I am very grateful to these five distinguished authors (Professor Finnis, Baroness O’Neill, Lord Phillips, Professor Tasioulas and Professor Verdirame) for taking the time and trouble to comment on my work. Without writing at even greater length, I cannot deal with all the interesting points they raise. This response is confined to two areas: the basic theory of human rights, and my practical suggestions about leaving the Convention and instituting a new, domestic human rights regime. I shall deal with the practicalities first, as the issues there are simpler, and that part of my response is much shorter. The theoretical issues are more complicated, so I put them second. I fully understand that some readers may not want to stay the course where that part is concerned.
My first proposal is that the UK should withdraw from the European Convention on Human Rights (ECHR). I do not make this suggestion lightly; it arises because, as I show in the book, several of the basic methods and principles used in the decision-making at the European Court of Human Rights (ECtHR) are so inconsistently applied, or intrinsically incoherent, that they fail to meet the basic rule-of-law requirements of knowability and predictability. I then propose that we should do two things. The first is to set up our own Bill or Charter of Human Rights; this would be quite similar in contents to the ECHR, but differently defined (in terms of prohibitions on the exercise of state power) and better specified, in accordance with the argument of my book about what human rights really are. And the second would be to promulgate a Code of Protected Rights, listing existing rights in UK law. This would act as a useful online reference work for citizens, while also reassuring them that things do not need to be classified as special ‘human rights’ in order to be taken very seriously and protected by law.
On leaving the ECHR: Lord Phillips expresses concern about the effect on other countries. I can see possible negative effects there, of course; but, as he notes, my view is that the duty of a Prime Minister, Home Secretary etc. of this country is to give priority to the fundamental interests of this country. Russia will go take its own course as and when it wants to (indeed, the first serious clash between Russia and the ECtHR took place in 2010, and had nothing to do with the UK’s policies or actions), and its decision will not be determined by anything the UK does.
Professor Verdirame is also against leaving the Convention; he writes that the ECtHR ‘has shown an ability to learn from its mistakes and to improve’, and that change can come about through ‘processes led by State parties (Brighton first and now Copenhagen)’. I am less sanguine. The problems I analyse, where the basic methods of the Court’s jurisprudence are concerned, are deep and systematic, so I cannot see how the Court could resolve them without absolutely fundamental change. And the experience of State-led change at Brighton was not encouraging: when the UK Government modestly proposed putting a reference to the ‘margin of appreciation’ (itself a doctrine developed by the Court and constantly cited by it) into a Protocol so that it would govern the actual text of the ECHR, the then President of the Court strongly – and successfully – resisted the move, on the grounds that it would be wrong for States to try to direct the general nature of the Court’s proceedings in any way. (Lest we forget, these are the States that devised and agreed the text of the ECHR, set up the Court, and gave it all its powers.)
On promulgating a UK Bill or Charter of Human Rights: Professor Finnis thinks this is unnecessary, and I can see that on his assumptions it is. His view, as I understand it, is that since ordinary law, promulgated and administered in ordinary ways, deals with all kind of morally important matters, it follows that human rights issues can just as well be dealt with by it, as there is nothing so distinctive about them as to require special treatment. That is a consistent and satisfyingly streamlined approach to take; but it is not my approach, since I do believe (as I explain in the book) that human rights are in a special category.
On issuing a Code of Protected Rights: here I think Finnis may possibly have misunderstood me. He refers to ‘the experiment of stating our law in terms of rights’; but I was not suggesting any kind of new statement at all, and certainly not advocating ‘codification’ in the Continental sense. (Apologies if my word ‘Code’ was ill-chosen; I was merely looking for rough synonyms, having used up ‘Bill’ and ‘Charter’.) All I had in mind was a searchable reference work which would copy-and-paste the relevant bits of existing UK law, in their existing wordings, into a sort of encyclopaedia arranged by subject-area: rights of children, rights of prisoners, rights of employees, rights of employers, etc., through every walk of life and every situation. Rights and duties would in very many cases be clearly correlated, in a way that I hope would allay some of Finnis’s fears: for example, where UK employment law says that an employer who wishes to sack an employee must first take steps A, B and C, that would appear in the ‘rights of employees’ section, in the exact wording in which it is given in the relevant law, as it constitutes a statement of the right of an employee not to be sacked unless the employer has taken steps A, B and C.
