Ruthless prolific self-promoter and soi-dissant moral philosopher, Dr Mirko Bagaric scored a mention in yesterdayâs âMissing Linkâ? at Club Troppo, with a link to this âsteep and winding argument that David Hicksâ military tribunal is fair enoughâ? at Bagaricâs blog.
The post is a reprint (or rehash) of an article that appeared in the Canberra Times on 8 February. Itâs the third Bagaric piece that Iâve read this year where the good Doctor has based his argument on the premise that âhuman rightsâ? do not exist (hence the scare quotes).
The first of these three pieces appeared in the Business section of The Age on January 18. There, Bagaric launched a swinging attack on the Victorian government, for getting its priorities wrong:
If Victorians are now bloated with human rights, why are we so grumpy as a result of “trivial” water and electricity deprivations?
If the State Government got it right, Victorians should have kicked off the year a tad more fulfilled than they ended 2006. You see, January 1, 2007, was a watershed moment for Victoria. It was on that date, with the start of the Charter of Human Rights Act 2006, that Victoria become the first state in Australia to give its citizens a catalogue of legally protected rights. And these are not garden variety rights, they are human rights.
Later in the article, Bagaric examines the philosophical basis of human rights and concludes, like Jeremy Bentham the English philosopher famed for having his cadaver stuffed so that it could be displayed in the fellowsâ room of his University college to inspire the fellows, that the notion of human rights is ânonsense on stiltsâ?. This section of Bagaricâs argument goes like this:
Philosophers have argued for centuries over human rights and what they are.
Jeremy Bentham says theyâre ânonsense on stiltsâ?.
H.L.A Hart isnât convinced that they exist either.
Ergo
Human rights donât exist.
After a quick survey of the moral damage that legislating for nonsense on stilts rights, Bagaric nails his Aristotelian colours to the mast:
What matters most is for humans to flourish and as far as that is concerned, if you want to know what interests are important the answer is simple.
It is a matter of biology and sociology, not misguided social and legal engineering.
To flourish to any degree, we need the right to life, physical integrity, liberty, food and water, shelter, property and access to good health care and education.
Whoops! Thereâs a self-contradiction if ever I saw one. That last paragraph looks just like the sort of nonsense on stilts that Jeremy Bentham dismissed. Bagaric concludes:
After that, it is time to speak of responsibilities and the common good. We don’t need a bill of rights, just a government that understands some fundamentals about the human condition. Hopefully during this term it will spend more time investing in our water and electricity than illogical and irrelevant ideals.
The need to sacrifice individual rights to the common good was the topic of a Courier-Mail article, rehashed at On Line Opinion. In this bravura performance, Bagaric managed to make martyrs of the four Los Angeles police officers who were video-taped beating up Rodney King, Senior Sergeant Chris Hurley of the Queensland Police and the Queensland DPP:
In times of crisis, individual rights nearly always yield to the common good. Thatâs why no one should be surprised that the Beattie State Government bypassed normal channels and ignored the advice of the Director of Public Prosecutions to not charge Senior Sergeant Chris Hurley for the death of Palm Island man Mulrunji.
â¦
The Hurley case closely resembles a moral dilemma which has bemused philosophy students for decades. Australian philosopher H.J. McCloskey framed the dilemma as follows:
âSuppose a sheriff were faced with the choice of either framing a negro for a rape which had aroused white hostility to negroes (this negro believed to be guilty) and thus preventing serious anti-negro riots which would probably lead to loss of life, or of allowing the riots to occurâ?. What should the sheriff do?
Presented with this problem in abstract, most people say the sheriff should uphold the due process rights of the colored man even if it results in large scale violence. But classroom ethics and real life often diverge.
Accountability and pragmatism often sharpen oneâs moral focus and history shows that when, as a community, we find ourselves between a rock and hard place and have to make a choice between individual interests and the collective good, we nearly always favour the collective good. And this is the way it ought to be.
Ultimately, human lives and tangible interests must trump grand, but empty, notions such as âindividual rightsâ?. A moral code which elevates individual rights and worships abstract notions above the common good is bankrupt and has no scope for application beyond the realms of fiction, where important rights never clashâ¦
Which ought to make it tough shit for Hurley, but in the succeeding paragraphs Bagaric still manages to conclude that Peter Beattie stuffed up and that Hurleyâs rights might still triumph once Beattie gets his notions of the common good straight. By the way, I find that second sentence a little imprecise. It should read:
A moral code which elevates individual rights and worships any abstract notion above that of the common good is bankrupt and has no scope for application beyond the realms of fiction, where important rights never clashâ¦
Two basic principles â two axioms â of Bagaricâs philosophy of morals are clear:
The notion of âhuman rightsâ? is empty and abstract;
Such rights as a society might accord individuals as basic âhuman rightsâ? can be sacrificed (as empty, abstract notions) in favour of the common good.
