What right have parents to home educate?

One of the things which annoyed me about Ed Balls' recent article in the Guardian was his talk of home educators' 'rights' and the need to balance these against the rights of their children. Even Graham Badman was seduced into this error. There is of course no explicit right to an education for children in this country, although all children over the age of five are entitled to school places if their parents want them. Instead of a stated right, the law lays a duty upon parents to see that their children receive an education. Because duties and rights go together, we can extrapolate from the parents' duty and deduce correctly that the child has a corresponding right, the right to an education. Some then go further and try to demonstrate, incorrectly, that their child's right combined with their own duty somehow bestows a 'right' on them to home educate. This is nonsense. Before we look at this idea in detail. it is worth looking at what some of those who commented here on Wednesday said about this business of rights. Their comments actually expressed most ordinary people's thoughts on the idea of 'rights' very neatly.

One person said:

' I'm saying that unless there is a law that says that something cannot be done, we automatically by default have the 'right' to do it.'

This would seem to create a human right to having bacon and eggs for breakfast and holidays in France. I don't think that we can regard those things as rights, because if so then somebody must have a duty to provide them for me. Somebody else suggested that we 'just know' what rights we have. That we feel them 'viscerally'. I don't think that this will do either. Some older people 'just know' that homosexuality is wrong and feel 'viscerally' that they don't want to live next door to African immigrants. Does that create for them the right to have heterosexual, white neighbours? This does not sound right. Perhaps looking briefly at the history of rights might help.

Until forty or fifty years ago, the situation was pretty simple. There were two main ways of looking at rights. On the one hand were religious people who believed that rights came from God and that human legal systems should be based upon God's laws. Whether the law agreed or not, these people firmly believed that certain rights existed anyway because the maker of the Universe had granted them to us. On the other hand were most philosophers and lawyers fifty years ago, who thought that rights could only exist if there was a law which provided for them. They were legal positivist who agreed with Jeremy Bentham that the idea of a 'right' without a law to back it up was , 'Nonsense on stilts'. Of course some people belonged to both groups; I do myself.

These days, things are a little more complicated. A lot of people do not belong to either of these two groups, which gives us a real problem when we are talking about 'rights'. Many people today are atheists, which of course means that they do not believe that there is divine backing for any right. Most people also have difficulty with the idea that the only rights which we have are those granted by law. After all, the law once gave people the right to keep slaves. They surely could not really have had that right though; it is so plainly wrong. So many of us fall back on the claim that there exists a code of morality, ethics and rights which is universal, not given by God and applicable regardless of the laws of any individual country. So when Sweden bans home education, these people feel that the 'rights' of home educators in that country have been infringed. Even if the law of Sweden forbids the practice and even if we don't believe in God, these people think that the 'right' of parents to home educate still in some sense exists.

The big problem of course with this point of view is that we are left having to explain where these abstract rights come from. Some people on Wednesday fell back on the Universal Declaration of Human Rights, but that won't do at all. These 'rights' were cobbled together by a group of people led by Roosevelt's widow in the late forties. They are firmly based upon the Christian values of a liberal democracy and are as such anathema to many Muslims. Some regard these 'rights' as a form of neo-colonialist oppression. The point is that in this country we have one set of values which most of us live by. We are tolerant of adultery and homosexuality, but come down sharply on racism. These values are just passing fads; not timeless truths. In other parts of the world racism is an accepted way of life and adultery and homosexuality are punishable by death. To suggest that we in the West have the only correct ethical system and that we alone can formulate the rights which go with this system is simply ethnocentric and disparaging of other cultures. This is particularly so if we put together some code of ethics and rights based upon our own religion and society and then try to impose it on the rest of the world by describing it as 'universal'.

Any set of rights which does not come from God must be the product of men and women. Those men and women will formulate what they see as 'rights' according to which country and age they were born into. They are sure to make mistakes and include their own prejudices. There can be no such thing as a universal and objective set of 'rights'.

I am sometimes accused of not saying plainly what I believe in and so I shall do so on this subject. This does not mean that I am right of course! I believe that God gave us rules for conduct and that among these are various rights and duties. I think that human laws sometimes reflect God's values and sometimes go against them. However this cannot be the basis for rights in civil society. I can't charge around breaking the law and claiming that God told me to do so. Remember that God told Peter Sutcliffe to hack up prostitutes with a screwdriver. People have done some pretty awful things because they claimed that God wanted them to do something or other. I think that I am safer following the principle of legal positivism and simply accepting that a right is some activity or freedom conferred by law which means that other people have a duty to allow me to do or exercise. Neither the legal positivist point of view nor the religious is wholly satisfactory, but both are far preferable to the strange idea that rights have come into existence from nowhere. Created from nothing and not the invention of men and women, these 'rights' transcend national boundaries and can be in opposition to law. This is such a peculiar idea that I shall not be subscribing to it in the near future, unless somebody can show me where these abstract rights have come from. It follows inexorably that the idea of a 'right' to home educate cannot really be claimed by anybody in the world unless the country in which they live allows this practice.