But anyway, my suggestion about issuing such a Code is merely supplementary; it is not a make-or-break part of my overall argument. I just think it would be useful, for two reasons. First, as a general service to UK citizens, who are entitled to have some reasonably user-friendly way of finding out what ordinary legal rights they possess; and secondly, as a psychologically useful accompaniment to the larger change of withdrawing from the ECHR and bringing in a domestic Bill or Charter of Human Rights. If that change does happen, it will be good to remind the public that there is a whole world of rights beyond the special field of HRs (some of which will of course be reconfigured in some ways, as we move away from the over-expansive ECtHR jurisprudence), and that they are surrounded, all the time, by a panoply of important legal rights in almost everything that they do.
Now for the second part of my response. I am concerned here mostly with the comments of Professor Tasioulas, which raise some interesting points, but are ultimately based either on misunderstandings of my theory, or on a more basic insistence that human rights must be what his own theory assumes them to be. In order to introduce the reader (who may not yet have read the book) to the key issues, I need to summarise briefly some aspects of my theory.
Perhaps the easiest entry-point for readers is this. We generally invoke human rights in a particular context – not in any situation that may arise where important moral rules are being broken, but in a special type of situation. That type of situation involves the use of state power. If a thief steals my car, I do not say that my human rights have been violated. But if government agents seize it, without good cause and without compensation, I do, as that is a violation of my right to the peaceful enjoyment of my possessions (a right enshrined in the First Protocol to the ECHR). The basic list of human rights is all concerned with the uses and abuses of state power: it says in effect that the state should not torture people, detain them without charge, prevent fair trials, suppress free association or freedom of expression, take their property without good reason, stop them from being educated, and so on. The whole body of human rights is thus essentially concerned with relations between people and the state; the main point is to set some absolute limits on state power, specifying the things which it should not do. But also, some modern lists of human rights do include things which the state positively should do: for example, providing at least a minimum level of welfare or healthcare. (Such rights are not so prominent in the ECHR, but they feature in the UN’s two International Covenants, especially the one on Economic, Social and Cultural Rights.)
Anyone who tries to produce a theory of what we generally refer to as human rights – I mean, of what they are, and how they are derived – has to start with the listings of them that are generally agreed. That does not mean that the results of the theory must map so precisely onto the existing list that nothing at all would be added or subtracted; once the rationale of the theory is well established, it may have some revisionary effects, at the margins, discarding some rights and/or adding others. But the first task is to match, overall at least, the nature of the rights we currently call human rights.
My own theory does this. It takes the obvious fact that human rights are essentially concerned with how people are treated by state power, and says that the list of human rights is a list of the essential conditions for that power being legitimate. It is not a list of things that are just desirable as matters of policy; breaches of human rights are things which, if the state does them on a significant scale (arbitrary detention, torture, failure to provide the most basic welfare), deprive the state of legitimacy where its own citizens are concerned. This is a ‘political’ theory of human rights, as it says they are a feature of the relationship between rulers and ruled. (But, incidentally, it is also quite different from the so-called ‘political’ theories of both Rawls and Dworkin, as I explain in the book.)
The dominant type of theorising about human rights hitherto has been not political but what I call moral-philosophical – that is, located in the realm of moral philosophy. Such theories (that of Professor Tasioulas being one very eminent example) look at the nature of humanity and try to deduce a set of essential and powerful moral norms – in which powerful rights are correlated with powerful duties – from it. Tasioulas, for example, argues that there is a range of basic human interests which each of us possesses, and that insofar as these are derived from our humanity as such, and not from more particular aspects of our situation, above a certain level they generate (that is, ‘justify the imposition of’) powerful duties – subject to feasibility – on other people. Thus: my interest in my physical integrity, or in not feeling great pain, insofar as it derives from my being a human being, generates a duty on others not to torture me, and since it is feasible to hold them to such a duty, that means that I have a human right that they refrain from torturing me.
In the book I sketch (and I use that word advisedly – as I emphasise in the Preface, this is not an academic monograph, so I have to deal with various theoretical issues in a quite summary way) some of the problems with the moral-philosophical approach. How do we know which interests are ‘basic’? (Professor Tasioulas’s own listing of them ends with the word ‘etc.’) If they satisfy the other criteria set by the theorist – assuming those to be non-problematic, which is itself questionable – how do we know how high up the scale of importance they need to be in order to generate these special rights? Such questions all need to be answered satisfactorily at the theoretical level, as this type of theory is aiming to set out an objective justification for saying that some things are human rights and others are not. But I have not seen satisfactory answers to them. (On p. 107 I quote Tasioulas’s own statement that ‘it is doubtful … that there is a great deal that can be helpfully said, at the abstract level … about the threshold at which universal interests give rise to duties to deliver the objects of putative rights.’)
