He is a professor of law and humanities
at the School of Law of Queen Mary,
University of London.
Where he is also the security director
of the Center for Law Democracy. An SoC.
Professor Hansen has worked with the
International Commission Commission of
Jurists an UN South Commission on Human
Rights and how is annuals on human rights?
Arts are Amnesty International
and the Media Diversity Institute.
Among his while Lisa publication
is interesting to refer here,
he's both hate the spit on
Democratic citizenship.
The concept of ingested,
or the logic of constitutional rights.
I have had the pleasure to meet him
at the presentation of his boot high
speed on democratic citizenship at
the National University of Ireland,
Galway in 2017.
On the title of his speech today
will be how much free spirit,
though human rights required.
Professor Heizen is a pleasure
for us to listen to you.
Well, thank you very much.
Can you hear me now? Can can you hear me?
Yeah, now it's OK.
Can you see my PowerPoint?
Yes, even OK good. OK,
well as you can see two preliminary remarks.
First is I changed the title but
the topic is about the same.
More importantly,
I know that this panel is
generally about Europe.
However,
I'm I'm going to speak a bit more globally.
I'm I'm not going to focus only on Europe,
but certainly everything I
say will apply to Europe.
It's more of a theoretical approach
to the relationship between
free speech and human rights,
more with a focus on international
human rights.
But everything I say is meant to apply
to European him human rights as well, yeah?
Alright then,
so I'm.
I want to start from the very simple
and I think obvious observation
that a system of human rights is
meant to be a system of justice.
I think that's obvious.
I don't think anybody
could dispute that right?
Human rights are meant to be a
means for achieving justice.
Now the problem is that throughout
history we've had many,
many models of justice.
In the West alone, right I can.
We can put down all of these famous names.
Plato, Aristotle, Augustine right all
the way up through Marks and rolls,
and Hegel and so forth.
And all of these are associated with theories
of justice or safe systems of justice.
And then of course also there are very,
very old indeed.
Ancient non Western traditions of justice.
So the idea of some sort of system
of justice is certainly not new.
And it's different is all of these different?
Ancient theories have been.
We do see some very basic similarities,
all of them in some sense,
can be interpreted to be concerned with
the relationship of government to people.
And all of them are somehow concerned
with delivering human goods.
Now what it means to treat people
well or to deliver certain goods may
differ from one historical period to
the next from one culture to the next,
from one system of justice to the next.
But all of them are broadly.
I'm concerned with these sorts of things.
When I say delivery of human goods.
I mean things like fair trials,
protections from torture,
making sure people have enough food.
Again, all of these systems have
done these things very differently,
but in all of them we can at
some level find a concern,
which is just a concern for justice.
Now, if this is the case,
if we have had these sorts of systems
of justice for thousands of years.
Then my question is,
will then what is distinctive
about human rights?
What makes human rights
different from all of these?
What does human rights do
that none of these do?
Now you can probably guess that my
answer is going to be about free speech.
But I'll need a few steps to
make that relationship clear.
Uhm?
If we were to ask them what is
distinctive about human rights,
what makes human rights different
from all of these other systems?
One answer might be that human rights seem
to be sort of comprehensive and systematic,
right?
If we look at the Universal Declaration
of Human Rights or any of the many
treaties that have followed it,
such as also the European Convention.
We certainly see, right,
uh again,
a kind of a comprehensive and
systematic approach.
And yet that answer is not enough right?
In all of these older systems that
I've just named that are up here.
Many of them have doctrines which
are actually quite systematic
and quite comprehensive.
Again, not always in the same way,
but human rights are comprehensive
and systematic.
That's not really what's
distinctive about them.
So we need to ask the question again.
What is distinctive about human rise?
If we look again at all
of these earlier systems,
none of them is locked into an orthodoxy.
Right, Christianity, Confucianism,
Islam, or indeed Aristotle, Hegel, Marx.
All of them have had many different schools,
many different approaches,
even great conflicts within themselves,
and so.
And they've always responded overtime too.
Due to cultural changes to political changes,
so they've all been dynamic indeed.
Nowadays you can find enormous
literature explaining the compatibility
between Christianity and human
rights between Islam and human rights
between Aristotle and human rights
between Marx and human rights.
Yeah, and so so again.
The question is still there.
What is distinctive about human rights?
