Have human rights hijacked the language of morals? – and other questions: Laws

27 November 2012 by Rosalind English

Lord Justice Laws’ Inaugural Lecture at Northumbria University, 1 November 2012 – read here 

This is a fascinating and provocative lecture raising important questions about the extent to which the culture of human rights has become the currency of our moral dealings with each other and the State.

Adam commented briefly on Laws’ speech here but since it deserves a post of its own I will try to capture its essence and highlight some of its main features here without I hope too many spoilers.

Laws suggests, as Adam mentioned, that rights should properly be the duty of the State to deliver as an aspect of the public interest, not its enemy. The problem is that we have exalted rights beyond their status of public goods (along with health care, defence, education and so on) into primary moral values served to us not by the government but by the courts. Consequently these two institutions are seen to be serving opposite interests. The entrenchment of rights in morality in Laws’ view carries great danger.

It is that rights, a necessary legal construct, come also to be seen as a necessary moral construct. Applied to the morality of individuals, this is a bad mistake.

The constitutional danger is that it makes us more likely to vote for sectarian government, which will nurture or encourage the vices of division and extremism. The philosophical problem is that when I state I have a moral right, it is not a statement that implies any virtue on my part. There is nothing virtuous in making a claim to an entitlement.

Systematically, it is a claim about how someone else ought to behave – or refrain from behaving…..Thus the assertion of a right is systematically self-centred.

In consequence, every time a right is claimed, the supposedly moral element is contained in the other person’s duty. We are fooling ourselves with the popular misconception that responsibilities are the flip side of rights. They are quite the opposite. The performance of a responsibility, or duty, is virtuous, whereas, as Laws says, a claim of right is only an insistence that someone else behave virtuously.

We can see, then, that while rights are a necessary legal construct, duties are a necessary moral construct….The claim of a right as a moral construct treats  morality as nothing more than the distribution of supposedly just deserts: it is giving Shylock his pound of flesh.

– and the reason why this tends towards extremism is that Shylock would not have been content with half a pound.

The reason why the moralisation of rights has led to such controversy, diversion and bitterness is that altruism cannot be institutionalised in this way – see my post on this topic. Our instinct to act against our own selfish interests by cooperating with others is hard wired and has evolved over millennia, but it has nothing to do with what Laws calls “the idea of goodness as a rule-book of rights”:

Competing, strident, claims of entitlement are a poor substitute for a shared perception of goodness.

Has this increasing supremacy of the culture of rights fuelled the tendency of judges to take on themselves “the responsibility of primary decision making, so as to distort the separation of powers and usurp the function of the elected arms of government?” In Laws’ view, it has. Without making any comment on individual cases, he explores the way the test of proportionality has been allowed to effect a dramatic transfer of the power of decision to the judges. And this is not only an unnecessary, but a misconceived view of the proportionality doctrine. The first two requirements of proportionality are these:

• is the legislative objective sufficiently important to justify limiting a fundamental right
• are the measures designed to meet this legislative objective

Both these questions apply a rationality test, just as the old (and somewhat derided) Wednesbury test for reasonableness of state behaviour. It is only the third requirement of the proportionality test that arguably moves the courts over into a merits review: “the means used to impair the right or freedom are no more than is necessary to accomplish the objective”

It is here, if anywhere, that the courts seem to be invited to judge the merits of the decision under review; and it is here that the division between judicial and government power becomes, or looks like becoming, blurred and unprincipled, under the pressure of rights which ‘tend to declare themselves to their logical extreme’

But this can be avoided, or mitigated, if the primary (ie elected) decision maker, Parliament, is accorded the appropriate room for manoeuvre, or in Strasbourg terms, “margin of appreciation”. And – now we come to perhaps a more contentious point in Laws’ argument – if the right in question is a “lesser” right, less vital to a free society than access to courts or freedom of expression – then that margin of appreciation or discretion accorded to the decision maker should be even wider. Such a lesser right is the claim by an alien to remain in this country by force of Article 8. And conversely,

The more integral the right to the sinews of our free constitution, the narrower will be the margin of discretion to interfere with it. All this fits exactly with a perception of rights seen as the duty of government; and that is the very means be which the language of rights is to be divorced from the language of morals.

In other cases, it will be for the elected powers to have the greater voice in deciding what priority should be given to this or that government duty.

Will Laws’ call for the “dethronement” of rights be heeded? It is not as entertaining as the full-on collision between the Strasbourg sceptics and the civil libertarians, but it provides a workable solution to the fallout caused by the most controversial judgments in the past few years. Don’t kick rights out, he is saying, just give them their proper place as duties of government.

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