There are some more general problems too. One which I highlight is that this sort of theory means that we hold our human rights vis-à-vis all other human beings – they are, in effect, just particularly strong moral rights, a special set within the larger field of all our moral rights, which correlate with the moral duties of all other individuals. So how does this kind of theory explain that human rights are actually invoked, in almost every case, against the state; that some of the most important ones (such as the right to a fair trial, or the right to a basic healthcare system) are concerned with things that only state power provides; and that at least one important right, the right of a people to self-determination (declared in both the UN Covenants), can hardly even be expressed in terms of individual moral rights and duties? The answer, I think, is ‘with difficulty, or not at all’.
There are other general problems which I did not have space to discuss. Although Tasioulas’s theory presents human rights just as a sub-set within the larger field of moral rights (and their correlative moral duties), it is not clear what its relationship is to other theories of morality. Its key assumption seems to be that there is a basic moral principle which says: ‘in a situation where another person’s important humanity-derived interests are somehow at stake, you have a duty (or: ‘it will be right to impose on you a duty’) to respect / protect / further those interests.’ But from what kind of moral theory is this principle derived? Is it a special application of a more general principle about how all interests generate duties? Or is this generating of duties by a peculiar sort of interests just something that we must accept as an axiom, without further reasoning? There are various familiar theories of morality already available – Kantianism, rule-utilitarianism, virtue ethics, and others – which have their own differing ways of explaining how, why and when we have duties to respect other people’s interests. The prescriptions that flow from these theories will overlap substantially, but at the margins there will be significant differences. Are we now meant to add Tasioulasianism to the list as a rival theory? Is it an exclusive competitor with them, such that we will understand human rights only if we reject all other moral theories and adopt the Tasioulasian one? (But in that case, its competitive edge is not apparent, given that it says so little about the grounds on which its basic principle rests.) Or is it compatible with one of the existing theories, and, if so, which? Or with more than one? (But in that case, how does it work when they differ?)
My own theory is not encumbered by any of these problems. My view, as I explain in the book, is that the legitimacy of a democratic state rests on the acceptance of it by the people – it is legitimate because they are satisfied that it is doing the essential things that they want a state to do. They want it to perform some essential positive tasks, and they also regard its legitimacy as depending on its not maltreating them in certain ways – arresting and detaining them without charge, torturing them, ordering judges to find defendants guilty, suppressing basic freedoms of expression and association, and so on. A state which maltreats the citizens in those ways may retain its power, but it will lack genuine authority; as the citizens will view it as illegitimate, they will not feel any genuine obligation to obey it.
I want to emphasise two separate points here. The first is that my theory relates to modern democracies, and also to what I call ‘would-be democracies’ – states where the people wish to live under democratic rule, even if that is not what they currently get. The list of human rights is the programme of essential political claims on state power made by the people in such a situation. There is little point in trying to apply such a programme to those societies – the majority in human history, as it happens – that accept state power on a very different basis. Let us assume, for example, that a hundred years ago the people of Tibet were pious Buddhists happily accepting theocratic (or at least hierocratic) rule. In that case, they did not regard the validity of that rule as dependent on its complying with any such programme of claims by them; so such a category of fundamental political claims cannot meaningfully be applied to their situation. Of course it remains true that a malign Dalai Lama who inflicted torture on a Tibetan person was committing a great wrong; but we can describe that as a wrong using our ordinary moral judgement (whatever our particular version of moral theory may be), without reaching for this special category of essentially political rights.
Which brings me to my second point. My theory is ‘non-foundational’ where the values are concerned. It is sufficient to know that in a modern democratic (or would-be democratic) society people do value certain things so deeply – non-torture, fair trials, freedom of expression, etc. – that those things constitute fundamental conditions for the exercise of legitimate state power. They will of course have good reasons for valuing those things, reasons derived from their most strongly held moral principles. But my theory does not have to delve into those principles; still less does it have to settle on one moral theory and demonstrate, from the ground up, that the legitimacy of the state depends on its satisfying requirements generated by that theory. No; the state is legitimate because the people believe it to be legitimate, and my theory simply accepts that as a given. (As I point out, this also means that my theory can happily coexist with the value-pluralism of modern societies. That is one of its several advantages.)