What do human rights do that none
of these others do?
Because if there's no answer,
then what's the point of human
rights right there?
I really want to know what do they had?
So far one thing seems to be clear.
Again, justice system seem
to be dead by definition.
Concerned with human goods.
If we look indeed at the
Universal Declaration,
Fair Trials, freedom of religion,
adequate food, adequate housing.
All of these are goods.
All of these are human goods.
What exactly makes them human rights?
Again, you can probably guess
that my answer is going to have
something to do with free speech,
but we're not there yet,
so I have to just continue
going step-by-step.
So there's so. So there's the question
I'm asking what is distinct about
human rights and asking what turns
human goods into human rights.
Is recently as the 20th century
as recently as the 20th century,
this was still a big problem for
legal philosophers. 100 years ago.
The law is still often very vague about
the distinctions between illegal,
right, immoral writer,
political writer, theological right.
It's certainly in the West,
and so if we go back about 100 years
first we meet a famous American legal
philosopher by the name of Wesley Hohlfeld.
Write an in a famous article of
fundamental legal conceptions
in the Yale Law Journal, 1913.
So just over 100 years old.
He attacks this question.
He asks what is distinctive
about a legal right?
What makes a legal right
distinct from a moral political?
Watchable concept because if we
can't answer that question then we
don't know what a human right is.
And similarly Hans Kelsen.
Roughly also in the overall by the
early 20th century in the hangar
X letter is asking the pure theory
of laws asking essentially the
same sort of question he you know.
He's also asking what is distinctively legal.
About a legal right.
And curiously enough,
although neither of them seem
to have known the others work,
they come to the exact same conclusion.
Which is we can state very simply.
Illegal right always
correlates to a legal duty.
Which I call the duty principle.
Right, and of course this is not
true of a moral or political or
theological right, only illegal,
right necessarily correlates to a legal duty.
That sounds pretty simple, right?
So if you and I have a contract for the
sale of, I don't know carrots or car
or whatever it may be, right, right?
If you have rights under that contract,
it means that I have duties.
But you can enforce in a court of law.
Therefore, a human right and
now I'm kind of extrapolating.
From Hohlfeld and Kelson,
a human right there for always
correlates to a government duty.
I think this is uncontroversial.
Every human rights expert
would recognize this.
Now, human rights also correspond
to non government duties,
blood just to save time.
I'm only going to look at
government duties right?
Although everything I say will
also apply to non state actors.
But I'd like to just keep it simple
for the sake of a brief presentation.
So. Whole Felton Kelsen help us
to understand what is a specific
about a legal right by car.
Beauty. With that still not clear.
That this is what is distinguished,
that this is enough to
distinguish a human right.
Because again, if we look at
Confucianism and Islam and Christianity
at Aristotle and Hegel at marks,
we can come up with lots of
theories of government duties
that governments hold duties.
So the mere fact that writes
Carlita duties is still not enough.
It takes us one step further,
but it doesn't tell us what is
distinctive about human rights,
so I need to go further.
Let's look a bit more closely at hohlfeld.
How does he describe?
The legal character of a legal right.
And who felt says in this famous article.
If we seek a synonym.
For the term right?
Perhaps the word claim would prove the best.
Now what is Kelson?
Say again Kelson and hotel never ready, but
they did not know of each other's existence.
And your cousin says
extensionally the same thing.
He says that conduct imposed as a
legal duty is commonly designated.
The content of a right right.
That is, the object of a claim,
so both of them see a right
as a kind of claim.
In fact,
it's quite interesting is that the English
word claim comes from the Latin clamadieu,
which means to make noise.
And similarly, the German word
Punch Brook is related to spare him,
which is to speak.
But that's just a little footnote.
Don't worry about that and instead,
although incidentally,
if we look at all of the German languages,
for example the Germanic languages
there they are rather similar.
But let me move on for now.
So again, what I'm saying seems obvious.
In fact, it's so obvious that Hohlfeld
and Kelson don't really talk about it.
They assume that it's so obvious
that it doesn't need to be explained.
So again,
if you and I have a contract.
Right and you have rights.
I failed to form to perform my duties.
So you sue me in court.
So you definitely need to have
at least enough free speech to be
able to speak about the contract,
right?
