Basic Human Rights & Needs Based Human Rights
From Human Rights In Australia by LJM Cooray (1985)

"Human Rights" is a much used and abused term today. They have been used to defend freedom as well as to destroy it. People tend to attach importance to particular human rights according to ideology and political convenience. New privileges have been created and elevated to the status of human rights in order to entrench particular political and economic systems. It is however, evident that certain basic rights are indispensable for the meaningful existence of all other rights. These rights are not only valuable in themselves but also are instrumental in making possible the enjoyment of all other rights. Among the basic rights are the right to free speech and expression, the freedom of person, the freedom of the individual, one's right to own property and equality of opportunity. In the following chapters a detailed analysis of the meaning and importance of the freedoms of expression, person and property and equality of opportunity is undertaken. These are basic human rights which for reasons stated in the following chapters underpin all human rights.

There is hardly a political leader who does not appeal to some human right to justify oppression. In all but a handful of democratic societies, human rights have become political slogans devoid of substance. In democratic societies, where governments are restrained from excesses by law and public opinion, the gravest threat to human rights arises from their increasing mis-interpretation and misapplication.

Agitation for an ever increasing number of so-called human rights is growing steadily. On the other hand human rights that once flourished and safeguarded the individual are being gradually undermined. There are many reasons for this occurrence. One of the most significant of them is the indiscriminate proliferation of human rights and the failure to draw qualitative distinctions between those rights which are essential conditions of freedom and those which have become human rights only by virtue of being declared to be such.

The different classes of rights which have today acquired the status of human rights, are described in chapters 2.1 and 4.1. Of these, the class of "rights " relating to social needs gained widespread recognition only after the Second World War. These rights are therefore a recent creation and addition to the classical human rights generally known as civil liberties.

International instruments which recognise welfare rights do not impose on signatories, any duties which are strictly enforceable. National legislation dealing with such rights treat them as non-justiciable rights which the State nevertheless is bound to promote. The reason for regarding these rights as legally unenforceable is not because they are considered less valuable by nations that accord them recognition. On the contrary, the modern trend in most parts of the world is to treat these rights as being equal or superior in value to civil liberties. The reason for making them non-justiciable is that in most societies they are incapable of enforcement as rights. For example the recognition of the right to employment presupposes the capacity of someone to grant employment. Because, in most societies, not even the state has capacity to employ everyone, the right to employment is unenforceable as a right. On the contrary, individuals and governments do possess the capacity to refrain from arbitrary arrest of individuals or from interference with personal property. Therefore, such rights are capable of enforcement. This difference in enforceability raises the question whether socio-economic claims are rights at all.

The theory of Hohfeld that there can be no right in one person without a corresponding duty in another, is explained in chapter 2.4. FA Hayek, the Austrian jurist and philosopher, argues from this theory that a socio-economic claim can become a right only in a situation where all employment and all resources are controlled by one organisation, which in practice will be the government.

The reason for this conclusion is that only such an organisation (government) can have even the theoretical capacity to ensure employment and other welfare benefits to all the people. In a society where ownership of property (and hence the capacity to employ) is dispersed among the people, none would have the capacity to guarantee such benefits and therefore it is illogical to speak of a right to employment or other benefit in relation to such societies. If such a society were to recognise needs as universal rights, it can be achieved only by eliminating individual freedom. In the words of Hayek, the result of such a recognition would be that:

(People) could not be allowed to use their knowledge for their own purposes but would have to carry out the plan which rulers have designed to meet the needs to be satisfied. From this it follows that the old civil rights and the new social and economic rights cannot be achieved at the same time but are in fact incompatible; the new rights cannot be enforced by law without at the same time destroying that liberal order at which the old rights aim".— F A Hayek, Law, Legislation and Liberty, Volume 2, (Chicago, 1982) p 103.