In the book I tried hard to emphasise this point. On p. 118, for example, I wrote:
‘A sceptical reader, or a committed moral-philosophical theorist of human rights, may by now be asking: but how does this theory explain the value of these important minimal things? If things such as justice, non-torture, freedom of expression and a basic level of welfare are so good that the failure to provide them undermines the legitimacy of government, surely the theory must say why they matter so much? And when it tries to do so, will it not find itself in the same position as all the moral-philosophical accounts of human rights, trying to set out the fundamental principle or principles from which the values of these important things can be demonstrated?
‘The answer, quite simply, is no: this approach to human rights does not need to explain why each of these important goods is in fact good. It is sufficient to know that they are held as special goods in a political context – that is, that they are valued so strongly by the culture and society in question that a regime which removes them undermines its own legitimacy. We do not need human rights theory to deduce, from first principles, that murder is wrong. We knew that already.’
However much I try to emphasise this, however, theorists from the moral-philosophical side find it hard to grasp. Tasioulas in particular seems to be bewildered by it; to him, it is apparently such a bizarre notion that it justifies a humorous comparison to Tinkerbell, the fairy who thought ‘that merely believing in something strongly enough can make it so’. Political theorists, on the other hand, would not be puzzled by my argument at all. (I am not saying that they would all agree with it; but they would not consign it dismissively to the world of Peter Pan.) It belongs generically to a whole family of theories of consent-based rule in which it is the fact of consent that is the primary and essential thing, not the reasons for which the consent is granted, significant though of course those are. Yet the moral philosophers boggle at it, being somehow convinced that the only real task must be to isolate and justify the moral criteria on which consent is granted. In another exchange with Professor Tasioulas, after I had repeated this point, he replied that I needed to distinguish between de facto legitimacy and de jure legitimacy. Since the whole point of my theory is that the two are fused here, at a fundamental level, into one, this was equivalent to saying that he still felt unable, or unwilling, to entertain the real implications of my theory.
This attitude underlies, I think, some of the objections made by Tasioulas in his comments. Where I have criticised moral-philosophical theories of human rights for containing serious indeterminacies and grey areas (questionable selections of ‘basic’ interests as opposed to non-basic ones, uncertain thresholds of importance, and so on), he says that my own theory contains indeterminacies of the same kind. I do not think he has grasped how fundamentally different the two kinds of theory are. His type of theory is trying to demonstrate, from first principles, what all human rights objectively are, for all societies. (I leave aside here the qualifications introduced by questions of feasibility, which are a secondary issue; I shall comment briefly on the question of the universality and timelessness of these rights below.) If there are uncertainties built into the demonstration, then they will vitiate the certainty of at least some of the rights derived from it. And, equally, there will be many things which quite possibly might be human rights, even if we do not think they are, since the indeterminacies in the construction of the theory leave open that possibility. In other words, a Tasioulas-style theory makes it possible that, however carefully we conduct our analysis, we may be simply mistaken about some human rights, believing some things to be human rights when they are not, and thinking that some are not when they are. My theory, being non-foundational, does not suffer from such a problem; it neither tries nor needs to perform such a demonstration from, so to speak, the ground up, nor can it ever lead to this kind of radical uncertainty. While it insists, on principle, that every democracy will involve some set of fundamental claims that can be described as human rights, it does not depend on such theoretical deductions to find out what they are in any particular society.
So, for example: when I mention the alleged duty on governments, described as a human rights obligation by Strasbourg, to take positive measures to facilitate the ethnic identity of gypsies, and I say that this is not a genuine human right (but please note that I leave entirely open the question of whether it is a morally desirable policy), Tasioulas asks ‘How can he be so sure?’, suggesting that failing to promote gypsy identity might be the sort of oppression that my human rights are meant to stop. The answer is that I can be very sure indeed. I am sure, as a citizen who has lived all my life in this country and followed public debate on many topics, that a failure by the government to take active measures to facilitate ethnic identities would not put in jeopardy the basic legitimacy of governmental power. I am sure that serious and responsible people in this country, if tasked with drawing up a set of minimal conditions for the legitimacy of the exercise of state power (conditions, that is, which they would view as expressing the basic assumptions that exist in our society), would frame the concept of ‘oppression’ much more narrowly than that. I am as sure about these things as I am about almost anything in the political world I inhabit.