So within a private law framework
like a contractor property,
and so you know just everyday
legal transactions,
you need at least that much speech
to be able to secure your claim
to pursue your claim to make sure
that football supports your claim.
But what does this mean for human rights?
Because human rights are not just
about things like cars and carrots
and and property chunks versus over.
Human rights are about everything.
Human rights are about the most
fundamental elements of our nature,
right nowadays,
particularly if you look at
how human rights have evolved.
For example, at the United Nations,
it's almost impossible to find
a major human problem and major
social controversy which does
not have a human rights element,
right things like poverty,
child abuse, human trafficking.
A clean environment,
even right,
all of these things are are related
to human rights,
often to several human rights.
Which means that if we that human
rights in order to be rights to be claims,
in other words,
in order to be legal rights more
than just moral or political rights,
in order to be legal rights,
they already presuppose a that
presuppose a vast domain of free speech.
Far more than a contract for the
sale of carrots.
In fact it be if human rights are about
pretty much everything that's important,
it's very hard to find a kind of speech
that might that might not be necessary.
Now let me take this deep in a step further.
How do we pursue human rights
in fact and not just in Europe
but throughout the world, right?
As we know, human rights do
not always take to courtrooms.
Uhm? Often the best way right,
depending on the country.
Depending on the culture,
depending on the legal system human,
sometimes human rights simply take
place through legislative change to
putting pressure on politicians on all
right and legislatures or sometimes to
administrative procedures or sometimes
through traditional litigation.
All of these are possibilities, right?
So we have many guardians of rights.
Right, it's judges are important.
Courtrooms are important,
but we have many guardians of rights, right?
And sometimes going to court
is not the best way.
Sometimes just pushing the
legislature is better.
So if we have all of these guardians of
rights than the classic question arises.
Who guards the guardians, right?
Chris,
custodian it as custodians,
who guards the guardians?
And my answer is.
Only the rights holder.
Only another its ultimate.
If the legislature fails,
may invent administrative agency.
Fails me if the judge fails me.
If everyone fails me,
all I have left is my right to speak.
Without my right to speak,
there is no such thing as a human, right?
At least not as a legal right.
Without my right to speak,
a human right might be a
moral right or a political
right or a theological right,
but it is not a legal right.
Now you might say, well,
what's the problem right?
If you look at the Universal Declaration,
if you look at 100 other treaties,
they all have the right to free speech.
So you might say there's no problem here.
It's all taken care of.
But I'm arguing something more.
Right, if we look at the Universal
Declaration of Human Rights,
if we look at the European Convention or
any of these other major treaties, right?
Free speech is simply one right, right?
It's a right to a fair trial,
and there's a right not to be tortured.
And there's a right and so forth, right?
And so you could say that free speech
is kind of 1 item on the checklist.
List of human rights.
But my but what I'm trying trying
to argue so far is that free speech
cannot just be another right?
As if we could have it or get rid of it,
you know, just like any other, right?
I'm saying that free speech is the
foundation for all of the other rights.
Because insofar as their legal rights,
they are necessarily insured by the
possibility of making claims either
in court or even simply in public.
Even on the Internet there is the right.
To agitate to argue to dispute.
To say I have a right,
even if nobody is recognizing it.
So I'm so to be to be clear.
I'm not. I'm not saying that.
Free speech is more important than
food or torture or fair trials.
All of these things are important, right?
If we look at contemporary
human rights doctrine,
it insists very strongly on this
idea of the Co Equality of rights.
Some people say the indivisibility of
rights that all rights are important,
and at the United Nations
this principle is sacrosanct.
It is sacrosanct if you ask anyone at
the United Nations charge of human rights
and pretty much any human rights expert.
They all say that no one right is
any more important than the others.
Now yes, of course I need food to survive.
I don't want to be tortured,
I want fair trials.
All of these things are important,
but I'm not asking about what's important.
I'm asking about what makes a good
human good into a human right?
And I'm saying only the possibility
of making it the object of a claim.
In other words,
the making it the object of speech.
And again,
be 'cause the domain of human
rights is so vast that freedom
of speech has to be fast,
and so again,
so the priority is not ontological.
The priority is not ontological.
Of course I need to eat.
Of course I don't want to be
tortured everything.
The priority is simply a legal one.
So then the question is.