What is this âcommon goodâ?? Donât sweat it â itâs whatever an accountable, pragmatic politician decides it is in a time of political crisis. Unless, as in the Hurley case, the accountable, pragmatic politician gets it wrong. Then itâs what the unaccountable Mirko Bagaric says it is.
And so, finally, to Bagaricâs post on David Hicks. The âcommon goodâ? doesnât get much of a look in, but once again, Bagaric is dismissive of the idea of basic âhuman rightsâ?:
⦠a fundamental point that has been overlooked in the Hicks saga is that perhaps Hicks is not morally or legally to a trial at all, and should remain in detention until the war in which he was captured is over.
Not everyone is entitled to a fair trial and certainly not the type of trial that supporters of David Hicks want him to receive. You see, the right to trial is not absolute.
In fact no right is absolute. Even the right to life (upon which all other rights are contingent) can be violated in some circumstances. Hence we are permitted to use lethal force against people who try to attack us with weapons.
Later on we get some remarkable insights from Dr Bagaric, the legal pedagogue:
The complaint by Hicksâ lawyer about using evidence obtained by coercion is a good example of the non-workings of the Australia process. There are two ideals which supposedly justify compromising the search for the truth by throwing out evidence obtained by coercion.
The first is the desire to not pollute the supposed purity of our system. This misses the point that as a matter of logic and ethics, blame and wrongdoing arenât like bad smells â they donât contaminate everything in the vicinity.
And thereâs another sentence that needs a bit of a rewrite, before we go on:
This misses the point that metaphorically, blame and wrongdoing arenât like bad smells â they donât contaminate everything in the vicinity.
And now a suggestion for some much needed â and very innovative â law reform:
In a properly functioning legal system, the correct process for dealing with coerced evidence is to admit it and then penalise the parties that obtained the evidence. It is inappropriate to compound the injustice of a coerced confession by allowing a guilty person to walk free.
Never mind the possibility of compounding the injustice of a false coerced confession by imprisoning an innocent person. That couldnât possibly happen â well not too often, if the penalties for coercing witnesses are steep enough. And thereâs an argument from the common good for Bagaricâs proposal: the common good is served by locking up as many criminals as we can, any which way we can. Clearly that trumps any alleged right of an individual to a fair trial where perjured evidence is excluded from consideration. Itâs more important for one guilty man to be banged up than for ten innocent men walk free.
Come to think of it, not only should we penalise police who coerce confessions â if the confession is later shown to be false, we should charge the convicted defendant with perjury. The common good demands it. By being such piss-weak bastards, these falsely convicted defendants are, in effect, encouraging the police to persist with practices that harm the proper administration of justice. The only way to stop that is to remind current and future prisoners of their responsibility to stand up to coercive interrogation.
Isn’t Mirko a Prof any more?
Bentham 101: he didn’t say that rights were “nonsense on stilts”, he said that the term “[n]atural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense,–nonsense upon stilts.”
It would be nice if the good doctor could use Bentham’s quotes appropriately. He argued that rights can only exist where they can be enforced by the State, and they should only be enforced when it’s in the general interest.
Bentham may agree with Bagaric on this issue (although I very much doubt it), but he would at least have acknowledged that this is a rule of law issue, not a “natural rights” issue, hence not relevant to his over/mis-used quote about stilts.
Great post Gummo, and I expect nothing less from a Stakhanovite such as yourself, but I think you’re being too harsh. Maybe Mirko’s correct. Perhaps we should be ruled by a party of philosopher kings with kickarse election slogans like “John Howard: Understanding the Human Condition”
Sure, I’m probably more of a Rights of Man person myself. But I’m guessing that next to a heavyweight like Mirko, the opinion of amateurs like Tom Paine just don’t matter.
Speaking of philosopher kings, where does Dr McConvill stand on this one?
Ps – nice post, Gummo.
Since I’m too lazy to follow the link, how exactly is it impossible for a parliament to legislate for human rights and do something about water? Are they either/ors? Do we have to choose?
Well there you go again Anna, with all the nitpicking and the education and the lattes and the cardonnay. Mirko knows what Bentham meant.
Besides, he’s dead. There’s no copyright. It’s open slather.
Shame this filthy loudmouthed ex-cop made his pro-torture spiel just before they beefed up the sedition act. FROM…
http://en.wikipedia.org/wiki/Australian_sedition_law
Seditious Intention
Section 24 defined a seditious intention as [a]n intention to effect any of the following purposes:(snip)
(g) to promote feelings of ill-will and hostility between different classes of Her Majesty’s subjects so as to endanger the peace, order or good government of the Commonwealth;
Maybe as the pro-torture speech by Mirko is online he could still be held liable?
