Wrong About Rights

Sir, - "Intriguing" is how your Religious Affairs Correspondent (The Irish Times, September 24th) finds the explanation for the…

Sir, - "Intriguing" is how your Religious Affairs Correspondent (The Irish Times, September 24th) finds the explanation for the statement by the Irish Commission for Justice and Peace that "not even the right to life is absolute". And intriguing it certainly is.

Whatever the merits of the four new rights which the ICJP proposed, its explanation of the above statement seems to be at variance with the modern grammar of rights.

In a modern classic on the subject, Natural Law and Natural Rights (Oxford 1980), John Finnis shows how such documents as the Universal Declaration of Human Rights (1948), the UN Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (1966) as well as the European Convention for the Protection of Human Rights and Fundamental Freedoms (1952), employ "two principal canonical forms: (A) `Everyone has the right to . . .' and (B) `No one shall be . . .'." The former, as it were, positive rights (A) are understood by these documents as being by their very nature subject to limitations. The latter (as it were, negative rights, B) are not subject to any limitation; they are absolute human rights.

By a strange coincidence, in the same issue you quoted one such absolute right in your report on a recent ruling by the European Court. The court awarded damages to a 14-year-old boy for a caning carried out by his stepfather. The beating was found to be in breach of Article 3 of the European Convention on Human Rights which states that "no one shall be subjected to torture or to inhuman or degrading treatment or punishment."

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Finnis lists the following absolute rights: "the right not to have one's life taken directly as a means to any further end; but also the right not to be positively lied to in any situation (e.g. teaching, preaching, research publication, news broadcasting) in which factual communication (as distinct from fiction, jest, or poetry) is reasonably expected; and the right not to be condemned on knowingly false charges."

To return to the explanation offered by the ICJP document, it would seen that the authors confuse the positive rights (which might well include the four they are proposing) with the negative right of the innocent not to be killed. It is this right which finds legal expression in the law against murder. Their confusion about the obligations that arise from rights is embarrassing. They claim that: "Even as fundamental a right as that to life, already recognised in the Constitution, does not guarantee freedom from death by illness or accident, by murder, negligence or war." Constitutional rights, it seems to me, do not guarantee freedoms; they promote them. Civil freedoms are the result of the complex political and legislative process known as the specification of rights. It is true that the right to life cannot guarantee freedom from death by illness or accident. But then, whoever expected it to do so? However, we do expect legislation, including its execution by the police and the courts, to protect the absolute right to life of all innocent persons by punishing those who commit murder (the killing of an innocent human being), those who indirectly cause death by negligence, and those soldiers who intentionally kill, indeed maim, civilians in war zones.

It is a pity that the ICJP, in its justified concern to promote the four new basic rights, seem to have overstated its case, since a vigorous debate on the rights it proposes would seem to be urgently needed. - Yours, etc., Vincent Twomey,

St Patrick's College, Maynooth, Co Kildare.