do it? Socrates was clear about
his view: if we truly know that something is wicked, we will not, indeed cannot do it.

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Following Arendt, Mary Midgley (2001: 2) also acknowledges the ubiquity of ordinary ‘wickedness’ and
the puzzle it sets loose:
… People often do treat each other abominably. They sometimes treat themselves abominably
too. They constantly cause avoidable suffering. Why does this happen?
To answer this question she (2001:vii) takes Socrate’s teasing question about knowing and wickedness
seriously:
Wickedness means intentionally doing acts that are wrong. But can this ever happen?

Midgley insists there are no single, simple answers to this question. There is rather ‘a real difficulty in
understanding how people including ourselves can act as badly as they sometimes do’. In developing her
answer she takes time to both consider the kinds of conventional answers given by others as well as
developing her own answers. She dismisses the conventional idea that there are either ‘individual’ or
‘social’ causes for wickedness. She (2001: 2-3) argues that the idea that we must always choose between
social and individual causes for human behavior and cannot use both is ‘confused and arbitrary’. As she
observes:
Causes of different kinds do not compete. They supplement each other. Nothing has one sole
cause.

In a crucial move in her inquiry, Midgley suggests that the traditional philosophical interest in what
individuals rationally know is not by itself enough. The assumption made by too many philosophers that
the ethical life is a life lived by an isolated individual rationally analyzing the nature of the good is plainly
irrelevant to, and fails to deal with the actual circumstances of our daily lives and the ethical choices and
problems we face. She points for example to the kinds of practical difficulties that arise in the
relationships and organizations in which we live our lives: we may well know what the bad thing -or the
right to do- looks like, but very powerful factors or pressures, like fear, or the requirements of obedience
to authority, or the practices that constitute ‘group think’ might well swamp our capacity to connect our
knowledge of the good or the bad to actually doing the right thing or not doing the bad thing.

Given that ‘wickedness’ in any minimal sense, means ‘intentionally’ and knowingly doing things that are
wrong, Midgley asks can this ever happen? Is it possible to commit wicked acts knowingly? Midgley takes
us on a tour of the ways we customarily make sense both of the nature of bad actions, their motivations
and rationales and the legitimations people like us might offer either to defend and/or to condemn these
bad acts.

On the very idea of wickedness itself, she (2001:7) early insists that we should not treat wickedness as a
positive or definite tendency - like aggression. She crisply dismisses what she insists is the ‘odd idea’ that
wickedness or evil are not real. Conventionally believing in ‘evil’, ‘sin’ or ‘wickedness’ involves making
‘moral judgments’ or requires a theology, two tendencies that ‘modernity’ has condemned to the

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dustbin of history. As she says, to dismiss bad acts so quickly itself is a moral judgment. Equally to
‘believe’ in wickedness does not require that we believe, in Manichaean fashion, in the existence of
some terrifying force or power to which the name ‘Evil’ can be fixed. (The Manicheans were an
‘heretical’ ‘sect’ in early Christianity who subscribed to the idea that the universe was caught up in a
timeless struggle between Lucifer the Prince of Darkness, a fallen angel and the forces of Light). Rather
she suggests that we might better regard evil or wickedness as something that humans do and so treat it
as a ‘natural fact’.

She says this, acknowledging that many of the dispositions that will lead to this are inherent or naturally
present in our ‘species being’. She says that there ought to be neither fatalism nor acquiescence in
recognizing that tendencies to aggression, territoriality, possessiveness or dominance and so on may be
widespread and ‘natural’ motives found among many animal species. We could add that doing good
things like caring for others who are dependent on us, is likewise a natural fact. In neither case does this
‘naturalness’ mean that all of us do bad things or do good things. As she notes many liberals have found
it unseemly or indecent to acknowledge these tendencies. Again her disposition is to not treat this
recognition as implying a single or simple explanation for anything, but rather as adding to the kind of
full and complex appreciation of why we do the things we do, that is needed.

Yet acknowledging the naturalness of wickedness does not mean we need to assume that wicked people
are somehow different from the rest of us. Midgley makes a strong case for rejecting the tendency to
look for the ‘bad guys’ in such as way as to treat evil as something quite alien from ourselves, as
‘something belonging only to certain lunatics in black hats’, the other guys who are always the cause of
the trouble. This approach contains a fatal element of bad faith to say nothing of the unreality it sets
loose in distancing evil. As she says:
Exploiters and oppressor, war-makers, executioners and destroyers of forests do not usually wear
distinctive black hats, nor horns and hooves.
Rather we should regard ‘wickedness’ more as a negative, ‘as a general kind of failure to live as we are
capable of living.’ This formulation points to the Socratic frame of Midgley’s approach.

Socrates is reported to have said (in the Protagoras and as reported by Xenophon in his Memorabilia of
Socrates) that nobody does wrong willingly. On one occasion Socrates opined that:
If a man knows good and evil, nothing will overpower him so that he will act otherwise than as
knowledge commands.
He adumbrated this idea later when he said:
… No-one will do something he knows (eidos) or believes (oiomenos) that a better one is open to
him … Then no-one intentionally goes after evil or what he believes to be evil: it is not in human
nature, it seems to go after what one thinks to be evil instead of good (Cited Vlastos 1995a:43-4).

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Midgley’s exegesis of Socrates’ argument that nobody does wrong willingly however indicates some of
the larger issues at stake. Initially she says to understand why people do bad things entails making a
distinction between people who are ‘happily vicious’ and the rest of us who are ‘ordinary wrong-doers’.
Midgley notes that Aristotle makes this distinction (in his Ethics) when he differentiates ‘people of weak
will’ who do wrong against their real wishes and intentions from those ‘vicious people’ who do wrong
‘contentedly’. As Aristotle put it, ‘vice is unconscious of itself, weakness is not’. People who are happy to
engage in their vices do not think what they to be vicious or else they have a ready supply of excuses or
rationalizations to hand or else reject moral questions as pointless or irrelevant. Midgley insists that it is
genuinely odd to hear someone like Ernst Rohm, the leader of the Nazi SA owning up to being vicious
when he says of himself in his autobiography:
Since I am an immature and bad man, war appeals to me more than peace.
(She observes that it is as likely Rohm was being sarcastic as that he was allowing himself a moment of
genuine self-insight).

Assuming the distinction between ‘ordinary wickedness’ and being ‘happily vicious’ has merit, how may
we understand this idea that people do not knowingly do bad things? It would seem that there are two
kinds of ways in which this becomes possible. One is for ordinary people who do bad things to do so
because they have not thought about things like the principles at stake or the likely consequences of
what they did. In effect they have chosen ignorance. The other possibility is that rather than
acknowledge that what we are about to do is wrong, is to somehow convert the bad act into a good one.

Midgley says the first option that we choose ignorance, or at least choose not to think out the matter
fully, implies that there is some confusion in a person’s thinking. This confusion she says is in some sense
voluntary and deliberate and is something for which a person may be held responsible. Equally it is a
confusion that can be embraced by anybody who fully understands it.

Socrates’ point which Midgley accepts as valid, is that if the wrong-doer really thought about it they
could not possibly do it. As Midgley (2002: 65) suggests, Socrates does not mean by this that all wrong-
doers are misinformed or mad:
Rather he said it as part of his attempt to get people to think more in order to avoid wickedness.
His approach to wickedness was not a remote third-person one directed simply to questions
about the proper treatment of offenders. It was primarily a first- and second-person enquiry
about how each one of us actually goes wrong.

What Socrates had in mind is the need to think more about what we do both as to the principles and to
the consequences of our actions. As Midgley puts it:

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 He is talking about something fully in our control, something which he takes to be the essence of
sin, namely a deliberate blindness to ideals and principles, a stalling of our moral and intellectual
faculties (2001:65)
This is what she means by wickedness as a negative factor understood as an inability to do something we
can and ought normally do. In this regard (2001: 68):
We may be saying that people, ourselves included, are evidently much less sensible, clear sighted
and enlightened than they make out, that human insight and honesty are weak – that public
sanity cannot be relied on to operate mechanically but needs constant attention. This I believe is
true and is a useful attitude.

To illustrate what this looks like she draws on Arendt’s account of Eichmann to suggest what is at stake
here. Recalling Socrates proposition that if a wrong-doer really understood what they were doing or
were about to do, they would not choose to do it, Midgley says this is what Arendt was getting at when
she thought Eichmann was a pure case of the ‘banality of evil’. For Midgley this means that Arendt
thought Eichmann was:
… not Iago and not Macbeth and nothing could have been further from his mind than to
determine with Richard III ‘to prove a villain’. Except for an extraordinary diligence in looking out
for his personal advancement, he had no motives at all. And this diligence in itself was in no way
criminal: he certainly would never have murdered his superiors in order to inherit his post. He
merely, to put the matter colloquially, never realised what he was doing (Arendt 1963:287, 289).
Eichmann’s evil was grounded in a lack of imagination, a ‘kind of sheer thoughtlessness’ though not a
thoughtlessness to be equated with stupidity.

What should we think of this claim made by Arendt and supported by Midgley that both Eichmann and
the larger community of Nazis especially the Nazi elite, worked in what was effectively a moral vacuum?
Midgley makes this claim when she (2001:63) insists that the Nazi leadership facing trial at Nuremberg
were unable to and did not in fact seek to defend the Nazi ideology. This absence she claims represented
firstly the fact that they lacked an ‘independent, consistent and well thought out ethical theory’.
Secondly the failure to defend themselves occurred because:
… there was not really much coherent ideology that could be defended. The only part of it which
carried real passionate conviction was emotional and destructive; it was the hatred of the Jews …
it was therefore hard to say much that was positive and constructive about the aims of the regime
… Nazism at least is a good case of a moral vacuum.

Is this an adequate representation of the problem and the facts of the case? With Claudia Koonzman
(2004), I think Midgley misrepresents and/or misunderstands both the coherence and the convictions of
the Nazi leadership, their commitment to a kind of communitarian ethos and to the racial hygiene
policies which it informed.

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Is Midgley on stronger ground when she (2001:74) cites the case of a First World War General who
visited the French battlefields? It is said that he broke down in tears at the sight of the mud and carnage,
exclaiming, ‘Have we really been ordering men to advance through all that mud?’ She has again insisted
that aside from the positive aspects of aggression that lead to great wickedness, the failure to think what
we do is at least as important a consideration in much ordinary wrong-doing. Midgley (2001: 74)
suggests that negative motives or dispositions like sloth, greed, fear, laziness or habit play at least as big
a role as bad dispositions like aggression. The example of the French general suggests someone who had
not thought through the consequences of the military strategy he and his brother officers have
sanctioned or agreed to go along with. He may not have been actually responsible for the overall military
strategy, but does this excuse his ignorance? She says:
Negligence on that scale however is not excusable casualness. It is, we would normally say,
criminal. The general recipe for inexcusable acts is neither madness nor a bizarre morality but a
steady refusal to attend to both the consequences of one’s actions and to the principles involved.

Even so and staying with the in the case of both Eichmann and the French general are these cases of
factual ignorance? Surely it is hard to imagine that either could not have somehow understood what
their policy-making actually entailed for the ‘subjects’ of the decisions they took. How is it possible for a
general deploying tens of thousands of men over a battlefield not to understand the likely consequences
in terms of the awesome violence that will be inflicted on these men’s bodies? Does the fact that both
men were physically separated from the site of the carnage both were unleashing -on Europe’s Jews and
the French infantry respectively- suggest how the kind of thoughtlessness at work became possible? 55

What of the other possibility, that people square their conscience by converting a bad act into a good?
This points to the possibility that many of engage in processes of self-deception. Or does the nature of
self-deception entail that we might never know we were engaging in self-deception? Alternatively might
not another equally unknowable version of self-deception involve a person possibly sincerely holding
that their motives which entail causing great harm to others is somehow still legitimate or in the cause of
a greater good?

Midgley (2001: 119) seems to doubt that our capacity for self-deception is ever that opaque. She draws
our attention to the well-known phenomenon of internal dialogue. The experience of debating with
ourselves what we should do almost as if we were two persons in the one body is surely common. As
Midgley (2201: 126) puts it, referring to R. L. Stephenson’s famous story of Dr Jeckyll and Mr. Hyde:

55
I address the empirical dimensions of these problems in my forthcoming book States of Violence. Whatever
the empirical difficulties are with the idea that much wrong-doing occurs simply because people have not paid
enough attention either to the consequences of their thoughtlessness or to the principles at stake, it nonetheless
frames an important question: What did the policy-makers and bureaucrats know, believe or understand of the
likely consequences of their decisions?

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 We are each of us not only one but many … Some of us have to hold a meeting every time we
want to do something only slightly difficult in order to find the self who is capable of undertaking
it … We spend a lot of time and ingenuity on developing ways of organizing the inner crowd,
securing consent among it, and arranging for it to act as a whole.
On such occasions we experience possibly sharply and painfully our inner divisions. Yet surely just as
common is the way we seek to repress these divisions even while living them. This can occur because as
she (2001:119) suggests:
… self-deception arises because we see motives which are in fact our own, as alien to us and
refuse to acknowledge them. This is not an isolated event, but is one possible outcome of a very
common and pervasive inner dialogue in which aspects of the personality appear to exchange
views as if in fact they were separate people.

One result of this phenomenon seems indeed almost too common. The very many instances of well-
known public figures who publicly condemn a certain activity or life style as deeply immoral -like
homosexuality or extra-marital sexual affairs- while privately and actively engaging in the very actions
they condemn publicly (like J. Edgar Hoover or Jimmy Swaggert), is almost a cliché. Such instances
suggest that the capacity for living a divided life and engaging in some kind of self-deception is quite
common.

The other kind of self-deception that is possible involves the psychic process of projection. This involves
a person projecting onto another person or even whole groups, the very feelings or motives they cannot
afford to acknowledge as their own. As Midgley (2001:129) puts it:
When we consider … the extraordinary flourishing of violent hostility where no real threat is
posed at all we are forced (as far as I can see) to look for an explanation within. People who
seriously believe that they are being attacked when they are not, and who attribute planning
groundlessly to their supposed attackers have to be projecting their own unrecognized bad
motives onto the world around them.

The instances in which this mechanism seems to be operating are well-known, beginning with well-
documented instances like the mobilization of German anti-Semitism after 1918. Imputing to one group
bad motives like aggression, a lust for power or a desire for revenge, when these are in fact operating
amongst those making the accusation is a common, but usually unrecognised form of self-deception. Not
knowing much about a group can make the self-deception take on the seductive appearance of reality:
This is the point at which even people who know perfectly well that the so-called Protocols of the
Elders of Zion were deliberately forged by the Czarist police still find no difficulty in accepting as
evidence [of a Jewish conspiracy against them]. The dark vision is too vivid to be doubted: its
force is its warrant. What we see out there is indeed real enough; it is our own viciousness, and it
strikes us with quite appropriate terror (Midgley 2001: 130)

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This reference to the mechanism of projection as a form of self-deception also forcefully reminds us that
what is conventionally used to distinguish ‘the personal’ (or the psychological) from what is ‘social’ and
external to us, is more a conceptual invention or device than a real distinction. It speaks of the potency
of certain habits of mind and those constructive schemes found especially in certain academic disciplines
which serve among other things to construct a certain kind of intellectual community. (Recognizing this
does not make it any easier to think well by steeping outside those community affirming habits of mind).

We need as Midgley has argued, to put the social and the personal back together. We must reconnect
the ‘personal’ and the ‘social’ if we are to avoid the awful simplifications that follow if we allow the
binary ‘individual’/’social’ to remain separated. As Midgley (2001) notes, there is already a temptation
when dealing with ordinary criminal activity - like criminal assault, rape or murder - to look beyond the
‘internal causes in human nature’ and to look to ‘external causes’ and what sociologists call ‘structural
factors’. About this tendency she says two things that matter:
Now obviously there are powerful outside causes. There are physical pains, diseases, economic
shortages and dangers –everything that counts as ‘natural evil’. There are also cultural factors –
bad example, bad teaching, bad organization. But these cultural factors do not solve our problem
because we must still ask how did the bad customs start, how do they spread, and how do they
resist counter conditioning? Can people be merely channels? … And if they are not merely
channels, if they contribute something, what is that contribution?
As she says the more important assumption that confuses much of the discussion, is the underlying
assumption that we must choose between ‘internal’ (or ‘individual’) and external (or ‘social’) causes:
The idea that we must always choose between social and individual causes for human behavior,
and cannot use both is confused and arbitrary. In calling it arbitrary, I do not of course mean that
no reasons have been given for it, but that the reasons given are not, and could not possibly be,
good enough to justify so crippling a policy … in this case the inside and outside causes of human
behavior – its individual and social aspects – supplement each other so closely as that they make
no sense apart. Both must always be considered.

In seeking to avoid splitting what we too readily dichotomize as ‘individual’ and ‘social’ explanations, we
need to recall that whatever we mean by any idea of personal ethical responsibility we have to take into
account the ‘imbrication’ of the social setting and personal responsibility. This idea of imbrication draws
on the metaphor of a tiled-roof in which the tiles overlap each other. A roof is not to be explained or
understood in terms of this or that tile. It is the pattern of overlapping that makes the roof what it is. So
it is with human conduct. This is not a difficult suggestion. Anglo-American criminal law has long
understood the need when accounting for the circumstances in which a given activity like a murder
occurs, to take into account the social relations and dynamics at play as well as the individual
motivations so as to adjudicate the ethical and legal dimensions of what happened. The seriousness of

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the fact that I both killed another person, and did so intentionally, will be seriously ameliorated by the
fact that I acted in self-defence if he had for example without warning or notification tried to kill me.
That is, the very dynamic of the social relationship, in this case an unprovoked attack by one person on
another, determines how we understand what happened and why it happened.

