Human Rights

Letter to Philosophy Now

Published in April/May 2017 edition, Issue 119

Dear Editor

The whole concept of human rights is a bit of a problem. In the absence of a god laying down the law, we are left (as with the rest of morality) trying to decide what to base it on. It may be surprising to know that Sir Hersch Lauterpacht QC, the eminent British lawyer and a leading figure in the drive to create a post-war charter of human rights, based his reasoning to a very large extent upon “natural law”.  It was a somewhat vague concept, as Lauterpacht himself seemed to accept.  He said in his 1946 essay “The Grotian Tradition in International Law”:

"Undoubtedly the law of nature has often been resorted to in support of causes dubious and retrogressive. But this ambivalence of the ideology of natural law is only slightly relevant in the field of international law. There, by and large, it has acted as a lever of progress. The law of nature has been rightly exposed to the charge of vagueness and arbitrariness. But the uncertainty of the 'higher' law is preferable to the arbitrariness and insolence of naked force.”

In other words, although natural law has no intrinsic validity, he thought it better than the alternatives. A bit like democracy, I suppose.

But what did he think that this natural law was based on? Well, he writes elsewhere:

'In a wider sense, the binding force … of international law... is based on the law of nature as expressive of the social nature of man.'

So then, he is saying that human rights law, as a part of international law, reflects how we behave as human beings. Of course this is by no means always and everywhere the case, and yet we are asked to accept that the definition(s) we have of human rights are universally applicable and not temporally contingent.  We are saying that those who wrote the charters in the late ’40s and early ‘50s had it right and everyone opposed to them has it wrong.  But those who did the drafting and approving of the charters were a relatively small group of lawyers and politicians and so hardly representative of mankind as a whole.  And yet the whole concept of human rights is that it should be an expression of the ‘social nature of man’.  So what confidence can we have in their decisions as to how to reflect that social nature?  Perhaps after all the idea of a basis in natural law is wrong.  Instead, maybe we need to look at what actually gave rise to the wish to codify human rights.

The idea of human rights of course took flight as a result of the heinous actions of both the Nazis and the Japanese during the second world war.  The Nazi party had altered the law in so many ways to enable the horrors of that period to be carried out lawfully. And so, after the war, there was a desire to say that complying with the law of a State could not be used as justification for barbaric acts.  That law itself had to judged against a higher standard, an internationally accepted standard of how we should all act. Individuals were therefore to be held to account for their willingness to blindly follow that unjust law. "Following orders" was no longer an excuse. In the light of what had occurred, it was relatively clear what principles could be stated in order to diminish the chance of same thing happening again. And so we have the creation of the 20 century concept of human rights – actually a  pragmatic attempt to impose at least some semblance of control upon would-be dictators and even dictatorial democracies – based on the vivid experience of those engaged in the Nuremberg trials of what horrors unchecked power could produce.

Paul Buckingham

Annecy, France

Some further thoughts -

It is worth recording that there was significant opposition from the then President of the American Bar Council in 1950 to the Universal Declaration of Human Rights (adopted by the United Nations). In his view, not only did it quite 'unjustifiably interfere with domestic law' by prohibiting racial segregation and their ban on interracial marriage, but it imposed on the USA a requirement to provide social benefits in various ways to those in difficulty. Altogether, it was seen by this gentleman as an un-American attempt to make a fundamental change to the nature of the country.

For many years in the UK there has been an opposition from the right wing to ‘interference’ in this country's affairs by the European Court of Human Rights. That the Convention was largely drafted by British lawyers seems to escape their attention. For them, such overarching supranational statements of law, imposed by a body which has not been directly democratically elected by us are simply unacceptable - even though our democratically elected government signed the convention.  As a way of addressing these concerns Parliament passed the Human Rights Act and so incorporated the Convention into our law.  This democratic step has still not been enough for some on the right wing and so  there have been suggestions that the Act should be repealed and replaced by a 'British Bill of Rights', adjudicated upon solely by our Courts.

Quite how this would differ from the existing situation, we have not been told.  Obviously those calling for such a change are unaware that the Supreme Court is not at the moment actually bound by the decisions of the European Court of Human Rights in any event.  And in a future without direct input from the European Court of human Rights, the Supreme Court would still be able to take its decisions into account to the extent that they do now, and just as they always have with decisions of other Courts of other jurisdictions. However, the government seems at the moment to accept that reducing the rights available to our citizens, the voters, would not be very popular and so currently the proposal is languishing in the long grass.

Now, I am more than happy to see human rights play a prominent role in society.  I am, I suppose, by nature a liberal.  But I also have to accept that democracy may one day bring about the erosion of those human rights.  And in the debate which will surround it, I think that we shall need a better argument in its support than ‘natural law’.  Which is why we need to remember the origins of human rights in order to provide a good reason for their existence.  A reason based on the avoidance in the future of the horrific events we have seen in past seems to me to be a good and convincing way of proceeding.

In the meantime, and in order to put off that day as far as possible, we would be well advised not to support the creation of more and more ‘inalienable’ human rights, such as a universal right to internet access, as, eventually, this may help to give an excuse for those unhappy with the existing legislation to decide to push back against the entire concept of human rights. The Courts should also reign themselves in in terms of the expansion of their interpretation of the conventions.  The ‘Human Rights Lobby’ is already too easily spoken of in the same breath as “Health and Safety gone mad” and “curved bananas”.  Better to content ourselves with core rights and leave any expansion to democratically decided national law which, by its nature, will be more likely to command assent.

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