However, a Tasioulas-style theory may have real difficulty in deciding whether this right to the facilitating of one’s ethnic identity is a human right or not. Is expressing one’s ethnic identity a ‘basic’ interest? Some Tasioulasian theorists might think so, and the theory itself gives no very clear criterion for distinguishing the basic interests from the non-basic ones. Is it an interest one has by virtue of one’s humanity? Some theorists might think so, placing the concept of ethnic identity in a more general ‘identity’ category – identity of some kind being inseparable from leading a human life. Is it an interest of sufficient importance to generate a duty on others? Some theorists might think so, and it would be hard to prove them wrong, given the indeterminacy of the ‘sufficient importance’ threshold. But other theorists, starting from the same primary principles, might still disagree. The sort of problem faced here by a Tasioulas-type theory is a serious one, because the underlying nature of the theory itself implies that there must be an objectively correct answer to the question ‘is this a human right or not?’, while at the same time the (perhaps irresoluble) indeterminacies in the actual construction of the theory mean that in many cases it will be impossible to know whether we have arrived at the right answer or the wrong one.
I am not suggesting, of course, that operating my own theory in practice will be free of all borderline or ‘more or less’ issues; that would be to aspire to a kind of scientific precision of which human affairs are generally incapable. But I do think that the problems will be much less serious, as the ambition of my theory is much less (it aims only at giving a properly ‘minimalist’ list of those essential duties of the state on which there is general agreement), and its application is not dependent on the sort of moral-philosophical deduction into which large indeterminacies can enter, to such detrimental effect.
While on this point, I should also comment briefly on Tasioulas’s observation that my assumption of broad agreement is culpably ‘complacent’ because, for example, ‘people can disagree on what counts as torture’. In borderline cases, judges will of course have to decide whether something is or is not the kind of thing that the prohibition of torture prohibits. That is a feature of all judicial deliberation. In any legal system, including a system of human rights law, there will certainly be questions of this kind which will involve judgment, discrimination and discretion by judges when it comes to applying the law. But I do think that a set of human rights formulated on the basis of my theory, and also applied on that basis, would operate in a much better-focused way, giving much less scope for the judicial expansion of those rights.
Some of Tasioulas’s comments on this aspect of my theory involve, I feel, an element of caricature. On the question of knowing what the human rights will be in a given society, he writes: ‘since there is nothing on which all citizens agree, we need to know how many must have the “feeling” or “belief” in question, and perhaps for how long. And we also need to know how to quantify the intensity of their feelings and beliefs…’ He writes this even though, a few paragraphs later, he quotes me as explicitly saying that I am not talking about matters of ‘popular opinion as measured by opinion polls’. Nor, as I hope is evident to any reader of my book, am I suggesting that human rights be changed this way and that in accordance with shifting votes in Parliament – that is equally far from what I am arguing for. Yet later in his text Tasioulas writes: ‘my concern is with his conception of democracy, and the way he relates it to our understanding of the human rights that should be made into laws. Democracy is not fundamentally about channelling the disparate subjective beliefs and feelings of the citizenry’. This is doubly inappropriate as a criticism of what I have written, first because I have nowhere suggested that declaring human rights should just be a matter of day-to-day parliamentary law-making, and secondly because I have emphasised repeatedly in the book that democracy involves more than just channelling subjective feelings. (For example: democratic debates are ‘about fundamental values – not mere preferences’ (p. 21); ‘reasons are given, and values are applied’ (p. 39).)
Readers of Tasioulas’s comments need to distinguish two issues here: the first is theoretical, the second is practical. (1) Does my theory correctly characterise the nature of human rights? (The reasons why I think it does are set out in my book, and they go significantly beyond the ones I have room for in this response.) (2) If it is correct, what is the best practical way of drawing up a reliable list of these human rights for a given society? Tasioulas seems fixated on the practical question, as if he thinks that raising problems about it will weaken the claim of the theory itself to be valid. But these are two separate issues. (Where the moral-philosophical theories of human rights are concerned, on the other hand, the two questions may be much harder to separate, for the reasons I have given above.)