The operation of this principle can be observed in relation to the welfare states of the western world. These states retain their basic liberal character by virtue of the fact that the welfare measures attempted thus far have reached nowhere near universal proportions. Yet it is not difficult to see that the erosion of individual freedom has risen in proportion to the scale of welfare in each of these societies. Under pressure from interest groups, most western governments have accepted a political (if not legal) duty to provide a wide range of benefits including security of employment, safety of workplaces, "just wages", unemployment benefits and the like. In order to fulfil these obligations, western governments have, by legislation, coerced employers to pay minimum wages and to conduct their business according to strict regulations. The cost of welfare benefits has also been forced upon the public by taxation. Through taxation and regulation governments have already gained a significant level of control over private economic activity and personal freedom. It is this control which provides governments with the resources and capacity to hand out welfare benefits. The link between welfare and the loss of freedom is evident. Each new welfare obligation assumed by the state produces a corresponding reduction in liberty.

The ultimate objective of socialists functioning within democratic systems is to achieve material equality of all persons through the progressive redistribution of wealth effected by gradually increasing welfare grants. However as Hayek points out, welfare

"could not be made universal within a system of rules of just conduct based on the conception of individual responsibility, and so require that the whole of society be converted into a single organisation, that is, made totalitarian in the fullest sense of the word"

Social democrats of the western world who pursue the goals of universal welfare and the redistribution of wealth are either ignorant of this consequence or are unconcerned by it.

Individual freedom as protected by the traditional civil liberties and welfare promoted by the new "rights" therefore stand in tension with each other. The elevation of welfare claims to the status of human rights was a crucial step in the direction of radically transforming the meaning of human rights. The recognition of a system of "rights" incompatible with the old civil liberties provided a theoretical basis for the curtailment of individual freedom. In many countries the new rights have been used as an excuse to restrict and deny civil liberties. In many others including Australia, pressures are mounting on governments to follow suit. If the social reformers succeed in their endeavours it is fair to assume that the civil liberties tradition will be gradually destroyed.

What can be done to arrest this trend? The first step is to understand that there are certain human rights which are essential to liberty and to separate them from the new "rights", the achievement of which requires the sacrifice of individual freedom. This requires an understanding that the attempted equation of civil liberties with socio-economic rights is illogical and contradictory. Once this illogicality is comprehended it is not difficult to make the case for restoring the traditional civil liberties to their position as fundamental or basic rights entitled to precedence generally (not necessarily always) over all other claims.

The classical civil liberties consist of a collection of basic rights complementing and supporting each other. They cannot exist in isolation and the respect for one necessarily entails the regard for others. Take the example of the freedom from arrest, detention and punishment otherwise than in accordance with law. These rights which protect personal integrity are fundamental to liberty. However, they are meaningless unless the laws relating to arrest, detention and punishment are themselves just. To ensure that laws are just, there must be the political freedoms including the right to free elections, the freedom of expression and the freedom of association. Political freedoms are themselves meaningless without the independent capacity to enjoy such freedoms and therefore the right to hold property and to use it in a trade or occupation becomes essential. Underlying all these rights is the principle of equality before the law and equal protection of the law - the principle of legal or abstract equality as distinguished from material equality. The inter-dependence of these rights can be endlessly illustrated.

The scope of this book does not permit the detailed analysis of each of the basic civil rights. However, some of the basic rights which have become particularly vulnerable to subversion at the hands of governments and pressure groups intent upon promoting the new welfare rights are examined in this publication. Reasons are adduced as to why such rights should be accorded a pre-eminent position generally (not necessarily always) prevailing in a conflict with other rights and subject to restriction only on logically sustainable grounds.

The right to freedom of speech and expression which lies at the heart of political democracy, and which is being significantly undermined by social control measures as well as by growing political intolerance is investigated in chapter 6.

The freedom of the person including the right not to be punished without due process of law is considered in chapter 7.