This seems to be the point of Stanley Milgram's (1974) famous research project designed to test the
interplay of people’s ethical values in a social setting obliging people to obey authority at the cost of
overruling those ethical values. Milgram’s research is one of the most admired if controversial social
scientific projects of the last half century.

Beginning in the late 1960s Stanley Milgram, a social psychologist at Yale University ran experiments at
that university's Interaction Laboratories to establish how far ordinary people would go in obeying or
defying a legitimate authority figure requiring that they inflict pain on a helpless person. The subjects
responded to advertisements seeking volunteers to assist in a learning experiment. Before going into the
learning laboratory they were briefed on the learning experiment. They were then taken into the
laboratory where they met a 'scientific figure in a white coat' and an 'experimental subject' who was
wired up to an instrument panel at which the volunteer was to sit and to administer an electric
punishment to assist the subject to remember better. The equipment, the subject, and the scientist, and
the shocks were all fake. The instrument panel was calibrated into degrees of shock. The volunteer was
given orders to administer a shock and/or to increase the voltage each time 'the subject' gave a wrong
answer.

In the numerous repeated versions of this experiment (and often altered to test for different effects like
increasing or decreasing the distance between subject and volunteer), 65%-to 75% of volunteers went all
the way. They did do even when the subject was pleading for the experiment to stop, screaming or even
pretending to be having a heart attack. In one case (involving a ‘Mr Prozi’ as the volunteer) 'the subject'
went quiet and Prozi, thinking the subject was dead turned to the scientist and said, 'What if he is dead
in there? I mean he told me he can’t stand the shock, sir. I don't mean to be rude, but I think you should
look in on him' (1974:73-77). As Milgram (1974:77) comments:
... the subject's objections strike us as inordinately weak ... he thinks he is killing someone and yet
he uses the language of the table.
There is evidence here that ‘Mr. Prozi’ was keen to pass responsibility over to the authority figure and
that having done this Prozi became like a courteous child, respectful, grateful and eager to serve. With
other volunteers more chilling effects were observed as some seemed to take a degree of pleasure in
what they were doing. As Milgram (1974:189) notes:
The kind of character produced in American democratic society cannot be counted on to insulate
its citizens from brutality or a willingness to inflict inhumane treatment at the direction of a
malevolent authority. A substantial proportion of people do what they are told to do, irrespective

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 of the content of the act and without limitations of conscience, so long as they perceive that the
command comes from a legitimate authority.

While Milgram’s work goes a long way to overcoming the ‘structure-agency’ split Midgley complains of,
its implications remain uncertain or ambiguous. This is because Milgram suggests that the ‘basic
structure of the authority situation’ constructed in the scientific laboratory means that actors often do
not see themselves as personally responsible for the consequences of their actions. He argues that
insofar as they saw themselves as having no choice in their actions, they did not feel personally
responsible. ‘They were not personal agents, but merely extensions of the authority.’ Yet he does not
tell us how or why this came to be the case. He represses any interest in exploring the ethically reflexive
processes whereby his subjects came to comply. In effect he has reneged on the idea of showing how
social processes or relations intersected with the moral pathways taken by his ‘subjects’, leaving an
implicit structuralism to undergird his argument. Nonetheless Milgram has pointed to the value of
putting back together what the social sciences have split.

This overlaying of the social and the personal is why we must not perpetuate a conflict between the
‘corporate point of view’ and the ‘individual’ one. As Midgley notes, one problem that perpetuates this
competition has to do with the way sociology studies large-scale events in ways that put them at such a
distance that individual conduct is simply rendered invisible. As Midgley (2001: 53) insists:
Large-scale thinking about societies is not an alternative to thinking directly about individuals.
Both studies are necessary; each needs its own methods. And within the study of individuals,
enquiry about the facts is not an alternative to practical and especially moral thinking, which
works out the concepts and principles to be used in action.

However as she also allows, the way we engage in this kind of practical thinking matters immensely. She
addresses this problem through a discussion of a parallel kind of false antimony: (2001: 55)
This is the violent dilemma posed between an individual’s autonomy and their continuity with the
world. Many current ways of thinking tend to make individuals vanish into their groups or to
reduce them to their physical parts. Both these processes make it seem as if they had no real
identity or control and so to suggest that it does not matter what they do.

On the one hand we get philosophers like Rawls relying on unrealistic claims about the unfettered moral
and rational autonomy of people. On the other we get sociological arguments that effectively abolish
the problem of ethical or practical judgment altogether by rendering them part of a larger group process
courtesy of some process of socialisation. We can only by-pass these seductive antimonies by reminding
ourselves what is at stake when we ask how is ‘wickedness’ practically and socially possible? Midgley’s
demonstration of why we need to link the social, the ethical and the personal is useful in itself.

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On the role played by the social settings in which people find themselves required to do very bad things
Midgley suggests that there is some point to the observation that modern bureaucracies involves the
‘rule of nobody’ where no-one seems responsible for their actions. Yet as she (2001: 66) ripostes, if we
fatalistically accept that this is so ‘we are falling for propaganda’. Even so she allows that if bureaucracies
do not really change our nature or remove our responsibility, it certainly makes it easier for people to do
bad things and may make it harder to harder to do the right things. Yet there is nothing especially new
about this because ‘there have always been agencies that would do that, and in all ages much ingenuity
has gone into building them for that very purpose’.

Midgley insists that we can and must ask what is it like to be a person who devises and manages death
camps or tortures innocent people. She insists that if we are to understand how human conduct goes
wrong we need to reject ‘either/or’ approaches. Midgley plainly does not want to ground the practical
judgments we make, by appealing to social factors which lifts the responsibility from people and onto an
impersonal or external collective agency. Given what we know about the large-scale processes set up to
implement a policy of terror or genocide bureaucracies may well provide the kind of social space in
which the kinds of chosen ignorance, understood as an unwillingness to think about the consequences of
a given policy can flourish. Bureaucracies may also provide plenty of opportunities for the kinds of self-
deception and experience of a self that is seriously ‘divided’ that she speaks about. None of this of
course constitutes a basis for believing that ignorance or self-deception is ethically acceptable. Equally
she insists that we must not assume that the people who do these things can legitimately appeal to the
idea that they are ‘existentialist heroes’ pioneering new utterly novel and individualistic and
transcendental moral ideas. As she says this appeal to a romantic ethical individualism makes the very
conditions of sociable existence impossible:
… if each of us wanders alone in a moral vacuum spinning values out of our own entrails like
spiders, making them out of our own originality, taking nothing from anybody else, and passing
nothing on to others, then we have ceased to be social creatures.

We need in short to hold together what disciplines like sociology and moral philosophy all too easily
separate. Policy processes that begin with the motivations or intentions of an elite state leadership
group will draw on existing state organizational agencies like the police, the military and the bureaucracy
to give effect to their plans. Each step forward requires compliance. What is never clear is how much
willed ignorance, self-deception or sincere commitment to the policies is present in each person and at
each step. In short what appear to be ‘abstracted’ policy processes, frequently characterized as the ‘rule
of nobody’ require the active compliance and obedience of many real people. What we need to know
more about is how the social contexts in which we find ourselves, create both opportunities and
constraints to act well or badly. We need to know what it is about these social contexts which directly
shape these dispositions, which as it were constantly threaten to widen the already significant gap
between our ethical ideals and our actual conduct. And we need to know more about how people form

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their judgments about what it is they are prepared to do. We need to know more about how some
people can do things they know, feel or suspect are wrong and by what process they are able to square
their conscience with what they are about to do. We also need to know by what process other people
come to feel or believe that doing horrible things is perfectly acceptable and honorable courses of
action.

TODOROV ON MORAL LIFE

Tzetvan Todorov (1996) has explored the ethical issues at stake in the highly specific circumstances of
what he calls simply ‘the camps’. Todorov (1996) declares that one of the defining inventions of the
twentieth century is ‘the concentration camp’ encompassing both the Nazi concentration camps as well
as their death camps, and the Soviet Gulags. Todorov (1996: 286-8) offers an account of the moral life
that works as a counterpoint to Midgley’s account of wickedness. Like Midgley and drawing deeply on
the work of Bakhtin, he does not split the personal and the moral from our ‘life in common’. Moral life he
declares is a:
… constitutive dimension of the inter-subjective world permeating it in its entirety and standing as
its crowning achievement. Just as it is impossible to imagine humanity apart from inter-subjective
relations, so it is impossible to imagine it without a moral dimension.

So what then constitutes the very idea of ‘the moral’? He suggests that terms like ‘good’ and ‘evil’,
whatever the particular moral philosophy one accepts as valid, define ‘somewhat tautologically’
everything that is most -or least- desirable in the world of human relations. For this reason he draws an
initial distinction between what he calls ‘vital values’ and ‘moral values’. Vital values mean what they
imply, a regard for life. This is the regard we may all have for basic survival, for saving ‘my’ life or for
securing ‘my’ well-being. Survival, it might be thought is a basic, almost natural kind of value. Yet as
Todorov (1996: 40) suggests the
… difference between moral values and vital values is this: for the vital values my life is sacred: for
moral values, it is the life of others.

The moral dimension for Todorov is defined by a number of specific qualities. Moral actions are never
merely whims, nor are they defined by their intensity: they can always be argued for rationally. Secondly,
moral actions are always personal in the sense that they are actions that a person takes on. In this sense
moral action is ‘subjective’ and is directed at one or more other persons. In this way a moral action is
always a personal action. ‘For when I act morally I treat the other as a person, which is to say he
becomes an end of my action’. Equally our moral actions are evoked in the context of our social relations:
a virtue like courage or caring is a social virtue since it is directed at others leading to interactions with
others.

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For this reason says Todorov, the quintessential moral act is the act of caring for another, be it one
person or a group of people. Caring has as its goal the well-being of another. It involves a person giving
respect, attention, dignity or simply a thoughtful gesture such as feeding, massaging, hugging or bathing
someone else. Dignity is another moral act such that where the beneficiary can be the person
themselves or another. Todorov suggests that while there may be many other claims advanced on behalf
of the moral, it has to be a kind of personal act of giving, oriented to the well-being of specifiable others.

These ordinary virtues are quite different from the virtues praised as heroic. What is the moral status of
heroism involved when an individual undertakes an heroic act by involving self sacrifice or taking on
great odds in defence of some principle? These acts he says, are in themselves neither good nor bad:
they have the capacity to be either. Without additional information one cannot know whether a heroic
act is morally commendable or not. Without an individual beneficiary it can for example become an act
of pure bravado.
This leads to some interesting evaluations of the other kinds of moral life for which various claims are
made.
Is collective moral action possible? This is what is claimed when proponents of a policy claim that for
example the demands of justice will be achieved by reclaiming territory taken by another nation-state
because it will confer certain advantages on its beneficiaries who may be defined as ‘the people’. Or it
may take the form of the claim that by promoting compulsory sterilization of the unfit that the health of
the ‘community’ will be enhanced. Todorov says this class of action belongs to ‘the life of the mind’. Says
Todorov this kind of action is only moral when it seeks the good of specific individuals. Todorov has in
mind the way the many claims made by elites and governments to seek the well-being of an
indeterminate number of people can mask great evils.

Likewise when an action is formulated or recommended but not carried out by the person advancing
certain moral ideas, we rightly see this as moralism. Moralism typically involves the promulgation of a
code or a set of rules for acting which others are enjoined to obey, frequently leaving those in charge of
the promulgating free to breach that rule when and as they choose. Moralism is therefore different
from justice. As Todorov (1996: 289) suggests:
Justice is neither subjective (compliance is obligatory not meritorious) nor personal (it is applied
indifferently to all citizens, even all human beings). But it traces to the same principles as those
that guide moral life: concern for the welfare of the individual, respect for his person and
universal application.
On this basis politics is not to be confused with morality. At its best politics may promote justice ‘but a
little like heroism, politics may or may not serve the peoples’ interest’.

With these clarifications made we can see that for Todorov the defining features of the ordinary virtues
that constitute moral activity are that:

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 … it must be both subjective - performed by the individual who is the subject of that action - and
personal - directed toward other individuals … If an action is directed toward some sort of
abstraction such as the homeland or liberty or Communism or even humanity and not towards
other individuals then we are dealing with heroism or one if its derivatives (Todorov 1996: 288)

It is on this basis that Todorov draws out the point of a making a distinction between what he calls
‘heroic virtues’ and ‘ordinary virtues’. To anticipate his later argument, this distinction will matter when
ordinary people confront the moral extremities of sites like the camp.

ORDINARY VIRTUES
Given his general view of what it is that marks out moral action, Todorov praises the ordinary virtues.
Caring is perhaps the primary ordinary virtue. In a simple sense it is by caring for another or others, that
by one’s actions we demonstrate concern for the welfare of others. This is never an abstracted as it is
with heroic virtues in terms of loyalty to some abstracted idea or group but always specific and particular
to a person or group of real persons. (1996:17-19) Caring entails a felt responsibility for real and palpable
others. It is obviously the kind of virtue found in family life, in the work place or the neighborhood. It has
certain rewards including a simple pleasure in seeing the benefits of one s caring in another’s eyes.

Dignity too is another of the key ordinary virtues. It means accepting and understanding that we can and
should remain a person who is both willing and able to choose. Acting with dignity entails that we
respect both ourselves as a person as well as others. To be respectful or to show respect to another
entails that we recognize the full worth of the other as a person and as a human. In doing this we
confirm and embellish the shared sense of what it means to be a human being. Dignity means accepting
and understanding that embracing death is not an end just a means to affirming the dignity and value of
life and of being human.

In a recent intervention into the debate about the failure of the American ‘welfare state’ Richard Sennett
(2003) reminds us too of the importance of respect:
Lack of respect, though less aggressive than an outright insult can take an equally wounding form.
No insult is offered another person but neither is recognition extended: he or she is not seen - as
a full human being whose presence matters. When a society treats the mass of people in this
way, singling out only a few for recognition it creates a scarcity of respect … Like many famines,
this scarcity is man-made; unlike food, respect costs nothing. Why then should it be in short
supply?

Respect does not involve charity or compassion, dispositions that can be highly ambiguous even
dangerous. Part of what Sennett is getting at in speaking of respect is suggested when he writes that
respect requires a regard for the autonomy of oneself and of the other:

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 Rather than an equality of understanding, autonomy means accepting in others what one does
not understand about them. In so doing the fact of their autonomy is treated as equal to your
own. The grant of autonomy dignifies the weak or the outsider; to make this grant to others in
turn strengthens one’s own character.

Practising respect is arguably more difficult than for example mouthing platitudes about ‘tolerance’.
What this means is grasped with uncommon clarity and force by Raimond Gaita (1999). Gaita argues
that ‘justice’ and ‘respect’ are co-terminous. Gaita insists that:
We also speak of justice when equality of respect is at issue. ‘Treat me fully as a human being
fully as your equal without condescension’ … Concern for justice as the acknowledgement that all
human being beings are owed inalienable respect goes deep…
And later:
… when we speak of respect for human beings, we express a moral position that we would better
express if we spoke of respect for persons.

The difficulty in doing this however is well described by Gaita. He recalls working in a certain back ward
in a Melbourne psychiatric hospital in the 1960s where certain ‘hopeless cases’ had spent decades.
When patients soiled themselves as some did often, they were ordered to undress and to step
under a shower. The distance of a mop handle from them, we then mopped them down as zoo-
keepers wash down elephants. The patients were judged to be incurable and they appeared to
have irretrievably lost everything which gives meaning to our lives. They had no grounds for self-
respect insofar as we connect that with self-esteem; or none which could be based on qualities or
achievements for which we could admire or congratulate them without condescension … A small
number of psychiatrists did however work devotedly to improve their conditions. They spoke
against all the appearances of the inalienable dignity of even these patients. Most of their
colleagues believed these doctors to be naïve, even fools. Some of the nurses despised them with
a vehemence that was surprising.

Gaita goes on to suggest that to speak about dignity in this way ‘is a sign of our conceptual desperation’
because ‘dignity is clearly alienable, because dignity is clearly tied to appearance’. What he is getting is
the need for a respect that is unconditional, rather than compassion. Gaita recalls the moment when
this insight came to him:
One day a nun came to the ward. In her middle years, only her vivacity made an impression on
me. until she talked to the patients. Then everything in her demeanour towards them -the way
she spoke to them, her facial expressions, the inflexions of her body –contrasted with and showed
up the behaviour of those noble psychiatrists. She showed, that despite their best efforts were
condescending, as I too had been. She thereby revealed that even such patients were, as the
psychiatrists and I had sincerely and generously professed, the equals of those who wanted to

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 help them: but she also revealed that in our hearts we did not believe this.

The basic ethical principles that matter for Gaita include a commitment to an idea of justice which
consists in always striving to do to others better than that which we would have them do to us. Then
there is the principle of respect which holds that to all persons whatever their state of bodily, intellectual
or spiritual integrity or difference from us we owe a basic respect which goes first to a refusal to
countenance their death at our hands, and which extends out from there to a basic courtesy and regard
to take them into account in our conversations and actions towards them.

If caring, dignity and respect for real persons mark out the terrain of the ordinary virtues, what of the
ordinary vices?

ORDINARY VICES

Todorov (1996: 139) draws attention to the way that just as there are ‘ordinary virtues’ that define the
moral life there are also the ‘ordinary vices’ that all of us can give expression to. Like Arendt and Midgley
Todorov insists that even when we act because we are motivated by these ordinary vices this does not
make us moral monsters. These vices are too widely distributed or practised in ordinary life for this to be
either true or useful. What kinds of attitudes and actions does Todorov regard as ordinary vices?

There are many forms that ordinary vices can take It can involve the fragmentation of behavior such that
in our ordinary life we behave with breathtaking inconsistency across any given day. Or it may involve
living out the ordinary virtues at home while doing very bad things in the work place. Or it can involve
the disconnection of conscience from our conduct. In all the ways that matter the disconnection of our
moral feelings from our actions is at the least an ordinary vice requiring our capacity to
compartmentalise our thinking from our feelings as we do bad things.

