Human Rights and Political Wrongs gives us an unrivalled explanatory checklist of the ways in which the European Court of Human Rights (and so any court that takes its cue from the ECtHR) has expanded the power of judges to declare that laws adopted in a civilized, mature democracy violate a right or rights which – as one of the rights any human being morally has – those democracies committed themselves in or after 1950 to uphold and respect.

Each time such a declaration is made in the name of law, it should – and if credible it would – shock the citizens and other governing authorities of that democracy.  It would shame them into reforming (if not into overthrowing) the regime that has instituted that immoral abuse of power, that violation of the nation’s treaty undertaking. In fact, of course, such judicial declarations are widely and rightly regarded with irritation and cynicism. For in truth and reality – given the court’s unrelenting assumption of legislative and policy-making power – virtually every such declaration in fact represents a highly artificial, historically incredible way of formulating one side of a routine disagreement about social and political policy. Disagreements of this kind should be reserved to legislative and electoral discourse, debate and resolution, as they are in more mature and self-respecting democracies (such as Australia’s now, or the UK’s before 1998). The court’s declaration artificially frames its resolution of the disagreement – a resolution reached by majority voting in a legislative policy chamber of five, seven, nine or at most 21 persons – as an application of  law, indeed of the law which the whole polity committed itself to as essential to respecting the very dignity of any human person.

Yet these artificial declarations are often received with all too much respect by non-lawyer members of Parliament and Government, who act as if they had only a hazy idea of the difference between human rights litigation (in its leading decisions at least) and genuine interpretation and application of law. Sir Noel Malcolm’s book should help these politically responsible non-lawyer persons and the wider politically responsible electorate to see through the artificiality to the assumption of legislative and policy-making authority. In the case of the European Court of Human Rights this assumption of authority amounts to a usurpation, one which the acquiescence of many in these circles, and the complicity of others (for example in enacting the Human Rights Act 1998), have gone a long way, alas, to ratifying and legitimating.

The book’s checklist in chapter 4, “Rights Expansion”, disclaims any exhaustiveness but is, as I said, unrivalled in coverage and accompanying explanation:

  • expanding abstractions;
  • autonomising legal terms, so that a term used in the ECHR can take on an expansiveness more or less foreign to its usage in the legal systems of the member states;
  • annexing of neighbouring concepts, so that, for example, “ethnic identity” can be annexed to “private life” to create a human right (for some human beings but not most others) to e.g. station a caravan permanently on Green Belt land without planning permission; or “having repercussions on enjoyment of private life” can be annexed to “respect for private life”;
  • presupposing other rights, so that e.g. a right of access to courts deliberately excluded from the Convention can be read into it so as to create rights of convicted prisoners to correspond with solicitors with a view to suing prison guards for libel;
  • resort to underlying principles which, having been intuited by the interpreter, are then read into the Convention so as to change its meaning and expand its reach;
  • lowering of thresholds for judicially favoured categories of people such as asylum seekers, Afghan women, minors;
  • levering up the written prohibition on discrimination in the securing of the enjoyment of the other Convention rights;
  • developing positive obligations to supplement the Convention’s written negative obligations.

To all these one should add the book’s earlier analyses of the Convention’s inherent, structural ambiguities – affecting every aspect of its interpretation and application – (1) about whether its rights are (a) those stated in one of its articles’ first limb or only (b) those when taken with, and specified by, laws of a kind envisaged by the article’s second limb; and (2) the hopeless ambiguity of that second limb’s key phrase, “necessary in a democratic society”, and of (3) that phrase’s dazzling, infinitely malleable judicial substitute, “proportionality”.

I take more gloomy a view than Malcolm’s of the correctness or rather incorrectness and illegitimacy of the Court’s decisions. I do not think any of the Court’s many, many adverse judgments on the laws and settled policies of the United Kingdom have been correct as applications of the Convention; in a few cases I would have voted against the law or policy, and/or for its repeal or reform, but that is not relevant to the question whether the right held by the Court to have been violated was indeed a right to which the United Kingdom committed itself as a signatory of the Convention and which is protected by the Convention because any human being is morally entitled to it.

So I do not favour the book’s proposal that, having withdrawn from the Convention – as Malcolm rightly says we should, for the sake of the rule of law and democratic self-determination – we should replace it with a “Bill or Charter of Human Rights for the UK” (p. 139), one that would be justiciable in the courts. Whether the upshot of such litigation would be a mere “declaration of incompatibility” (p. 140-141) or a striking down of even enacted law by the Supreme Court (lower courts are not mentioned here on p. 141 but would presumably have the same power, as in the US), and however minimal the scope of the Charter in its restriction to ”specific prohibitions on the government and all its public officials” of forms of “oppression and tyranny”, I think the preferable solution would simply be to revert to the position taken by our constitution from earliest times until 1998, the position in which Parliament is trusted to legislate without oppression and tyranny, and the courts apply the laws enacted by Parliament interpreted with a presumption of favour for the established rights of citizens but in the last analysis in line with the enacted intention of Parliament – that is, with the public meaning of its enactments, taken together and in their legally relevant context.

Nor do I have much enthusiasm for the book’s proposal to supplement its minimalist but justiciable Charter of UK Rights with (p. 142) a Code of Protected Rights gathered from existing UK law.  The experiment of stating most of our law in terms of rights (“civil rights”) was made in the mid-eighteenth century by another Fellow of All Souls College Oxford, using a template drawn up in the mid-seventeenth; it was Chief Justice Sir Matthew Hale’s template and Professor Sir William Blackstone’s experiment, his masterly Commentary on the Laws of England.  But for all its brilliance, the template was and is artificial. Law is for the sake of justice, and justice always involves two sides, the side of the person duty-bound to act justly, and the side of the person with the right that the former so act. We all occupy both positions, bearers of rights and of duties, in countless kinds of context, as defined by civilized law adopted with an eye to the general principles (and the relatively few exceptionless moral requirements) of justice.

Unlike Sir Noel, I think that philosophically these principles or requirements go all the way down, and that a few of them scarcely need from law more than re-publication and enforcement: these are our human rights not to be raped, murdered, plundered, lied to, cuckolded, kidnapped, enslaved, and so forth. I of course agree with his historical-sociological observation that the term human rights as deployed in mid-twentieth century discourse – discourse we live with in the forms it has crystallized into in the human rights institutions and industry of today – is a term focused, to a considerable extent, on my right not to be treated in any of those ways by governments, and to be protected by governments against such treatment at anyone’s hands. I think, however, that the present specialized discourse of human rights has more historical continuity than his book acknowledges with the philosophical judgments that lawyers and educated people generally were for centuries willing to articulate, and act upon, in terms of rights: natural rights common to all persons and peoples, even in the second century of our era (when Gaius was teaching young Roman lawyers that neither state law nor communal convention can do away with natural rights: Digest 43. 18. 2; Institutes 65. 2); or the historic rights of citizens re-affirmed, for example, by the Lords and Commons in 1628 as “divers Rights and Liberties of the Subjects”.

John Finnis FBA, QC (Hon) is Professor Emeritus of Law & Legal Philosophy at the University of Oxford