The human rights debate is frequently rancorous. A major reason for this is that the protagonists are often just talking past each other. Hence not debating the same thing at all. The varying degrees of generality at which human rights may be understood explains this misfire (the failure of the debaters to debate). The level of abstraction or concreteness has a direct bearing on claims regarding the “self-evidence” of the rights in question. Claims that human rights are self-evident have a long pedigree, at least back to the 1776 American Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”). But, I suggest, such claims have much greater plausibility when the “self-evident” rights are cast at the very highest level of abstraction, as they necessarily must be when writing a constitution (the 1776 Declaration being a proto-constitutional document), or an international instrument (such as the ECHR, 1950). Conversely, when we descend to the detail of concrete disputes, any suggestion of a self-evidently right answer would usually be laughed to scorn.
The failure to insist on this distinction between the abstract and the concrete explains a paradox of the human rights debate: namely that human rights sceptics apparently seek to deny the undeniable (e.g. that free speech is a good thing), whereas human rights enthusiasts insist that rights should float above the political fray, even when their application causes manifest political (and judicial) controversy (as in the “prisoner voting” saga that has enmeshed the British and Strasbourg courts, HM Government, and Parliament).
The matter is of considerable importance. The most common and effective debating tactic used against human rights “sceptics” is to observe that they would deny a given basic right (or ALL basic rights). Thus, for many opposing “enthusiasts” it follows that sceptics must be mad, or bad, or (anyway) dangerous. In this vein, Shami Chakrabarti recently suggested that repeal of the UK’s Human Rights Act would pose “an existential threat to the rights and freedoms of the most vulnerable people in our country”. Examples could be piled up, but there is little need to do so since the criticism is familiar enough. It seems devastating to the sceptical position. Perhaps more devastating when stated with polite restraint by such a legal colossus as the late Lord Bingham (formerly Senior Law Lord and before that Lord Chief Justice). Having listed the fundamental rights of the European Convention Lord Bingham asked—“Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, unnecessary?”.
But as I will try to explain here, human rights enthusiasts are berating sceptics about a position that most sceptics do not, in fact, hold. Few sceptics deny that “inhuman and degrading treatment” is deplorable, that privacy and freedom of expression are good things, etc. The sceptic’s doubt (usually) is whether such values should be elevated above the reach of politics into the exclusive preserve of judges and lawyers, protected by “higher-order law”. Most sceptics’ position is that human rights are very good (indeed, self-evidently good) things. But—BUT—these rights compete with each other and with other important public interests, and their precise meaning in particular situations can (at the margins) be controversial. Their implementation is therefore best left to the political process.
Human rights enthusiasts have not given the most charitable reading of the sceptical position. But that is how political debate works. The sceptics have permitted their position to be misunderstood. I suggest here a more plausible scepticism about human rights laws. Each set of protagonists should try to avoid distortion or caricature of the other side’s views.
Free Speech: An Incontrovertible Good?
Surely few in our polity would wish to deny the value of free speech (although even fewer would accord it absolute inviolability). Yet it could appear that human rights sceptics are compelled to deny it. If someone campaigns for repeal of the Human Rights Act 1998 (and renunciation of the ECHR), one avenue through which freedom of speech is legally protected (Article 10, ECHR), must not the sceptic’s rallying cry be “Down with freedom of speech!” (and down with many other freedoms besides)?
The typical sceptic’s position is actually more nuanced. But it is capable of being misunderstood—and certainly it often is misunderstood (perhaps, some would say, deliberately mischaracterised) as the authoritarian stance suggested in the previous paragraph. Yet most rights-sceptics are not authoritarians who advocate no limits on state power. Sceptics are more likely to dismiss human rights as a dollop of “Motherhood and Apple Pie” than to campaign for press censorship. Such derisive rhetoric contributes, no doubt, to the rancour of the debate. But it is important to see what such a sceptical snort means. It is surely not that Motherhood and Apple Pie are in themselves BAD things. Who would, or could, campaign against them? And that, of course, is the nub of the sceptic’s derision. In her view, the words are nothing but soothing platitudes, a clichéd summary of the good life. In reality, says the sceptic, debates about how we should live are too complicated to be encapsulated (and indeed decided—put beyond debate) by such a slogan.
For Apple Pie read Freedom of Speech. The sceptic accepts that the latter is an important feature of a free society (perhaps she needs to make it clearer—so that her position cannot be mischaracterised as authoritarian). But, the sceptic says, this does not take us very far in resolving controversies. It is simply too general. To give some obvious examples from the English courts’ post-HRA engagements with Article 10: is it “self-evident” whether a political party dedicated to campaigning against abortion should be allowed to screen a televised electoral broadcast depicting aborted foetuses? (What of the rights of the horrified, unsuspecting viewers?) Is it “self-evident” whether animal rights campaigners should be permitted to campaign by using paid-for television advertising, given the ban on commercial political broadcasts? (What of the fear that the political playing-field would otherwise be tilted further in the direction of wealth?) Does anybody seriously think that these questions have an OBVIOUS answer? If not, where does this leave the claim by Ronald Dworkin (and many since) that “rights are trumps”—a winning card every time? (The problem with human rights adjudication, as Lord Hoffmann put it, is not the conflict between good and evil but the conflict between good and good—“There is no right answer to [such a] question; any choice involves some degree of sacrifice.”) Professor J.A.G. Griffith exclaimed in 1979 that Article 10 of the ECHR (freedom of expression) is the statement of a political problem purporting to be the resolution of it.
Solemnly declaring a desirable thing at a very high level of generality is a useful exercise for certain purposes. It is a good way to reach agreement on a polity-constituting document (i.e. a Bill of Rights), or an international treaty. And it can be a positive thing to bridge national (or intra-national) differences. The flight to abstraction facilitates such compromise. But though everyone who signs the Constitution or Treaty goes away suffused with the glow of concord, disputes about what its gnomic words actually mean will arise just as soon as it is required to adjudicate between competing interests in real-life situations. (The sceptic, like the bad fairy at the christening, tiresomely insists on pointing this out—that the constitution-makers’ agreement is more apparent than real; that a Bill of Rights papers over fundamental disagreements rather than actually resolving them.)
What is to be done?
Those who debate human rights need to be careful what it is they are debating. It is possible to debate whether human rights exist at all, at a metaphysical level. But many who are sceptical about human rights laws would cheerfully accept that freedom of speech is valuable (let alone that torture is a heinous thing). If sceptics do accept this, perhaps they need to say so more clearly. If they do make this clear, then human rights enthusiasts should stop trying to dismiss all criticism of human rights law as specious bile from authoritarians who deny the value of free speech (or who think that torturing people is perfectly all right). Most sceptics do not hold such unappealing views.
The most urgent question of the human rights debate (it seems to me) is whether, having accepted that freedom of speech (and all the other rights listed in the ECHR) are of course highly important interests, their implementation in concrete settings should be a matter for the judiciary or for the political process. Powerful cases can be made for either approach. But the debate would be more orderly and illuminating if protagonists were slower to claim that their positions are self-evidently correct and their opponents’ arguments self-evidently wrong.
Jonathan Morgan
Corpus Christi College
University of Cambridge