The cases are legion of men capable of combining a regard for the ordinary virtues like insisting on
reading bedtime stories to their children who then go and do quite bad things. I recollect such a man.
‘John’ was a gently spoken accountant by background but largely devoid of any obvious spontaneous
humor or affection. Yet he insisted on being home at night whatever the demands of his professional life
to read to his children. ‘John’ was also one of the wealthiest and most influential businessmen of his
day. He was a director on the boards of most of Australia’s biggest companies. Over one Sunday lunch
he recalled that in the previous week he had had to plan and organize the sacking of hundreds of men in
a major industrial plant that was the biggest employer in a regional city. I asked how he had felt doing
something like that. He replied, ‘It is just something you have to do to keep the shareholders happy’, as
he calmly sliced the roast lamb. He later acknowledged that often had to do ‘very hard things’ and that

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he needed to steel himself to do these things. Like many other men, he needed to prove to himself that
he could be a ‘hard man’. And like many other such men he relied on alcohol to get by.

In a far different setting were men like Josef Kramer who had been a bookseller before he became the
commandant at Birkenau and who wept as he played Schumann. As his wife testified on his behalf he
was also a devoted and diligent father and husband: ‘Our children were everything to my husband’. Yet
Kramer felt nothing as he pushed naked Jewish women into the gas chambers with his own hands and
then watched them die through a specially constructed window. As he testified at his trial he, ‘I had no
particular feeling in carrying out these operations’ (cited Todorov 1996:143). Todorov asks the obvious
question: why would music make him weep, but not the deaths of ordinary men, women and children?
Do we not see here a very common kind of depersonalization as people lose themselves by submerging
themselves in some greater organizational entity and come to think in largely instrumental terms. As
Midgley has argued the ordinary vices are best understood as a failure to live as we ought to live.
Ordinary vices involve forgetfulness and the compartmentalization of our actions from our capacity for
feeling and thinking.

Depersonalizing people who are the subjects of our actions, rendering them into ‘objects’, is another
very common vice. Here the use of generic terms and stereotypes to describe particular groups of
people is a besetting vice found in all sorts of large-scale organizations and policy making and leads to
rapid depersonalisation. Stereotyping can be relatively innocent. Human resource managers, social
workers or teachers construct and use sterotypes when talking about ‘the workers’, ‘the clients’ or
‘students’ and construct all sorts of descriptions of these groups, drawing on the ‘dividing practices’ and
moral judgments that Foucault suggested marks out the activities of professionals and experts.

Authoritarian organizations find it convenient to construct and use stereotypes of their ‘clients’ in order
to justify the rituals and modes of discipline that those in charge deem necessary. Between
approximately the ages of 5 and 16-17 all young Australians are legally required to be surrendered by
their parents or guardians to schools. This requirement places our children and young people in
institutions that for the most part have long been and remain deeply authoritarian. They also remain
institutions where the imbalance of powers and rights between the adults acting in loco parentis and the
young people is extreme. Much of the kinds of normal practices in schools depends on basic ideas that
children and young people are intellectually and ethically ‘immature’, ‘irrational’, ‘rebellious’
‘undersocialised’ and need a firm hand. The de-personalization at work depends on an idea that there is
a larger project like producing ‘socialized adults’ or ‘fashioning democratic citizens’ used to justify normal
schooling practices.

Although schools offer young people many developmental opportunities they remain institutions that
routinely deny respect and basic human rights. The mandatory and prolonged nature of schooling relies

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on the denial of students' rights to freedom of speech and movement. Students rarely have the right to
say how the school is run or how teachers and others adults should conduct themselves. As students
young people are routinely denied the right to participate in decision-making that directly affects them
such as the curriculum to which they are exposed. There is an insistence on ready obedience, and a
refusal to acknowledge most liberties that other citizens enjoy as a matter of course. It has long been
common practice eg., for female students to have their underclothes inspected to satisfy teachers that
the apparel is suitable. This surveillance extends to hair, jewelry and makeup. The right to privacy is also
routinely abrogated by practices such as mandatory and surprise bag and locker inspections and more
recently by the placing of surveillance cameras in student toilets and change rooms. Corporal
punishment remains legal in a number of Australian states and in most church-run schools.

More insidious is the slide into descriptors that are metaphoric and designed not merely to
depersonalize, but to dehumanize. Australian governments and the mass media have found it useful to
not use the legal term ‘asylum seeker’. Instead terms like ‘boat people’ ‘queue jumpers’ or the catch-all
‘illegals’ have been used to justify the impression that Australia was under such imminent threat of
invasion as to require a state of emergency. In this case what begins as depersonalisation ends with basic
breaches of international law and the basic human rights of large numbers of people fleeing regimes
marked by the abrogation of those very same rights and freedoms. The persistent use of metaphors
from ‘anti-socials’, ‘enemies of the working class’, the ‘parasitical Jew’ or ‘American imperialist’ have all
been used to justify various forms of terror. The result is always to breach Kant’s (1979:42) fundamental
proposition about what it means to treat a person as a person: ‘Act so that humanity both in your own
person and that of others, be used as an end in itself and never as a mere means’.

Finally there is the ordinary vice at work in the enjoyment of power especially over weaker and more
vulnerable people. The enjoyment of power per se is perhaps neither a bad or a good. We can and
should enjoy all sorts of ‘power’ such as the power we display in some kind of sporting contest. The
power we have to exercise over a small baby is frequently experienced as the practical and responsible
exercise of love or care. The enjoyment of power becomes problematic when we come to seek out the
submission of others and enjoy the fact that someone else has submitted their will to mine. It becomes a
kind of libido dominandi a kind of eros of power (Todorov 1996: 179). Indeed enjoyment of power runs
close to being a form of sadism, though it is not the same as sadism. The fact that someone has
surrendered their will to mine may not need the threat or the fact of my causing that person physical
pain to produce the enjoyment. It may be enough that I know that the other knows I have the power to
bring about pain, The enjoyment lies in the exercise of power or pleasure, that leads to the enjoyment of
power. Experiencing our sovereignty as a person is one thing: experiencing sovereignty by negating the
will of the other ‘by making him suffer, or, in the most extreme of cases by causing his death’ is another.

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It is plain that in those settings defined as camps as Todorov (1996: 139) suggests that it is highly likely
that ordinary vices may be encouraged or at least not prohibited. This recognises that as with the
‘ordinary virtues’ that define the moral life, there are also those ordinary vices all of us can be seduced
or entranced by.

It is easy enough to see how the circumstances that defines a site of moral extremity such as a death
camp or a Gulag would permit the flourishing of these ordinary vices. Such sites are likely to be filled
with people who have been both de-personalised and de-humanised. The inmates have already been
named as ‘Jews’, ‘anti-socials’, ‘enemies of the people’, ‘traitors’ or ‘the racially unfit’. The perpetrators,
whether they be the distant bureaucrats who make the policy and direct the resources into the camp or
the guards and other functionaries may well be able to deploy their capacity for divided thinking or what
Robert Jay Lifton in his study of Nazi doctors called ‘doubling’. Like Midgley, Todorov would say that being
motivated by these vices involves a kind of forgetfulness. Ordinary people who do bad things to do so
because they have not thought about the principles at stake or the likely consequences of what they are
about to do. Undoubtedly too the camps are sites of extreme power and status differentials where the
powerful may well enjoy their power of life and death over the weak and vulnerable inmates.

The idea of an extreme situation or of a moral extremity refers to something ‘outside’ of the norm or the
average in the sense of being external to or beyond what we have normally experienced. The idea of a
‘morally extreme’ situation points to one basic fact. In sites of extremity there are elements at work
and/or decisions needing to be made, for which our normal lives and contexts have ceased to be either
relevant or useful as a guide to what we should do. By analogy just as we may walk or run every day of
our lives around a suburban block, none of this regime of exercise can ever prepare us for the extremity
of a first attempt to climb Mount Everest without oxygen. Sites of moral extremity are experienced as
novelties and as extraordinary.

We may almost say that sites of ethical extremity are defined by the fact of the very normal inability of
most ‘ordinary’ men and women to rise to the moral challenges thrown up by extreme circumstances.
This may be as true of the inmates as of the various perpetrators. In those circumstances in which a
person possessing the normal virtues appropriate to maintaining a normal private life and a normal job
or community responsibility suddenly confronts a policy driven or systemic imperative to commit a great
wrong against another person or large numbers of people, the likelihood is that such a person will not
possess or be able to reach for the heroic virtues needed. Indeed it may even be that the normal virtues
will actually help to excuse them from taking the steps needed to display the kind of virtue we would like
them to display. In ordinary life most of us possessed of the ordinary virtues find that the capacity to
make timely compromise, to be moderate in our enthusiasms or to balance out competing demands are
relevant and on balance the ones that make for a good life. There is sufficient evidence eg., of the way
that some perpetrators experienced a painful division of moral regard between protecting their families

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from retribution should they object to the very bad things they were being asked to and a recognition of
the enormity of their actions. We can also understand something of the dilemma for people habituated
to regard obedience and respect for authority as virtues confronted with the moral extremity of their
actions requiring disobedience as the only properly moral response. In ordinary life taking directions
and obeying figures in authority inside organisations like schools, banks or hospitals is still regarded as a
traditional virtue or value: if it were not then much schooling could be said to have failed. Most ordinary
organisations and workplaces do not accept disobedience and autonomy as desirable aspects of conduct
on the part of subordinates. Even academics who espouse ideas of critical judgment frequently take
exception to intellectual criticism when it is directed at them.

Does this entail that heroism is the attitude most appropriate to sites of moral extremity? What is
heroism and is it ethically valuable? Heroism is almost by definition both extraordinary and only
contingently likely to involve moral actions.

HEROIC VIRTUES

Heroism is autonomy listening to the voice of conscience no matter what. Heroism is extraordinary
because it involves a willful determination to follow out a virtue like courage, or one’s loyalty to ideals no
matter what. Edelman a Warsaw resistance fighter in the uprising of 1944 recalls seeing an elderly Jewish
man being humiliated by some German soldiers on top of a barrel. ‘At that moment I realized that the
most important thing was never letting myself be pushed on top of that barrel. Never, by anybody’ (cited
Todorov 1996: 14-15). There is no qualitative difference between great and small humiliations. Unlike
most ordinary people trying to live out the ordinary virtues, the hero refuses to bow to circumstances.
The hero fights the odds and bends destiny to their own will.

Heroes are solitary figures prepared to fight for abstractions rather than for concrete relationships to
friends or family. (This is the point Ruth Linn’s (1996:8) account of Israeli soldiers who refused to obey
orders). The hero’s education is an apprenticeship in isolation. Their idea of the social is not the face-to-
face familiarity of family, friends or work colleagues. It is all too often an abstracted idea of the social
understood as some kind of community.

Both ‘ordinary virtues’ and heroic virtues require acts of will. Yet heroism involves individual efforts of
refusal to accept what seems like an implacable necessity. Heroes understand that one can always
express one’s beliefs. They understand what is at stake in exercising choice and choosing one’s fate and
actions and refuse to follow orders or obey convention or majority views or consensus. Heroes
understand that the difference between choosing death and submitting to it, is enormous but in
choosing one’s death one performs an act of will and thereby affirms one’s membership on the human
race. To choose between life and death is the last chance to hold onto one’s dignity. While dignity is one

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of the key ordinary virtues for ordinary men and women, for the hero death is embraced as an end in
itself.

In this way heroic virtues involve abstracted loyalties and principles. Ordinary virtues pick out real
benefits. There is in heroism a willingness to risk all including life. Life itself is not a high value. It
involves the pursuit of a meaning achieved by ensuring that that life is dedicated to a higher ideal. As
one of the leaders of the doomed Warsaw uprising Okuliuki put it, ‘It is better to die than to be a coward’
(Todorov 1996:10). Heroes are not made to live. There is loyalty to an ideal and a willingness to
sacrifice all for that ideal (Todorov 1996:7-9). There may be adherence to a code of honour and a refusal
to betray the ideal. The hero’s world is simple. almost one-dimensional: it is made up of binaries like
friends/enemies, them/us or hero/traitor.

By definition heroes function best in extraordinary circumstances. In ordinary life the context of choice is
diverse and every situation is heterogenous and complex. Heroes are discovered in the context of sites
of moral extremity. In such sites there is a simple choice- evil vs good. Only heroes are equipped to see
this and to make the choices that only heroes can make. In ordinary life choices are all too often made
not out of concession or cowardly compromise, but from a recognition of this multiplicity (Todorov 1996:
12). Heroes abhor compromise or complexity. The hero aspires to be whiter than white, while needing to
paint the villains blacker than black.

Does the policy and organisational work involved in making a site of extremity diminish the ordinary
virtues that a policy maker possesses? How do the various functionaries from the local managers of
camps to the guards and other workers deal with their work? Or do the sites of extremity allow
ordinary vices to flourish?In such settings are only those possessed of heroic virtues able to see the stark
and simplified choices at stake and be prepared to exercise decisive choice by for example treating evil as
something to be refused at any cost. Does this point to something about the way sites of moral
extremity work to constrain the choices that are available? There is a kind of totalitarian quality to these
sites there are few or no private spaces to hide. They compel by the sheer overwhelming brutality and
ferocity of what is going on. In a site of moral extremity, acts of heroism will never or rarely benefit a
particular victim. Saying ‘no’ or refusing to obey orders is unlikely to benefit any real person unless
temporarily. They can never or rarely benefit particular persons.

Implicit in his distinction between ‘ordinary virtues’ and ‘heroic virtues’ are a number of questions. Do
the policy intentions, the circumstances of power and the regulation of social relations that define sites
of moral extremity like a death camp extinguish the possibility of ordinary virtues? Do they make it
possible to be moral only by engaging in heroic activity? Todorov largely addresses these questions from
the point of view of the victims and concludes that ordinary virtues are not extinguished while heroism
can also be seen at work. But what of the perpetrators?

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Todorov (1996: 295) seems inclined to the view that heroic virtues become necessary because ordinary
virtues no longer suffice In such a setting:
… the subject must take upon himself the action he prescribes but accept the risks such action
entails both for himself and for those close to him And not only must he direct his action toward
another individual he must be willing to do even when the individual is a stranger to him In short
heroic virtues courage and generosity becomes as necessary as the ordinary ones
Tragically as he allows the numbers of people able to rise to such heroism have been too few. For that
reason the camp as a site of extremity may be too extreme a situation to enable us to use them to say
much about the ordinary lives most of us live most of the time. Equally they may be useful for reminding
us that if extreme situations do erupt so too we need to be very careful about the ease with which we
judge those who find themselves in circumstances well and truly out of the ordinary. For it is in such
morally extraordinary sites that for the most part ordinary men and women find themselves.

We need to be able to specify empirically why certain social spaces produce certain kinds of ethical
problems that are beyond our ordinary experience and work in ways that render our ordinary responses
or values relevant in such settings. And yet even if we do this does not guarantee that we will all that
much wiser or better off. For as Todorov (1996:186) reminds us there remains a fundamental enigma
that is not explicated by this discussion of ordinary vices. As he says:
… if all of us can understand intuitively the urge to kill, or the pleasure one might take in the act
of torture, why are there so few killers and torturers among us? If indeed the enjoyment of power
over another is the most effective way to exercise sovereignty and to prove to ourselves that we
exist, how is it that only a few of us actually cross the boundary and kill or torture?
The enigma does not disappear when we confront the fact of the crimes against humanity that seem to
proliferate under totalitarian regimes:
… we may understand how ordinary vices and the totalitarian regime facilitate the proliferation of
evil, but not how or why an individual living under such a regime decides one day of his own free
will to beat an infant to death.

CONCLUSION

Acknowledging the role of knowing and thinking about goods and bads takes us back to a classical
problem. We need to pay more attention to what it means to say that we ‘know’ or do ‘not know’ that
something is good or wicked, either before or after the event. Both Midgley and Todorov help tease out
the many ways we know or do not know what we are doing when we do it. There are many problems
with ‘knowing’. We may for example be genuinely ignorant of the evil consequences of certain actions
we have taken -though the ignorance may be culpable. Or we may have formed a mistaken view of what
we are doing or what consequences it may have. We may also work to silently convert a suspicion that

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we are about to do something that is bad into a good: that is we are often practiced at rationalizing our
actions. In both cases there is a crucial role to be played by knowing about or thinking about what the
good thing to do is or at least knowing what the bad thing not to do looks like. And Todorov insists at the
heart of the ‘ordinary virtues’ and ‘ordinary vices’ we need to keep in mind our feelings about and
conduct towards very specific other people in all of our relationships.

QUESTIONS
1. What key questions is the author asking here?
2. Can you get a grip on the major claims being argued for here?
3. Does it seem that this author is relying on any assumptions that you can spot at this
stage? What assumptions do you rely on as you read?
4. Are you ever a wicked person in Midgley’s terms?
5. What is the connection between Midgley’s account of wickedness and Arendt’s challenge
to ‘think what we do’?
6. How much of your daily life and work is based on a careful assessment of the
consequences and motivations of your conduct? What if anything gets in the way of such
careful assessments?
7. What do you understand about ‘human goods’ and ‘human bads’ now having read this
chapter?

