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Legislation is no substitute for respect



Support for human rights often depends on the issue under discussion. When the Human Rights Commission defended the human rights of asylum seekers, government supporters vilified the commissioner.

Wedding cakeMany of these supporters defended the right of bakers to deny cake-service at gay marriages. At the same time many defenders of the rights of asylum seekers denied the rights of the bakers to act according to their conscience. The right to freedom from discrimination has been set in opposition to the right to religious freedom.

The government has appointed a panel to report whether and what legislation may be necessary to safeguard religious rights in the light of the redefinition of marriage. Given the conflictual nature of much public conversation about human rights, it may be helpful to step back from this particular issue and to reflect on human rights more generally.

Human rights are often seen as a list of individual rights that are self-contained and unconditional. In this view rights are individual entitlements that you have fully or not at all. So you must defend your rights tooth and nail against people who wish to excise part of them on the grounds that you are contravening their rights.

From this perspective the claim to rights is always competitive because other individuals will make conflicting claims. The conflict must be resolved by the assertion of power, either the power of government or the power of the majority. The corollary of this view is that you do not have a right until someone concedes it to you. Perhaps that is why governments behave so vituperatively when any critic accuses them of abusing human rights. The criticism supposes that rights are not the government's to give and to remove.

It is better to see human rights as expressions of what it means to flourish as human beings. Like health, flourishing can be named in various dimensions. We do not flourish unless we have sufficient food, sleep, shelter, access to medical care, education and work, the freedom to associate with others, to marry and form a family, to publicly state our political and religious opinions, to express our thoughts freely and to associate in groups of like-minded people.

We can then name these dimensions of flourishing rights. We shall not thereby offer a complete listing of the things on which our flourishing as human beings depends. This analysis, however, does show that we have rights because we are human beings, not because of our religion, nationality, productivity etc.


"From this perspective the relationship between the right of people in same sex marriages to freedom from discriminations and the right of people to religious freedom is not conflictual but complementary."


We cannot flourish as human beings unaided. We do so through our relationships to other people and to our world. So we do not enjoy human rights as isolated individuals but through our relationships. In fact our rights give expression to the respect that we owe to one another by virtue of being human. So the implications of each right and of their intersection need constantly to be negotiated in the business of daily life from childhood onwards.

In this understanding, human rights cannot be given or taken away by government action or majority opinion. We have rights because we are human beings. Nor are they given to us as individuals. They are possessed and negotiated in our relationships to one another, relationships that are naturally cooperative rather than conflictual.

Nor do rights disappear when we cannot access them because of tyranny, poverty or discrimination. People starving in Yemen because of war have a right to food even if they cannot force it to be met. Asylum seekers on Nauru have a right to security and the protection of the law, even if these things are denied them.

Laws do not give citizens rights, but they do recognise them and can protect them and regulate relationships when different aspects of human flourishing intersect.

From this perspective the relationship between the right of people in same sex marriages to freedom from discriminations and the right of people to religious freedom is not conflictual but complementary. The rights of both flow from the demands of human flourishing. Balancing these rights demands first of all mutual respect. Legislation may also be necessary to safeguard disputed rights and to mark the limits of their claims. But legislation is a blunt instrument and is no substitute for respect.



Andrew HamiltonAndrew Hamilton is consulting editor of Eureka Street.

Sunday 10 December is International Human Rights Day.

Topic tags: Andrew Hamilton, International Human Rights Day



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Existing comments

After reading this article I thought of the three R's - rights, responsibility and respect. And, of course, relationships are part of the mix too. When one group in society has been dominant that group may view the attempt at equality by another group as an intrusion on their rights. Its presumptuous. Regarding responsibility, it may be that, say, a writer would regard their primary responsibility as being to their art. And once that author is respected, then admiration follows. Putting relationship ahead of the other three R's takes quite a bit of humility.