Where my own theory is concerned, if it were simply impossible to give any answer to (2), that might mean that the theory was at best true but useless. But it is obviously not impossible. We have all seen processes in modern democratic societies whereby documents stating fundamental values (constitutions, bills of rights etc) are drafted by experts, discussed in civil society, debated in legislatures or other special assemblies, and eventually agreed, for the very long term, on a basis of deep consensus. I would say that the drafting and agreeing of the ECHR was quite a good approximation at an answer to (2); but unfortunately it was done without any clear idea of what human rights actually are. Although, as I quote in my book, various participants in the process did describe the purpose of setting up a human rights regime in terms that fit my theory very closely indeed (the need to guard against totalitarianism and to protect democracy – these were important statements, illuminating the essentially political nature of the whole HRs project), the process was supported by very little fundamental theorising at the time. Generally, the theorising came later, in the academic world, and was conducted on moral-philosophical assumptions. As my analysis suggests, this has contributed to tendencies in the Court towards expansionist treatments of rights – for example, by reading intuitively into the text of the ECHR various moral principles (‘personal autonomy’, ‘the development of the personality’, etc.) which are not actually stated there, and on which much broader human rights claims can be based.
The basic listing given by the ECHR is overall a good one. It does command a broad consensus in our society; there is no need for us to conduct opinion polls to find out whether people are against torture or unfair trials, and it is also reasonable to think that people generally would regard such maltreatment by the government as undermining its legitimacy. But the way in which these essential rights are stated could be greatly improved by explicitly framing them as prohibitions on abuses of state power (plus some positive obligations on the state); and setting them on what I think is the correct theoretical basis would set strong and clear constraints on the whole damaging process of expansionism. For all the reasons given in the main part of my book, that would be a huge improvement.
Approaching the end of this response, I should like to make some comments on two other points: the role of democracy in my theory, and the universalist claim about human rights.
When I say that democracy itself imposes what I call a framework condition, namely, ‘the basic requirement that citizens be treated equally’, Tasioulas thinks he has found two fatal flaws in my argument. His first objection is that there are different concepts of equality, which might have different implications. But I was not talking about policy-making (where the differences might prove to be very consequential), only about the most basic framework condition for the understanding of rights. All that I meant here was that the desire to live in a democratic system implies a basic equality of rights among all the citizens: India could not frame its human rights in ways that excluded Dalits, for example. Note, by the way, that my accepting this equality-principle does not subvert my non-foundationalism; for I am not depending on this as a criterion that somehow stands outside my overall argument. My overall argument is that statements of human rights are statements of the fundamental claims that people have against state power in a democracy or would-be democracy. So if a situation arises in which it can be appropriate to talk about human rights, this basic framework condition will necessarily be one aspect of that situation, as such a situation can arise only in a democratic or would-be democratic context.
His second objection is that ‘when we specify the relevant notion of equality built into the framework conditions of democracy itself, we will very likely need to appeal to what look like human rights: rights to life, rights to democratic participation, rights to freedom of thought and speech, and so on. So, the proposed grounding of human rights in democracy begins to look, to some considerable degree, suspiciously circular.’ Here I am unable to follow his argument. I cannot see why it should be impossible to employ a formal condition of equality of basic rights without first filling in the actual contents of those rights. And in any case, my theory has already explained how and why the essential rights have the contents that they have; it does not need to go looking for them in this roundabout way.
Baroness O’Neill, on the other hand, seems to think that I am arguing that human rights are satisfied by the mere existence of democracy, even if it is unaccompanied by any order, rule of law, or maintenance of any elementary rights of the person. That is not my view, and indeed I find the situation she describes – if, in her opinion, it still satisfies the basic requirement of legitimacy – quite hard to envisage. I take it as fundamental to democracy that the people assume that state power is there for their benefit and is answerable to them, which also means that there are fundamental conditions governing its legitimacy as such. It is hard to imagine a democracy in which people would not have basic requirements of order and legality, plus a range of other essential requirements (not being tortured, not being arrested arbitrarily, not having one’s home arbitrarily invaded by agents of the state, etc.) that constitute the elementary rights of the person. Failure to meet those requirements would involve violations of human rights.