CHAPTER NINE: THE HUMAN GOODS THAT MATTER

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 All our experience of what conduces to the good - all our insight
into what limits human possibility, causes suffering, and is felt as
cruel and unjust by victims; all our understanding of what we seek
for ourselves, at the minimum, in the way of treatment by others
and the institutions we live under, all our best, most sober, most
mature, most well-judging debate among ourselves –teaches us
what is both desirable and needful in the way of ethical and legal
frameworks for the best kinds of human life.
A. C. Grayling 2007: 150

At the start of this book I pointed to a small but important truth about what talk about human rights
addresses and why it matters. That truth is that human beings everywhere and at all times wish to stay
alive, desire relationships with each other, need to eat and be sheltered from the elements and want to
exercise the opportunity to make a life for themselves that they feel is good. If these are positive things
they want, there are also things they do not want. They do not for example, want to be murdered,
tortured, raped, treated with lack of respect or to be humiliated. To talk about and to advocate for
human rights addresses the fact that these wants are still insufficiently acknowledged let alone met for
all of the peoples of the world. The question is by what means can we proceed to enhance the
acknowledgement of these wants as well as their accomplishment?

Across the preceding chapters I have made the following points. While some have a more negative or
cautionary character than others, they are all oriented to the positive task of thinking about what a
culture of human rights will look like.

Though it is a useful first step we cannot rely only or simply on a formal declaration of human rights by
itself, whether by means of some kind of constitutional amendment or as an Act of Parliament. Spelling
out a legal set of obligations to think about people’s rights for example to privacy or to due process, is a
very powerful opening gambit. Like the project that began decades ago to improve safety on our roads
by reducing the road toll, simply declaring that some behavior like drink driving or speeding is illegal is
really only a very small step. We will need other things like a lot of education if we are to promote
certain basic changes in disposition, feeling and actual behavior change that will produce the desired
effects.

To produce changes in the ways we relate to each other or behave, we cannot simply rely on legal or
juristic practices like litigation in our courts to promote or protect our human rights, even though from
time to time interventions like this may well prove useful. Like cognate attempts going some decades
now to develop non-discriminatory attitudes and conduct by way of equal employment opportunity or
anti-discrimination legislation, Victoria’s human rights Charter does not provide anything like the kinds of

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remedies which the criminal law has long taken for granted as a means to secure compliance. Rather the
Charter has adopted a dialogue model which encourages developing a consensus over time about how a
number of basic civil and political rights come to be reflected adequately in government legislation and
policy, while also shaping the actual conduct of public sector workers as they deal with each other and
the clients of their services.

As to the very idea of human rights and the development of a discourse of rights, we need to be even
more cautious. There are a number of solid grounds for thinking that rights talk is inherently
contradictory, confused, messy and paradoxical. At the global level the dominance of the USA has proved
fatal to those earnestly supporting a universal and abstracted approach to human rights: the charge of
hypocrisy can be made too easily and at some great cost to those advocating for a universal regime of
rights. Worse the promotion of civil rights, can end up looking like a defence of the very inequalities of
power and resource which thwart those seeking to promote social and economic rights.

Paradoxically the work of philosophers like John Rawls ostensibly making an intellectual case for rights
has not been helpful. We cannot rely on a liberal discourse of rights as conducted by philosophers like
John Rawls deploying a thinned-out account of hyper-rational, hyper-individualistic persons who live
nowhere and have no commitments or sense of belonging to a real time and place. And in particular we
cannot put rights ahead of goods, as too many liberal philosophers have tended to assume is a good
idea. If I am right, human rights do not come before goods but rather come ‘after’ the goods, and are
better understood as something that will help us achieve those goods. Instead we need to be prepared
to say that identifying and protecting our human rights only begins to be sensible when we can say
which goods a given right can protect or promote -or which bads a given right protects us from. That is,
human rights talk or practice only begins to work when we begin to make explicit our ethical
commitments and the links between rights and those ethical ideas and do so in ways that fully
comprehend that ethical ideas matter because they arise in the context of people’s lives in all sorts of
social settings.

So we have arrived at the end of a short journey. The considerations I have just enumerated enable us to
turn directly to the central question. Having made a formal commitment to human rights courtesy of a
bill of rights (like Victoria’s Charter of Rights and Responsibilities (2006), can we use it to grow a culture
of human rights and if so, how? What would a culture of human rights look like?

Building a culture of rights entails enhancing our capacity firstly to understand better how real people
engage in ethical deliberation and make ethical choices in a variety of ordinary social settings. We cannot
for example rely on an account of ethical deliberation as if it were an exercise in ethical thinking done by
an isolate. Drawing on writers like Mary Midgley and Tzetvan Todorov, I argued that we need to pay close
attention to the way we live out our lives and engage in the daily tasks of practical reasonableness -or

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the ethical choices we make. Midgley reminds us that many of us find it difficult to think about our daily
lives with the kind of requisite clarity about our motives or with insight about the likely consequences for
others of our behavior. She draws attention to the problem of knowing what the right thing to do looks
like. Both Midgley and Todorov remind us that the institutions and organizations we find ourselves in
create or sustain social dynamics that can thwart or block good judgment and doing the right thing. This
can for example take the form of emphasizing obedience to authority over doing the right thing, or by
generating what for want of a better word we can call ideological beliefs which privilege fantasies and
fears over a more sober and realistic appreciation of what is going on in the world. After all, the murder
of nearly six million Jews after 1939 in Europe as a matter of state policy rested on the Nazi fantasy that
Jews were a degenerate race seeking world domination.

Modern philosophers like Bernard Williams have addressed the nature of practical reasonableness and
suggested that we need to stop addressing the conventional philosophical question which has been
phrased in terms of ‘what ought you do and why?’ That question supposed that the philosopher’s task
was to construct a rationally compelling set of arguments about what course of action ought to be
adopted by the ideal rational agent. That tendency was cranked up to a high pitch by Kant. It has since
condoned an elitist contempt for most ordinary people who fail to meet the demanding standards
implied or set by Kant.56 Williams (2006) has pointed to the severe limitations of this approach and
suggested that we need to make a simpler and more immediate question, namely, ‘what ought I do? the
focus of our practical ethical deliberations. As Williams (2006: 21) insists:
Practical thought is radically ’first-personal’. It must ask and answer the question, ‘What shall I do?

Williams adds that this question should not be understood as a question posed by a social isolate so
much as it points directly to our involvement in numerous and overlapping social relationships. As
Williams insists, all ethical questions only arise in the context of a life lived with others. That is both the
source of the problems and the possible solutions to the problems which practical judgment seeks to
address. And as Williams (2006: 201) says ‘… social or ethical life must exist in people’s dispositions’. This

56
The prejudice about rationality was already in place with the enlightenment. The so-called ‘Enlightenment
project’ and its preoccupation with Reason was captured well by Denis Diderot. who argued that:
... we have a duty to reason about everything. This implies that anyone who refuses to use his reason, or to
recognise truth when reason elicits it, is renouncing his human status and deserves to be treated like a wild
beast (cited in Furbank 1992: 120) Many modern moral philosophers (eg. Dummett 1993; Heck 1998) have
privileged certain modes of rational and analytic activity as the necessary and non-negotiable foundations
for any claims that a content-ful or a procedural approach to resolving ethical issues have been established.
As Zigler (1994: 1) notes one consequence of this is that 'the central role of reason in morality and moral
development is deeply embedded in our culture and our vocabulary'. In general there has been a strong
predilection to privilege the 'higher ethics' defined typically in terms of universalistic even somewhat
abstracted principles and rules for identifying 'the good' or for doing 'the good'. Martha Nussbaum is saying
nothing unusual when she (2005:1) says:
Theories of social justice should be abstract. They should, that is, have a generality and theoretical power
that enable them to reach beyond the political conflicts of their time, even if they have their origins in
such political conflict.

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implies that one of the things we can and should consider is how best to ‘train’ ourselves. Williams is an
advocate for what is arguably the oldest tradition in western ethics namely virtue ethics. Accordingly his
focus is less on our ability to engage in abstracted rational analysis and more on our personal
capabilities, moral feelings and good judgment ie., our personal qualities and character. 57 Again because
we do not live as social isolates the reference to ‘personal‘ capabilities is less to be understood as
‘individual; capabilities and more as the fruits of the dialogical character of our relationships with each
other: it is an ‘obvious’ truth that bad behavior tends to elicit other bad behavior just as good behavior
tends to bring out other good behavior.

Again cultivating our own character could be a solipsistic task best carried out by a hermit. As the oldest
exponents of a virtue ethics frame like Socrates, Plato and Aristotle understood, cultivation of a ‘good’
character (phronemos) and the development of the capacity for ‘good’ judgment (phronesis) is done on
the understanding that the pursuit of our ‘virtue’ or excellence (arête) is properly a social
accomplishment. We cannot escape our social condition. One implication of this is that the pursuit of
‘my’ good properly encompasses and indeed even requires the pursuit of ‘your’ good: in the simplest
sense a community of such people would be a community whose members at the least were actively
addressing the question ‘what do we owe to each other?’ - which is the question of ‘justice’.

In short, and as any number of ethical traditions suggest, rights claims point towards certain key goods
which the observing or protection of rights are designed to secure. These goods may intuitively be
thought about as ‘human goods’. This clearly presupposes some capacity on our part to identify and
specify the elements of a good life. This involves thinking about the quite specific elements which make
up what we can call a social and political morality that is rich and content-ful. This requires us to specify
the kinds of goods that matter as well as saying something about how we know the goods that matter.
Secondly we need to engage in the quite practical task of enabling more and more people to acquire the
kinds of training and practice in ethical practice which will form a kind of habitus in which the pursuit of
the goods that matter would follow ‘naturally’ and which a specification of basic rights would help to
secure. Thirdly given the social contexts in which we engage the goods and seek to be practically
reasonable we need to strengthen the capacity of organizations and institutions to support and not
thwart the pursuit of the goods and those rights which secure them.

So what are these goods and how shall we identify them? With writers like Martha Nussbaum (1995)
and John Finnis (1980), I share an optimism about our capacity to both identify and get consensus about
the basic goods without which no life is worth living or without which no-one can be said to be able to
lead a flourishing life.

57
This points to the need to identify certain virtues understanding them as Todorov has suggested as capacities
like ‘courage’, ‘dignity’, ‘humility’, and ‘prudence’ and understood as those capabilities which are properly
oriented to producing or achieving certain basic goods.

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ON THE HUMAN GOODS

Ours is a time when all sorts of spray-on categories like ‘budget responsibility’, ‘efficiency and
accountability’, ‘quality assurance’, triple bottom line’, ‘managing risk’ or ‘strengthening community’
clamour for attention in Australia’s policy bureaucracies and in what passes for public space, as an
account of why governments provide health or education to their citizens. These as Don Watson (2004)
has demonstrated are shoddy and empty ideas which get in the way of developing good policy. Whether
those experts and policy wonks who fuss about such things have got a better idea than the great Greek
poet Greek poet called Pindar is doubtful.

Two and a half thousand years ago, Pindar wrote movingly about what a young grape vine - and a young
person - needs if it is to grow well. Pindar (cited in Nussbaum 2003: 1) says:
… Human excellence grows like a vine tree, fed by the green dew, raised up among wise men and
just, to the liquid sky.

Among the basic requirements needed to achieve this idea of human excellence (the Greeks called this
arete (or in the Latin ‘virtue’), Pindar identified a good heritage, fostering natural and social
circumstances, the avoidance of catastrophe and/or good luck, and the ability to develop ‘confirming
associations’ with other human beings. As Pindar insists, ‘We have all kinds of needs for those we love:
most of all in hardships, but joy too, strains to track down eyes that it can trust’ (Cited Nussbaum 2003:
1).

The idea of working to promote human excellence, to assist people to flourish has a great deal to
commend it. It requires that we understand better the conditions and circumstances in which humans
might flourish or not live at all well.

One contemporary and admired way to think about this is to think in terms of the capabilities which we

need as humans to live the good life. Another way which is more ‘content-ful’ is to actually engage the

goods which the exercise of practical reasonableness will help us identify as basic goods. Let me start

with the idea of capabilities.

Martha Nussbaum (2000) uses and extends the idea of a capability ethics developed by Amartya Sen

(1999; 2002). Sen’s work has strengthened certain traditional liberal ideas about freedom, and both

extends and grounds it. Nussbaum extends the idea of freedom by reminding us that freedom is not just

about being ‘negatively free’. She (1988: 183) reminds us that:

Some policies of non-interference actually extinguish human freedom to choose what is valuable.

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That is, someone can be free from external interference yet still be ‘radically unfree’ because of the

absence of basic options in general (like food or water) or valuable options (like the capacity to access

education or to engage in the public life of a community). There is, says Nussbaum (1995: 81) a

threshold of capability to function, beneath which a life will be so impoverished that it will not be

‘human’ at all. There is another second threshold beneath which those characteristic functions and

activities are available in such a reduced fashion, that though we judge the form of life a human one, we

will not think it a good human life.

Nussbaum asks do we really want societies to allow their citizens only a capacity to live at the bare

minimum? Was not Aristotle right when he suggested that a good political arrangement is one ‘in

accordance with which anyone whatsoever might do well and live a flourishing life? (Nussbaum 1995:

81).

As Nussbaum argues, the move from ‘bare human life’ to ‘good human life’ involves quite complex
judgments. In some cases as she notes, crossing of the thresholds needs to be addressed by being ‘self-
reliant’. This is because the move from ‘bare’ to ‘good human life’ is supplied by the ‘citizen’s own
powers of choice and self definition’. This might be the case in acquiring ‘practical reason’ via the
provision of schooling. Once social institutions permit a child to cross the first threshold its own choices
will be central in raising it above the second. Equally there may be other social circumstances like
mindless or oppressive forms of work, or traditional gender relations, that requires public regulation to
create the conditions for people to cross the second threshold. This will certainly be so in cases of bodily
health and nutrition, even though, as she allows, there are complex issues of what the thresholds are for
the good human life. She (1995: 83-6) goes on to argue for a list of some ten groups of complex human
capabilities ranging from life expectancy, good health and nutrition, through the capacity to play,
imagine, think critically, form good relations with others and with the natural world, to being able to live
one’s own life by being free to make choices about marriage, sexual expression or employment .

This formulation of the capabilities –as distinct from what people actually do- forces us to avoid false

binaries like ‘nature’ versus ‘nurture’. As Mary Midgley (2002:46-50) has forcefully reminded us if we

had no nature there would be nothing to nurture. (Midgley also reminds us why this academic

distinction is so stupid by suggesting that if we were only the work of nurture, pigs would fly with a few

hours of nurturant pilot training). In this regard addressing the conditions under which we can flourish

begins with a robust recognition that all of us are born with diverse natural constitutions. We are all

natural creatures who are constitutionally born short, fat, thin, tall, male, or female and all with different

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kinds of intelligences. We are not born as indeterminate creatures as if we really were the proverbial

Lockean blank sheet of paper.

Crocker (1995: 183: Sen 1989:77) draws on Sen’s work when he argues that:

The concept of positive freedom is important because it marks out how a person is actually able to

act, live, function or achieve positive freedom is ‘what a person is actually able to do or to be’.

Crocker notes that positive freedom means freedom in the sense of being able to determine or to

control one’s life and so have a significant impact or effect upon the direction of one’s own life and the

circumstances under which one must live. Crocker draws on Sen’s argument that positive freedom:

… also includes the real availability of an array of options, and that freedom is increased to the

extent that the number and goodness of these options are increased (Cited Crocker 1995:183).
Crocker adds that positive freedom is enhanced when there is also an increase in the diversity or
probability that options will actually be available.

This account of human capabilities forces us to ask whether interventions into others lives -by
individuals or governments- will help them to flourish or simply thwart them. Nussbaum insists that the
capability of a person to choose depends not simply on our natural constitution, like being born tall or
short. It will also depend on social factors, like the kind of family one is born into, the kinds of state
policies in place or what is made available by the prevailing economic activities of a market. Finally it will
also depend on whether the person has a developed power of choice. For example neither stones nor
three day old babies can choose right now to do anything. Babies however, unlike stones will eventually
acquire the power to make choices.

One purpose of good development says Nussbaum (Cited Crocker 1995:184) is to see that this power is
‘acquired by the young, maintained by the mature and restored - when possible - to those who lose it’.
The point and task of good government especially via services like health care, education and welfare
systems, is to facilitate the formation of good capabilities, remove impediments to their exercise and
provide the means for their use. This requires that all policies need to face in two directions
simultaneously. They need to do this so as to ensure that more people are given the actual power to
make choice, and secondly to ensure that there are real options made available so that they have that
power and actually have real choices to make.

Yet this discussion seems still to circle rather abstractly around the more fundamental question, namely
what are the goods which define or enable a human life to be understood and lived as a good life? I think
the discussion by John Finnis (1980) provides an uncommonly robust answer to this question. Certainly I
know of none better.

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In a book which seems to have too quickly and unjustifiably disappeared from too many people’s list of
indispensable books, John Finnis (1980: 18) offers a gritty and compelling account of the nature of the
fundamental human goods and the role played by human rights. As Finnis announces from the start he
wants to identify both the human goods and the requirements of practical reasonableness which help to
constitute a sense of what we might mean by a good human life. It is an unfashionable book since
Finnis is neither a relativist, nor a liberal individualist. He plainly belongs to a tradition of natural law
which has sought to ground its claims about the good life either in a naturalistic anthropology and/or in a
religious account of an order of things established by a God.

His is an inquiry into both the kinds of goods which support human flourishing and of what practical
reasonableness looks like. As he says for this to be possible the theorist has to find a point of ‘reflective
equilibrium’ between description and evaluation.58 His account is located methodologically in the
capacity of a theorist like himself to develop a non-value neutral descriptive account of the goods which
accepts that such a theorist necessarily participates in the work of evaluation. Finnis proposes a kind of
analytic dialectic which moves backwards and forwards between assessments of human good and its
practical requirements and explanatory descriptions using historical, experimental, and sociological
materials and methods. This says Finnis requires both a descriptive-evaluative anthropology of the
goods which support a flourishing life, or inform the good life, conjoined with a capacity to understand
what is really good for human persons and what is really required by practical reasonableness.