Pam | 06 December 2017  

So Andrew, will freedom of religion be preserved in a civil marriage ceremony? Consider the Christian man and woman seek to become husband and wife in a Christian civil ceremony without compromising their beliefs about THEIR marriage? Is the Parliament going to require them to have a Monitum read out that is expression of the Parliament's mistaken view to which they do not subscribe? Will there be a variety of lawful monita? Or will the Parliament endorse the implicit secularised Erastian viewpoint implicit in Senator Smith's legislation that "religious" people can go begging to churches for their weddings?

Bruce Wearne | 07 December 2017  

One of the things Jesus was on about during his brief public ministry on earth was justice. He took exception to genuine religion being usurped for pecuniary interest, as with the Money Changers in the Temple. His Feeding of the Five Thousand was, to me, neither a metaphor, nor an act of Magic a la Harry Potter, but an act of real compassion for those who had come so far into a remote place to see and hear him. Real justice includes compassion. Long before our sort of representative democracy existed in Western Europe, there was the concept of the Just King or Queen, whose coronation, a deeply religious ceremony, was meant to give them the grace to rule justly. In modern Australia, whose origins lie in Enlightenment England, I am not sure what Light or lights our elected representatives are supposed to govern us with. Methinks their and our concept of justice, which includes that necessary compassion towards others, is somewhat askew. Until we rediscover that real sense of mutual, balanced justice in ourselves and apply it to others the same mindless nonsense will continue in our public life.

Edward Fido | 07 December 2017  

I really struggle to understand the basis of the religious objection to homosexuality and associated issues like same sex marriage. People are born with their sexual orientations already established so why does the church single out this aspect of their personal composition as being unacceptable? If we accept the church's teaching that we are made by God, then God made homosexuals.

Brian Finlayson | 07 December 2017  

Those oh so sweet words "mutual respect". Many thanks for this article I find a great teaching about that.

Patricia Langan | 07 December 2017  

“From this perspective the relationship between the right of people in same sex marriages to freedom from discriminations and the right of people to religious freedom is not conflictual but complementary. The rights of both flow from the demands of human flourishing.” The rights of “both”? Aren’t there three parties, the homosexual adults who believe from observation or interpretation of observation that they will flourish because of their marriage and so too will children raised within, the adults who believe from interpretation of texts that what flourishing is felt or thought to be seen is illusory, and the children themselves who will (in time) also have an opinion on their experience?

Roy Chen Yee | 07 December 2017  

This earnest discussion of the rights of cake-makers makes me (and I would guess other retailers) laugh. Any retailer who serves the public deals with the deranged, the rude and the dirty as well as the charming customer, and deals with him tolerantly and courteously, because every lost customer makes it more likely that you won't be able to pay that week's rent. If you're serving in a shop, the possibility of putting 2 men on the top of a wedding-cake will be a minor issue compared with other problems you encounter in any week. For heaven's sake guys, lighten up and join the real world.

Anna Summerfield | 07 December 2017  

Well done Andrew, that’s a very well thought out and nuanced article. I pray that the politicians in power read it and take it to heart. At this stage Christians are again in danger of becoming a persecuted minority. We can blame that also to a large extent on the unspeakable evil done to children by clergy who committed and/or covered it up.

Frank S | 07 December 2017  

It is interesting contrasting this article with another recent one in Eureka Street 'Ending the toxic ripple effect of prejudice' by Catherine Marshall, which argued that, in the interests of a putative 'diversity', that there should be no religious protection or exemptions in the recently passed SSM legislation.

Edward Fido | 08 December 2017  

Come on Frank, since when have Christians been in danger of becoming a persecuted minority in this country? Since when have they been beaten or deprived of property or access to employment or services? Since when have they been excluded from the political process? Let’s keep things in perspective.

Ginger Meggs | 09 December 2017  

Roy - not sure if you realise this, but gay couples are unable to produce children. (They could only adopt them or do it through surrogacy - which is not part of SSM legislation, but something that affects the rights of children to be considered in heterosoxual/single parent arrangements as well)

AURELIUS | 11 December 2017  

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