Jonathan Sumption’s Reith Lectures on BBC Radio 4 last year was one of the most important recent interventions on the subject of public morality — and so I was delighted to take his Confession this week.
The idea of Human Rights has now become so pervasive and unexamined within our way of understanding public morality that it has come to elbow out all other ways of thinking about morality. In other words, to admit some scepticism about rights sounds to many like scepticism about morality itself.
It wasn’t always thus. Jeremy Bentham, of course, described rights as “nonsense on stilts” and Marx insisted that rights, being inherently individualistic, exist to separate human beings from each other, thus fragmenting community. Sumption’s critique is different. Sumption challenges us to think further about the role of rights in a democracy, and in particular the legitimacy of the way in which a right now serves to trump the sort of public decision making that exists in a democracy. What makes a human right so fundamental that it carries more weight than the decisions of our properly elected representatives?
There is a philosophical question here. Are human rights a hangover from the religious idea of natural law — the idea that morality is somehow embedded in the nature of things? And because it is so embedded, no merely political decision i.e. human made decision, can carry more weight? In effect, this is the view that human rights carries some metaphysical component that locates morality in the nature of things. Here I am with Alasdair MacIntyre that “belief in them [rights] is one with belief in witches and in unicorns.”
The reason all this is concerning is because of the worry that rights have now become a way of protecting a certain view of how the world should work from the democratic decision making of the people. It is almost as if rights language is a way to ringfence certain moral demands from democratic interference. For example: imagine that the public says that prisoners shouldn’t have the vote, yet the law insists it is their human right. As it happens, I have little interest in this question other than that it poses such a sharp challenge: why should rights trump democracy?
Such an example may not matter too much in the great scheme of things. But as human rights law continues to expand its reach, not because Parliament passes new law, but because judges extend the application of rights, Sumption is surely correct we now require a more intelligent debate on the mission creep of human rights within our overall understanding of public morality.