It is an ambitious exercise since Finnis claims that there are universal goods, albeit goods which can only
be specified at a certain level of generality. Further he claims that his account is not so much a wish list
as something descriptively grounded in the actual circumstances of human existence. 59 His inquiry relies
on the descriptive social sciences which seek to tell us how people in different societies engage their
pursuit of the good life. Yet it is not put off by the inevitable discovery that people in different times and
places are not all equally devoted to or united in their conception of what justice or the goods may look
like. As he notes Leo Strauss (1953: 10) treated the fact that that there is an indefinitely large variety
of notions of right and wrong, is not so much ‘incompatible with the idea of natural right, than it is the
essential condition for the emergence of that idea’. Equally it needs to be informed by sound judgment
about all aspects of genuine human flourishing and by insight into what authentic practical
reasonableness’ looks like. Assessing this depends on Finnis’ ability to persuade his readers that he has

58
As Finnis (1980: 17) says:
Just as there is no question of deriving one’s basic judgments about human values and the requirements
of practical reasonableness by some inference form the facts of the human situation, so there is no
question of reducing descriptive social science to an apologia for one’s ethical or political judgments, or
to a project for apportioning praise or blame among the actors on the human scene…
59
He understands that existence in ways that the social sciences have too often seemed to forget, namely that all
social activity like our interactions and relationships can be understood fully only by understanding their value,
significance point or objective for those people even if necessarily, this varies from person to person and for
different communities at different times and places.

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made a good case. We may test the adequacy of his work by considering his claim that knowledge of
truth is a basic human good.

It says something about Finnis’ courage, if nothing else, that he is writing at a time when all manner of
relativisms have flourished which deny that truth matters or that reality is real. Finnis defends the
proposition that the first great human good is knowledge where knowledge is conceived of as knowledge
of truth. This is an important argument worth dwelling on.

This good he (1980: 60) says, is grounded in a very common human activity, namely the ‘activity of
trying to find out, to understand and to judge matters correctly’. As he (1980: 61) puts it:
Commonly one’s interest in knowledge, in getting to the truth of the matter, is not bounded by
the particular questions that first aroused one’s desire to find out … In explaining, to oneself and
others, what one is up to, one finds oneself able and ready to refer to finding out, knowledge,
truth as sufficient explanations of the point of one’s activity, project or commitment. One finds
oneself reflecting that ignorance and muddle are to be avoided … ‘it’s good to find out…’ now
seems to be applicable not merely in relation to oneself … but at large … and for anyone.

This idea of knowledge -of truth- as an intrinsic good is not limited. 60 Saying that knowledge is a valuable
activity is simply to say that the pursuit of knowledge makes intelligible any particular instance of the
human activity and commitment involved in such a pursuit’. He (1980: 65) proposes that knowledge is a
human good and there are no sufficient reasons for doubting that this is the case. He allows that the
truth of this claim ‘cannot be demonstrated, but then it needs no demonstration’. It is simply self-
evident.61 This is not to say that each one of us will recognise the value of knowledge. Such a recognition
is not innate and will not for example, be experienced as such by a new-born child:
Rather the value of truth only becomes obvious only to one who has experienced the urge to
question, who has grasped the connection between questions and answers, who understands
that knowledge is constituted by correct answers to particular questions and of other questioners
who like himself could enjoy the benefit of attaining correct answers.

60
It is not limited for example when it is accepted that not all kinds of knowledge are equally valuable, or that
that not all kinds of knowledge are equally valuable for each person. Equally it is not the only good worth
pursuing nor is it to be understood simply as a moral good.
61
On this Finnis (1980: 67) notes that this brings every ‘controverted question of epistemology to a focus’.
Undeterred by this acknowledgement, he goes on to adduce a number of basic considerations in his defence. He
appeals (i) to the principles of logic like good deductive inference - allowing of course that no non-circular proof
of the validity of these principles is possible since any proof would use them; (ii) the principle that self defeating
theses are to rejected; (iii) phenomena are to be treated as real unless there is some reason to distinguish
between appearance and reality; (iv) a full description of data is to be preferred to a partial description; (v) I a
successful method of interpretation is to be relied on in all similar cases until contrary reason appears; (vi)
successful theoretical accounts which are simple, predictively successful and explanatorily powerful are to be
accepted in preference to other accounts. As he says none of these principles are demonstrable. They can even
be denied. ‘But to deny them is to disqualify oneself from the pursuit of knowledge and to deny them is as
straightforwardly unreasonable as anything can be’. This seems to be the same point made at length by Susan
Haack.

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As Finnis (1980: 74-5) then proceeds to suggest, any scepticism about the basic value of knowledge is
self-defeating or self-nullifying. (He accepts that this cannot be used to show that the basic value of
knowledge is self-evident). As he shows some propositions are logically self-contradicting like claims
that ‘I know that I know nothing’, or ‘It can be proved that nothing can be proved’. Others are
operationally self -refuting as with the case of someone singing, ‘I am not singing’. It is another instance
of an operationally self –refuting claim if someone were to assert in writing that, ‘No one can put words
(or other symbols) together to form a sentence’. Finnis says that for someone to say that knowledge is
not a basic good is operationally self-refuting. The reason for this is simple:
For one who make such an assertion intending it as a serious contribution to rational discussion, is
implicitly committed to the proposition that he believes his assertion is worth making, and worth
making qua true; he thus is committed to the proposition that he believes that truth is a good
worth pursuing or knowing. But the sense of his original assertion was precisely that truth is not
a good worth pursuing or knowing. Thus he is implicitly committed to formally contradictory
beliefs.

As he concludes, knowledge of truth is a basic good. This seems to be objectively true because there are
warrants for asserting it, and because it seems to be correct and there are certainly no ways of denying
it. Thought it be non-demonstrable, it is objectively the case that knowledge is a good to be pursued.
For those not inclined to agree the onus is on them to say or show why they think this.

Are there other basic values or goods that may be indemonstrable but which seem to be self-evident? Is
it not the case, as so many social scientists and philosophers have observed, that human cultures
manifest such a wide degree of variability, even chaos in their preferences, motivations and evaluations
that no values or principles can be said to be either universal or self-evident? He addresses this protean
problem in two ways. Firstly he asserts, though of course does not try to validate this claim, that a
survey of human cultures does suggest that all societies manifest a common set of goods. Secondly we
could also pursue this task by asking ourselves via some process of intense meditation what are the basic
aspects of my well-being that I regard as basic goods? He says we will again come up with a similar set of
basic goods.

To pre-empt an obvious response from sceptics, Finnis (1980: 85) insists that the identification of these
basic goods is not intended to deny the limitless diversity in the ways people and cultures experience
these goods. There is limitless diversity with respect to the depth, duration of commitment, intensity in
the extent to which the pursuit of any given good is given priority in the shaping of a life in common or
in more personal ways. As he says, this is only to recognise that truth is not the only basic value and:
… that people and their cultures differ in their determination, enthusiasm, sobriety, far
sightedness, sensitivity, steadfastness and all the other modalities of response to any value.

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As to those goods Finnis identifies seven basic goods. They are life, knowledge, play, aesthetic
experience, sociability or friendship, practical reasonableness and religion.

Life itself is the most basic good. It encompasses all aspects of life as vitality from self-preservation in the
face of imminent threat of death or injury, to the many ways we seek self-determination by way of
bodily and emotional health including freedom from pain. All societies show a concern for the value of
life, as well as a regard for bringing new life into being. Self-preservation is accepted as a motivation for
action, while killing another human is everywhere prohibited unless there is some strong justification for
it.

Knowledge as the pursuit of truth is the second great and basic human good. All societies for example,
provide for the education of their young in both the instrumental or technical aspects of living from how
to avoid danger to how to obtain food through to aesthetic, ethical and religious practices.

Then there is the value attributed to being practically reasonable. All societies show a regard for the
capacity of its members to be practicably reasonable ie., to possess and display the capacity to reflect on
and make choices about what we will do, or how we will live, and what values ought properly obtain in
any given situation requiring us to act. It relates both to the choice of ends and the means we might
adopt to achieve those ends. It has internal dimensions frequently understood as the display of personal
qualities or virtues like courage, gentleness, moderation and so on which define a person’s character just
as it has external dimensions about the shape and quality of our relations with each other. Being
practically reasonable forces reflection on the interplay between being free to choose and the resources
of intelligence and character available to make good choices. It follows as Finnis (1980: 119) will argue
later, that one central requirement of practical reasonableness is that we will, as an instance of practical
reasonableness, always seek to act so as to promote on or more of the basic goods. (Or to put this
negatively practical reasonableness entails ‘not choosing directly against a basic good’). Acting
deliberately in the light of the requirement to act in practically reasonable ways needs , he says to
acknowledge that the basic goods are the only guides we have. (That is true he insists for anyone who
acts deliberately for they must be seeking some form of good even if only the good of authentically
powerful self expression and self-integration which he seeks through sadistic assault or through
malicious treachery or deception ‘with no ulterior motives’).

Play is another basic good. All societies demonstrate a regard for various kinds of play serious and
formalized or informal and relaxed. Humans value play for its own sake: they play physically,
intellectually and socially where the point is simply the enjoyment of play. And play involves some kind
of activity which is its own end.

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Aesthetic experience involves the pursuit of beauty and is likewise everywhere valued. It is often found
in forms of play but is distinguished from play because of the value given to some idea of the beautiful
and because, and unlike play, the pursuit of beauty does not need to involve activity: it can be done
contemplatively, even meditatively.

Sociability and friendship are inescapable aspects of our common flourishing. All of us live in or on the
margins of a community of some size. In all societies there is both friendship and closer familial relations
involving sexuality. In all there are rules for sexual life like some prohibitions against incest and rape
and some favouring of permanence and stability in sexual activity. All societies also display a concern for
cooperation and reciprocity while recognizing the difference between meum and tuum and possessing
some reference to ideas of justice.

All societies display a regard for some order of things in which ideas of the sacred or the transcendent
play a central role. All societies have ritualised ways for example of demonstrating regard for the bodies
of dead members of the group in some traditional or elaborate way. All have ways of referring to
something beyond the ordinary or mundane aspects of communal existence and the human scale of
things, typically involving some idea of super-nature or the transcendent. All societies have arrived at a
question which Finnis (1980: 89) says defines what he means by the value attributed to religion:
For as there is the order of means to ends, and the pursuit of life, truth, play and aesthetic
experience in some individually selected order or priorities and pattern of specialisation, and the
order that can be brought into human relations through collaboration, community and friendship,
and the order that can be brought into one’s character and activity through inner integrity and
outer authenticity, so finally there arise such questions as … how are all these orders, which
have their immediate origins in human initiative, and pass away in death related to the lasting
order of the cosmos and to the origin if any of that order?

As for those who deny the existence of the transcendent, thinking of existentialists like Sartre who deny
the value of ideas of ‘god’ or the transcendent, Finis responds noting that even Sartre :
… nonetheless appreciates that he is ‘responsible’ ie., obliged to act with freedom and
authenticity and to will the liberty of other persons equally with his own, in choosing what he is
to be, and all this because prior to any choice of his ‘man’ is, and is-to-be free. And is this not a
recognition (however residual) of, and concern about, an order of things beyond each and every
man?

Of this list of the goods Finnis makes a number of important observations. While he allows that there
will doubtless be argument about the exhaustiveness or inclusiveness of these goods, Finnis says that
while there is nothing magic about the number seven, when other goods are proposed it will shown on
analysis that they are simply sub-sets of these goods, or else ways or combinations of ways of giving

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effect to one or more of these seven goods. (This goes to claims for example about virtues like courage
humility or prudence: these virtues are better understood as one of the ways we identify or live out the
goods that matter). Secondly each of these goods is basic and each is self-evidently a good. None for
example can be reduced analytically to any other by virtue of being simply instrumental to the others,
and accordingly there is no way of constructing a hierarchy of goods. Each if reflected on, can be treated
as the most fundamental. Each can reasonably be focussed on, and each, when focussed on claims a
priority of value. Further each one of us can reasonably choose to treat one or more of these as more
fundamental. That is, there is necessarily a sense in which each of can as a subject make a choice
between these various goods and order them in ways that reflect our choices. Finnis (1980: 93)
instances the scholar who privileges the pursuit of knowledge over friendship, religious worship, play
and the pursuit of the beautiful. These choices properly reflect the interplay of the personal and the
social circumstances that shape one’s temperament, upbringing, training, capacities and opportunities
and thereby influence our choices and rankings of the goods that matter. This does not affect the
‘objectivity’ of these human goods.

I do not propose to add any additional justifications for what is surely an uncommonly bold set of
propositions. I am persuaded by Finnis. Like Finnis I think that the seven human goods do catch in their
generality a strong sense of these goods that provide ‘an outline of everything one could reasonably
want to do, to have, or to be’ (Finnis 1980: 97). They provide further a strong basis for thinking about
how and by what means a community such as ours might set about promoting and protecting these
goods and the role to be played by the pursuit of human rights that will actively seek to promote them.
At the least though they do not provide any ready made or simple basis for adjudicating between
competing rights they may help to clarify further what is at stake when various rights claims are made.
Even more to the point they provide a basis for reinvesting the kinds of community dialogue we need to
have with some sense of the content of such dlalogues about what it is that we truly value and wish to
promote. This is plainly not an obligation to be imposed on any reader. I would prefer that any reader
take this presentation as an invitation to further deliberation and conversation.

QUESTIONS
1. What key questions is the author asking here?
2. Can you get a grip on the major claims being argued for here?
3. Does it seem that this author is relying on any assumptions that you can spot at this stage?
What assumptions do you rely on as you read?
4. Do you agree with Finnis that there are a range of basic human goods?
5. Do you think Finnis’s list of basic human goods is comprehensive enough? Has he missed
anything important?

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6. How much of your daily life and work is based on a regard for the basic goods -or avoidance
of the bads when you think about your conduct?
7. What do you understand about ‘human goods’ and ‘human bads’ now having read this
chapter?

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CHAPTER TEN: DESIGN PRINCIPLES FOR A CULTURE OF HUMAN RIGHTS

One basic problem with relying on formal bills of rights and a range of related practices found in the
formal justice system is the incapacity of these mechanisms to acknowledge, address or resolve the
inherently contestable character of both human rights claims or the broader range of ethical ideas and
principles involved in any practical reasoning. I have said enough to indicate the kinds of problems which
any reliance on certain kinds of legal rationality tend to generate This is evident for example in the
reliance on and esteem accorded to certain kinds of legal and juristic practices like legislation or
litigation, and the kinds of practices often adversarial in nature and expensive to access and use which
can lead to a sense that justice hides in the shadows of the law. The essentially contestable nature of
rights will not necessarily best be handled by modes of legal reasoning or practice. We need to
acknowledge the contested nature of rights talk as one person or group asserts their rights which
affronts another person’s/group’s rights. This is of course quite different from saying that a commitment
to human rights is a bad thing. It is only to observe with Joseph Raz (1986; 1994) for example, that the
scope and content, indeed the very ground of rights ultimately rests on their capacity to make a
contribution to the protection and promotion of basic human goods.

That is why far from being the ground of political morality, and the basis upon which a good society can
be built, John Gray suggests that human rights are better approached as a consequence of a ‘long chain
of reasoning’ and thinking about the nature of human interests and goods. This conclusion says Gray
(2007: 108) relies on the proposition that:
Human rights have neither substantive content nor moral weight until their impact on human
interests, their contribution to human well-being has been specified.
Yet there is no particular reason for believing that we will find that getting consensus about what these
goods are will be any less difficult than getting agreement about our rights. We confront here one
fundamental fact, namely that we humans do not agree about very much including those ‘goods’ or
‘valued ends’ that define a good life. Yet far form bemoaning this fact and giving up we should treat this
basic datum as an incentive to look for certain ideas and for workable procedures to address this
problem.

Yet the question has to be asked how are we to proceed? The problem is a serious one. One idea which
is explored here goes to the practical value of developing a capacity for deliberative practice. I suggest

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here that developing this capacity needs to be minimally informed by some key ideas and some
workable procedures to achieve this.

The key premise developed here is that if we wish to promote a larger and more general regard for
human rights than is currently the case this will not happen by promoting a formal or legally bounded
notion of rights. It will have much more to do with promoting certain kinds of relationships and forms of
conduct that promote a good life. Developing these relationships and practices will involve attending to
both the ‘personal’ and ‘social’ dimensions of our lives. By ‘personal’ I mean only those cognitive, ethical
and motivational capacities which each of us bring to our engagement with each other and the world.
Working to develop a culture of human rights is not something to be done by others. It is work each of
us will need to do. Referring to the ‘institutional’ dimensions likewise means only that that the kinds of
cognitive ethical and motivational capacities we will need to work on as part of the task of developing a
widespread regard for human rights will be need to be backed by and/or informed by several things.

Firstly we will need to enable the development of a widely shared capacity and disposition on the part of
all of us to deliberate about our choices, preferences and actions. For example we will need to
strengthen our capacity to establish reflexively whether our actions are defensible against some idea of
the good or help to contribute to a just community. To do that we argue we will need certain minimal
ethical ideas and some minimal agreement about the procedures that will help us do this. This is the
primary focus of our discussion.

Secondly given that so many of our core institutions currently do not encourage this kind of capacity, a
good deal of institutional transformation and policy innovation will be required. This will undoubtedly
require some attention to the distribution of certain resources that variously thwart or enhance the
capacity of people to identify the goods that matter, or to live in ways that secure those goods both
personally and communally. This will require another kind of discussion about the kinds of policy
frameworks that will need to be pursued which will be left to another time and place.

