How to win votes and calm people

Sceptical Essays on Human Rights - The Rise and Rise of Human Rights
August 29, 2003

In the run-up to the 1997 general election, Labour, shorn of its traditional ambition to overcome or even seriously restrict the abuses of the capitalist economic system, offered instead an extensive package of constitutional reform. Partly this was needed to offer a set of policies that would distinguish it from the Conservatives, but it also reflected a genuine feeling that the Thatcher government in particular had been able to abuse the almost unlimited powers it enjoyed under the UK's unwritten constitution.

Along with Scottish devolution, the flagship of these constitutional reforms was the incorporation of the European Convention on Human Rights into domestic law by means of the Human Rights Act 1998. This measure met with only half-hearted Conservative resistance - and enjoyed overwhelming support in parliament, among most academics and commentators and, surprisingly, among a number of senior judges.

Sceptical Essays on Human Rights seeks to puncture that consensus. The 21 contributors are scholars, mostly lawyers, who write from a broadly democratic left or social democratic perspective. They address two issues.

The first is whether it is desirable (constitutionally, jurisprudentially or politically) to entrench human rights - to give them any form of preferred legal status, such that they cannot be overborne by ordinary legislation. The second is whether the rights contained in the legal orders of European and North American liberal democracies are suitable and/or sufficient to be entrenched. There is a stimulating disagreement among the writers on many issues, especially over whether entrenchment will advance equality.

The contributors' guiding perspective has two important implications. The first is the rejection of the idea that rights are somehow "neutral" politically. To them, the content of rights is a political matter with political consequences and the process of interpretation of constitutional documents containing rights is also inescapably political. Some, but not all, contributors take the further step of acknowledging that value choices should produce outcomes that favour the social interests of the disadvantaged. This is refreshing, because they do not become bogged down in the fallacy that enacted rights, being "legal", are somehow not "political" and therefore can be left to "objective" interpretation by judges whose product is not properly subject to evaluation on political grounds.

Two things, however, can flow from this acknowledgement. Many contributors are led to the position that since the choices are inherently political they should be made in the legislature, the arena of "majoritarian" electoral politics, and that judges should not be given the power to overturn the results. Some, however, argue that rights should be enacted but given an explicit social democratic orientation so that judicial interpretation should purposefully further those values. There is a tension between these positions, never explicitly confronted in the book, since those who wish to entrench social democratic rights would find their majoritarianism under strain if faced with a constitution or international convention containing rights that embodied what may be called capitalist authoritarian values; conversely, in a political order that entrenched social democratic rights, would those opposed to "judicialising rights" continue to maintain their position?

A second implication of the book's formative political perspective is that judgement about the desirability of entrenching rights is in significant measure an empirical question: what is the likely effect on those interests and values one wishes to advance? The answer may be sought in historical experience of one's own legal system, and experience of comparable countries. One of the best features of this collection is the six essays devoted to experiences in Canada, New Zealand, the US, South Africa, central and eastern Europe, and Australia. The first point is that while legislative majoritarianism has a comforting democratic ring to it, there is a strong element of unreality about its premises. The argument is seductively simple: legislators are accountable, judges are not. Moreover, if all individual citizens are equally worthy bearers of rights, then they must be allowed to decide by majority decision what rights everyone should have. Yet the electorate is not determining solely its own rights, but those of other people. In doing so, electors are often driven by prejudice and fear. Majoritarianism does not come out well when fear eats the soul.

(Consider current antiterrorist legislation.) Indeed, it can create what Fareed Zakaria has identified as the disturbing trend towards "illiberal democracy". Giving a politically insulated and respected group of persons - judges - the power to overturn repressive and discriminatory measures may be a way of saving democracy from itself.

However, this line of argument assumes that judges will protect politically vulnerable minorities when majorities lose their sense of proportion. This is a factual assumption, not a normative argument, and the comparative analysis presented in these essays offers it little support. A particularly insightful essay, by Judy Fudge of Osgoode Hall in Toronto, argues persuasively in light of the experience of litigation under the Canadian Charter that judges are far more willing to intervene on behalf of those asserting rights of recognition - those involving cultural issues that challenge traditional social norms embedded in the law (for example, restrictions on transsexuals) - than of those claiming rights to redistribution, which may call into question the underlying logic of free-market capitalism (for example, cases involving rights for trade unions).

Her analysis coalesces with Mark Tushnet's view of the American Supreme Court as Washington-based judges striking down "outriders" - laws or practices deviating from national norms - rather than breaking radical ground outside the national political consensus. If they are right, not too much should be expected of the Human Rights Act in Britain. The English courts' record in the two years since the act came into force bears this out.

A more optimistic note is struck by Oxford University's Sandra Fredman: namely, that whatever the substantive outcome, no present-day political order can escape law and its final interpretation by judges. Rather than rail against judicial conservatism, we should see the Human Rights Act as a step towards constructing a "rights-based constraint on the judiciary". If parliament enacts rights with a social democratic content, she argues, the judiciary would no longer be able to apply its own values of property-centred individualism but would be compelled by the logic of parliamentary sovereignty to apply the new norms to interpreting statutes and development of the common law. On this view, human-rights legislation is as much about curbing the judges as it is about restraining parliament and the executive. It does, however, require a parliament willing to enact social-democratic rights.

The Rise and Rise of Human Rights by Kirsten Sellars is a very different work, written by a freelance journalist for a popular audience. It is a political analysis of the uses western governments and, above all the US, have made of "human rights" on the stage of world politics. These are primarily as battle cry and as shibboleth. The book covers the Nuremburg and Tokyo war crimes trials, the cold war and the problems faced by the British empire in dealing with anti-colonial movements. The last chapter details the hidden relations between the human-rights organisation Amnesty and the UK government, which included clandestine financial support. Other chapters cover the records of the administrations of US presidents Jimmy Carter and Bill Clinton, and the revival of war-crimes tribunals for the former Yugoslavia and Rwanda. The quality of the analysis varies: those detailing recent events, especially those on war-crimes prosecutions, are superficial, and there is inadequate understanding of the political pressures that face governments regards of their policies.

But the historical chapters demonstrate the extent to which "human rights" as an instrument of foreign relations were always subordinate either to cold-war aims or to domestic political concerns. They also document the recurring phenomenon, most recently seen in relation to the International Criminal Court, of other nations making concessions to the US to gain its adherence to an agreement, only for it to refuse to accept any limits on its sovereign powers.

Sellars makes the important point that "human rights" can be a rightwing rallying cry in the US, where increasingly it is directed at leftwing regimes or religious activists (so long as they are not Chinese), rather than at political dissidents and ethnic, environmental or trade union activists who are the primary concern of European human-rights groups. Her main thesis is that "human rights" are invoked by western governments more to shore up their electoral position and to satisfy certain domestic interest groups than for reasons of humanitarian concern for people in distant lands.

Laurence Lustgarten is professor of law, University of Southampton.

Sceptical Essays on Human Rights

Editor - Tom Campbell, K. D. Ewing and Adam Tomkins
ISBN - 0 19 924669 6 and 924668 8
Publisher - Oxford University Press
Price - £72.50 and £19.99
Pages - 423

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