Editorial – Human Rights Critiques

By Right Now | 09 May 14

Right Now‘s April 2014 issue, Human Rights Critiques, or, the limits of human rights.


Jeff Sparrow, A Right to be Lazy?


André Dao, The Future of Human Rights

Joo Chong-Tham, Progressive Unease with a Bill of Rights

Justin Clemens, The Sons of SAM (Security against Misrule)

Dario Mujkic, Individual Rights and Solidarity

Erin McGinty, Intervening for the Protection of Human Rights

Anthony Hallal, Human Rights in a Sovereign and Democratic State

Interviews and Reviews

Hector Sharp, Protecting People from Harm: An interview
with Mark McMillan on the
 Racial Discrimination Act

Sonia Nair, Review of “Human Rights: A Political and Cultural Critique”

Australia has a curious rights culture. On the one hand it is the only developed, western nation to lack a federal bill of rights. On the other, it has a strong judiciary and rich constitutional culture, both of which have become increasingly involved in rights protection, albeit technically and through the filter of the Rule of Law.

Not surprisingly, the most common critique of rights in this country is: we don’t need more rights’ protection because what we’ve got is working, thank you. We have a Court system that when push comes to shove will say “no”; equally commendable is that our governments listen. The spectacular failure of the Malaysia Solution in 2011 is a case in point, but there are others.

Despite the moniker, the “it-ain’t-broke-so why-fix-it?” school of rights critique has a serious pedigree. It pops up, in various guises, in a number of the articles published as a part of Right Now’s April edition, Human Rights Critiques. It is, however, just one of the many critical approaches to rights and rights writing our contributors explore.

Common to a number of these critiques is a division within the concept of rights itself – between rights as a cause and rights as a cause of action. Do other laws better protect what we set out protect (enforce? defend?) with rights at law? Put another way, do we need rights to protect rights? Why, for example, didn’t the plaintiffs in the Andrew Bolt litigation pursue a claim in defamation, rather than a rights claim under section 18C of the Racial Discrimination Act? And aren’t comprehensive policy packages like the National Disability Insurance Scheme preferable to armouries of rights that leave it to the disabled to protect themselves?

Each of these assumes that law is the answer. But what about convention? Public debate? Politics? These questions are the foundation for a further critique that, like its antecedents, recognises rights’ internal divisions. Could the increasing legalisation of rights be diminishing the rhetorical, philosophical and compassionate injunctions that make up at least one of rights’ many faces? It is this form of critique that Joo Chong-Tham levels at an Australian Bill of Rights in Progressive Unease with a Bill of Rights: under a charter of rights, human rights arguments will tend to be couched in terms of statutory provisions, and court decisions will be seen as the repository of wisdom on questions of human rights. As the intensity of public involvement and scrutiny diminishes so will the level of rights protection.

In a way, then, this is a critique that argues that the division can be undone, that rights-the-cause can and should rally to its own defence. In a way, this principle has always had a place in Right Now’s philosophy – because it is a forum for discussion, but also because it is a forum for creative discussion and because there is something missing when human rights can only be expressed in a legalistic way.

Check our articles above, including the continuation of the Right Now Essay Series, with Jeff Sparrow’s A Right to be Lazy? – his monograph on idleness, rights and why we ought to work a little harder at working a little less.

Finally, an insightful article on the limits of human rights from Right Now’s vault: Peter Burdon writes on Environmental Protection and the Limits of Rights Talk.