TOWARDS SOME DESIGN PRINCIPLES

The need both for certain ideas and for workable procedures, and what they might look like, are
suggested by the fundamental fact that we humans do not agree about very much. Amartya Sen (2009:
358-9) has made the point that ethical claims are always involved in any declaration about human rights.
As he goes on to add this means that:
There is an implicit presumption that the underlying ethical claims will survive open and informed
scrutiny … invoking such an interactive process of critical scrutiny, open to arguments coming
form others and sensitive to the relevant information that can be obtained is a central feature of
the general framework of ethical and political evaluation …

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As I show there are important implications arising from a recognition that claims about human rights, as
with claims like ‘freedom is a basic value’ or ‘happiness is a fundamental criterion of the good life’, are
all eminently discussable ethical claims and that public scrutiny and discussion are vital to any exercise in
validating claims about rights or goods. One of those implications goes to the question of authority and
the basis upon which we make decisions about the goods that matter or the kinds of policies to be
adopted within a given community. The question of authority matters in any discussion of communal life
and the goods which are to be pursued or used to assess whether people are actually leading good lives
or that the community has in place a framework able to secure justice, and it matters because of the
starting point which impelled Thomas Hobbes to develop his case for an all powerful state as the
authority capable of providing social order.

In his book Leviathan (1651) Hobbes pointed to the fact that human communities especially in what he
called the ‘state of nature’ seem never to agree about the best way to understanding our world or to live
in it together: we live he says in a state of epistemic and ethical dissensus, possibly even anarchy. The
time in which he lived, which was one fractured by endemic war, unparalleled ideological contestation
and in his own England by revolution, undoubtedly encouraged him in this view. His solution was
‘Leviathan’, an all-powerful state. We might say with no hint of irony that this solution, when it is
pursued vigorously enough, creates the very problem which a robust regime of human rights is needed
to rectify or ameliorate, namely the growth of the will and capacity of the state to dominate even
destroy our lives: we have seen enough evidence of the effects of widespread state sponsored terror and
the violation of the freedoms that make a life worth living to see in this solution no solution at all.

What Hobbes thought required the ceaseless and ruthless exercise of political will, the men of the
Enlightenment thought could be better addressed by the free exercise of our natural capacity for reason
said to define homo sapiens. The Age of Reason sponsored the notion that we would ‘naturally’ pursue
rational knowledge and would want eg., to reject all those irrational ideas provided by ‘primitive’
magical or superstitious religious thinking. One effect would be an agreed upon body of knowledge. As
Harvey (1989:27) puts it, the men who made the Enlightenment believed:
That there was only one possible answer to any question. From this it followed that the world
could be controlled and rationally if we could only picture and represent it rightly. But this
presumed that there existed a single correct mode of representation which, if we could uncover
it (and this was what the scientific and mathematical endeavours [of the Scientific Revolution]
were all about), would provide the means to Enlightenment ends.

As for the ethical values that mattered, eighteenth century utilitarians like Hutcheson and Bentham
proposed that all men naturally sought to pursue their utility or well being and that this offered a single
ineffable guide to the good. Utility had the additional merit that it could also be measured. As a rational

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utility seeking species we needed only it seems to apply these faculties. Rational knowledge generated
by various kinds of scientific research in turn offered an authoritative basis for promoting human
welfare, securing economic growth, or solving urgent problems like poverty, unemployment, hunger, or
epidemic disease. In the eighteenth century it was assumed that we were naturally reasonable and
reasoning creatures, and that armed with the relevant scientific theories, facts and explanations there
was nothing we could not do to make things better. Progress was assured.

It is now generally accepted that this story was mythic. As John Gray (2009: 16) has pointed out, ‘Many
of the worst crimes of the [twentieth] century were the work of people possessed by what they
believed to be reason’, adding pithily that, ‘No traditional myth is as untruthful as the modern myth of
progress’. We would also say that this is true of the belief that reason will only ever produce ‘one
possible answer to any question’.

As Isaiah Berlin (XXXX), Bernard Williams (XXXX) and John Gray (2002) have reminded us, we live in a
world where we do not agree about either the ethical ideas that matter or the facts about the
circumstances we confront. This irreducible plurality of ideas and opinions about the circumstances we
face and how we ought to live, confronts us with a persistent challenge to find ways of getting on
together. Gray (2002:139) points albeit obliquely, to what is needed when he observes, ‘The diversity of
ways of life and regimes is a mark of human freedom, not of error.’ Like these exponents of a robust
liberalism we agree that we do not need to subscribe either to the Hobbesian reliance on sovereign
power to compel order and consensus or to the essentially theological idea that there has to be one
right answer to any question either factual or ethical. If we do not accept the authoritarian or Hobbesian
premise that someone (or something) else both knows better than we do about what our needs are, and
that we can and ought to trust them to secure our interests, and that we can therefore hand over our
capacity to determine what a good life for us will look like to them, then we will need certain kinds of
ideas and practices.

There are several core intuitions that are at work here about the norms and practices that would make a
culture of human rights worth having. We need firstly a framework of ethical ideas that speak to our
interest in defining the elements that make a life worth living and yet which are sufficiently inclusive that
no one could fail to reasonably accept them. We need such a framework because the abuse of one or
more human rights is bad or an abuse, not because a given right is abused per se, but because the
abrogation of a right typically produces ‘bads’ or prevents the pursuit of a good. Secondly and closely
related we need a set of procedures and practices that will enable us to establish by non-coerced means
agreement about what we can agree to know and value. Again to be clear there is nothing absolutely or
inherently bad about coercion or intrinsically good about non-coercion. There are occasions when a
good is made possible by coercion when someone with a life threatening condition is compelled to go to
a hospital to seek treatment when they would prefer not to go. A paternalist ethic is good however only

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when the premise that on occasion someone like a parent does know better than a dependant child
holds true both as to knowledge required to make a decision about how best to act and as to the actual
outcome of a coerced, paternalist intervention. Equally and generally we may say as we will show
shortly that in general the practice of freedom is to be preferred to coercion.

It is for reasons like these that I suggest that the design principles offered here are intended to establish
firstly an effective framework of freedom. We suggest that a culture of human rights will be one based
on a recognition of the fundamental value of freedom and the capabilities that people need to have to
identify, choose and pursue the valued ends that each person seeks. Over several decades Amartya Sen
(1980; 1992; 2009) has mounted a compelling set of arguments about the value of an abstracted yet
consensually compelling framework for thinking about human freedoms and capabilities which provides
one set of ethical design principles. We think that this work provides us with a rich basis for thinking
together about the things that make a life worth living and yet does so in ways which are sufficiently
inclusive that no one could fail to reasonably accept them.

Secondly and starting out with an acknowledgement that there is a very wide array of valued ends, we
will need some ideas about how to establish practical means to achieve the kinds of consensus which
Sen believes possible. We will need an ethos and a practice of deliberation which enables people to
work towards an uncoerced consensus about the facts that matter and the goods (or ‘norms’) that
people collectively wish to pursue. This deliberative practice will work best on an inclusive basis by
ensuring that all decisions to the maximum extent that this is feasible, are arrived at by deliberative
processes which ensure that everyone with an interest in a given decisions or practice has had their say.
Jurgen Habermas (1995) offers an approach to establishing how we might by a certain style of
deliberative practice, arrive at a non-coercive consensus about the facts and ethical norms that will
enable us to live better. Habermas’ discussion of deliberative democratic practice and his account of
what he has called the ‘ideal speech situation’ works well. Habermas suggests that if such an ethos and
practice is to be secured and become sustainable there will need to be sufficient consensus about the
protocols and procedures needed to establish the basic kinds of goods to be promoted or the bads to be
avoided. It will also need to be understood that these protocols and rules are themselves freely agreed
to and understood to be both uncoerced and that they meet some basic ideas of reasonableness and
are likely to ensure that justice or fairness is both seen to be done and is done. Finally because so much
rests on the practices of deliberation it will need to be agreed and understood that the ethos of
deliberation works so as to include everyone with an interest in the process of deliberation, with the
proviso that certain principles inform those deliberative practices.

Given the charge often made especially about Habermas’ work that it both forgets certain social
problems and is both too austere and abstracted to be practical, I show that there is already a body of
practice found in a wide array of mediation practice. There are existing institutional examples of such a

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deliberative practice at work in the evolution of institutions dedicated to promoting what is best referred
to as ‘mediation’ but is more commonly referred to as ‘alternative dispute resolution’. This body of
practice gives us some very practical instances of how this might actually work in ways that overcome
some basic flaws in Habermas’ model of deliberative practice. That this is so is a useful reminder that
often under our noses new kinds of social practices can emerge that have great transformative capacity.

Taken together these principles and design features begin to flesh out some of the features of a culture
of human rights. Clearly what we say here has a prescriptive quality and may even seem idealist or
utopian. Our judgment is that while what we have to say has a degree of abstraction about it, that it is
both sufficiently grounded in a certain kind of commonsense, and that there is a body of practice already
in place as to give some confidence as to its intrinsic practicability. The more significant downside is that
our prescriptive approach would need to address the implications for those already enjoying certain
kinds of positional power which would need to be surrendered.

Let me start with the idea of freedom and the idea that we need to be able to exercise freedom.

DESIGN PRINCIPLES: (I) SEN ON FREEDOM AND CAPABILITIES

Over the course of many decades the economist and philosopher Amartya Sen has crafted a capacious
framework for thinking about how we might both personally and collectively promote the good life. To
do this he has rejected the pervasive commitment to utiltarianism that has shaped both modern
economics and Anglo-American philosophy and the many technical and substantive implications for both
disciplines of adopting a framework of hedonistic calculation. In its place he has extended the classical
liberal preoccupation with freedom, while outlining a framework for thinking practically about how to
address the abundant evidence that rendering inequalities of access to basic resources like food, water,
health, and education continues to characterize whole societies or the entirety of humanity the pursuit
of the good life essentially irrelevant for too many people. In effect a culture of human rights will be one
where there is a lively commitment to promoting justice by ensuring that there is both freedom and the
capability available to all to identify, choose and pursue our objectives, namely those goods that we
value.

At the heart of Sen’s work is an idea about justice. All of our ideas of justice are best framed as the
answers we give to the question, ‘what do I owe to you?’ or ‘what do we owe to others?’ Unlike many
philosophers eg., Jeremy Bentham or John Rawls (1972), Sen does not believe that we need only one
answer or a single principle upon which to ground our answers to this question. In this way he rejects
monistic principles like utility (or ‘happiness’) or Rawls’ attempt to construct a case for justice as fairness.
(To be clear Sen is not saying that happiness or fairness are not important just that they ought not be
treated as the alpha and omega of our theories of justice or ethics).

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Like Berlin and Gray, Sen accepts as a basic premise that we live in a world where there are
incommensurable and multiple ways of evaluating the elements that make up a good life or that inform
our idea of justice. As Sen (2009: 395) puts it:
Judgments about justice have to take on board the task of accommodating different kinds of
reasons and evaluative concerns. The recognition that we can often prioritise and order the
relative importance of competing considerations does not however indicate that all alternative
scenarios can always be completely ordered, even by the same person. A person may have some
clear views on rankings and yet not be sure enough about some other comparisons.
This is why he (2009: 239) does not accept that there is eg., wisdom in ‘the utilitarian tradition which
works towards beating every valuation down to some kind of allegedly homogenous magnitude of
‘utility’, because this pursuit of a single principle or measure necessarily tries to ignore the fact of a
pluralities of values’.

It is upon this fundamental recognition that Sen argues for a cionceptiuon of freedom which accepts
both a plurality of values, while worrying about people’s actual capacity to both choose freely and be
able to pursue the valued end that matter:
In assessing our lives, we have reason to be interested not only in the kind of lives we manage to
lead, but also in the freedom that we actually have to choose between different styles and ways
of living. Indeed the freedom to determine the nature of or lives is one of the valued aspects of
living that we have reason to treasure.

Freedom says Sen is valuable for several reasons. First if we have freedom, we have more opportunity to
pursue our objectives namely those goods that we value. This is the ‘opportunity’ aspect of freedom.
Secondly freedom ought to mean that we are free from constraints imposed by others. (This is what he
calls a ‘process’ approach to freedom).

Sen uses three scenarios to make his point. John wants to stay at home one night rather than go out.
That is his clear and freely chosen preference. In Scenario A, John stays at home as he has intended to
do. In this case he has exercised the ‘opportunity’ aspect of freedom and has exercised the process
aspect of freedom because no-one else has stopped him from so doing. Under Scenario B however a
gang of thugs enters his home and drag him out into the street and insist on pain of death that he stay
out all night. In this case he has been denied both the opportunity and the process aspects of freedom.
He has been denied the opportunity to stay at home and he has had not enjoyed processual freedom.
In Scenario C the same gang of thugs invade his home and on pain of death tell him he is not to leave the
house. On this scenario he gets to exercise his preference ie., the opportunity to stay at home, but has
lost his process aspect of freedom. In this case he gets to do what he wanted to do but not under
circumstances in which he was able to exercise his free choice free of constraint.

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This says Sen points to an important consideration when thinking about the value of freedom. Can we
only think about opportunities in terms of whether or not we end up in the circumstances we have
chosen. What eg., of the possibility that there are other significant alternatives that we might have
considered –but did not? Take Scenario C: the difference between it and Scenario A is that in Scenario C
John comprehensively lost the opportunity to choose between other options, a choice which in Scenario
A he still possessed. That is in Scenario C John has lost an important aspect of freedom, namely the
capability to choose between more than one option. Sen says this points to the value of distinguishing
between a narrow view of freedom in terms of the ‘culmination outcome’ and what he calls a broader or
‘comprehensive’ view of freedom. In effect we need to ask whether we assess a person’s capability to
lead the kind of life they value in terms of what they actually end up with (ie the ‘culmination outcome’)
or adopt a broader view that takes into account the process whereby they can choose between actually
available possibilities which they could also have chosen. What Sen calls a ‘comprehensive outcome’
approach to freedom necessarily takes into account people’s actual capacity a) to choose between
various valued ends and then b) be able to pursue those ends.

Clarifying the nature of freedom in this fashion enables us then to turn to the question how are we to
assess or evaluate those aspects of a person’s life or that of a community against some idea of justice.
This Sen says is a basic issue facing any substantive theory of ethics or justice, namely that it has to
decide which feature of the world we should select to judge whether an individual or a society is living a
good life or not.

Firstly Sen argues that any assessment ought to be based on the extent to which people are actually free
to both choose and then to pursue the ends they value. This in effect amounts to assessing the extent to
which people are actually capable of freely choosing and then pursuing those goods which each person
values. This takes into account both being free to value different ends ie., being free to choose between
alternative conceptions of the goods that we want and then being actually able to pursue those valued
ends. Hence his insistence on the capabilities people actually have because a comprehensive view of
freedom is not interested in the culmination outcome but in the whole process both of choosing and
then being able to pursue those ends. Hence the interest in focusing on the whole of a person’s life and
not:
… just on some detached objects of convenience, such as incomes or commodities that a person
may possess, which are often taken , especially in economic analysis to be the main criteria of
human success. (Sen 2009: 233)
This catches Sen’s interest in assessing the actual capabilities a person has to both engage in a free
choice of the ends that matter and to then be actually able to exercise that choice by being able to
pursue certain valued ends.

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As Sen emphasises this requires we need to focus on more than just the means of living and rather to
attend to the actual opportunities of living. It is for this reason that Sen (2009: 253) rejects any proposal
to use income or wealth as a simple and/or singular measure of the good life. Citing Aristotle, Sen (2009:
253) observes that ‘wealth is evidently not the good we are seeking; for it is merely useful and for the
sake of something else’.

The capability approach goes well beyond what people own or earn since it focuses not just on the
resources a person has, or owns but shifts attention to the actual opportunities a person has to live a
certain kind of life. The focus of his (2009: 235) capability approach is ‘not just on what a person actually
ends up doing, but also on what she is in fact able to do whether or not she chooses to make use of that
opportunity’. Consideration eg., of a person with a severe physical disability suggests that they cannot
be judged to be better off simply because they have a larger income or more wealth than an able bodied
person. This framework in turn leads to a very significant refusal on Sen’s part to treat poverty eg., as
simply a case of deficient income. Instead Sen draws attention to the way resources like income and
capabilities may be used advantageously or not in a variety of ways because of differences found in
personal characteristics, people’s physical environment, their social relationships and their culture. This
in turn affects their capacity to use income and other resources so as to avoid poverty capabilities.

As Sen (2009: 233) insists he is not interested in measuring single aspects like a person’s income or a
person’s utility -or well being. This is because the many of the valuable ends of a good life are not
commensurable. For something to be commensurable requires that the objects or activities which are
deemed to be commensurable actually share common units of mensurability, like two glasses of milk or
different sizes of orange. Conversely non-commensurability means that several dimensions of value are
involved and are not reducible to each other. Non-commensurability of values is simply a non-
negotiable, utterly ubiquitous feature of our world:
Whether we are deciding between buying different baskets of commodities, or making choices
about what to do on a holiday or deciding whom to vote for in an election, we are inescapably
involved in evaluating alternatives with non commensurable aspects (2009: 241).

The non-commensurability of values goes hand-in-glove with the sheer diversity of the valued ends that
make a life worth living:
Various attainments in human functioning that we may value are very diverse, varying from
being well nourished or avoiding premature mortality to taking part in the life of the community
to developing the skills to pursue ones work related plans and ambitions The capability that we
are concerned with is our ability to achieve various combinations of functionings that we can
compare and judge against each other in terms of what we have reason to value.

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Given his preoccupation with individual choice it is not surprising that Sen has been criticised for being a
methodological individualist, a charge he (2009:244-6) rightly rejects. But he does not deal all that well
with a basic problem with the very idea that we can sensibly speak about individuals freely choosing.
These are problems that need to be thought about better and which affect the basic sense we might
entertain about the very idea of a person freely choosing between valued ends. These problems are best
illuminated in Bourdieu’s account of habitus.

