Frank Brennan's Blackfriars Lecture, delivered 10 April at Australian Catholic University.
Larry Siedentop, a long-time Fellow of Keble College at Oxford, has recently published his book Inventing the Individual: The Origins of Western Liberalism. He does not consider it mere coincidence 'that liberal secularism developed in the Christian West'. He assumes that 'if we are to understand the relationship between beliefs and social institutions — that is, to understand ourselves — then we have to take a very long view'. Looking back at the French Revolution, he assesses the positions of the the anti-clericals who were followers of Voltaire and the religious camp 'who saw the separating of church and state as nothing less than an insurrection against God, public denial of beliefs which had shaped Europe'. Two centuries on, he thinks that the old antagonism still lurks below the surface. However he notes: 'The religious camp have come, by and large to accept civil liberty and religious pluralism. The anti-clericals have — with the exception of hardline Marxists and writers such as Richard Dawkins — given up on the attempt to extirpate religious belief.' He identifies Europe's undeclared civil war: 'The visceral reaction of the French left to the prospect of acknowledging the Christian roots of Europe has its counterpart in much church rhetoric deploring the growth of Godless secularism'. He says this civil war is tragic and unnecessary:
It is tragic because, by identifying secularism with non-belief, with indifference and materialism, it deprives Europe of moral authority, playing into the hands of those who are only too anxious to portray Europe as decadent and without conviction. It is unnecessary because it rests on a misunderstanding of the nature of secularism. Properly understood, secularism can be seen as Europe's noblest achievement which should be its primary contribution to the creation of a world order, while different religious beliefs continue to contend for followers. Secularism is Christianity's gift to the world, ideas and practices which have often turned against 'excesses' of the Christian Church itself.
What is the crux of secularism? It is that belief in an underlying or moral equality of humans implies that there is a sphere in which each should be free to make his or her own decisions, a sphere of conscience and free action. That belief is summarised in the central value of classical liberalism: the commitment to 'equal liberty'. Is this indifference or non-belief? Not at all. It rests on the firm belief that to be human means being a rational and moral agent, a free chooser with responsibility for one's actions. It puts a premium on conscience rather than the 'blind' following of rules. It joins rights with duties to others.
One of the delights of the papacy of Pope Francis, a Jesuit, is that the old debates about conscience and authority have been put to rest. The Church is not seen as the crucible of all wisdom. Secularism is no longer a dirty word. We can all more readily embrace the secularist insights about human dignity, autonomy, rights and duties. We can even admit, as we have had to with the child sex abuse crisis in the Church, that the State and civil society can contribute and help the Church espouse its true mission and values. In the past some of our church leaders have been suspicious or wary about the language of human rights and legal regimes for protection of same. Here in Australia, we religious people know that there are many of our fellow citizens who have not 'given up on the attempt to extirpate religious belief' and that there is a prevalent view that it is only the stupid or perverted who could embrace religious faith or commitment to a church. It's in this context that we come to consider the issue of human rights, the national interest and the will of the people.
In the legal academy there continues to be a great evangelical fervour for bills of rights. This fervour manifests itself in florid espousals of the virtues of weak statutory bills of rights together with the assurance that one need not be afraid because such bills do not really change anything. Those of us with a pragmatic, evidentiary approach to the question are well positioned given that two of Australia's nine jurisdictions (Victoria and the ACT) have enacted such bills of rights with the double assurance that nothing has really changed and that things can now only get better. It will be interesting to hear an assessment in the longer term of the benefits of a bill of rights which provides lawyers and judges with greater access to the realm of policy and service delivery.
Having chaired the National Human Rights Consultation in 2009, I am convinced that Australia's exceptionalism in failing to legislate comprehensively for the protection of human rights will put increasing pressure on the relationship between the three branches of government. Responding to that pressure, our courts are now isolated from courts elsewhere, including those in the United Kingdom which are constrained and directed by Strasbourg and their own Human Rights Act. In the UK, the Tories long concerned about the influence of Strasbourg are no longer suggesting the repeal of their Human Rights Act but the passage of a new Bill of Rights which will include the principles of the European Convention on Human Rights. Our courts are less able to profit from the cross-fertilisation of ideas from other equivalent jurisdictions such as the UK, New Zealand, Canada and the USA.