The freedom of the individual to hold and enjoy private property is the subject of chapter 8. This freedom is clearly the most subverted of the basic rights of man. Yet without this right, all other freedoms are practically meaningless. Not only is this right of instrumental value to other freedoms but is also indistinguishable from the very notion of individual freedom. As Professor Alice Tay states in (E Kamenka, R Brown and A Tay (eds)'Law and Society:the Crisis in Legal Ideals, (Melbourne, 1978) p 10:

Property is that which a man has a right to use and enjoy without interference: it is what makes him as a person and guarantees his independence and security. It includes his person, his name, his reputation, his chattels, the land that he owns and works, the house he builds and lives in and so on. These things are seen as his property in early law because they are seen as the verification of his will, as the tangible, physical manifestation of his work and his personality.

The alternative to private property is government property. Government owns and controls individuals to the extent it owns and controls property as feudal and communist systems demonstrate.

The right to legal equality of opportunity in the context of discrimination is examined in chapter 9. This is a right which is widely misinterpreted and misapplied for the purpose of achieving material equality. In short this right has been effectively transformed into one of the new "rights" in a manner that has deprived it of its original meaning and function.

The value of the basic human rights lies in the recognition of their superiority to other claims. All claims cannot be superior claims. Where all claims are treated with equal consideration, it is obvious that none will have a fundamental character. The consequence of indiscriminately creating human rights is that those rights which are essential conditions of freedom lose their precedence and therefore their effectiveness.

In Australia new claims have gained equal or greater recognition than the traditional rights. These needs based claims are met at many levels and in diverse ways, invariably to the detriment of traditional rights. Two examples may be provided. Freedom of expression is said to be available in Australia. However, that freedom is not considered as superior to the competing claim which is interpreted as requiring the protection of the public from the ill effects of tobacco and alcohol consumption. Therefore the right to advertise these products is restricted. In evaluating the two claims no precedence is attached to the freedom of expression. Likewise, the freedom to engage in a trade is acknowledged. This freedom involves the freedom to contract. However, policy makers have granted equal or greater recognition to the claim to minimum wages and a myriad of other conditions of employment. In doing so they have drastically reduced the freedom to contract and thereby the freedom to engage in a trade. It is therefore not incorrect to say that these rights are no longer considered important but are in fact residuary on what is left after the other claims are met.

It is not the object of this publication to advance the view that the eradication of poverty or disadvantage is not a worthwhile goal, but such goals cannot be successfully achieved while destroying other basic rights which have been instrumental in the rise and development of western civilisation. This factor can be understood only by appreciating the value of these basic rights in themselves and as instrumental devices to securing the material and spiritual well-being of all. In the following chapters it is intended to explain in some detail the intrinsic and instrumental value of some of these basic rights. There is much that can be done to assist the genuinely underprivileged within the framework of these rights. The important reservation is that distributive justice should not be pursued at the expense of individual liberty. F A Hayek, 'Law, Legislation and Liberty', Volume 2, (Chicago, 1982) p 87 says:

There is no reason why in a free society government should not assure to all, protection against severe deprivation in the form of an assured minimum income, or a floor below which nobody need descend. To enter into such an insurance against extreme misfortune may well be in the interest of all; or it may be felt to be a clear moral duty of all to assist, within the organised community, those who cannot help themselves. So long as such a uniform minimum income is provided outside the market to all those who, for any reason, are unable to earn in the market an adequate maintenance, this need not lead to a restriction of freedom, or conflict with the Rule of Law.

Hayek draws the important distinction between measures that interfere with individual liberties and those that do not. What has happened in the modern state is that the community's responsibility to take care of those who cannot care for themselves has been transformed into politically (if not legally) enforceable rights of each person to a share of the social wealth, irrespective of individual responsibility. In other words new rights have been created, which by their nature can be realised only at the expense of individual liberty. It is the recognition of this type of right that threatens the existence of the basic human rights. The new "rights" focus on equality as a value and are not necessarily related to the needs of the genuinely underprivileged and disabled. Welfare for all (whether economically deserving or not) as distinct from welfare for the genuinely needy has other counterproductive consequences.

There are other important rights such as the freedom of thought, conscience and religion, the freedom of association, the freedom of assembly, and the freedom to engage in a trade profession or occupation which, for reasons of space and resources, cannot be discussed in this publication.

