Comments have been lost for some dam reason. We tried to upgrade and things didn't workout.

So the debate on rights has been lost. Can people--Cameron and Allan --- put back what they said from memory?

If I recall we were beginning to have a bit of a conversation about rights. I would like to keep it going if I may. It is an important issue.

IIRC I spruiked Avocadia's Australian Bill of Rights. One aspect of that Bill of Rights is that political rights are a function of being human, not a citizen. So any individual under the "jurisdiction" of a government has political rights and is covered by the Bill of Rights.

A nice printable version of those rights are in the PDF version of the book, SSR Vol One. Volume Two will be coming out soon too. Huzzah!

Cameron,
If I remember Allan said that Hannah Arendt was the right political philosopher to turn to here as she argued that rights are given by the political community of the nation state and do not refer to the abstract individual.

Hece we talk in terms of citizenship.

Does not your bill of rights rely on the abstract individual and not the citizen?

Allan,

if I recall I posed a problem. If we base rights on citizenship of a nation-state, then how do we criticize a state that imprisons citizens in detention or internment camp on the grounds:
# that they are illegal immmigrants

#or they have a loose association with radical Muslim ciitzens who argued that the London and Bali bombings are connected to the occuaption of Iraq by the US,UK and Britian

#and is willing to constrain the rights of citizens in the name of national security.

How did you respond to that?

We base it on the compact between people and government. If the Bill of Rights is not met as the basis for political consent to be governed (or submit to the will, coercion or monopoly on violence from government) then the government is tyrannous and a population has the moral right, and responsibility to resists its laws.

Avocadia's bill of rights comes from the essence of government, it is a collection of individuals seeking to collectivise the right to be secure in their person and possessions. The notion of the nation-state and citizenship are a perversion of this.

As a result, every individual under the jusrisdiction of the government, no matter their citizenship status has the same rights as every other individual. If you read through the bill of rights, refugees can vote, run for public positions etc.

In fact I would have loved to see Peter Qasim run for federal parliament and get 5% of the primary or preference vote. That would be awesome.

I also did some "strike tag" editing of the electoral act to ensure that enfranchisement was universal.

Cameron,
Do not human rights lose all significance if they are not reinscribed within a political community that transforms them into constitutional principles?

It is the constitution tha tis the contract. The Australian constitution, as a founding text, defines a clear link between individual freedom and a political order whose goal is freedom's protection.

I appreciate that the Lockean account of modernity states that it is natural right that gives modernity its actual normative content. This holds that modern human beings are not first and foremost national beings, but universal beings liberated from the particularisms of traditional society.

This abstract conception of natural right amounts to an empty or abstract universalism because we live in a nation states, and we are first and foremost national beings in a liberal democratic state.

Gary, If you take the Lockean belief that all individuals are born in perfect and complete freedom, which I ascribe to, than you can restate that as "all individuals have the right to resist tyranny".

If you look at Bills of Rights, they are all about the eradication of tyranny in government. That rights have to be formalised in a constitutional system is because power aggregates the capability of arbitary action; which is tyranny.

The Bill of Rights also serves to formalise, for legal purpose, when a government has fallen into tyranny, and when an individual has a moral right, as an individual, and as a civic individual to resist that tyranny.

This is the common thread, and incidentally, the basis for Australian republicanism.

Unfortunately Australian history has been written by government. We have the false triumphalism of the anglo-culture, attempting to legitimise the construct of the Australian nation-state. But when you look at Australian history, it is dominated by individuals fighting against the tyranny of Australian government.

From Pemulwey, to Cunningham, to Mary Lee, to Lalor, Lingiari, and so on. All fought against tyranny. If you look at Carboni's and Lalor's accounts of Eureka, they were fighting against tyranny. Which is what Australian Republicanism is about.

Ironically, the ANZACs fit a republican Australian history as well. Despite the attempts to fit it into the triumphalism of a federation style of squattocracy history, through "the blooding of the anglo nation". The ANZACs were part of the greatest cultural clash Australia has seen. The ANZACs discovered that, for Australians, Australian culture was superior to British culture.