Pierre Bourdieu’s (2001) theory of practice as habitus is the linchpin of all his work. Habitus best
understood as that deeply embodied deeply pervasive way of life into which each of us is born. In it we
see his distinctive refusal to embrace any way of understanding which pits ‘the individual’ against ‘the
social’. Thinking in terms of ‘the individual’ versus ‘the social’ is to rely on a binary. Bourdieu thinks this
is a bad way to think about social life. In his work we see what it means to focus on relations as the
central conceptual ‘object’ if you like of a properly conceived social science. It also produces some
sobering arguments about practice.

The basic point Bourdieu starts with is a simple one. He says the mainstream social sciences to date,
have created false choices or binaries like ‘individual’ versus ‘the social’ when it comes to
understanding things like human conduct, or what he calls ‘practice’.Among the unhelpful binaries
he points to are:
 A distinction between ‘theory’ and ‘practice’ which leads to propositions about the ‘difficulty’
of integrating ‘theory’ and ‘practice’ given the ‘theory-practice’ divide.
 A distinction between ‘objective’ and ‘subjective’ knowledge used eg., to sustain a bifurcation
between ‘objective’ methodologies used in positivist science and hermeneutically inclined
‘subjectivist’ approaches, a binary that both rests on and informs the no-less basic binary
between ‘facts’ and ‘values’.

These binaries are not helpful because they mis-state the character of human practice. They do so
for example by separating out ‘thinking’ from ‘action’, ‘theory’ from ‘practice’. Bourdieu’s account of
habitus makes the pint that so much of what we choose and do has an habitual quality. Habitus
refers to all those relations deposited within individual bodies in the form of mental and embodied
schemas of perception, appreciation, judgment and action. Habitus is in effect the idea that what we
do when we do it, feels or seems ‘natural’: it is that sense that this is the only way things can be
done. Bourdieu insists that so much human practice has this quality. That is so much of what we do is
a kind of second nature: we do things because literally we can think of no other way of doing things.
The result is that so much of what we do has a kind of ‘unconscious’ or ‘unknowing’ quality: Bourdieu
here gives Freud’s account of the unconscious a sociological twist. When we are acting we are in
effect acting unconsciously we suspend reflexiveness and operate almost as if in a state of amnesia.
The effect as Bourdieu suggests is that:

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 The agent engaged in practice knows the world too well … takes it for granted, precisely because
he is caught up in it, he inhabits it like a garment … he feels at home in the world because the
world is also in him, in the form of the habitus (2001: 142-3)

This discussion suggests that Sen has not sufficiently grasped the relational and habitual quality of so
much of our actual lives. (This is suggested strongly eg., in his reply to those who accuse him of being
a methodological individualist when he (2009: 245) relies on the binary ‘individual’/’society’ to
argue that the presence of ‘individuals who think, choose and act’ are ‘a manifest reality in the
world’ and persists in talking about individuals who are subject to what he calls ‘social influences’).
Sen has failed to appreciate sufficiently and from his own point of view that among what he calls the
capabilities that affect ‘our’ capacity to pursue valued ends one powerful constraint is the very fabric
of our social lives itself and the habits and aspirations which shape a life. Equally and as Bourdieu has
argued, it is possible and presumably a desirable thing to do to make critical reflexivity the necessary
solvent able to undo habitus and to make this reflexivity part of a new kind of persistent habitus.

Cultivating reflexivity is presumably one of the desirable and valued practices which as we now
suggest, is likely to be a core aspect of any practice of public reasoning and deliberative practice.

DESIGN PRINCIPLES (II) HABERMAS ON DELIBERATIVE PRACTICE

Are we able to identify and to the extent that it is possible to do so, agree about those basic facts and
valued ends with which we might pursue personally and collectively the good life? And are we able to
do these things in the face of the two imperatives which Sen has argued for. One is the factual imperative
that we face an irreducible plurality of valued ends and cannot reasonably expect that this will change in
the foreseeable future. The other is the prescriptive idea that we will need freedom above all else if we
are to choose, and pursue those valued ends, and to then seek by some collective means to ensure that
people actually have the capacity to choose and pursue those valued ends.

The proposition that it is possible to engage in forms of public reasoning has sponsored a widespread
agreement among contemporary political philosophers like John Rawls (1972; Jurgen Habermas (1995),
Selya Benhabib (1996), Joshua Cohen (1989) and Ronald Dworkin 2006) that democracy itself is
ultimately an exercise in public reasoning. In effect when Rawls declared that democracy is much more
than cyclical exercises in public balloting and requires to be effective the exercise of public reason, we
arrive quickly at the idea that democracy is ‘government by discussion’. That idea was summed up by
Rawls (1972) when he said:
The definitive idea for deliberative democracy is the idea of deliberation itself. When citizens
deliberate, they exchange views and debate their supporting reasons concerning public political
questions.

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Among the several models of deliberative practice (eg., Cohen 1989; Elster 1998; Guttman and
Thompson 2004; Bohman & Rehg 1997) Habermas’ arguments for what he has called his ‘procedural
deliberative’ approach offers an especially clear approach. 62

Over the course of several decades Jurgen Habermas has argued that there is no reason why we cannot
spell out certain specific rules or principles with which we can generate a reasonable consensus about
what truth looks like or what the human goods look like. This he says rests on the observation that we
humans spend a lot of time talking to and deliberating with each other. Habermas’ approach to
discovering the norms for truth and ethics is an idea grounded in the very human capacity to discourse.
It gives rise to a commitment to identifying certain procedures that will sustain what he calls a discourse
ethics. This entails specifying a set of steps designed to allow participants to establish and deliberate in
an 'ideal-speech setting'. Such a setting enables people to ‘cleanse’ themselves of illusions about their
interests and experiences and to arrive at rational consent by a process of reciprocal reason. It also gives
us a conception of democracy in which the only valid political process is one which includes everyone in
the decision-making process who is going to be affected by that decision. Let us unpack this a bit starting
with the rules that matter.

Habermas clearly takes his place within the Kantian tradition (Strike (1994) a tradition which emphasizes
following rules or procedures. Ethics for Kant eg., is a kind of deontological process involving a process of
identifying and testing various rules or procedures in the expectation that they will enable universal and
objective forms of reasoned agreement about the norms that matter. For Habermas the 'public space' is
understood in Kantian terms: the public space is filled by an inclusive 'we' that speaks with the authority
of objective and universal reason about matters of justice. In effect 'reason', 'justice', 'morality' and the
public space of civil society all inhabit the same boundary. As Habermas (1984 [vol. 1]: 42) puts it:
… the critique of value standards presupposes a shared pre-understanding among participants in
the argument, a pre-understanding that is not at their disposal but constitutes and at the same
time circumscribes the domain of the thematised validity claims. Only the truth of claims and the
rightness of moral norms and the comprehensibility or well-formedness of symbolic expressions
are by their very meaning universal validity claims that can be tested in discourse.

Habermas relies on a number of specific procedural ideas or expectations long associated with what may
be called the performative aspects of rationality which owe a lot to the austerely rational tradition
associated with Kant. While saying this might imply a criticism we are persuaded on this point.
Reference eg., above to ‘well-formedness of symbolic expression’ means for Habermas working within

62
Habermas (1996) has distinguished between his own procedural deliberative approach and Rawls’ ‘liberal’ and
‘ republican’ versions of deliberative practice. See also Benhabib (1996).

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the constraints imposed by the principles of logic or reasonable inference, or the principle that self-
defeating theses are to be rejected.

That is Habermas relies on a number of specific procedural ideas or expectations long associated with
what may be called the performative aspects of rationality which a lot of road testing over centuries
suggests works well enough in most cases to be trusted. These rules or protocols are not offered with a
view to insisting on unquestioning acceptance of them, but are designed to promote serious
conversation especially with those relativists who would insist that we do not need rules or principles of
any kind because all such rules lack any transcendental authority or else are simply instruments of
oppressive power. John Finnis (1980: 67) for example offers a modest defence of rational thinking. He
appeals to the principles of logic like good deductive inference - allowing of course that no non-circular
proof of the validity of these principles is possible since any proof would use them. This goes for other
principles like the idea that self-defeating theses are to be rejected, or the point that that phenomena
are to be treated as real unless there is some reason to distinguish between appearance and reality.
Likewise Finnis suggests that we being prudent when we rely on a full description of data in preference
to a partial description or that a successful method of interpretation is to be relied on in all similar cases
until a good reason to abandon that method of interpretation appears. Likewise he suggests that
successful theoretical accounts which are simple, predictively successful and explanatorily powerful are
to be accepted in preference to other accounts which lack these qualities. As Finnis insists none of
these principles are demonstrable. They can even be denied. ‘But to deny them is to disqualify oneself
from the pursuit of knowledge and to deny them is as straightforwardly unreasonable as anything can
be’.

In addition to these aspects of performative rationality, Habermas (1990:89) also argues for certain kinds
of ideas designed to sponsor and then regulate a culture of deliberative practice.
For this Habermas says we need the design elements of what might be called an ideal speech situation
based on the proposition that a group of people can gather and enter into a relationship of presumed
equality. That is everyone is presumed to be equally able and willing to deliberate and that each person
is coming into the deliberative process with a set of dispositions. They want to establish a consensus,
they are motivated to get at the truth, they are prepared to listen attentively to others and they are
prepared given a good case to do so to put aside their own interests. To promote these dispositions and
to push the procedure of deliberative procedure along Habermas proposes the adoption of certain key
social norms or rules like these:
 Every subject with competence to speak and act is allowed to take part in a discourse.
 Everyone is allowed to question any assertion whatever.
 Everyone is allowed to introduce any assertion whatever into the discourse.
 Everyone is allowed to express his attitudes, desires and needs.
 No speaker may be prevented, by internal or external coercion from exercising his rights as
laid down above.

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Underpinning these procedures Habermas vigorously advocates for the principle of universalisability. In
honoring his Kantian antecedents, Habermas suggests that the core principle is an idea about the
universalization of one key norm, namely that:
All affected can accept the consequences and the side effects its general observance can be
expected to have for the satisfaction of everyone’s interests (and these consequences are
preferred to those of known alternative possibilities for regulation) (Habermas 1990: 65).

Many critics (like Benhabib 1992; Nussbaum 2005) have pointed to what many readers are likely to find a
difficulty namely that this that his account of deliberative practice and his model of discourse ethics
stays at too abstracted a level to be entirely persuasive.

For one thing treating people as is they are free and equal persons possessing certain competencies
ignores the real world. Not everyone , and this is one of Sen’s criticism of Habermas is either free or
equally able to participate, especially if some powerful people decide that because you are young or
have a physical or intellectual disability you are not allowed to participate. Another problem is that
Habermas does not address the problem of how to convert the 'presumed' and entirely formalistically
understood 'equality of the interlocutors' in the public space into a more substantive equality of
interests. That is, it is not obvious why it follows that a commitment to include the testimony of all
competent speakers requires us to accord equal respect to the interests of these speakers, or that left to
‘natural’ social processes this will automatically happen. These are not abstract considerations but go
directly to the way real societies, divided by significant inequalities of economic political and cultural
resources and by quite basic discursive rules eg., between say followers of fundamentalist religious
system like Islam, no less fundamentalist positivists and those who adopt a relativist view of truth could
ever agree to agree on anything.

In one respect the highly abstracted nature of Habermas’ approach to talking about procedures for
getting at certain valid norms is not a significant problem. After all it is his point that it is up to real
people in real circumstances to sort out what they are going to do rather than expecting philosophers to
come up with a particular case about a certain good to be pursued. As he has insisted all that his
argument for a discursive process oriented to the practice of argumentation is designed to do is spell out
the procedures to be followed not what they might lead to. In effect for a philosopher somewhere far
away to make a case for doing X is both far more abstract and more likely to get it wrong. This is clearly
what Habermas (1990: 89) means when he says that:
Participants in argumentation cannot avoid the presupposition that, owing to certain
characteristics that require formal description, the structure of their communication rules out
all external or internal coercion other than the force of the argument and thereby also
neutralises all motives other than that of the cooperative search for truth.

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In effect it is far better if 'we' discuss what 'we' will do, as if 'we' this group or that community, were a
kind of committee regulated by certain shared rules of conversation.

We are more worried by Habermas promoting the idea that via a process of reciprocal reason-giving by
his ideal speech participants, it is possible to suspend our lives and engage in a process of rational
deliberation free of all our encumbrances. Habermas like Sen is open to the criticism that he seems to
depend on a thin account of our social lives in which we are seemingly free to dispose of the habitus that
defines our social lives and pursue an utterly rational examination of our values. Habermas seems far
too devoted to the idea that in order to arrive at the norms of ethical discourse we need to break with
the specific and rich ethical values we have already developed in the course of living in a real community.
As he (1993:12) insists:
Moral practical discourses require a break with all of the unquestioned truths of an established,
concrete ethical life, in addition to distancing oneself from the contexts of life with which one’s
identity is inextricably interwoven.
There are two questions here: is this possible? and is it desirable? It seems that Habermas wants us
firstly to strip ourselves of all of the those things which make up our sense of self like the fact that like
Habermas himself, ‘I’ am a white, German male, middle class, university graduate born in the 1930s who
votes Green and has a speech impediment’. Secondly Habermas also seems to want us to disregard all of
the training, life experience and acculturation which has given the person I am, a specific set of values I
have thought about, tested and believe in. Is it either possible or desirable to cut oneself out from the
very fabric of our culture and the life we have lived so far? We doubt it.

We are also worried by his idea that it is also desirable to arrive at universal validity norms. This looks
firstly very much like an attempt to smuggle back in the old Enlightenment belief that there was only one
possible answer to any question. Secondly to do this Habermas has to smuggle in a large number of
assumptions about the rules of rational discourse which may prove to be irrelevant. For example it is not
clear what a group engaged in deliberative practices will do with some of its members who refuse to
accept as relevant some of the key aspects of performative rationality. We have eg., current examples
of this when creationists refuse to accept some basic protocols about the kind of validity tests assumed
by geneticists or paleontologists who make the case for natural selection (see Dawkins 2009) or when
activist groups refuse to accept the consequences of applying these tests to their firm held conviction
that mass immunization against measles, mumps or rubella is more dangerous to children than these
diseases. Habermas has not successfully addressed the point that on occasion making or achieving
some kind of moral progress on a particular question may have to proceed by way of a process of
exclusion of all those who dissent from the rules of the 'committee of equal interlocutors'.

That is to say Habermas seems to have overlooked the very problem with which he started, namely that
as he (1993: 150) put it:

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 Under modern conditions of life none of the various rival [ethical] traditions can claim prima facie
general validity any longer … We can't expect to find a generally binding answer when we ask
what is good for me or for us or for them.
Modern societies are internally characterised precisely by an irreducible plurality of values, to say
nothing of the diversity of value systems found across the globe. Any large modern society like Australia
or England is host to all sorts of ways of living: all sorts of valued ends are lived out and daily affirmed by
communities of Muslims, Protestants, Catholics or Buddhists, atheists, young people old people, gays
and lesbians, Labor voters or conservatives … and so on.

How likely is it that in such a context we will ever identify values that are ‘equally in the interests of all’?
On the one hand we think that this does not seem all that likely, especially if we seriously apply some
idea of universal validity as a criterion of success. On the other hand we do think that Habermas has
made a valuable contribution because irrespective of the successes which might attend the practice of
deliberation as he has sketched them out, the effort to try and do this is well worth making. It may be
possible as writers like Moon (1995: 152) or Margalit (1995) have argued that we will make some
headway if we start with the recognition that simply because we are humans, we share certain common
vulnerabilities, and that we can all agree on some of the things that produce damaged lives and so help
us to identify the things which we might want to avoid. As Avishai Margalit (1995: 1-2) argues we might
be wise to concentrate on working towards a ‘decent society’ that avoids humiliating people rather than
waste time trying to work out the goods that we might promote. We might for example specify certain
human rights like a right to life and bodily integrity – though even here we would see straight away that
Catholics and feminists might disagree quite quickly. As Moon (1995: 152) suggests:
… There are … reasons to believe that some norms could be validated through discourse, but is
far from obvious that they would be sufficient to settle the conflict that arise in a pluralist world.

Granted that we live in a world where people do not agree about either the valued ends that define a
good life or about the means to be employed to achieve a plurality of valued ends or goods, Habermas
whatever the problems with his model of deliberative practice, has nonetheless shown us how we might
procedurally address that basic problem. The good news is that there is already a considerable body of
experience which has evolved (possibly in ignorance of Habermas and his colleagues) which has the
additional merit of having demonstrated the practical value of deliberative practice. In our view the
practice of mediation gives us some cause to think that here is a body of ‘theory’ and practice that
suggest some of the practical ways we might begin to engage in deliberative practices in an array of
organisations and institutional settings foundations for a culture of human rights. It is to that experience
that we now turn.

DESIGN PRINCIPLES IN PRACTICE: MEDIATION

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The generic practices we call here ‘mediation’ ground in rich and diverse ways the case Habermas has
made for the value of resolving differences between us by engaging in forms of public reasoning. We
argue that ‘mediation’ offers us a body of practical experience which exemplifies some of the procedural
principles which Habermas has argued for, while suggesting how it is possible to overcome some of the
difficulties with his naïve assumption that we will naturally want to or able to overcome the inequalities
of power, resource or capacity or our own interests and values found in any social setting and which his
‘ideal speech situation’ seems unable to acknowledge.

While mediation is sometimes referred to as ‘alternate dispute resolution’ this is to take too restricted a
view of its current scope or value. ‘Mediation’ refers to a very wide range of practices operating in a large
number of institutional sites. It is a practice that has emerged over the past decades in many countries as
well as in intra-state settings. It involves the use of non-adversarial and non-juridical processes of
decision making normally employing a neutral mediator to implement various kinds of discursive
processes to achieve uncoerced consensus about matters of interest to various parties (Astor & Chinkin,
2002).