Whether or not we have a bill of rights, much of our human rights jurisprudence remains partial, failing to extend rights equally to all. Once we investigate much of the contemporary discussion about human rights, we find that often the intended recipients of rights do not include all human beings but only those with certain capacities or those who share sufficient common attributes with the decision makers. It is always at the edges that there is real work for human rights discourse to do. Speaking at the London School of Economics on 'Religious Faith and Human Rights', Rowan Williams when the Archbishop of Canterbury boldly and correctly asserted:
The question of foundations for the discourse of non-negotiable rights is not one that lends itself to simple resolution in secular terms; so it is not at all odd if diverse ways of framing this question in religious terms flourish so persistently. The uncomfortable truth is that a purely secular account of human rights is always going to be problematic if it attempts to establish a language of rights as a supreme and non-contestable governing concept in ethics.
No one should pretend that the discourse about universal ethics and inalienable rights has a firmer foundation than it actually has. Williams concluded his lecture with this observation:
As in other areas of political or social thinking, theology is one of those elements that continues to pose questions about the legitimacy of what is said and what is done in society, about the foundations of law itself. The secularist way may not have an answer and may not be convinced that the religious believer has an answer that can be generally accepted; but our discussion of social and political ethics will be a great deal poorer if we cannot acknowledge the force of the question.
Once we abandon any religious sense that the human person is created in the image and likeness of God and that God has commissioned even the powerful to act justly, love tenderly and walk humbly, it may be very difficult to maintain a human rights commitment to the weakest and most vulnerable in society. It may come down to the vote, moral sentiment or tribal affiliations. And that will not be enough to extend human rights universally. Think just of the unborn child, the isolated aged person, the asylum seeker banished to Nauru or Manus Island, or the young offender caught in the web of mandatory sentencing laws. In the name of utility, society might not feel so impeded, limiting social inclusion to those like us, 'us' being the decision makers who determine which common characteristics render embodied persons eligible for human rights protection. Nicholas Wolterstorff says, 'Our moral subculture of rights is as frail as it is remarkable. If the secularisation thesis proves true, we must expect that that subculture will have been a brief shining episode in the odyssey of human beings on earth.'
Marking the 60th anniversary of the UN Declaration of Human Rights, the late Irish poet Seamus Heaney said:
Since it was framed, the Declaration has succeeded in creating an international moral consensus. It is always there as a means of highlighting abuse if not always as a remedy: it exists instead in the moral imagination as an equivalent of the gold standard in the monetary system. The articulation of its tenets has made them into world currency of a negotiable sort. Even if its Articles are ignored or flouted — in many cases by governments who have signed up to them — it provides a worldwide amplification system for the 'still, small voice'.
The concept of human rights has real work to do whenever those with power justify their solutions to social ills or political conflicts only on the basis of majority support or by claiming the solutions will lead to an improved situation for the mainstream majority. Even if a particular solution is popular or maximises gains for the greatest number of people, it might still be wrong and objectionable. There is a need to have regard to the wellbeing of all members of the community.
The late Professor Louis Henkin, arguably the US's most outstanding international human rights lawyer of the twentieth century, neatly summarised the varying perspectives on the origin and basis of human rights, espousing the centrality of the idea in any society committed to freedom, justice and peace for all:
Although there is no agreement between the secular and the theological, or between traditional and modern perspectives on human beings and on the universe, there is now a working consensus that every man and woman, between birth and death, counts, and has a claim to an irreducible core of integrity and dignity. In that consensus, in the world we have and are shaping, the idea of human rights is an essential idea.
'Human rights' is the contemporary language for embracing, and the modern means of achieving, respect and dignity for all.