All the records of disciplinary clashes etc, were cultural clashes. Leaders like Monash and Williams understood this. A republican principle is that, "Australian solutions to Australian issues are superior". That is the ANZACs in a nutshell. So rather than enforce the anglo-Australian British client-state, their experiences and actions serve to shoot that down.

To come back on topic, formal constituional rights are a reflection that the natural state of an individual is to resist and reject tyranny against their person and property. ie not subject themselves to the arbitrary will of others.

You wrote in an entry a while ago, that freedom is not the absence of power relations. This is true, but it is the individuals natural state to resist power relations that are arbitrary and tyrannous.

I suspect this is why Australians are having trouble swallowing the DIMIA and IR reforms. They support an individuals being subject to the arbitrary will of others. This is not a natural state for humans.

The constitutional compact for a judicial/police arm of government, which is government at its most pure, can only be given by an individual if tyranny is not present in the system. Otherwise the individual has no gain from such a system. Formalised rights help to define when a government is tyrannical, and when an individual has a moral right to resist the tyranny by removing their consent.

Cameron,
#Australians were already living in British colonies and political communities of the British empire when they consented to federation at the beginning of the 20th century. The Lockean account---'the individuals natural state'---is a modernist myth.

#Australian republicanism uses federalism to provide the checks and balances against despotism (dominating power of the executive) not individual rights. It aims to prevent the concentration of power in the centre.

#I would like to distinquish tyranny from totalitarianism and despotism

#the associations of civil society also act to prevent the concentration of all power, both political and economic, in the hands of the central government.

#you talk in terms of the "individual has a moral right, as an individual, and as a civic individual." No mention of citizens. You subordinate politics to moral imperatives, and so downplay the practices of citizenship.

#I cannot see how you can talk about the Australiasn constitution and rights as if it were like the American constitution. It is very different text that has little to do with Locke. Consequently, political democratic rights are going to have to be read out from the moral and political presuppositions underpinning that legal document.

Gary, I dont care if my opinions fall under a classification of modernist or not. The right to resist tyranny is natural, just, and a result of individuals being born in a state of complete freedom.

Republicanism is multi-faceted, individual rights to protect against tyranny are just one aspect of protecting against arbitrary government action against an individual.

Modern government is complex enough, and pernacious enough, that the layers of protections to guard against the executive coveting absolute power to themselves, must occur at multiple levels.

I am with Rupert Murdoch on the citizenship issue. Like Murdoch, I see citizenship as regulatory compliance with the nation-state. I dont see citizenship in itself having any value, beyond allowing an individual to conduct political business with the state.

As a Green Card in the US, my foreign status has meant I have not been eligible for positions as I cant be exposed to sensitive nation-state information. That has crimped my earning capacity, especially in this environment where a security clearance adds to your worth in the labor market considerably.

In Avocadia's bill of rights, an individual is not discriminated against because they arent a "citizen". Political rights with the governing entity are defined by being under the governments jurisdication; and not having to be a formalised citizen.

The Australian constitution skipped the enlightenment and went straight to the 16thC. Huzzah for our brave founders of federation. Way to leave Australians to fight to recover what was self-obvious from the innovation in the American constitution. But then again when you have the constitutionally incompetent like Samuel Griffiths editing the drafts, then that is bound to happen.

Griffiths knowledge of seperation powers was Joh-like; and one of his edits includes putting the judicial under the House of Representatives.

I accept that an Australian Republic will have to incorporate an Executive Cabinet. But there are many lose ends in our system that need to be tied, and the higher level political process improved. That will require some restructuring, which I am sure the professional politicians in the major parties will not want.

Humans are certainly not born in a state of complete freedom. It may be appealing and it may even be a goal some would desire to achieve in the course of their life, but it is, most likely, practically impossible.

The mother-infant relationship which is the first bond that denies absolute freedom is a mini state. The state is not inherently evil.

Only evil forms of the state are evil.

The State, which is just a large tribe at the end of the day, can be beneficial to the individual. The lone human is more powerless and less free than any slave. He is enslaved by his inability to survive as a living organism.

