Why free speech should be the most highly valued human right

The idea of human rights is probably the most important moral innovation since the Enlightenment. Initially dismissed by Jeremy Bentham in the 18th century as “nonsense on stilts”, the language of rights is now ubiquitous – so much so that it may be a victim of its own success.

When every non-governmental organisation rebrands itself as a "human rights group", and when a dictator such as Vladimir Putin justifies a foreign invasion to "protect the rights of ethnic minorities", one must ask whether the notion of rights has any actual meaning, if it ever did.

Conceptually, we seem to have gone off course by entertaining the idea that almost anything can be claimed as a right. And this ambiguity is exploited by those governments which have no interest in protecting basic human freedoms.

Thankfully, Eric Heinze has produced a book which cuts through years of muddled thinking on the subject. It is required reading for anyone who allows the phrase "human rights" cross their lips because Heinze, professor of law and humanities at Queen Mary University of London, reconnects the idea of rights to the primacy of free speech.

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There can be no such thing as a right unless there is a freedom to claim it or argue for it. If a sufficiently democratic environment does not exist, then the thing you are seeking as a “right” is merely a “good”, something desirable which a government may or may not provide.

With an ingeniously simple argument, Heinze highlights a farcical aspect to international rights reporting. Well-meaning agencies judge countries on their compliance with rights criteria – so, for example, "Norway is criticised for inadequate performance of rights r1, r2 and r3; Russia is criticised on rights r4, r5 and r6, and so forth."

However, he writes, “according to official monitoring practice, the only difference between them as human rights regimes is quantitative, not qualitative. Current international practice leaves us bereft of any criteria for judging that Norway fundamentally is a human rights regime while Russia fundamentally is not one.”

The farce is particularly acute at present. The United Nations last week voted to suspend Russia from its 47-member Human Rights Council. But why was it ever a member in the first place?

Heinze, whose has previously written about the hazards of cultural relativism and how best to protect freedom of sexual orientation under human rights law, is today’s Unthinkable guest.

Your core argument in the book is what you call the “discursive principle”. Can you explain?

Eric Heinze: “The idea is that a right has no meaning unless it is something that can be claimed. If it’s just something – whether it’s a fair trail, or food, or free education, healthcare, or exercise of religion – if it’s simply something we’re hoping and praying the government will come along and give us, you don’t need the concept of a right.

“It only becomes a right when the right-holder, all of us, can argue for it, claim it, argue about it, criticise the way it’s being delivered. In other words it’s only a right when there’s a vast sphere of free speech in which the right can be perceived.”

Can free speech really stand alone from other things we need like food, shelter, education and so on?

“I am not saying free speech is more important than other goods in an absolute way. Obviously if I’m lost in a forest free speech is very low on my list – food, water, my health are of course much higher. My only interest is, what is distinctive about rights as a system of justice, in contrast to thousands of other systems, or ideals, of justice that humanity has produced across many cultures?

"So it's not that speaking is more important than eating – other than it is more important than eating from the point we want to claim it as a human right."

You say “the international community has downgraded human rights” in a bid to coax authoritarian regimes to at least contemplate the issue. Is there a deliberate attempt on the part of international agencies to downplay the significance of free speech?

“Deliberate? I wonder. I think if we were to go visit some of the more respected human rights organisations – some of them are very political and very corrupt, but I’m talking about conscientious, well-educated ones – overwhelmingly the dogma, for lack of a better word, would be that you can never place one right as more important than others. This is a quasi-religion among human rights activists and scholars.

“So I don’t think it’s just pragmatics that explains this failure to recognise the paramount role of speech.”

A striking phrase you repeat in the book is “if we want human rights”. Do people really want human rights – or specifically a rights system based on the primacy of free speech?

“I very much doubt it, and this is what I want to be more honest about. To put it another way, the reason human rights have become so universal is because they have become so meaningless. It’s very easy for everyone to agree on an idea that carries very little weight and has very little bite.

“If it’s just ‘let’s all agree on the things we need in life, or aspire to’, that’s – as they say across the Atlantic – motherhood and apple pie; who is going to disagree with it?

“But then don’t bother with the phrase human rights. That misleads everyone. Again, if you want to put Norway and Russia on a scale and say, ‘Yeah, Norway is a bit ahead and Russia is a bit behind’, we can do that and it’s pretty much what we do. But then the concept of human rights does no work. It becomes meaningless.”

How far should free speech be defended: to the extreme, or a very high level?

“To a high level. To the absolute extreme? That gets into my last book. I didn’t want to make this book chapters and chapters about hate speech because, I didn’t want to quite say this but, to be honest I think that’s become too much of a first-world problem.

"I don't use that phrase in the book because I don't want to minimise it, or trivialise it . . . but, if there are millions of people – hundreds of millions – all over the world who can't even speak out about the fact that they have been tortured, how navel-gazing is it of us to be constantly tying ourselves up in knots about, you know, whether Donald Trump can't speak at X or Y venue? Yes, that is important but there are people who don't have their basic rights to speak and I wanted this book to be about that, and not to be just rehearsing the culture wars endlessly."

What response have you got from human rights academics?

“I’m waiting with bated breath. I do think a lot of academics don’t actually rate free speech as highly as you’d think, maybe because they live in safe worlds where they don’t really have to fight for it.

“But, as I say, the average well-informed human rights expert is going to say yes, free speech is important, but no more than 20 other things. Free speech gets little value even while people are paying lip service to it.

“So we’ll see. All I know is what I’m saying is precisely in contradiction with the official doctrine.”

The Most Human Right: Why Free Speech Is Everything by Eric Heinze is published by MIT Press