Both O’Neill and Tasioulas have a vision of human rights as statements of truths that, so to speak, objectively exist. Such a way of talking about them can of course have some very beneficial consequences. O’Neill is quite right to say that criticisms and exhortations framed in terms of human rights have been used to positive effect against various regimes. But that is a contingent fact of politics and psychology; it does not tell us anything about the real nature of human rights. In any case, in most of the modern examples I can think of, those regimes have been presiding over what I call would-be democratic societies. I would merely ask readers to perform the thought-experiment of going back in time to Tibet a hundred years ago and telling the Lamas – and what I am assuming, for the purposes of the argument, to have been their fully contented non-democratic subjects – that their system of rule violated the people’s human rights. Again I would also repeat that when any regime does maltreat its subjects, we are all entitled to make the strongest criticisms and exhortations, based on morality itself. My theory of human rights is not in any way a substitute for morality; it just operates on a different, political, level, and performs a more particular task.
Tasioulas complains that I am ‘curiously ready to throw … universalism overboard in the name of “cultural relativism”’. As he well knows, all modern theories of human rights struggle to introduce a degree of relativism into their accounts, to avoid the obvious absurdity of saying that our modern list of human rights must have applied equally to people in the Neolithic period. (On p. 104 I direct readers to a discussion of this by Tasioulas, where he advocates a ‘temporally relativised’ human rights theory, and adds that ‘When interpreting the human rights referred to by the contemporary human rights movement, the relevant historical period should normally be taken to be that of modernity.’) So while readers unfamiliar with the debate may have been shocked by the phrase ‘cultural relativism’, they can now breathe again; some element of this is actually a desideratum in almost any theory of human rights. As for my being ‘curiously’ ready to abandon universalism: this should not seem curious, as my whole argument is set up and expounded on a non-universalist basis. (It does assert some absolutely general truths about democracies and would-be democracies, but that is not the same as presenting a universalist account of the contents of the human rights themselves.)
As I clearly argue (on p. 120), these rights, although referred to as ‘human rights’, are really ‘fundamental political rights’. They are no less important for that. Yet somehow the word ‘human’ here exerts a peculiar force on people’s thinking. In casual conversations about this, some people have told me that my theory must obviously be wrong because the rights are ‘human’ by definition: ‘how can you deny that human rights belong to all human beings – look, the name itself tells you that!’ My answer has been that when we look at a complex human practice / institution / set of values, etc., there are two different ways of trying to work out what its real nature is. One is just to take the name it currently has, and look up the words in the dictionary; this may establish, to some people’s satisfaction, that ‘human rights’ must belong to all humans by virtue of their humanity. (It is hard to think of close analogies here, but imagine if one of the serious Leftist critiques of the ‘free market’ were to be answered with the response: ‘but don’t you see, it’s called “free”, so it must be an embodiment of freedom?’) The other method is to examine how the practice (etc.) works, what it is for, what people are really doing when they use it or invoke it, what its distinctive characteristics are and how it comes to have them, and so on. That is what I have done, and it has led me – for reasons which I present – to the view that what we call ‘human rights’ are in fact fundamental political rights. I do also give a very brief account of the earlier history of these ideas, noting their essentially political purpose, and I point out too that it was rhetorically important for the US and the UK, when the term was launched in its modern sense by their political leaders in the early 1940s, to give it – for vital political purposes at that time – a universalist appeal. That rhetorical strategy has worked very well – a little too well, indeed, if people now feel that there must be something unacceptably wrong with any theory that fails to do full homage to the ‘human’ part of the label.
To return to Tasioulas’s objection to my ‘cultural relativism’: an example may be helpful here. At the symposium on my book which he very kindly organised at King’s College, London, he offered what he seemed to regard as a compelling reductio ad absurdum. ‘If in the future people think that supplying high-speed internet connections is such an essential requirement to be made of state power that a state would cease to be legitimate if it failed to do so, does your theory seriously mean that that would become a human right?’ That may have sounded like a knock-down argument against my theory. However, if we had been having the same discussion in 1900, he could have said, in a similar reductio ad absurdum: ‘if in the future people think that supplying some kind of basic universal welfare system or healthcare is such an essential feature of state power that a state would cease to be legitimate if it failed to do so, does your theory seriously mean that that would become a human right?’ And I would have answered ‘yes’. Of course, if one imports a sufficient quantity of absurdity into the hypothesis of the scenario, it will remain absurd as a scenario: ‘if people think that supplying universal training in tiddlywinks…’, etc. Yet my view on the point of principle remains the same, and I do not think it is susceptible to disproof by this line of argument.
