Or “Human Rights and Wrongs”, as Jonathan Sumption’s third lecture is called, in his series on Law’s Expanding Empire, delivered in Edinburgh and broadcast on Radio 4 and BBC World Service.
Human rights are where law and politics meet. It can be an unfriendly meeting…”
Following these strong words, Lord Sumption briskly debunks the ideas of “natural” or “inalienable” human rights, in favour since Blackstone’s time. In principle, there is nothing so fundamental about certain rights that they cannot be overturned by democratic election. The idea of these inalienable human rights was perfectly straightforward in a world where rights were part of God’s law, or in communist societies where these rights were ordained by the ruling party. But in a secular democracy, Sumption asks, what is it that makes rights legitimate? Of course there are rights without which a community cannot function, like the right to be free of force, and the right to participate in fair and regular elections. Any further rights should be conferred by collective choice, and not because because they are thought to be inherent in our humanity, or derived from some higher law. Instead of the mystics and the totalitarians, he invites us instead to consider the 18th century enlightenment philosopher David Hume.
He rejected the whole concept of natural law … You cannot derive moral principles from abstract reasoning or empirical observation. They derive their legitimacy from collective moral sentiment.
Rights [continues Sumption] do not exist in a vacuum, They are the creation of law, which is a product of social organisation, and which is therefore necessarily a product of political choice.
So these “fundamental rights” are no more than a product of our “inherent humanity” other than the agreement that some rights are so important that they should be above political debate. But this idea only works if these rights are truly fundamental and generally acceptable. Without a political arrangement which allows disagreeement about them, we have a totalitarian state.
The “living instrument” doctrine was developed by the Strasbourg Court to derive rights out of the Convention that are not obvious from the text. Article 8 of the Convention is the most egregious example of what Lord Sumption calls “mission creep”. It covers a “vast range of issues”, including
- Legal status of illegitimate children
- Immigration and deportation
- extradition
- criminal sentencing
- recording of crime
- abortion
- artificial insemination
- homosexuality and same sex unions
- Child abduction
- the policing of public demonstrations
- noise abatement
- eviction for non payment of rent
All of these things, and many others, have been held to be within the purview of the protection of private and family life.
“None of them” says Sumption, “is to be found in the language of the Convention, none of them is a natural implication from its terms, none of them has been agreed by the signatory states. They are all extensions of the texts, which rest of the sole authority fo the judges of the Strasbourg Court.”
This is, in reality, a form of non-consensual legislation.
The problem of all of this is to devalue the idea of universal human rights itself, since, Lord Sumption implies, it devolves into a turf war between the courts and the electorate’s representatives in parliament. Furthermore, the rights cultivated by the “living instrument” methodology of the Strasbourg Court, are contentious, and they are “very far from fundamental”
How, Sumption asks, do we distinguish a “fundamental human right” from something that is “merely a good idea”?
Does the decision to make these fundamental rights rest with judges? Issues between different groups of citizens, such as whether there should be a human right not to be evicted from council housing for non payment of rent, or whether that someone who hasn’t performed his side of the bargain has no such right, should not automatically be settled by judges rather than within the political process.
This is true Reith lecture material, grappling big ideas that we tend to take for granted, thought provoking but with too much scholarship and experience to be tendentious. Apologies for the partial transcription provided above; readers would do far better to go to the Reith Lecture site itself.
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