Coming closer to the kind of
themes that I think are being
discussed at this conference,
but free speech is somehow the foundation.
If it's somehow prior.
If it's the condition for the
very possibility of all of the
other goods becoming rights,
then the question is well,
does that mean it has to be absolute?
A free human rights are about
so many different areas of life.
Does that mean that free
speech has to be absolute?
Or another way to say this is right.
If free speech is subject to restrictions,
then don't those restrictions
already presuppose a human rights
system which can draw the limits?
How can free speech be fair?
Right, so my question is if free speech
is foundation or is it there for absolute?
Now here's a very simple answer to this,
which is that free speech.
Absolutism is nonsense.
It's an. It's an absurdity.
No legal system can ever have of it, right?
Because as we know, free speech
normally means each end expression.
It's universally interpreted this way, right?
So even if I simply wave a flag,
and I don't say anything that in law is
still considered speech expression, right?
In fact, I prefer the term free expression,
but most people say free speech.
Right, or if I hold up a swastika,
everybody knows that that is a
very powerful form of expression.
Indeed, it is illegal in many countries,
such as Germany.
But moreover, right if
free speech are absolute,
then I would have an absolute right,
for example, to advertise rat
poison as vitamins. Right, right,
which of course would kill people.
That would be absurd,
so even that limit is still a limit.
Right of free speech are absolute.
I would have a right to scrawl
graffiti on your house, right?
So so clearly you cannot have a
legal system of free speech at this.
Absolutely assuming that free speech
also includes free expression.
So again, the question is then,
how can free speech be foundational?
For human rights.
In other words, how can free speech
be more than just another human right?
And here is where right talking about
the United States First Amendment and all
of those books about the 1st amendment.
Here is where here is where we find
actually one very useful distinction
which is between the regulation of
content and the regulation of viewpoint.
Clearly free speech cannot be absolute
with respect to content such as.
Again me scrawling graffiti on your home.
Or you know,
the things commit courtroom perjury, right?
All of these are expressive.
That's rather what we learned from
the 1st amendment jurisprudence,
which I think is very helpful here.
Is.
What I would call sorry viewpoint absolutism.
In other words,
some kinds of speech can legitimately
be regulated,
but it is never legitimate to
regulate speech solely because
of the philosophy it expresses.
Solely because of the viewpoint it expresses.
Right now,
of course this is not true of
most legal systems, right?
In fact,
it's only true in the United States
and the United States, as we know,
is far from being having a very
strong human rights record.
And other words,
free speech is not a sufficient
condition for human rights.
But it is a necessary condition.
Now. This is what brings us to I think
the themes of today is conference because
you might say that if all viewpoints
have to be permitted if human rights
presuppose viewpoint absolutism.
Then what about things like hate speech?
Are other forms of highly provocative
speeches, glorification of
terrorism and such things right?
But hate speech is a good example because
it's being discussed so much nowadays.
Now, right as as David noted,
I've written a whole book.
And hate speech in many articles.
I've been spending 10 years on hate speech.
But in order to understand free speech,
is a human right?
I don't think actually this is a
problem that becomes so important.
I don't think it's a problem that
actually needs urgent resolution.
If we look at the if we look at the states
with the best human rights records.
According to United Nations reports
and so forth, and Misty International
or Human Rights Watch and so forth.
You know.
I mean, states like Norway,
Sweden, Denmark, NZ, right?
If we look at all of those countries?
They certainly are not viewpoint absolutist.
I can see that, but my argument is
that they come very very close.
So we can have the disagreement
about hate speech,
but that's a very minor disagreement,
and so that's why I'm willing as a kind of a
compromise to talk about proton to viewpoint.
Absolutism, right? In other words.
Even if the state does not have perfect,
if you point absolutism.
If it comes very close because let's
you know as quick, can't you know,
high human rights performance like Norway,
Denmark, Sweden and so forth?
Then it has a very strong
foundation for human rights.
And so I think hate speech is a problem,
but it's not a major
problem for understanding.
Free speech as a foundation and rights.
I think it remains a small problem.
Let's face it,
as a very practical matter,
it's very hard to imagine a case where
you would need to use hate speech in
order to pursue a human rights claim.
In fact, I can't think of any example.
So I think of for in order to understand
human rights as a foundation,
excuse me.
Free speech is a foundation of human rights.
