Too judgey: As more and more issues are taken to law, fewer are settled by public political choice. Credit: Dan Kitwood / Getty
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.
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.
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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.