The Reith Lectures: Human Rights v Democracy
4 June 2019
Or “Human Rights and Wrongs”, as Jonathan Sumption’s third lecture is called, in his series on Law’s Expanding Empire, delivered in Edinburgh and broadcast on Radio 4 and BBC World Service.
Human rights are where law and politics meet. It can be an unfriendly meeting…”
Following these strong words, Lord Sumption briskly debunks the ideas of “natural” or “inalienable” human rights, in favour since Blackstone’s time. In principle, there is nothing so fundamental about certain rights that they cannot be overturned by democratic election. The idea of these inalienable human rights was perfectly straightforward in a world where rights were part of God’s law, or in communist societies where these rights were ordained by the ruling party. But in a secular democracy, Sumption asks, what is it that makes rights legitimate? Of course there are rights without which a community cannot function, like the right to be free of force, and the right to participate in fair and regular elections. Any further rights should be conferred by collective choice, and not because because they are thought to be inherent in our humanity, or derived from some higher law. Instead of the mystics and the totalitarians, he invites us instead to consider the 18th century enlightenment philosopher David Hume.
He rejected the whole concept of natural law … You cannot derive moral principles from abstract reasoning or empirical observation. They derive their legitimacy from collective moral sentiment.
Rights [continues Sumption] do not exist in a vacuum, They are the creation of law, which is a product of social organisation, and which is therefore necessarily a product of political choice.
So these “fundamental rights” are no more than a product of our “inherent humanity” other than the agreement that some rights are so important that they should be above political debate. But this idea only works if these rights are truly fundamental and generally acceptable. Without a political arrangement which allows disagreeement about them, we have a totalitarian state.
The “living instrument” doctrine was developed by the Strasbourg Court to derive rights out of the Convention that are not obvious from the text. Article 8 of the Convention is the most egregious example of what Lord Sumption calls “mission creep”. It covers a “vast range of issues”, including
- Legal status of illegitimate children
- Immigration and deportation
- extradition
- criminal sentencing
- recording of crime
- abortion
- artificial insemination
- homosexuality and same sex unions
- Child abduction
- the policing of public demonstrations
- noise abatement
- eviction for non payment of rent
All of these things, and many others, have been held to be within the purview of the protection of private and family life.
“None of them” says Sumption, “is to be found in the language of the Convention, none of them is a natural implication from its terms, none of them has been agreed by the signatory states. They are all extensions of the texts, which rest of the sole authority fo the judges of the Strasbourg Court.”
This is, in reality, a form of non-consensual legislation.
The problem of all of this is to devalue the idea of universal human rights itself, since, Lord Sumption implies, it devolves into a turf war between the courts and the electorate’s representatives in parliament. Furthermore, the rights cultivated by the “living instrument” methodology of the Strasbourg Court, are contentious, and they are “very far from fundamental”
How, Sumption asks, do we distinguish a “fundamental human right” from something that is “merely a good idea”?
Does the decision to make these fundamental rights rest with judges? Issues between different groups of citizens, such as whether there should be a human right not to be evicted from council housing for non payment of rent, or whether that someone who hasn’t performed his side of the bargain has no such right, should not automatically be settled by judges rather than within the political process.
This is true Reith lecture material, grappling big ideas that we tend to take for granted, thought provoking but with too much scholarship and experience to be tendentious. Apologies for the partial transcription provided above; readers would do far better to go to the Reith Lecture site itself.
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” If these things were truly a matter for political choice, they would properly belong for decision at the level where political choice belongs – namely, that of the individual sovereign state.”
But each individual sovereign state is free to formulate higher standards.
As an example, Germany has declared the preservation of human dignity as the first consideration of all state power. While one can freely discuss whether that is actually adhered to, it gives a clear standard. It also establishes rules of precedence where different rights formulated in the ECHR or the Universal Declaration of Human Rights collide – as they invariably will when looking at a population level. Each right, taken to the extreme, will eventually clash with another right of someone else. Individual sovereign states are free to establish principles of precedence as to what happens in such cases of conflict and which right is given priority.
Brilliant ai is Lord Sumption’s intellect – beyond any doubt – there is something chilling about the proposition: “. . . there is nothing so fundamental about certain rights that they cannot be overturned by democratic election.” That was the justification for the French Revolution and for mob rule before and since. History shows that mob rule collapses into tyranny.
That conscience – Natural Law – cannot be defined does not mean that the attempt should not be made, whether by religion or philosophy, .With every respect to his Lordship, whom I admire, on this subject I prefer Aristotle and his successors.
‘Too much scholarship and experience to be tendentious’? Even in the summary, there is at least one tendentious proposition – that we live ‘in a secular democracy’. In setting up this theory against the concept of fundamental human rights, Sumption must be suggesting that secularism and democracy are themselves fundamental to this kingdom’s constitution: and I doubt I am alone in questioning either.
One cannot merely look at the population at any particular time, or what at it (or a majority) may currently think, and derive constitutional conclusions from that. Otherwise a good few murderers would have been hanged after 1965 because that was what the majority wanted to happen. No amount of survey results and statistics, and certainly no judicial opinions of recent centuries, can alter the religious character of a nation worked out through its history over many centuries (not decades) and enshrined in some of its most momentous documents, particularly the Acts of 1688 and arguably also parliamentary statements of the common law found in preambles to the legislation of the 1530s . And as for democracy, yes, lawmaking requires the consent of the Commons and (by convention – though some recent pronouncements by academics have blurred most unhelpfully the vital distinction between law and convention) executive government also requires the Commons’ broad support. But we live, thank God, in a country where the Commons’ will is tempered by the good sense of the Lords. We are not wholly delivered into the hands of the mob and the media. So one has to ask what Sumption means by democracy before accepting his casual generalisation.
Sumption’s concept of what is fundamental is just as vulnerable as the beliefs which he denies. He claims that a community cannot function without ‘the right to participate in fair and regular elections’. But our community functioned for many generations without that right being universal. Many extensions and reforms of the franchise made good sense; one may question whether all of them did.
Having said that, I confess to a wide measure of agreement with Sumption’s strictures on Article 8 and indeed on the entire ‘living instrument’ approach of the Strasbourg judges. But I suggest that if one looks back to the postwar context of the ECHR’s adoption, and the atrocities inflicted on private and family life by Lenin, Stalin and the Axis powers, one can gain a much better idea of what the Convention was introduced to protect, precisely because it was what the signatory powers jointly recognised as inherent in our common humanity. If these things were truly a matter for political choice, they would properly belong for decision at the level where political choice belongs – namely, that of the individual sovereign state.