The freedom of thought, conscience and religion is readily proclaimed, but often disregarded. Every person has the capacity to think and to abide by his conscience. However this freedom is often meaningless if the outward manifestation of thought and conscience is not protected. This freedom can only exist in conjunction with other freedoms such as the freedom of expression, association and assembly and the freedom from arbitrary punishment.

The rights of freedom of association and the freedom of assembly are crucial to the enjoyment of other rights. Some issues pertaining to these rights are discussed in chapter 15.3 and 15.4.

The freedom to enter into a contract for lawful purposes is crucial to the enjoyment of property and to the freedom to engage in a trade, profession or occupation. It is often a necessary condition for the enjoyment of the freedom of association. The separate discussion of these rights cannot be undertaken owing to the constraints mentioned, but it is hoped that their value will become sufficiently clear in the course of the discussion on related rights.

There is an important difference between the operation of the traditional rights and the "new" rights. The traditional rights require governments and individuals to desist from action in order to protect the rights of individuals. The "new" rights require government action which restricts the rights of individuals, results in the accumulation of bureaucratic power and considerable costs to the taxpayer. Moreover, the nature of these policies are decided upon and executed by an elite group (politicians, academics and bureaucrats) giving vent to their particular, peculiar and subjective values and ideas.

The traditional rights are relatively easily discernible because of their nature. They lend themselves to clear exposition. The socio-economic "rights" based on human needs and other claims are not so definable. There are thousands of human needs, beginning from the most basic which is love and understanding. These do not lend themselves to exposition. Thus in practice what happens is that the needs that are recognised are those which reflect the subjective ideas and prejudices of law-makers and law-enforcers. They select a few needs, focussing on some problems and injustices, and ignore thousands of others. For this reason, human needs are better left to the cut and thrust of political debate. They cannot be enunciated within a declaration of rights enforced by courts and tribunals.

It is clear that in recent times, the ideology of human rights has undergone radical change. In the past, human rights represented the conditions which were considered indispensable to the individual's capacity to order his life and to seek his happiness through his own endeavour. This approach to human rights was linked to the belief that the rules of just conduct should not and cannot seek to achieve particular ends but can only lay down general norms of conduct so as to achieve a certain predictability of actions, which would enable each individual to act according to his own plans and decisions.

The new ideology of human rights is based on the belief that the purpose of human rights is not to facilitate self-actualization but to provide direct satisfaction of human needs. The needs orientated theories of human rights have as their underlying premise, the belief that human needs are objectively ascertainable and are distinguishable from human wants which are considered artificial and inessential. "Needs" theorists elevate certain needs to a position of superiority over other claims on the basis that they constitute what is essential to the good and healthy life. On this basis they assert that the satisfaction of such a need is a human right.

The needs based theory of human rights, not surprisingly, has become very popular. Yet, from the point of view of human liberty, it is a dangerous doctrine.

It is obvious that not every human desire or want can be satisfied. It therefore becomes necessary to identify those which are to be considered objective necessities. The immediate difficulty is that one man's want may be another man's need. Or else, what one man needs will not even be wanted by another man. The totalitarian implications of the doctrine spring from this problem. It becomes necessary for human "needs" to be officially determined and activities to be undertaken to satisfy such "Needs" whether or not such needs are actually wanted by everyone. As Neil McInnes "The Politics of Needs — or, Who Needs Politics?", in R Fitzgerald (ed) 'Human Needs and Politics', (Sydney, 1977) p 230 says:

A politics of needs would depend on making good the distinction between needs and wants and then proposing ways to promote the former. Such promotion of need satisfying activities would be at the expense of want satisfying activities whenever policy entailed allocating limited resources to certain 'priorities'; but even when no economic question was clearly raised, policy might still seek to deny the satisfaction of wants because their conventional origin was thought to show that they were superfluous, fatuous, nefarious or immoral.