We can talk about proton to another.
It's dear enough to viewpoint absolutism
in order to account for why the best
performing states do perform so well on
a whole panoply of human rights concerns.
So, as I say, free speech,
it's not the necessary condition.
Again, the United States does not
have a very good human rights record.
But it is, excuse me,
so it's not the sufficient.
I'm sorry it's not a sufficient condition
for human rights, but it is a necessary.
It is a minimal condition.
Uhm?
I guess I'll need to start winding up,
so let me just let me just draw
a few conclusions, OK?
So as I said.
Free speech is not just another human right,
it's the foundation for the very
possibility of transforming any
human good into a human right.
As a legal right.
Which means that in the world that if
we look at the United Nations system,
for example, my argument,
it's not a system of human rights at all.
Because it does not recognize human rights,
is the foundation right?
If you look at human rights reports
in the United Nations right?
They hold Norway in North
Korea to the same standard.
Right North Korea.
North Korea just performs worse.
My argument is that you can't look
at North Korea or China or Russia
as human rights states it makes no
sense because they're not even set
up for people to be able to pursue
their claims to free speech that you
can look at them as regimes of good.
And say that they perform well
or poorly on certain goods.
But to talk about them as regimes of
human rights, it simply makes no sense.
That's, incidentally,
this will all be coming out
in a book that I'm writing,
that it'll be out in about 9 or 10 months.
The second conclusion again I started
out talking talking about other
older systems of justice, right?
Or you know, right, Plato,
Aristotle, Marx, Hegel, those,
Confucianism,
Buddhism and all these others
because there's been a lot of
discussion in human rights about how
compatible are all of these different
systems with human rights and.
I hope to have given I think
what is an important part of the
answer which is yet there they
are compatible to the extent that
free speech is foundational.
And I think that's not usually
how the problem is addressed.
Usually they people just go
looking for particular goods.
They say oh, Christianity has these
rights of a fair trial and Islam
has these rights of I don't know
within marriage or whatever it is.
Those are just evaluations based on goods.
They're not evaluations based on rights.
And This is why I think that the future
of human rights is very uncertain.
I think if we look at the world today,
maybe there are 20 or 30 nations that
can be called human rights regimes.
That's not many. For the most part,
most countries on the planet
today as throughout history have
been regimes of human goods and
sometimes not even very good at that.
But if we look at North Korea or China,
what have you?
But there's, but we can't even think
of them in terms of human rights,
and that is the fundamental mistake
not only at the United Nations,
but wherever we're trying
to evaluate human rights.
So that is my argument in nutshell.
As I said,
this will all be coming out in
a book to be published by MIT
Press over the early next year.
Thank you very much for your
attention and I do just that.
I've gone a few minutes overtime.
You edit fans for you speaker A.
Well, I agree with the the thing.
Just say it at the.
Maybe we have an ult fiasp it,
but they also I am not sure if they we
are not in an urgency to take any action.
A Catholic yesterday one of the
speakers were from Brazil, Helder,
Whistler and he told about the how.
Must immunity.
The Parliament Alex has a
has take about Frias pitan.
He told about the Bolsonaro A you
have been talking about the North Korea,
China, different countries,
but I am not sure it after
the Donald Trump Mets,
especially in the United
Nations General Assembly we.
Don't have to take any international
action against radical.
It's a you mention it about
there who were guardians,
but my question is there is no any.
We don't have any politics itrust it's who
choose they they they they they do snow.
For that I don't.
I am not sure who art instance
the right to be well informative
who can defend citizens from
misinformation and fake news.
This is my my confusion and I would
like to have the European about.
Yeah yeah, I agree with everything.
And This is why my conclusion is
that I'm very sceptical about
the future of human rights,
because I agree with everything
you said right again, right?
As people like Bull Senado or Donald Trump.
Yeah,
they do not have good human rights record.
This country is Brazil in the
United States there are human
rights records to quite mediocre.
That's why I said that free
speech it's a necessary condition,
but it's not a sufficient condition.
So even if you have free speech
in place as in the United States,
that doesn't mean that you necessarily
get a good human good human rights record.
And as you say,
in Brazil even free speech, right?
You know,
will often get you killed absolutely,
and in many other in Mexico
and many other places.
Yeah, and This is why,
but I would rather be sceptical but honest.
