Our illiberal empire of rights Today's censoriousness perverts liberal societies and endangers democracy

So it is that there are continuous demands from legal scholars and journalistic commentators that our constitutional arrangements be overhauled so that human rights can constrain what any government can do. In this way, Britain can approach the higher rationality that is evident in countries such as the US, where law has a far greater role in the political process.

Jonathan Sumption’s Reith lectures on “Law and the Decline of Politics” present a considered response to these demands. His argument throughout is that inflating human rights beyond a baseline guaranteeing individual security and freedoms of expression and association imposes too great a burden on law, and leads to a dangerous shrinkage in political participation. Effectively, law is usurping politics:

“The problem about the legal model is that it marginalises the political process. When a judge identifies something as a constitutional, or a human, or a fundamental right, he is saying that it derives from a higher law than the ordinary decision-making processes of the state. He is declaring that its existence and extent are not to be determined by political choice. Yet, very many judicial decisions about fundamental rights are themselves political choices only made by a smaller and unrepresentative body of people.”

Here, Sumption captures the chief failing of the prevailing doctrine of rights. Politics is not constrained but confined to a small body of people. Judges are assumed to be able to provide answers to questions that the political processes of a democratic state are unfit to decide. Over time, the range of these questions has expanded to the point that practically every public issue is framed in terms of rights. More and more issues are taken to law, while ever fewer are settled by public political choice. As the empire of rights expands, politics shrivels away.

There is more wisdom in Sumption’s five short lectures than could be gleaned from reading innumerable volumes of political and legal philosophy that have appeared in recent decades. Listening to them, I was reminded of an academic seminar I attended some 30 years ago. It was addressed by one of the leading lights of American jurisprudence. During the discussion that followed the paper, the speaker was asked how people with HIV/AIDS should be treated. Without a moment’s hesitation, he replied: “They should be accorded the full protection of their rights under the constitution.”

While sympathising with the speaker’s concern for the wellbeing of people with HIV/AIDS, I could not help noting a certain absurdity in his response. The seminar was taking place in Oxford, and there were no embedded rights in the British constitution at the time. His response made sense only if he was invoking the American constitution (as he interpreted it) and took for granted that its authority was universal. None of the other participants questioned this assumption or gave any sign of finding it strange. I left shortly afterwards.

At that point in the late Eighties, an American discourse of rights had already displaced the British liberal tradition embodied in the work of John Stuart Mill. It tends to be forgotten that Mill is not a theorist of rights. It is true that his celebrated principle of liberty, which forbids curbing individual liberty except when harm to others may be done, stakes out a protected zone of individual freedom. But the scope of that zone is not determined by rights. It is identified by a calculus of utility, the results of which will vary according to changing circumstances.

What is forbidden in one place or time many not be prohibited in others. It may make sense to legalise drugs if the harm done by drug use is mainly to small numbers of drug users. If the number of drug users is large and there are harmful effects on society at large, the calculus may point to other policies. The background to Mill’s liberalism is not a supreme court interpreting human rights but a body like the House of Commons (where Mill himself served as an MP for some years), which frames and amends legislation in the light of its changing impact on general welfare.

As an attempt to revive this British tradition, Sumption’s lectures make a pivotal contribution to public discourse. We need reminding that the empire of rights is recent and comes with large costs. Whether Sumption’s argument will be heeded is doubtful, however. The hollowing out of politics that has occurred, along with the expansion of rights, is hardly inadvertent. It reflects the anti-political liberalism that is in vogue in English-speaking countries.

As formulated by John Rawls and Ronald Dworkin among others, American liberal legalism understands politics as a sphere of collective decision-making containing only what is left over once the demands of justice and rights have been met. The marginalisation of politics is the principal objective of the new liberalism that has come to power over the past generation.

Of course, politics cannot actually be eradicated from the judicial process. It is clearly visible in the appointment of American Supreme Court judges. Bret Kavanagh was appointed in a hideously embarrassing spectacle of naked and crude political partisanship. But politics is pervasive throughout the judicial process. When competing interpretations of rights are being adjudicated, what is being decided is which among a range of rival political outlooks will prevail.

Jurisprudential disputes between ‘originalists’ who aim to stick to what the constitution was intended to mean, and others who want the freedom to apply its principles in new conditions, are political conflicts pursued by legal means. The underlying questions have to do not with law but the proper functions of government. Theories of rights cannot offer an escape from politics because they are themselves political ideologies.

At times, Sumption seems to hark back to a time when law was less politicised because more scope was allowed to democratic choice. But law is inevitably shaped in some degree by prevailing political ideas, and today it cannot avoid the formative influence of the ruling version of liberalism. In his first lecture, Sumption observes that ours is “a censorious age”, the product of “growing moral and social absolutism which looks to produce conformity”, not unlike the stifling climate in Victorian England after the Evangelical Movement transformed the lax sensibilities of Georgian times.

But he fails to note how liberalism has mutated from being a philosophy of tolerance that allows individuals and communities with different values to live together peaceably, to one that aims to enforce what are judged to be the correct values on everybody. Along with the practice of public shaming and ostracism, the proliferation of rights is one of the central strategies adopted to achieve this end.

The result is a culture of conformity in some ways more repressive than that of Victorian times. John Stuart Mill may have complained bitterly against the tyranny of public opinion, but what he had to contend with was chiefly unpleasant gossip about his irregular friendship with Harriet Taylor. He was not threatened in his career or livelihood, whereas dissidents from today’s orthodoxies may face being driven from both.

The censoriousness of rights-based cultures today is not accidental. The inflation of rights endangers not only democracy but also personal freedom, for it de-legitimates what was once an accepted diversity of moral viewpoints. If only one view of a contentious issue — abortion, say — is judged to be in accord with human rights, all other views are not only mistaken, but criminal. My own views are strongly pro-choice. But where societies are deeply divided it is worth seeking a compromise, never fixed or final, which most people can live with, and on this basis a liberal abortion regime has been achieved in many countries. If the US remains polarised on this and other issues, one reason is that they have been framed in terms of rights.

An over-extended empire of rights comes with a number of disadvantages. It hollows out democracy by removing ever more issues from public political choice. It imperils personal freedom by criminalising what used to be legitimate moral differences and polarises society by turning those differences into conflicts that cannot be settled by reasonable compromise. In all of these ways, the empire of rights has the effect of undermining social acceptance of liberal values.

But the illiberal empire of rights has another and more fundamental disadvantage. It is inherently unstable. There are many ways of understanding populism, but one that seems plausible to me is that it is a reaction against an attempt to remove certain issues from the domain of democratic decision-making. If only one view of immigration is deemed rational and morally tolerable, the issue is effectively excluded from public debate. At the same time, a space is created for demagogues.

Denying expression to a widespread public concern is rarely sustainable for long in a functioning democracy. If those who feel this concern are dismissed as retrograde and racist, they will soon flock to leaders who mobilise and accentuate their fears. Populism is a backlash against the expanding empire of rights and a warning that the empire is in danger of bringing about not only its own downfall, but that of liberal societies themselves.