The validity of the above remarks is vividly illustrated by recent Australian government measures relating to Medicare and smoking. The government considered that health care in the form established by the Medicare scheme was a universal necessity and therefore imposed it upon the public. The scheme entailed the transfer of substantial public resources to meet the cost of implementation. The government's drive against smoking and the advertisement of cigarettes is justified inter alia on the grounds that smoking is a mere want the satisfaction of which is misguided, injurious and costly to the government, in that the government has undertaken the major responsibility for health care. According to these measures, state funded health care is decreed to be our need whether we want it or not and cigarette smoking is made an inessential want, whether we need it or not.

The dynamics of the needs theory is further explained by McInnes:

The totalitarian implications of this one set of universal requirements are more evident when the economic problem is borne in mind. Resources including time, are limited, so the compulsory satisfaction of "needs" must be at the expense of 'wants'. Certain activities would have to be curbed or else priced out of the market. That is to say, even if they were not forbidden by the state, the massive diversion of resources to meet the demand for approved objects of needs (and needs that are proclaimed universal and proper will come to be declared compulsory) would soon make unapproved activities impossible. Whatever materials they required would soon become impossibly expensive. It is enough to think of the impoverishment, and denial of other wants, that were suffered when unlimited demand was created for Swedish housing, British medical services, or Soviet defence, . .. - the needs of an earlier generation of needs theorists which have secured state backing —(McInnes, op cit pp 236-237).

As Professor Eugene Kamenka points out (see chapter 2.1.3) human rights must be viewed in their historical context and they cannot be founded on unhistorical abstract demands. However the tendency to demand specific new rights without regard to the historical process of evolution is becoming characteristic of modern democratic societies. Many of these "rights" are based on needs as described above.

There are however other claims which amount to unwarranted applications of the classical civil liberties. These are unwarranted applications for the reason that the principles sought to be elicited from the established rights have not evolved through historical processes, but are determined by special interests on the basis of subjective moral judgements. An extreme example of such a claim is the novel contention that a burglar has a "right" not to be harmed by property owners, when apprehended in the act of burglary. Recent industrial safety legislation in NSW gives a right to damages to a burglar who slips and is injured on industrial property.

The right of private defence is an ancient common law right which is also found in statutory codifications. The law, as evolved over a long period has sought to balance the right of a person to use force in the defence of person and property with the duty of not causing excessive or malicious harm. To appreciate this balance one has to understand the operation of the legal principles in their application to particular circumstances considered by the courts as well as the manner in which the burden of proving facts is apportioned between the prosecution and defence.

The demand for recognising greater levels of protection for burglars, from harm caused by intended victims, appears, at one level, to be an ill-considered and intellectually deficient argument. At another level it has serious ideological implications. The common law relating to crimes, is founded on a system of values considered basic to the cultural fabric of the societies in which the law operates. Amongst these values, is the respect for private property and hence the concession to the use of force in defence of property. The reformists who claim greater rights for burglars are consciously devaluing the society's interest in protecting private property. Implicit in their claim is the suggestion that private property should no longer be accorded a sanctity which warrants the use of force in its defence.

Similarly, persons claiming rights to clean air etc are attempting to disregard the necessity to balance the right to the use and enjoyment of property with the need to protect the environment. What is in fact happening is that the processes of objective evaluation and consideration of community values are giving way to the dynamics of pressure politics. The consequences of this trend, for our liberties, can be disastrous. The liberties that have been recognised through historical and cultural evolution would be undermined by rights preferred by particular interest groups having the capacity to manipulate the political system.

The ideological thrust of the UN sponsored declarations and documents on human rights are considered in chapter 4 (especially 4.5). These documents have recognised inter alia, a wide range of needs based rights. Such rights include:

The rights declared by these documents and the corresponding obligations imposed on ratifying nations are formulated in such wide and ambiguous terms, that they are capable of interpretation in a manner which will support almost any claim based on the material needs of man. In ratifying countries such as Australia, they provide governments with a legal facade behind which they may impose ideological inspired regulatory measures on the basis of promoting the new human rights. The welfare rights recognised by the UN documents and enthusiastically pursued by socialistically inclined governments of the western world, are considered by some ideologues as the second generation of human rights. These ideologues are now peddling the idea of a third generation of human rights which would include a right to a clean and healthy environment, a right to peace and rights for animals and trees.