Mediation can be found now in commercial disputes, in anti-discrimination cases, in family law disputes,
planning disputes industrial problems or in neighborhood disputes. A version of it has been used in the
wake of appalling cases of genocide and human rights abuse in South Africa and Latin America in the
form of Truth and Reconciliation Commissions which bypass the process of adversarial punishment
oriented tribunals in favour of a process of therapeutic justice. A modified version of it is found in the
practice of restorative justice (Braithwaite 1989) where perpetrators of crimes who have been found
guilty confront the victims of their criminal activity in carefully supervised conferences. It can be done in
private by lawyers in cases of commercial disputes, or it can involve formal diversion orders from courts
in which people in dispute are instructed to engage in formal mediation conducted by trained and
registered mediators.

Its increasing popularity rests on a number of perceptions. It is often seen as offering both a cheaper and
faster alternative to more costly and more formal tribunal processes provided for by the court system.
Governments interested in cost cutting have increasingly favored various kinds of mediation practice just
as citizens caught up in disputes see the advantages of mediation over more costly adversarial processes
involving various tribunals. Apart from such utilitarian arguments, mediation has come increasingly to be
seen as offering a better approach to resolving disputes because of the premise that participants will
come to see that the dispute has been resolved by their own efforts. In many countries mediation has
been both ‘industrialised’ and ‘professionalised’. In Australia there is now a comprehensive professional
and industrial character to the practice of mediation including training and registration of mediation
practitioners and there is a National Alternative Dispute Resolution Advisory Council overseeing this
development.

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A practice with so many aspirations, different forms and diverse sites of practice implies that no
ultimate conceptual model that catches it either prescriptively or descriptively is likely to be available.
This has not prevented many exercises in definition. The National Alternative Dispute Resolution
Advisory Council has gone a long way to clarifying the range of activities that ‘count’ as mediation. The
National Alternative Dispute Resolution Advisory Council (NADRAC 1997: 5) treats mediation as:
… a process in which the parties to a dispute, with the assistance of a neutral third party (the
mediator) identify the disputed issues, develop options, consider alternatives and endeavor to
reach an agreement. The mediator has no advisory or determinative role in regard to the content
of the dispute or the outcome of its resolution but may advise on or determine the process
whereby resolution is attempted. Mediation may be undertaken voluntarily, under a court order
or subject to an existing contractual agreement.

Even so, Lawrence Boulle does not like the preoccupation with dispute resolution, rightly pointing out
that the mediation process can be used to prevent a dispute from ever arising. As he (2005) insists,
mediation is a form of assisted decision-making which goes well beyond situations of conflict or dispute.
Boulle (2005:13) suggests that mediation is better understood as:
… a decision making process in which the parties are assisted by an external mediator who
attempts to assist the parties in their process of decision making to arrive at a decision or
resolution to which each of them can assent without the mediator having any binding decision
making capability.
Crucially it is also a process where the people involved in the process retain both substantial control and
a significant degree of responsibility both for ensuring that the process works as well as it can as well as
being responsible for any decision arrived at.

It is not possible to say given the diversity of styles and objectives of mediation that only one set of
values or practices defines the ‘mediation process’. Different styles of mediation value different things.
Transformative mediation eg., values new forms of awareness or consciousness arising out of the
mediation process like empowerment or recognition of the other (LIchenstein 2000-1: 67-8). Conversely
facilitative mediation is based on the valuing of self determination and the relative priority of interest
over rights while settlement mediation values efficiency and compromise.

Mediation certainly involves a new way of thinking about justice. It fleshes out a ‘new’ approach to
justice by specifying ‘new’ kinds of practices different to those on offer in juridically framed practices.
(How ‘new’ mediation actually is, is an issue that ought not detain us: it is clear as eg., Wall and Lyn
(1993: 160-69) point out, that that there are many antecedents stretching back into the past and that
cross many cultural boundaries for contemporary forms of mediation).

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On the differences between tradition justice practices and mediation, Cappelletti (1993: 282) points out
that mediation focuses on the needs and interests of the parties seeking mediation rather than a
juridical conception of rights and duties. Secondly informality replaces the highly formal processes of the
courtroom while direct participation by all parties replaces the traditional preoccupation with a legally
defined idea of procedural fairness. Thirdly most mediation is not much interested in establishing a
formal process to test evidence with a view to fact finding, or establishing liability. It is very much about
an idea of restoring or mending relationships that have broken down by focusing on developing a shared
understanding of the problems or issues that matter to the parties. In this way it can treated as a form of
restorative or therapeutic justice.

What is clear is that there are a reasonably common set of valued ends and procedures at work in most
mediation practice. It is noteworthy that these overlap or wear more than a passing resemblance to
many of the core features of Habermas’ account of deliberative practice but do so in ways which
overcome some of the problems Habermas has created.

This is because mediation bypasses many of the features that typify the adversarial nature of court-
based litigation practices. These typically involve features like a highly competitive approach to making
the case before a judge and/or jury by professional lawyers employed by the parties, the use of often
highly technical procedures and rules for testing, presenting and relying on evidence and fact finding,
and the presumption that someone will ‘win’ and someone else will ‘lose’ in any adjudication of the
matter. Further the litigation process once it has begun is binding on all parties, and that seceding from
the process is either not possible (as in many criminal matters), or will come at too high a cost. No less
important is the presumption that the litigation process will eventually issue a definitive judgment which
will be legally enforceable. The legitimacy of this relies finally on the premise that appropriate
procedures have been followed, to test matters of fact, that matters of law and precedent have been
taken into account and that any decision is in accordance with publically available and enforceable
norms.

Mediation is decisively non-adversarial in many respects. The mediation process assumes that the
parties are equally self-determining and autonomous and that to be effective any process of mediation
needs to be both a voluntary and yet a carefully managed process that uses non-coercive deliberative
practices to arrive at a mutually satisfactory decision or agreement. The mediator’s role is to enable the
parties to express their point of view about any aspect of the matter at issue and by a process of
deliberation, which the mediator is responsible for managing, to arrive freely at a consensus. The
effective practice of mediation therefore relies on the capacity of the mediator to enable the parties to
be self-determining, while engaging in a collaborative process designed to arrive at a mutually
acceptable or consensus decision while playing a neutral and non-coercive role. That consensus can
involve a shared view about what the situation is that requires mediation, what valued ends might guide

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the decision-making process, before arriving at a view about the decision. At all times the principle of
voluntarism operates as any of the parties can walk away from the process. The essential premise here is
that each of the parties is best able and equally able to identify their own values, interests and needs
and to be effective mediation requires only that the mediator use a range of techniques to enable each
of the parties to exercise their capacity for self determination.

Successful mediation depends on a skilful navigation between upholding the minimum of procedures
that will secure the capacity for engaging in good deliberative practices compatible with arriving at a
mutually acceptable agreement, while allowing or even encouraging the parties to do things that will
assist in the mediation process and assist them to achieve a good decision. In this sense as Wellik (1999:
28-9) points out mediation is typically reliant on any number of procedures like those proposed by
Habermas which presuppose that we are naturally equipped to engage in rational discourse. Typically
this starts with the premise that all parties can be persuaded by argument, that they will engage in
reality testing and make an assessment of risk, so as to assess their options and come to a decision which
truly reflects their interests and values.

To ensure that this can happen mediators insist on ground rules. These minimal rules go to preserving
the elementary rules of ‘good’ discourse or basic civil etiquette -like preventing personal abuse,
prohibiting the use of threatening language or shouting, while allowing each party equivalent time and
opportunity to say what they want to. Implicit in this practice and these minimal procedures is the idea
that each of the parties can and ought to respect the views and interests of the other, however different,
objectionable or misguided the expression of those views or interests might seem to the other party.
The presumption of respect can be extended further: skilled mediators will allow and encourage the
parties to talk, confer and negotiate in any number of ways so as to better identify and clarify their own
interests, values and desired effects while arriving at a shared view about the best course of action.
Finally it also assumes that people can learn in the process of doing mediation the value of respect and
mutual deliberation.

To that principle of respect is typically added the contingent premise that each of the parties will need to
take responsibility for any decision taken. This is most likely to be possible when each of the parties can
identify what valued ends they expect to be satisfied by the agreed on decision. The skilled mediator will
encourage each of the parties to take responsibility for the decision and encourage them to be clear
about the norms or goods which their decision will give rise to. Given that many people actually want
the same goods, it can be very helpful for the mediator to show that underneath the apparent
differences, even antagonism or hostility there are some common vales which all parties share or desire.
And among the values that can be ‘discovered’ is the idea that the practice of mediation itself has a value
as a practical way of solving problems, resolving disputes or even preventing them from occurring. The
self determination principle itself can be readily translated into the idea that by adopting a set of simple

228
procedures, ordinary people can solve the ordinary problems that arise between them because of
different values or interests, and make good decisions without needing recourse to professional or
expensive legal processes by engaging in good deliberative practices. These considerations matter
because they point to the way mediation addresses some key issues with Habermas’ deliberative
procedures.

The absence of many of the normal features of litigation (like the coercive authority of the judge or the
use of evidentiary procedures features associated with the ‘rule of law’ model) has led some to worry
about the effects of these absences for achieving justice-as-fairness. It has been suggested (eg.,
Goldberg, Sander & Rogers 1999; Fulton, 1989: 99; Regan 1997:14-5; Gramberg 2003: 233-8) that the
neutrality of the mediator or the preoccupation with process, and given that the parties engaging in
mediation are not equal in terms of their access to power or resources, can amplify already existing
disparities in power. That is there is a concern that the mediation process itself can subvert the
presumption of formal equality before the law and so deny fairness or corrective justice to the parties
involved and especially those who are in some sense unable to access resources. For example it is
possible that the weaker party might be disposed by virtue of anxiety, low confidence or a perception of
dominance/submission dynamics to make compromises during the mediation process at the cost to
their interests, needs or values.

One response is to observe that the rule of law model is hardly exemplary in its capacity to actually treat
all who enter the justice system equally: the litigation model is hardly objective, procedurally consistent
or actually accessible (either discursively or economically) to all citizens. If anything the adversarial
model is likely to exacerbate the cognitive or emotional problems just referred to on the part of people
who are in all sorts of ways lacking economic or cultural resources.

The more substantive response is to suggest that the mediation model actually does work to both
acknowledge and try to overcome the multiple sources of unequal capability.

Perhaps the single most common criticism is that the mediation model by virtue of the very neutrality of
the mediator is unable to guarantee corrective or distributive justice. It is argued eg., that the neutral
mediator is unable to address major inequalities of power between the parties and that this neutrality
disadvantages the weaker parties. Where the stronger party is able to call on the resources they have
access to engage in problem solving negotiation or decision making the weaker party may be
disadvantaged. The basis of this concern is that the inequalities in power or resource will not be
addressed or ameliorated in the mediation process and that this will be reflected in fundamentally
unreasonable and unjust decisions or agreements. This concern has been raised in relation to gender
(eg., in family law matters (Grillo 1991 1545; Alexander 1997: 255), relations between employers and

229
employees (eg., involving claims of harassment discrimination or bullying), and cultural religious or
ethnic minorities, especially indigenous peoples (Dodson 1996 84).

In general we are not persuaded. As Astor and Chinkin 2002: 160-3) have argued, power is not a
quantity or commodity which one person has at the expense of another. A large body of post feminist
body of theory has argued that power should not be treated as a zero-sum game or thought about in
terms of a fixed quantity. Rather power is a situated dynamic involving the capacity to access whatever
counts as resources. As Davis and Salem (1987: 17) pointed out, being in a mediation process affects the
kinds of power which can be deployed, especially given the commitment in a mediation process to
deliberation. Many mediation processes eg., do not allow the use of the typical resources which
powerful people have access to like money, lawyers, media outlets or professional advisors. The parties’
perceptions of what matters, can outweigh considerations like access to funds or advice. While neutral
the mediator is also required to ensure that all parties get to have their say and that the parties
deliberate in such fashion as to take into account the views, values and interests of the other. There are
numerous studies which show that where mediation has been applied that the parties believe, even
wher the disparities in power were obvious that because of the opportunity to have their say, to present
a case or be heard, believe that the agreements arrived at are fair or legitimate (Gramberg 2003).

In the case of gender relations eg., there are any number of studies to show that women broadly have
not been disadvantaged by mediation and that they may even have been advantaged. In the field of
family law any number of studies suggest eg., that consensual decision making managed by a mediator
can undo any perceived imbalances in power between men and women (Alexander, 1997; Ellis & Wright
1998: 223-31 Gee, 1998: 177-89; Alexander, 1999, 17-29; Marcus, Marcus, Stilwell, & Doherty, 2000).
The mediation research shows that mediators can readily take into account issues of context, identity
including gender and ensure a procedurally fair process of deliberation. (This goes especially to disputes
involving violence; most systems would ensure that mediation is not an option where criminal violence
has been experienced in family law matters (Astor 1994).

It is plain to us that for mediation to work, the participants need to by-pass adversarialism and to focus
instead on developing good deliberative practices animated by some of the very same intentions that
Habermas says defines the dynamics of the ideal speech situation. Unlike Habermas who puts his faith
in spontaneous proceduralism, mediation has put in place a simple institutional innovation, the neutral
but powerful mediator whose job is to see that all parties in the process have the opportunity to have
their say, identify what matters and possibly arrive at a consensus view about what the best thing to do
looks like. Developing a consensus by agreement about the facts that matters and the goods that matter
certainly demonstrates the value of collaboration and cooperation rather than adversarial logic. It
certainly demonstrates the value of clearly agreed on and consistently applied protocols. But best of all
the practice of mediation acknowledges and overcomes any differences in capacity/knowledge and

230
power on the part of those in the process. What matters in short in the practice of mediation is that the
role of the mediator involves or requires a different use of authority, one precisely designed to
ameliorate the play of differential power.

We think that the practice of mediation holds out the promise of significant transformations in the way
our organisations and institutions might be managed and might work. Rather than the commonplace
reliance on obedience to authority and top down management, the practices of mediation hold out the
possibility of reframing both the role of managers and the way decisions are made, with the prospect of
significant improvements in the quality of those decisions. The premise at the heart of this expectation is
that any democratisation of decision making involving more participatory deliberation cannot help but (i)
improve the legitimacy of the decision making process, ( enhance the capacity of those most affected by
and involved in decision making to identify valued ends and so advance the common good and (iii)
produce substantially more rational decisions. Among the key benefits of this will be a far greater
capacity to address the many contradictions and paradoxes set loose by promoting a regard for human
rights by attending better to the way those rights either do or do not promote various valued ends.

CONCLUSION

This discussion has begun the difficult task of trying to map out some of the design features that might
inform the project of developing a culture of human rights. The task is necessary because we can put no
great faith in the capacity of legal or juristic processes like litigation to advance the cause of human
rights. The human rights framework especially when it is left to formal legal specification or promotion,
cannot address or resolve the intrinsic problem that human rights like all our attempts to specify the
valued ends that promote the good life or justice, are intrinsically contradictory, paradoxical or
incommensurable. Rather than treating this conclusion as the end of the discussion, we think that it
provides the most promising start to the discussion.

What will be needed will be a broader more amorphous approach to rethinking and revising the ways we
act and relate to each other in all sorts of institutional sites. It will require both personal commitment
and change as well as institutional commitment and change. It will certainly involve developing a far
greater capacity to engage in reflexive deliberation than is currently common. Strongly engrained
patterns of obedience to authority come too easily to too many of us, a disposition which is actively
encouraged by those used to occupying positions of authority over others. We will need to encourage
certain desirable but uncommon cognitive, ethical and motivational capacities if we are ever going to be
able to deliberate about our choices, preferences and actions.

It will require that more of us deploy with greater clarity a vocabulary of ethical ideas. It will require
creating and fostering an ethos inside our dominant institutions like our schools, universities, public

231
sector agencies, hospitals corporations and NGOs which treats the exercise of ethical deliberation not as
some deviant or subversive activity but as something to be fostered and praised. Against the hapless
descent into managerialist cant (Watson 2002 2009) which has been so marked a feature of public and
organisational talk these past few decades, we will need to strengthen our capacity to speak plainly so as
to better establish reflexively whether our actions are defensible with reference to some idea of the
good or because it helps to contribute to a just community.

Here we have argued the case for some basic conceptual work designed to spell out some of the ideas
and design principles which might assist us to address this task. We need to acknowledge that one big
problem in the past few decades has been the absence of a vocabulary both of rights and goods and of
institutional spaces in which such a vocabulary might be more systematically used. A regard for freedom
and for ensuring that people are given the capabilities to enlarge their actual capacity to chose suggests
one very practical agenda. Developing the conceptual and practical experience required for effective
deliberative reasoning as an aid to good decision making is another.

To do this we will need new kinds of policies, new ways of resourcing these developments and new
approaches to professional development. It will require new kinds and styles of management which give
greater weight to the use of the deliberative techniques which have been developed as part of the
practice of mediation.

We do not underestimate the practical challenges or obstacles that will be put in the way of those who
want to promote the democratisation of decision making or deliberation emerge. The greatest single
obstacle to change is the way things already are. Changing peoples ideas and feelings and values like
changing their actual conduct is never easy. Equally the way things are is the only conceivable place from
which to think about changing anything.

QUESTIONS
1. What key questions is the author asking here?
2. Can you get a grip on the major claims being argued for here?
3. Does it seem that this author is relying on any assumptions that you can spot at this stage?
What assumptions do you rely on as you read?
4. Do you agree that there are some important principle that might inform the development of a
culture of human rights?
5. Is it at all feasible that we can create social or work spaces where a basic regard for decency
and ethical reflection become normal?

232
 6. How much of your daily life and work is based on a regard for the basic goods -or avoidance
of the bads when you think about your conduct?
7. What do you understand about ‘human goods’ and ‘human bads’ now having read this
chapter?

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