Nothing was more confusing in the IAI TV debate over Charlie Hebdo than the question of how to employ the language of rights. And nothing is more confused than the idea that there is a right to offend.
When I speak of the language of rights I don’t mean rights that the law giveth and the law taketh away – entitlements that vary from time to time or from one jurisdiction to another. I mean fundamental rights, rights we regard as universal and inalienable: human rights.
A fundamental (or human) right is a claim that each and every person, regardless of who they are, is entitled to make. But personal entitlement is not at the heart of the Universal Declaration of Human Rights (UDHR), the main source of almost all modern human rights instruments. The UDHR was adopted by the United Nations in 1948, three years after World War Two ended and the horrors of the Nazi Holocaust were uncovered. Its preamble recalls “barbarous acts which have outraged the conscience of mankind”. Against this background the preamble puts forward an ethical vision based on “the inherent dignity … of all members of the human family”. Every right in the Declaration should be read in this light: humankind as a 'family', not as isolated individuals demanding their due. Thus Article 1: “All human beings … should act towards one another in a spirit of brotherhood” (or siblinghood, as we might say today). In other words, first and foremost comes mutual respect: respect for one another, for fellow “members of the human family”, respect for the “dignity and worth of the human person” (to quote another phrase from the preamble). I am tempted to say that ultimately it is this respect that puts the R in UDHR: it is the Universal Declaration of Human Respect. Rights and responsibilities are two sides of the same coin: mutual respect. This is the ethical vision underlying the language of fundamental rights.
Consider: if you comb the articles of the Universal Declaration, what do you find? The right to life, to liberty and security, the right to freedom of thought, conscience and religion, the right to freedom of opinion and expression, and so on. But the right to offend? It’s not there. It’s not there because life, liberty, freedom of thought, freedom of expression, etc: these are all fundamental to our dignity. Offending other people is not.
This is not to say that the law should step in to prevent us from offending one another. But not everything that the law permits constitutes a universal principle, which is what a human right is. The law permits us, much of the time, to lie, to deceive one another, to betray a confidence, to be callous and cold-hearted. And so it should. But do we affirm the right to lie, the right to deceive, the right to betray a confidence or the right to be callous? No. Because this would devalue the language of rights. The same applies with the so-called right to offend. And if we devalue the language of rights we lose the ethical vision at its core.
Part of what causes confusion here is that the word ‘rights’ functions at different levels of discourse. When we hear the word it is natural to think narrowly of what the law permits. Laws are made by the state, either through its legislature or its judiciary. But the language of rights in the UDHR has a much wider reach. The text of the declaration is addressed not only to states but also (to quote again from the preamble) to “every individual and every organ of society”. So, our responsibility for a right like free speech – a human right – exists at three levels: at one level it is the responsibility of the state, at another the responsibility lies with organisations and institutions, and at the third level it lies with each and every one of us as individuals.
Are there limits to free speech? At all levels, we should bear in mind the power of speech. Apart from merely giving offence it can destroy reputations, incite hatred, humiliate the innocent, victimise the powerless, put the marginalised at risk, and so on. (Think what Julius Streicher did with his anti-Semitic cartoons in Der Stürmer in the 1920s and 30s.) Perhaps this is why freedom of expression is the only right in the International Bill of Rights and in the European Convention on Human Rights where the text expressly says that there are “duties and responsibilities” attached.
When speech merely gives offence, I am inclined to say that the law has no business setting limits. But legal limits to free speech are one thing, moral limits are another. While both matter for a free and open society, arguably moral limits matter more. The question that the language of human rights puts to each and every one of us as individuals is this: what limits should we impose upon ourselves when we express our views?
Self-censorship has had a bad press since Charlie Hebdo. But it is a necessary condition for the possibility of a civil society in which human rights flourish. I don't mean letting oneself be intimidated by bullies. I mean self-restraint based on respect for the “dignity and worth of the human person”. Battering away at each other’s identities is not the way for the human family to cohabit on planet earth.