At his swearing in to the High Court last year, Justice Patrick Keane took some comfort that the Australian judiciary were not a social elite as in some other countries, being drawn from the egalitarian democracy shaped by those Australians of the Depression and War eras who provided selflessly and generously for the education of their children. He invoked Martin Luther King who said, 'The arc of the moral universe is long, but it bends toward justice.' With a touch of nationalistic pride, Keane opined that it bends more sharply in that direction here in this part of the southern hemisphere because of the egalitarianism of our forebears.
In his address at the London School of Economics, Rowan Williams pointed out that rights and utility are the two concepts that resonate most readily in the public square today. But we need concepts to set limits on rights when they interfere with the common good or the public interest, or dare I say it, public morality — the concepts used by the UN when first formulating and limiting human rights 66 years ago. These concepts are no longer in vogue, at least under these titles. We also need concepts to set limits on utility when it interferes with the dignity of the most vulnerable and the liberty of the most despised in our community. Addressing the UN General Assembly to mark the anniversary of the UN Declaration of Human Rights (UNDHR), Pope Benedict XVI said, 'This document was the outcome of a convergence of different religious and cultural traditions, all of them motivated by the common desire to place the human person at the heart of institutions, laws and the workings of society, and to consider the human person essential for the world of culture, religion and science ... (T)he universality, indivisibility and interdependence of human rights all serve as guarantees safeguarding human dignity.' It would be a serious mistake to view the UNDHR stipulation and limitation of rights as a western Judaeo-Christian construct.
Mary Ann Glendon's A World Made New traces the remarkable contribution to that document by Eleanor Roosevelt and an international bevy of diplomats and academics whose backgrounds give the lie to the claim that any listing of human rights is a Western culturally biased catalogue of capitalist political aspirations. The Frenchman Rene Cassin, the Chilean Hernan Santa Cruz, the Christian Lebanese Adam Malik and the Chinese Confucian Peng-chun Chang were great contributors to this truly international undertaking. They consulted religious and philosophical greats such as Teilhard de Chardin and Mahatma Gandhi. Even Aldous Huxley made a contribution. It was the Jesuit palaeontologist Teilhard who counselled that the drafters should focus on 'man in society' rather than man as an individual. The drafters knew that any catalogue of rights would need to include words of limitation.
Cassin proposed only one limitation on a person's rights: 'The rights of all persons are limited by the rights of others.' The 1947 Human Rights Commission draft stayed with Cassin's one stated limitation on rights: 'In the exercise of his rights, everyone is limited by the rights of others.' By the time the draft reached Geneva for the third meeting of the Human Rights Commission in May 1948, there was a much broader panoply of limitation on individual rights introduced, taking into account man's social character and re-introducing Humphrey's notion of just requirements of the state: 'In the exercise of his rights every one is limited by the rights of others and by the just requirements of the democratic state. The individual owes duties to society through which he is enabled to develop his spirit, mind and body in wider freedom.' The Commission then reconvened for its last session at Lake Success in June 1948. They approved the draft declaration 12-0.
Glendon notes: 'Pavlov, the Ukraine's Klekovkin, and Byelorussia's Stepanenko, in line with instructions issued before the meeting had begun, abstained and filed a minority report.' The Commission moved the words of limitation to the end of the draft and married the limitation to a statement about duties. Article 27 (which ultimately became Article 29) provided:
Everyone has duties to the community which enables him freely to develop his personality.
In the exercise of his rights, everyone shall be subject only to such limitations as are necessary to secure due recognition and respect for the rights of others and the requirements of morality, public order and general welfare in a democratic society.
