Too judgey: As more and more issues are taken to law, fewer are settled by public political choice. Credit: Dan Kitwood / Getty
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Human rights occupy a peculiar position at the present time. Pretty well every other idea and practice — gender, nation, family and the like — is deconstructed and dismissed as an artefact of power. But deconstruction seems not to extend to rights, and even as other values and institutions are condemned as moribund or oppressive, human rights are inflated and extended to cover practically every human interaction.
Numinous objects of piety and reverence, rights carry an authority no moral or political argument can match. As a result, questions in ethics and politics to which in the past there could be a variety of reasonable responses are now seen as having only one correct answer. If you find that answer unsatisfactory, you are not just disagreeing with other people. You are rejecting an imperative from which dissent is not permitted.
The position of rights is particularly incongruous in this country. More than in any other modern state, Britain’s constitution consists of precedents and conventions arising from historic political settlements. There is no body of rights codified in law that can constrain the sovereignty of parliament, while parliament itself is governed by precedent and accepted procedures.
The European Convention of Human Rights was incorporated into UK law in the Human Rights Act of 1998, and since then, the judges of what has become Britain’s Supreme Court can determine whether the rights recognised in the Convention are being respected by governments and legislators. But authority and legitimacy still reside in parliament rather than in any judicial body, and the ultimate determinant in any major public issue remains a political decision, not a legal interpretation.
A situation in which major issues are resolved through the compromises of politics is intolerable to contemporary liberal thinkers. For them, law is a repository of moral truth, which can be determined beyond reasonable doubt. Disagreement on basic moral issues is evidence of error, which law should correct. If you think like this, British institutions are fundamentally defective.
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.
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SubscribeThere is a “sky-hooky” nature to human rights: one can only enforce them if one already has them. This is not to say that they aren’t worth having in some form. Indeed much of their prominence is due to their widespread absence – we loudly lament the failure of “regimes” to give their people rights.
But are rights in the gift of governments in this way? It may be that the absence of rights has a cause rather than being a choice. Even a benign “regime” or dictator would consider the consequences of introducing rights (assuming that the society in question even has functioning law). It may be that such an assessment leads to the decision that the granting of certain rights would lead to chaos. Freedom of association, for example, is a potential gift to usurpers. We can assert therefore that rights may require prior conditions such as a sense of community with shared mores. Rights may be viewed therefore as codifications or extensions of pre-existing norms.
The threat to rights comes not only from a reaction stimulated by the removal of topics from discussion and compromise (are such compromises – if they are compromises – “liberal”?); more pressingly perhaps they may come from the consequences of rights themselves. A right may create an unsustainable burden for the state leading to the failure of the state. Reaction to such a prospect cannot be called illiberal.
Democratic politics also has similar dangers – many people have foreseen the bankruptcy of democratic societies arising from people voting for ever more state spending and protections. Again, for democracy itself to function there must arguably be a pre-existing culture of restraint.
Of course society evolves and rights may foster loyalty as well as being a strain upon it. However, rights remain, as you say John, “ideological”. Liberal rights often suit the born-lucky. The ill-favoured might wonder if all really is fair in love, for example. I remember a young Russian lady defending her country’s previous “communist” system to an ambitious Czech: “It wasn’t all bad,” she said, distressed. She talked of the kindergartens and the holidays for ordinary people.
Thanks for another of your wonderful essays Prof. Gray.
I want to add that I am not sure it would be a good idea now to abandon “human rights”: partly as a consequence of their own operation they have become perhaps the only clear repository of the moral system that begat them. For this reason we should not abandon the attempt to promote them abroad either, although we should admit that their adoption elsewhere is not just a matter of someone passing a decree.
Another issue with ‘rights’ is that where they create an obligation on the part of another to provide something for you, the existence of the right in one place is an obligation in another. If rights to be allowed to do something (free speech, freedom of association etc) were described as rights, and ‘rights’ to get something (housing, education) were described as entitlements then it would help to clarify matters.