21 May 2019

Human Rights and Political Wrongs

Let me begin by saying that I am not an academic lawyer. I was asked by a think tank in London called Policy Exchange to write a pamphlet on human rights law and the concept of human rights, and I agreed to do this because the concept was something I had been interested in for a long time. So it was interesting to spend on and off the better part of a year going through the case law and standard writings on the subject how this law was developed, what principles it uses, and so on. I certainly educated myself, and what was meant to be a pamphlet for general readers turned into a book of about 150 pages called Human Rights and Political Wrongs. You can download this book free of charge from the website of Policy Exchange. It contains many of the details and individual case law that I cannot go into in this short lecture. So, if you think some of my statements are a little generalised and wonder what the evidence for them is, please look at that website, Policy Exchange, under “publications” and I think that you will find it.

To begin with, therefore, what are human rights? There are two ways to answer that question: an easy way and a difficult way. I will start with the easy way which is to say that human rights are the rights listed in a number of authoritative documents starting with the International Declaration of Human Rights of 1948, then the two international covenants that flowed from that under the UN in the 1960s, but most importantly for our purposes the European Convention on Human Rights of 1950, under which we all live. That is what has generated what we all call European Human Rights Law. As I am sure you know this is not EU law. It was the Council of Europe that set up the Convention and that runs the court in Strasbourg where this law is judged. It is an important area of law because it has a kind of enforcement throughout the membership of the Council of Europe, 47 states in total, each one of which contributes one judge to the court.

I say “a kind of enforcement”. When a judgement goes against a country, there is a mechanism for the court to ask the Committee ministers of the Council of Europe to get on the case – not exactly an enforcement process that compels laws to be changed when they have been found to be in violation of European Human Rights Law, but a kind of political process whereby moral and political pressure is exerted on the governments concerned that it is simply intolerable to have laws which are in violation of human rights. This is quite strong pressure. In most cases when the government has been found to have a law or policy which violates these human rights, it is quite quick to change it. What we are talking about, therefore, is a kind of moral authority. This is important because the effect is to override existing laws, and this places some responsibility on the whole system to make sure that they have got it right and that they have strong grounds for overriding an existing law.

Now there is a tradition of talking about rights started by the American jurist and philosopher Ronald Dworkin, which uses the phrase “rights as trumps”. (Trumps as in a card game where if hearts are trumps, then any heart at all, even the lowest one, is more powerful than the highest cards in any other suits.) Dworkin’s argument was that rights trump interests, policy interests, interests of all the other kinds that would normally dictate social policy, government policy. You can make as many utilitarian calculations as you like about costs and benefits and advantages, but if any of them turns out to be in conflict with a right, than the right wins because, after all, rights are trumps. This was a general argument. Dworkin was thinking particularly of rights in the American system of constitutional law, rather than human rights more generally, but this model got into the literature. It is quite an extreme view, and I will say in a moment why it does not work.

Before then, however, let us look at the Convention. It has eleven principal articles, each of which sets out a major right: the right of life, the right not to be tortured, the right not to be held in slavery, and so on, down to the right of freedom of expression, freedom of association, and so on. Some others were added later after the Convention was agreed. They can be added by agreement in what are called “protocols”. Over the years there have been a number of protocols adding more important rights, such as the peaceful enjoyment of your private property.

The typical article will normally be stated in two parts: the first supplies what we may call the pure statement of the right – for example, Article 8 says: “everyone has the right to respect for his private and family life, his home, and his correspondence” – and the second puts in what are technically known as the limitations. This says: “there shall be no interference by a public authority with the exercise of this right except such as in accordance with the law, and is necessary in a democratic society in the interests of national security, public safety, or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. There is attached to rights, therefore, a long list of so-called limitations, or in other words factors which can be taken into account to permit what would otherwise be a violation of the pure right.

There is an interesting philosophical question here which I will not go into. Still, it is worth planting in your mind. What is really the statement of the human right in such a case? Is it just the pure right in the first half of that Article, or is it the whole Article taken together, so that the human right itself includes an allowance for these countervailing interests or values being authorised to limit it? I will leave that on one side, but note that these limitations include some other phrases, such as “the general interest”, or even “the public interest”. So some of this is pretty general. The key point I want to begin by emphasising here is that when you look at the actual cases that go to the court in Strasbourg – plus the arguments, and the final judgements – almost every case is a balancing act between the value of the pure right, and the countervailing values of these limitations of national security, protection of health and morals, and so on, whatever they may be. It seems to be obvious therefore that rights are not trumps. Indeed, the whole jurisprudence depends on trying to find ways of deciding whether this right is so strong that it should not be counteracted in this case by this public interest. In almost every case, a balancing is what the judges have to attempt. Judges have to decide therefore what are the requirements of public order, the general interests, national security, while also deciding what are the interests of other individuals or other groups, because they have to be put into the scales as well.

The fundamental problem with this exercise is that many of these things are inherently political issues, or at least they are in the realm of things that politics normally deals with. We have politicians and legislators to decide how to pursue our national security, or to what extent public order requires X or Y. With this kind of law, however, we are bringing judges necessarily into a realm of political debate. The popular idea is that the judges in Strasbourg (or in any Supreme Court which is deciding human rights) are super priests with special knowledge or scientists with some pure doctrine of human rights so that we can turn to them to say: “Tell us exactly what the human right is.” In fact it is not a pure science they are applying. What they are trying to do is to balance a general understanding of the right with the estimates of the value in ordinary social and political terms of various other interests. That is very different from a lot of ordinary law. It is not at all like the technical applications of settled law that take place in most other courts. It is a bit more like making political decisions, because these are decisions that are infused with values. They depend in the end on particular assumptions about what is a good life, and what is good for society at large.