I would rather be sceptical than all right,
and I would much prefer that the
United Nations that they recognize
that actually there are very few
human rights systems in the world.
There is not an international
human rights system.
What we have is an international
system of human goods where they go
down the checklist and they say right?
How is North Korea performing on
food and how is Brazil performing
unfair trials and right free speech?
Does you know?
Again,
free speech is treated as just another,
right?
In other words,
they're not talking about rights at all,
they're just talking about goods.
Now. Maybe that's good.
Maybe that's good.
I think human rights are something
that almost never happened in history.
Justice, right?
Just as democracy is democracy,
is something that almost never
happens in history.
I don't think it should be easy to
have a human rights system right
as I introduced human rights as
a system of justice and a
genuine system of justice would
always be hard to achieve right.
Plato noticed this. And so, uh,
I think a big mistake in the United
Nations is that it's so easy to
sign these treaties and then simply
to talk the talk of human rights.
But I think it's entirely if we hold
if we look at human human rights
as a genuine system of justice.
It's not surprising that only
about 10 or 15 countries in the
world can really be called.
Just can really be called
human rights systems.
Most countries on the planet are not.
And So what?
I would like the United
Nations to do is to stop lying.
To stop acting as if human rights apply
to most countries because they don't.
For most countries,
what what up for most countries?
What applies are human goods and most
countries are not even good at that.
That's the argument.
Good. There is anymore questions there.
Let's they were gonna do so.
Enter presentation and I would like
to ask you because some people
suggested from the starting point
of view as you return to the United
Nations Declaration on Human Rights.
That it is impossible to introduce
the human rising wholescale the
argument was dead that once you are
trying to offer the human rights
conception to hold the world.
You must limit that human rights be cause
to ask everybody to agree on everything,
but you had a different culture,
different tradition,
the different historic,
different perception.
So it is almost impossible to
introduce such a clear.
Model and I would like to ask you
because we have actually more than
70 years of the functioning of the
declaration as as a kind of the symbol
is something changing that perception.
So can we say that now we are
in the different position?
Different point from that that in 48 it was
quite impossible to introduce such a system,
but something was changing
mentality of the people.
Blue water extent.
Do you think that does not allow
distractions because you have
European Convention of Human Rights?
But we will have Charter of Fundamental
Rights of the European Union.
We have several other system
introducing meantime,
did they help to be closer
to the same general idea?
Absolute idea of the human rights?
Or still we should understand
that the creating whole world
system of your eyes is rather in
that particular stage impossible.
That's a fantastic question.
And I am I have you have no idea
how much I admire your optimism.
I hope you'll send me the recipe,
but but seriously,
I think you make a very important
point and this this is, I think,
important in the human rights literature.
Right Member, before I was
talking I was saying you know how
do we pursue human rights now?
We're saying that in most countries
it's not through court cases, right?
It's you know there are other
ways legislation and so forth.
And what's very important, and I think
that this is crucial to your question.
Is this question of rights
consciousness right?
And so simply talking about rights
using the language of rights?
I think you're right that has
really made a change in the world.
In fact, Brazil,
there's a very is a very good point here.
I mean in Brazil, yeah,
you have terrible violations.
And yet many Brazilians do
understand the idea of human rights,
which they would not have done 100 years ago.
And so the sheer language of human rights
has actually penetrated the media,
use it.
More politicians use it more.
So I think there your optimism does
have some foundation that rights
consciousness has disseminated
in recent decades.
And you know,
particularly after the in the
1990s after the Cold War.
Loads of this kind of optimism?
I thought that human rights were
really going to disseminate the world,
and so yes,
I think if there is a foundation
for optimism and for hope,
I think you have named it that the
sheer dissemination and promotion of rights,
consciousness.
Letting people know that they
can fight for rights has been
very powerful and we have many
examples throughout the world.
The news is not all bad.
There are there are human rights
successes and I don't deny that.
But I still think that the that ultimately.
This dissemination of consciousness
only becomes real when it becomes when
it can become translated into speech.
It's not enough that I simply
have heard about human rights.
What matters is that after
having heard about them,
that I can then speak about them,
that I can then demand them and protest.
And agitate and mobilize.
If that is not possible,
then human rights can never be possible.
Then again, you at best you
have a regime of goods,
but not a regime of rights.