Simon Chapman: Rights, Freedoms, Entitlements and Obligations

'Platform' is a new place for guest authors to discuss important ideas.  To launch 'Platform', Simon Chapman, a regular commentator on conservativehome's leadership blog, has written this short essay on 'Rights, Freedoms, Entitlements and Obligations':

One consequence of the Human Rights Act is that a great deal of public debate is now conducted by reference to “rights”. All too often the last resort of somebody on shaky ground is to assert that he is claiming “a basic human right”, as if that is somehow unanswerable.

Conservatives are generally alert to this. But we have not yet found an effective way of countering rights-based arguments. Our two main tactics – a simple denial that such a right exists, or a call for the repeal of the Human Rights Act - can lead us into confusion.

A good recent illustration of the latter came in an otherwise compelling article by Lord Tebbit in the Telegraph:

“At the heart of Conservatism is the belief that, since man is born free, laws can only make him less so. "Human rights" legislation, for example, can only impose obligations.”

This contains both an example of error, and the kernel of the solution.

First the error. It is simply wrong to say that Human Rights legislation can only impose obligations on people. For example, Articles 9 and 10 of the convention recognise freedom of thought, conscience, religion and expression. No obligations imposed on anybody else there.

However, it is also undeniably true that some “rights” do impose an obligation. A “right” to education imposes an obligation on somebody else to do the educating.

The key to it is that there are two sorts of “rights”: those that impose an obligation on somebody else to provide, and those that do not. They are significantly different, and yet we use the same word to describe them. Herein lies much confusion. So we need a clearer language.

All “rights” fall into one of two mutually exclusive groups: “freedoms” and “entitlements”. A freedom imposes no obligation on anybody else. Freedom of speech, conscience and association can all be exercised without requiring anybody else to do anything at all. In contrast, entitlements always impose an obligation on somebody else to provide them.

Understanding this helps us separate “rights” debates into arguments about freedoms, and arguments about entitlements and obligations. This is more familiar ground for conservatives.

Two points need to be emphasised here. The first is that whilst freedoms need nobody to provide them, they often need people to protect them, because other people seek to take them away. They do not come without a cost. The second is that not all entitlements are automatically bad. Some are very important – and are the flip-side to our freedoms. Two examples of this are the right to vote and the right to a fair trial. Both are examples of entitlement “rights”. Laws to establish these entitlements are essential to bolster our freedoms, even though they impose obligations.

This is not purely a matter of semantics. Dividing “rights” in this way enables us to analyse arguments more clearly. When assessing an entitlement, we can weigh the benefit claimed against the obligation imposed on others to provide it. We should also be alert when an attempt is made to distort a freedom into an entitlement. Freedom of speech or freedom of expression should not give rise to an entitlement to pornography whilst in prison.