So here in the heart of the modern world's most espoused declaration of human rights came an acknowledgment that we all have duties and not just rights, duties to the community which, perhaps counter-intuitively, enable us to develop our personalities. I doubt that phrase was coined by Eleanor Roosevelt. At the Commission, it was said that 'morality' and 'public order' were 'particularly necessary for the French text, since in English, 'general welfare' included both morality and public order'. At one stage it was suggested that the term 'public order' was too broad, permitting the grossest breach of human rights by those committing arbitrary acts and crimes in the name of maintaining public order. The commission considered the substitution of 'security for all' for 'public order', similar to the 28th article of the American Declaration of the Rights and Duties of Man, but decided to stay with the more jurisprudentially certain European term 'public order'. But also we have the acknowledgment that individual rights might be limited not just for the preservation of public order and for the general welfare of persons in a democratic society, but also for morality — presumably to maintain, support, enhance or develop morality in a democratic society. Sixty years later, these words of limitation might not sit with us so readily.
The draft then went from the Human Rights Commission to the Third Committee of the UN General Assembly. The Committee convened more than 80 meetings to debate the declaration which it renamed the Universal Declaration of Human Rights rather than International Declaration of Human Rights. The limitation clause was considered during three of those meetings. The limitation clause was further amended so that the final Article 29 now reads:
Everyone has duties to the community in which alone the free and full development of his personality is possible.
In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
These rights and freedoms can in no case be exercised contrary to the purposes and principles of the United Nations.
Though there was much discussion of amendments to omit references to 'morality' and 'public order', the Third Committee decided to retain these terms as to delete the mention of them 'would be to base all limitations of the rights granted in the declaration on the requirements of general welfare in a democratic society and consequently to make them subject to the interpretation of the concept of democracy, on which there was the widest possible divergence of views.' As amended, this article was carried by 41 votes to none, with one abstention. The General Assembly then voted to adopt the universal declaration with 48 in favour, 8 abstentions and none opposed.
I am constantly bemused here in Australia that whenever I agitate questions of Aboriginal and refugee rights I will usually be well received in small 'l' liberal circles but the very same receptionists are likely to question my clerical entitlement to speak when I decide to buy into debates on issues like euthanasia and embryonic stem cell research. And if I buy into topics like same sex marriage, I will be attacked with equal intensity from both sides — one questioning my right to express a view and the other contesting my standing as a Catholic priest.
Professor Finnis, a Catholic but making a point equally applicable to all faith communities, says, 'Outside the Church, it is widely assumed and asserted that any proposition which the Catholic Church in fact proposes for acceptance is, by virtue of that fact, a 'religious' (not a philosophical, scientific, or rationally grounded and compelling proposition), and is a proposition which Catholics hold only as a matter of faith and therefore cannot be authentically willing to defend as a matter of natural reason.' For Finnis, much of what John Rawls in his Political Liberalism describes as public reason can be equated with natural reason. Whereas Rawls would rely only on an overlapping consensus not wanting to press for objective reality of right and wrong, Finnis would contest that the only content of an overlapping consensus would be that which can be objectively known through natural reason.
Enough of the theory for one night. Let's consider one practical, pressing issue of human rights, the national interest and the will of the people.
People have been asking me my views on the present debate about Senator George Brandis's 'right to be a bigot' and the proposed amendments to the Racial Discrimination Act. Even if one were to concede (as I do) the liberty, licence or freedom to be a bigot in a pluralistic, democratic society, there is good reason not to recognise a right to be a bigot, thereby creating the duty on others to accord the right. There is a right to free speech. That right might be abused and it often is. One abuse of the right is the making of bigoted or hateful remarks. The making of such remarks is not the exercise of a right; it is merely the exercise of a liberty. I do not have the duty to allow the bigot to speak his mind in the public square. I have the liberty to drown him out. I have the duty to allow the free speech of someone who is not speaking in a defamatory, bigoted or hateful way and who is not interfering with the rights of others.