We require each other for protection and sustenance. This being together (mitsein) is the bond that gives us some measure of a manageable freedom.

wbb, Individuals are born in a state of complete freedom. They are capable of any action, to the fullest extent of their flesh and mind, no matter how rational or irrational that action may be.

Freedom does not mean immunity from being subject to power relations however. As your example of the child and mother points out. However, the child is usually secure in their person with their mother, and not subject to the arbitrary will of the mother here (ie violence against the child).

This is where rights, or just extrapolations of the human condition come in. An individual has a right to be secure in their person and property from the arbitrary will of another. Since this is just, it is also just to resist tyranny which is being subject to the arbitrary will of another.

This is what government is. The rule of law is a framework by which arbitrariness in power relationships to do with persons and property is removed. Contracts, judicial processes etc etc are repeatable, (consensual?, does voting count as consent?) and uniform processes.

Liberty is the maximum freedom you can have under such a system. The problem is that government is hostile to liberty, and falls into tyranny quickly and easily, subjecting those under its jurisdiction to the arbitrary will of its ministers. DIMIA and the recent Migration Act changes are a good example of tyranny. The refugees and asylum seekers are explicitly placed under the arbitrary will of the Minister.

Cameron,

#we citizens, who live in diverse political communities and civil society governed by the existence of laws that make rights into rights protected by laws backed by a state. The state is required to work within th bounds of the constitution as interpreted by the High Court. That is constitutional liberalism. Natural rights are not there, unless you want to argue that are presupposed by the Australian Constitution.

#We citizens are not faced with tyranny in Australia. Let me quote from this text I linked to earlier:

'In a tyrannical political realm, which can hardly be called public, the tyrant exists in isolation from the people. Due to the lack of rapport or legal communication between the people and the tyrant, all action in a tyranny manifests a "moving principle" of mutual fear: the tyrant's fear of the people, on one side, and the people's fear of the tyrant, or, as Arendt put it, their "despair over the impossibility" of joining together to act at all, on the other.'

John Howard is not a tyrant. Nor does the Australian state in dominate civil society in the name of freedom by denying civil society any autonomy from the party-state in the formation of opinions, needs, and so forth. To continue to talk as if this was so is to talk in terms of myth.

It is that sort of mythmaking that gives the natural law of Lockean liberalism (with its foundation in the state of nature, and its reduction of civil society to a state of nature) an air of implausibility. It appears that Lockean liberalism is more in the clouds than in the city.

# Secondly, there are public freedoms associated with citizenship and the state as well as the private freedoms of individuals doing their own thing without trampling on the rights of others.

The latter means freedom as non-interference: individuals may choose how to interact on a voluntary basis outside the purview of the state.

The public freedoms are associated with independent citizens engaged in running the democratic state or common republic. Hence the concern with social and political institutions that promote and enable freedom as non-dependency.

The state is a two-edged sword. Unless it is restricted institutionally in various ways, it may itself prove a worse danger to people's freedom as non-domination than any danger it purports to guard against.

#I use modernist in a specific sense because Lockean liberals have a particular conception of nature that is different from the Greeks.As Leo Strauss argued traditional or classical natural law is primarily and mainly an objective "rule and measure," a binding order prior to, and independent of, the human will. Modern natural law is, or tends to be, primarily and mainly a series of "rights," of subjective claims, originating in the human will that desires to escape from, and to master nature. Hum beings exist in opposition to nature, conquering it to serve their comfort (prosperity).

As Strauss, following Hegel, argued, what distinguishes modern natural right from classical natural right is that it is a subjective claim, namely, the claim to the fulfillment of one's most pressing passion: self-preservation. According to Strauss, for both Hobbes and Locke natural law does not act as a limit to this right, but rather as a set of calculated principles by which that right might most readily be realized. Consequently, the individual ego, has become the center or origin.

Struass then argued that this gave us a rights-centred, nature-conquering, society that assumes as a premise belonging to its very starting-point that there can be no pre-existing limits to human self-assertion.