But what would Tasioulas’s own theory have to say about the right to healthcare in 1900? His ‘temporally relativised’ approach means that of course the basic interest was there (as it is, universally, for all human beings), and at the same level of importance; the apparent difference is merely that the UK state lacked the ability to supply such healthcare, so the right did not pass the feasibility test. But is that true? Late Victorian Britain was capable of organising all kinds of hugely ambitious projects, as well as running a worldwide empire. It would surely be more accurate, on Tasioulas’s theory, to say that the UK government in 1900 was engaged in a massive violation of human rights, by failing to respect this important HR – which, as a right, was there all the time. That is one possible way of looking at the past, but casts a certain air of unreality over at least some aspect of the theory from which it arises.
I conclude by replying to Tasioulas’s own conclusion, which goes as follows:
‘To summarise my objections: human rights are not merely products of a democratic consensus. This proposal is either circular, because it presupposes the existence of human rights in characterising democracy, or it is arbitrary, because nothing ensures that a consensus will genuinely track human rights standards.’
The phrase ‘merely products of a democratic consensus’ is not wrong, if properly understood; but it may lend itself to misunderstanding. I am not painting a picture in which democracy is just a mechanism we can use in order to choose those human rights that we would prefer to have. I am saying that in every democracy (or would-be democracy), the existence of human rights is a fundamental, structural principle of that democracy itself. Democracy implies not only that state power is there for the benefit of the people, but also that they have fundamental claims on how it is used. In my theory, you cannot have a democracy without human rights, and those human rights will be expressive of the most basic moral and political values of the citizens.
To the claim that my theory is circular ‘because it presupposes the existence of human rights in characterising democracy’, I have already given my answer above. And to the claim that it is ‘arbitrary, because nothing ensures that a consensus will genuinely track human rights standards’, I can respond only by saying that, as I have explained, those objective and genuine ‘human rights standards’ are features of Tasioulas’s theory, but not of mine. This criticism of my theory merely amounts to saying that it is not like Tasioulas’s theory (or those of the many other theorists who share his general approach). That is certainly a true observation, but it is not in itself a reason for thinking that my theory is wrong.
Lastly, one point which may be much less important, but which is, to me, both mystifying and troubling. Twice Tasioulas seems to suggest that I am motivated by some animus against ‘elitism’: ‘perhaps Malcolm will say that all these are elitist philosophical quibbles on my part’; ‘Malcolm is perfectly right to urge on us the need to reconnect the potentially elitist discourse of human rights with the popular politics of democracy.’ I have not used the word ‘elitist’ anywhere in the book, nor have I made any attempt whatsoever to portray philosophical theories of human rights, or ‘discourse’ about them, as ‘elitist’. Self-evidently, I myself have put forward a philosophical theory about them (albeit one located primarily in political philosophy rather than moral philosophy), and have discoursed about them at some length. So I am struggling to see how such a strange misunderstanding could have arisen.
Is it because, at some points in my discussion of the rulings of the ECtHR, I warn that the expansionist approach of that Court has a tendency to encroach on areas of decision-making that are better left to democratic legislatures? But that is not an argument against elitism, let alone against philosophy or discourse. Is it somehow suspected that by making that argument I was endorsing a populist criticism of judges as being unrepresentative of the people? Perhaps I have been over-sensitised here by the experience of having to listen to two of the speakers at Professor Tasioulas’s symposium, who were determined to caricature me (by means of some quite bizarre and gross misrepresentations of what I had written) as an evil populist demagogue who belonged in the pages of the Daily Mail; but anyway I should just like to clarify this point once again. My argument about the ECtHR here is based on two things, one particular and the other general. In particular, it is demonstrably true (I think I have demonstrated it, and am gratified that a jurist as eminent as Professor Finnis also thinks so) that the Court has expanded some human rights beyond the wording of the Convention and beyond any reasonable interpretation of that wording. And in general, it must also be true that some decision-making is best done by the courts and some by the democratic legislature; in any modern constitution we need to think constantly about this, and to preserve for the latter the things that belong properly to it. I wish judges to judge – with complete independence – in those areas that belong to them, and legislators to legislate in those that are properly theirs. (I emphasise this here only because one of the speakers at that symposium accused me, absurdly and rather offensively, of endorsing the populist phrase ‘unelected judges’ – one of several fantasy-accusations.) Judges constitute in their own way, I suppose, one sort of elite, and legislators another. I wish well to both of them – and to the elite of philosophers too, of which Professor Tasioulas is such a distinguished member.
Sir Noel Malcolm is Senior Research Fellow, All Soul’s College, Oxford