Article Human Rights & Press Freedom

Self-determination and judicial review

Neo-republicans argue that civil rights should be both limited and override certain human, so that people can be truly free

In keeping with the theme of this issue, I claim, perhaps controversially, that the only civil rights, as opposed to human rights, people should have are those that enable them to participate in co-determining their society’s laws and political activity. The reason for this, as will become clearer, is that civil and political rights are controversial, and therefore constitutionalising such rights, and enforcing them, undermines each person’s status as a free individual.

In evidence, I will briefly introduce neo-republican political thought, before laying out two ways of thinking about freedom. I will argue that the traditional liberal view, that people are free when uninterfered with, is counterintuitive, and that we should instead embrace the neo-republican view that people are free when they’re protected from the control of other agents, and certain forms of control exercised by political institutions and actors.

I will then argue that if we do think that freedom can be compromised by more than just interference, we have to consider how we might arrange society’s institutions to protect each individual’s status as a free person. This will require guaranteeing avenues for participation in determining political action, and therefore that each person has a say in all issues.

As a result, granting controversial rights, such as a right to religious freedom, or freedom of expression, should be avoided, as not all people agree to such rights and constitutionalising them denies individuals a say on these issues. This is fundamentally incompatible with treating each person as a free individual, capable of determining their own future.

The dominant liberal understanding of freedom is that someone is free if they are not prevented from doing something.

Neo-republicanism is a relatively recent attempt to revive and revise the workings of Roman republicanism in a contemporary context. Its central premise is that freedom is not just to be uninterfered with, but to be protected from other people’s capacity to ever interfere. This is in stark contrast to the dominant liberal understanding of freedom, wherein someone is free if they are not prevented from doing something.

For example, imagine that you are a slave. The liberal is committed to saying that so long as your master does not prevent you from doing something that you want, you do enjoy a measure of freedom. Neo-republicans, however, claim that you are never free as a slave because the master has the capacity to interfere, should he so choose. The differences between the positions are explained concisely at Stanford’s Encyclopedia of Philosophy.

If the neo-republicans are right that we can be rendered less free by another’s capacity to control us, we have to look at how we might be protected from this possibility. Owing to their veneration of Roman republicanism, contemporary theorists often posit that the rule of law is the surest way to prevent people from controlling each other in a freedom-infringing way. They argue that we should live under an empire of laws, not an empire of men, and the caprice and biases that people exhibit.

But neo-republicans face a quandary. They argue that people are less free when they’re controlled in inappropriate ways, particularly in ways that individuals themselves do not assent to, but that this can be prevented by political laws and institutions. Nonetheless, if laws and institutions are to protect people from the control of others, laws themselves must control people. As laws and institutions control people, it is necessary, for the sake of consistency, for them to do so in a way that people assent to. As they control all people, then all people must be seen to assent to them.

The quandary is that if laws and institutions are to protect people from the control of others, laws themselves must control people.

We know, however, that modern pluralist societies are characterised by a high degree of variation, with different people valuing different goals and ideals. How, then, might we reconcile political control, which is necessary to ensure individuals are free from others’ attempts to control them, with doing so in ways that all people can agree to?

As this article is about rights, I will avoid a technical discussion on democracy, and instead make the claim that because we want to avoid controlling people in inappropriate ways, i.e. in ways that they cannot (or would not in the case of the severely disabled or children) consent to, we should embrace only two fundamental rights, from which we can derive further secondary rights.

Central to any modern democracy is a basic commitment to political equality, in which each person is entitled to a say in matters that affect them. As a result, we have universal suffrage. This should be seen as a fundamental participatory right. Each adult, subject to a few qualifications, is entitled to at least vote on who can exercise political control. This participatory right is obviously linked to citizenship and residency, such that all other political rights flow from membership in a specific polity.

The other right, more closely linked with neo-republicanism, is a right to non-domination, where domination is understood as being in a position where others can exercise unwanted control. The right is essentially a right to decide how to lead one’s own life, and for an individual to make the choices that they want to make.

As noted above, however, political control will always exert control, control that is likely unwanted in many cases; therefore we have to consider how this might be reconciled with an individual’s right to non-domination.

The answer, I think, is to focus on creating a framework within which individuals’ competing interests can be reconciled into common action, which would likely be some form of democracy. This would ensure that each individual is able to participate in determining how their polity exercised control over them, ensuring that rights to participation and non-domination are secured.

If we have a concern for freedom, understood as being free from others’ capacity to exercise control, we cannot constitutionalise any further rights.

Importantly, this requires the protection of further rights to food, clothing, shelter, clean water, education and a minimum basic income, in order to ensure the meaningful exercise of the two fundamental rights. For example, imagine an individual is so destitute that they are dependent on the goodwill of others to subsist; in such a situation, the individual clearly does not enjoy a right to non-domination, as they are at the whim of people’s charity.

Nonetheless, if we have a concern for freedom, understood as being free from others’ capacity to exercise control, we cannot constitutionalise any further rights. There are three reasons for this: civil rights tend to be underspecified; in applying rights we may find that interpretations conflict over the rights; and rights depoliticise contentious issues, necessitating arbitration by a strongly empowered judiciary.

The first two issues combine to produce the third. Rights are usually formulated in relatively broad terms – a right to free expression, a right to free speech, a right to religious freedom etc. But, these rights are often qualified, because they can come into conflict, or because there is conflict over how to interpret an individual right. So, we may find the right to free expression and the right to religious freedom can and do come into conflict, as in the wake of the Charlie Hebdo attack, where commentators spoke of a need to moderate the right to free expression, in order to ensure that others could meaningfully enjoy their religious freedom.

Alternatively, the way in which we understand a specific right can conflict with others’ interpretations. For example, a right to free speech might be understood to include any and all speech acts, or it might be speech that does not incite hate, or which is not defamatory.

Both of these issues necessitates a judiciary empowered to adjudicate on conflicts, to decide how a particular right should be interpreted or how we should respond to conflicting rights. But, when judges act to protect or further a right, they do so at the expense of other people’s rights. So, if judges ruled that in order to protect a theist’s right to practise their religion unmolested, it is necessary to prevent others from criticising the religion.

We may find that some people’s rights are prioritised over others. More importantly, from a neo-republican perspective, it undermines the right to participate. By referring issues to judges, a conflict is depoliticised, removed from the public agenda and referred to an unelected and unrepresentative body, which suspends agents’ rights to participate in determining how their society is constituted and acts. When this happens, we find that political institutions exert domination, since the people have no say in judicial control, and therefore citizens are unfree.

A robust democracy, premised on the few human and political rights noted above, should be the framework in which citizens’ conflicting world views should be reconciled into common political action in a way which precludes domination.

This article is a response to the topic idea; Freedom of expression and other human rights: Connecting the dots.

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