The needs of man are endless. There are needs relating to material conditions of life. There are also emotional needs, the ultimate of which is that one should be loved and respected by others. Therefore needs can never become a rational basis for a system of human rights. It is impossible to cater to all needs of man. What that means, in practice, is that governments or pressure groups which prevail on governments will select a few from amongst the many human needs and give them precedence over all others. The individual's right to determine his own priorities will be gradually lost.

The impracticality of the needs based theory of human rights becomes clear when we consider some of the main claims based on needs. It is demonstrated above in this chapter that the right to employment can be recognised and enforced only where the state becomes the sole employer or where it exercises total economic and social control over individuals. How else can all persons be guaranteed a job? The government must provide a job or compel another to do so. This is the dilemma of recognising rights which do not impose corresponding duties, the dilemma which is discussed earlier in this chapter and in chapter 2.4.

Similarly, when the right to social security or the right to health care is asserted it is necessary to consider on whom the burden of providing such care and security should lie. It is impossible to compel people to directly provide such benefits to others. Therefore the welfare state which recognises such rights is inevitably driven to economic regulation and taxation as the only means available to it for the satisfaction of such demands. Free or subsidised health care can be provided only by setting up and maintaining public hospitals and by limiting the incomes of doctors. Social security payments can be made only by appropriating private wealth through taxation. The so-called right to employment is sought to be extended to include the right to child care so as to enable mothers to seek employment. Society has been traditionally organised in such a way that a family was unquestionably responsible for the nurture and care of children. A mother's freedom to work has always been recognised but so also the duty of parents to take care of children by themselves or through private arrangements for child care. The care of children has never been a responsibility of the society at large. What is now being demanded is that this responsibility be at least partly shared by the community in the form of the recognition of a right to child care. The community is asked to bear the burden of financing state provided child care services or of compensatory payments to working mothers. It is not suggested that women should be denied the freedom of choice to pursue careers or to be housekeepers or to pursue both simultaneously. What must be emphasised is that a right to child care cannot be recognised without placing burdens on the community. The negative freedom of choice (as distinguished from the positive right to child care) will, in conditions of economic freedom, enable mothers to adjust their particular needs and priorities through contractual or other arrangements privately made.

The extent to which the needs theory dominates the philosophy of government in Australia can be measured by the levels of taxation and regulation of economic activity. Government takes money out of the hands of individuals and spends it on what it considers are the needs priorities of the people. The more an individual is taxed, the greater the loss of his freedom to determine his own priorities and to satisfy his individual needs. In short, through taxation and regulation, government decides how a person should spend his money. Rather than leave a person's resources to himself and permit him to make his own arrangements for the satisfaction of his needs, the government expropriates his wealth and in return seeks to provide him the necessities of life as determined by government. Communist societies are organised on this principle. In societies such as Australia individual freedom still exists to a relatively large extent. However it is clear that a needs based theory of human rights can be pursued only at the expense of the gradual loss of freedom and a gradual movement towards totalitarianism. The failure to realise this will accelerate the processes which are threatening to make Australia a regimented socialist state.

The unprecedented success of western civilisation is attributable to its allocation of guaranteed areas of individual freedom coupled with individual responsibility for ones needs and desires. Despite all attempts by socialist ideologues to paint this system as one devoid of humanitarian concern, it remains true that, it has not only satisfied human needs to an extent unprecedented in human history, but has done so whilst preserving individual liberty to an extent hitherto unknown to man.

The emerging theories on human rights seek to reverse this process. These theorists, with their self-proclaimed concern for the welfare of the people, wish to arrogate to themselves, the function of deciding what the people can decide for themselves through free interaction. The system of classical civil liberties has helped to gradually reduce poverty and to enhance the dignity of man by preserving space for individually determined actions. The new theory of human rights threatens to enslave human beings by restricting the area of their individual freedom and by making them reliant on government for the satisfaction of their material and psychological needs.