IANAL but this flaming arsehole is sure endangering MY peace and good order.
Frankly Gummo, you’ve blown it here.
Jeremy B’s “Auto-Icon” was always intended for public display at University College London and not just in the common room.
A mate who’s seen him on display said he was a short little bugger but still looked quite chipper considering the circumstances.
And sadly there’s no truth to the rumour they’d wheel him for College Council meetings and mark him in the minutes as “present but did not vote.” If only the same could be said of Mirko the Merciless.
I’ve been told, though, that he is taken out for dinner at high table once a year. Unfortunately, when I was over there a few years ago, he was closed for renovations.
“he is taken out for dinner at high table once a year.”
And traditionally stuck with the wine bill.
Smart wallahs, those dons!
Mirko first came to my notice last year as an advocate for torture. I thought that was a one-off. Thus a nomination for Dr Oskar Dirlewanger ( link ) Special Service Award for Mirko – open only to PhD who have distinguisdhed themselves in the field of human rights).
Clearly not, since the South African government put the right to water into their Constitution and have been forced to frame their water policy to reflect this right (well, should be doing that at least… but that is a longer story).
He still has a staff page at Deakin that styles him professor.
As well as a “Part-time member, Refugee Review Tribunal and Migration Review Tribunal”.
Apparently his interests include “Practial Moral Philosophy”.
Page claims he got his academic qualifications at Monash, even though all other evidence points to the likely source being the back of a Wheaties packet.
Hmmm
practical moral theory
sounds like ‘practical’ reconciliation, or climate change ‘realism’
He has made a career out of making rational justifications for immorality.
timboy, it’s “practial”, not “practical”. Get it right or he’ll write a blistering op-ed denouncing you.
This is all well and good, Gummo, but who amongst us is going to nominate Mr. Mirko for the Alberto Gonzales Prize for “Facilitating Communications with Incarcerees”?
And surely it’s time for Amnesty International to INSIST that Mirko Bargaric sports a large lapel badge with burning candle encircled by barbed wire, like that other prominent Humanitarian, Phil Ruddock.
And my spies tell me that “24″ is in the market for new script writers with that that extra little twist. Maybe Mirko’s their man.
[Trackback]
Dr Mirko sez:
“Social commentators” means flithy anarchist vermin like YOU Enemy Combatant, and you, the person masquerading as an English callgirl of 1963, and you, Nabakov. And we know where you live. And under a spot of bastinado we’ll tell Dr Mirko, no worries.
What about if the Americans played by the rules of the game as set out by terrorist?
Film Hicks getting a bullet in the head and then post it on the internet?
“What about if the Americans played by the rules of the game as set out by terrorist?”
Absolutely, Jimbo, like Americans playing by the “rules” of the game as played in Gitmo and Abu Ghraib and Haditha. Btw, which particular terrorist(sic) did you have in mind, sunshine?
Ta muchly, Sir H. I love it when you talk dirty, although I can’t speak for Miss Keeler or Mr. Vladimir.
Listen Sir Henry, I’d be a bit careful with the stentorian pronouncements from that high moral ground if I were you.
I keep meticulous diaries recording names, dates, places, and amounts. It would be a shame to see the reputations of some people masquerading as upstanding bloggers traduced if that information ever got out.
Well it ain’t Hicks, but Jim, you asked for it.
Not exactly Henry V either.
The only problem I have with Ken Parish’s response is that it treats Bagaric’s “ideas” with a degree of seriousness to which they are not entitled.
The man is a sociopathic lunatic, an all-round bad person, and we aren’t required to take his shit-flinging seriously.
I am very very sorry for speaking in that insolent tone of voice, Miss Keeler. Oh oh, I spilled the ink! Now I’ve done it. I suppose I’ll have to be punished now?
Why are you lumping me in with ladies of easy virtue and non-PoW PoWs Sir Hank?
I’ve never expressed an objection to torture. In fact I rather enjoy it, especially when whiling away an odd hour here and then with an Iron Maiden and a hapless commercial TV programmer.
(Voice of Mr. Guppy from recent Bleak House on ABC telly).
‘Ere, make sure you get the foldin’ first, Miss Keeler. Sir ‘Enry woulndn’t be the the first toff in christendom to welsh on a right floggin’, now would ‘e?
No cash, no lash. The old boy’s got form, ya know, Miss.
Thanks Fiasco. That made my day.
As for the rules…….abu ghraib and gitmo is child’s play compared to what they are prepared to do. Even there, the terrorist still get three squares a day and a roof over their head.
And I bet by now, the Queensland Government has arranged for a social worker to attend three days a week….
That’s OK Sir Henry. The usual then?