Back in 1994 when there was discussion at a federal and state level about the introduction of racial vilification and racial hatred laws, I said I was pessimistic about the utility of such laws with or without criminal sanctions and with or without conciliation. I was mainly focused on ensuring that any conduct defined as unlawful in this realm not be rendered criminal behaviour as many were seeking. Thankfully the parliament did not go down that track. Section 18C as enacted in 1995 contains a note stating: 'Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.' This is what I wrote in Eureka Street in August 1994, a year before the Commonwealth Parliament enacted the present section 18C of the Racial Discrimination Act which is now being discussed. Though it mainly argues against criminal sanctions, I also raised general concerns about any racial hatred law being applied equally to all:
Debates in Australia about law and morality are usually caused by calls for the decriminalization of conduct that is no longer thought to be publicly harmful, or on which there is no longer a community consensus about the immorality of the conduct. Whether it be abortion or homosexual activity between consenting adults, there is room for disagreement not only about the morality of the conduct but also about the purposes and limits of the criminal law.
Rarely have we debated the need for the creation of new criminal offences. Our federal politicians are considering the desirability of making racist violence and racial vilification criminal offences punishable by substantial prison terms.
Acts of violence are already punishable. The argument is that the law ought now to be more severe and specific in its treatment of attackers who choose their victim on the grounds of race. Irene Moss, as Race Discrimination Commissioner of the Human Rights and Equal Opportunity Commission, reported that racist violence was on the increase and that greater legal sanctions were needed to stem the tide.
Violent physical attacks on persons are already criminal acts. A judge or magistrate sentencing an offender is already entitled to take the attacker's motivation into account in considering sentence. While being repelled by racist violence, the judge may be equally repelled by sexist violence, religious violence, or what we will now have to call person-specific violence.
When introducing the Commonwealth bill to outlaw racist violence in December 1992, the Federal Minister, Peter Duncan, said in his second-reading speech, 'For instance, if an Anglo- Saxon woman who has converted to Islam is more likely to be attacked wearing the hijab, or Muslim women's headscarf, she is attacked not because the attacker believes she is a Muslim but because the attacker thinks she is an Arab woman.' Really? One might ask 'Why?' The attacker can already be convicted of any number of offences that include assault as an element. Even the threat of violence is punishable. Presumably, in future if the jury could be convinced beyond reasonable doubt that the attacker had been motivated by a mistaken belief that the victim was Arab, the court would have to consider the offence more serious than if the attacker had merely been motivated by a belief that the woman was a Muslim, or by the certainty that she was his estranged wife or long time enemy, or simply because she was an innocent bystander on whom he decided to vent his nonracial specific aggression. In creating a special-category offence of racist violence, the Parliament presumably wants to punish the attacker not only for the harm done to the victim but also for the fear instilled in others of the same race. I doubt the practicality of the distinction, unless one sort of violence is to be judged more ideologically unsound than another, since it is more likely to reported sensationally by the media.
Criminal sanctions for racial vilification are even more questionable. Incitement to racial hatred and hostility, or hate speech as it is sometimes called, is conduct by an offender or a group that is likely to cause a second person or group to act in an adverse manner towards a third person or group on the grounds of their race, causing that third person or group to fear that violence may be used against them because of their race. Each element — cause, likelihood and grounds — would have to be proved beyond reasonable doubt in order to secure a conviction. Advocates of such laws concede that there is little prospect of successful prosecutions — there have only been one or two in Canada, for example — and argue instead for the symbolic value of the law.
Elliot Johnson QC, of the Royal Commission into Aboriginal Deaths in Custody, advocated legislative prohibition of racial vilification but expressed strong reservations about its being made a criminal offence. He concluded: 'In this area conciliation and education are likely to be more effective than the making of martyrs: particularly when it is words, not acts, which are in issue.' This approach has also been adopted by the Gibbs Committee on the Reform of Australian Criminal Law, and by the majority of the Australian Law Reform Commission in their report, Multiculturalism and the Law.
Such a law may fulfill a useful purpose in a society that habitually persecutes members of one ethnic minority. But in Australia, most vilification is exchanged between members of warring minorities whose relatives are at each other's throats back in the home country. It would be a brave Director of Public Prosecutions who decided to prosecute the Greek agitator and not the Macedonian organiser. It would be an unenviable task for the police officer, having to decide whether to arrest and charge the Croat or the Serb. Presumably the advocates of this law would espouse a selective prosecution procedure under which one would leave warring minorities to themselves while making a show trial of the mainstream community member who had singled out one racial group.
Such a law could be invoked not only by members of the persecuted minority, but also against them. Or would a selective prosecution policy preclude that, too? Take, for example, the 1993 sometimes vitriolic Mabo debate. For every elected politician who said that Aborigines had not evolved to the stage of developing the wheeled cart, there was an Aboriginal leader fulminating that white public servants were using word processors as the modern-day equivalent of strychnine to exterminate his people. For every mining magnate who claimed that Aborigines were stone-age people with uncivilised ways, there was an Aboriginal leader alleging that white members of the Liberal Party were like members of the Ku Klux Klan crusading for blood. In such an atmosphere, even threats of criminal prosecution would have been counter-productive as they are now when people of goodwill are wrestling with the political fallout of Pauline Hanson's unwillingness fairly to represent Aborigines and Asians in her electorate.
The criminal law is a very blunt instrument for reshaping the hearts of racists and clearing the air of racist sentiment. Such interference with civil liberty does nothing to enhance further the human rights of the woman wearing the hijab. It does not help in the resolution of interethnic conflict. It does nothing to produce more reasoned public discussion about migration or Aboriginal rights, which are the two key issues relating to race and which play upon the public's racial fears. It will bring the criminal law and its governors into disrepute, if the criminal sanctions are ever invoked.
At this time, in this part of the world, thought-police armed with criminal sanctions are not the answer.
Senator Brandis has circulated a proposal to amend the existing provisions prohibiting offensive behaviour based on racial hatred. I continue to wonder whether such laws can be applied equally to all. But if it be made unlawful to intimidate a person or group of persons because of their race, the court assessment of whether the offending conduct is reasonably likely to have that effect could only be made by the judge putting herself in the shoes of a member of that race and asking, 'In the situation of this racial group, am I reasonably likely to feel intimidated by these statements or actions?' It is ludicrous to suggest, as does the government draft, that the reasonable likelihood of intimidation 'be determined by the standards of an ordinary member of the Australian community, not by the standards of any particular group within the Australian community'. It is not a matter of standards but of apprehensions of fear. Such fear is not endured by all Australians, but by racially targeted groups. And there is no reason to limit intimidation to fear of physical harm. Some racist taunts can be very intimidating even if physical harm is not threatened.
It is also ludicrous to stipulate that the law would not apply to words used 'in the course of participating in the public discussion of any political, social cultural, religious, artistic, academic or scientific matter'. With this overbroad exemption, the law would never apply to the most published, public, racially vilifying or intimidating remarks, the very remarks that should be covered unless they are made reasonably and in good faith in the course of genuine public discussion - as the law presently requires. Parliament has three options: abolish the prohibition of offensive behaviour based on racial hatred, leave the existing law untouched, or ask Senator Brandis to go back to the drawing board. What he has produced is neither fish nor fowl. It's the racial hatred law you have when you don't want a racial hatred law.
To end where I started: Larry Siedentop claims that moral beliefs matter because over two millennia they have impacted on social relations giving a clear overall direction to Western history in which the individual becomes 'the organizing social role in the West — that is, how the 'civil society' which we take for granted emerged, with its characteristic distinction between public and private spheres and its emphasis on the role of conscience and choice. It is a story about the slow, uneven and difficult steps which have led to individual moral agency being publicly acknowledged and protected, with equality before the law and enforceable 'basic' rights.' Let's remain attentive to equality for all before the law and to the enforcement of basic rights, leaving room for individual conscience and choice even when we think little of the substance of others' conscientious choices, let alone their brazen exercise of licence.
Fr Frank Brennan SJ is professor of law at Australian Catholic University, and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.