So the two key points I want to start with are, first, that human rights law is not a science, and certainly not a pure science, because it is mixed up with all these other considerations; and second, precisely because it is mixed up with these other considerations, it overlaps in many ways with what we want democratic politics to do. Both of these points, therefore, raise some questions about the special authority of human rights law.

As I began by saying, it has a kind of enforcement through the strength of its moral authority: it would be shameful not to change our laws if they have been found to violate human rights. If it is thought to override ordinary laws, that is because it represents very important moral values. But the problem is that it is not just a question of making a general moral judgement, for instance, saying that a particular law is morally undesirable. The court has to be more specific than that. It must employ more specific reasoning about the moral undesirability of that particular balance – that is about its being not quite the right balance between that particular right and other interests. But how specific can you be if you do not have a science to demonstrate how much value to place on these other public interests? This kind of reasoning is by its nature going to be a very imprecise business – imprecise in ways that other areas of the law are not.

Now, I do not expect any area of the law to have mathematical precision. That is a fantasy or a fallacy. But because of the nature of the policy judgements built into such law, it has a particular problem attached to it. As I said, democratic politics normally deals with a lot of these issues. And to put it no higher, there is a case for saying that it is better to have democratic politics in charge of issues that are very difficult to decide because there are equally valid opinions on both sides and where reasonable people working from perfectly respectable values can come to opposing conclusions. How do we decide between them? We cannot do so by finding some super-intelligent arbiter who can say: “Well, you’re more right than the other person.” One of the things we expect democratic politics to do then is to present both sides, hold a debate, and reach a conclusion validated by the fact that it has been reached democratically. The legitimacy of that validation, I think, is an intrinsic part of what we value in democratic politics.

Now, there is an obvious objection at this point: what about the tyranny of the majority? Should we avoid giving important decisions to a parliament because it might just hand them over to the tyranny of the majority? The question of the tyranny of the majority is a fundamental one, but I think the phrase is sometimes used rather loosely, and we need to think quite carefully about what we are implying when we use it in particular cases. The concept is often based on a very crude model of democratic politics as so-called interest aggregation: counting how many people want X, how many people want Y, and assuming that if more people want X, then democracy means the majority gets X.

Most democratic politics in any serious democratic state is not reducible to that. It includes serious debates about values. This is what politics is for, and we have many examples of things being abolished, such as the death penalty, where we knew that an absolute majority of the population was quite happy to keep it. Politics is more adaptive and more subtle than the tyranny of majoritarian democracy implies. Of course, it would be a tyranny of the majority if freedom of speech was simply abolished by a majority vote, but that is not the sort of problem we really face. The real problem is about the limitations on human rights: what is national security? To what extent does one of these other things counterbalance freedom of speech? And so on. To call a majority view with which you disagree a tyranny is to suggest that there was some objective way of proving that the other view was correct and that this one has been wrongly imposed. But these are the cases where it is very difficult to find a clear objective criterion for saying that either side is correct.

The general tendency I see today, and in the last decade or two, has been to expand the area of the application of human rights law into areas where it would be reasonable to argue that a responsible democracy can make the decisions itself. I will just give one example a famous one in the United Kingdom: whether prisoners should be allowed to vote in elections. Now there are many liberal democracies in the world that allow this, and there are many liberal democracies in the world that forbid it, and there are some in between where it is only the prisoners on long sentences who cannot vote. It is easy to see that there are reasonable arguments on both sides. It is hard to see that one side can be proved to be right and the other wrong. That seems to me like a classic case where a parliamentary democracy could reasonably discuss the matter seriously, and then reach a decision validated by the fact that it was reached by democratic means. That is the example that has most occupied attention in my country, because it was the one case on which the British Government actually refused to implement the rulings of the Court for many years (until it reached a sort of artificial compromise just over a year ago). So there is a deep problem as to how human rights law will relate to democratic decision-making.

Those who defend the Strasbourg system generally will turn to two features of it that they say show it is not in conflict with the needs of democracy. One is the fact that it uses the phrase “necessary in a democratic society”. If you have a very good memory, you will remember that that was in the list of limitations to Article 8 which I read out earlier: “there shall be no interference with the exercise of this right except in accordance with the law, and is necessary in a democratic society in the interest of national security…” Well, that phrase is certainly present as a limitation in many of the Articles, but the way in which it is typically interpreted by the Court in Strasbourg is not to say that this means that there are some issues which should be left to parliamentary decision-making. It is generally used to mean that “democratic society” implies not a procedure, but a set of values, embodied in the society of tolerance, pluralism, and so on. Now, all of that is of fundamental importance. I have no argument with the idea that democratic states should have tolerant and pluralistic values. All I am saying is that since this is then used for anti-majoritarian purpose – in effect to say that you should not regard the majority as having any special right to vote through a law that might go against the pluralism of the minorities who are against that law – the presence of this clause in the Human Rights Law does not itself mean the law embodies a special respect for democracy.

The other major issue they raise is called the margin of appreciation – a doctrine developed by the Court in Strasbourg. It is borrowed from the French appréciation, which does not mean “appreciation” but “assessment”, a sort of estimating. The argument here is that national governments are allowed some margin when it comes to estimating or assessing some of the factors involved in this difficult balancing act. Thus, when a government says that a law is defending an interest in the protection of public morals, an individual state must be allowed some leeway in deciding what, for its country, is the protection of public morals. That is called the margin of appreciation. It is a doctrine that has developed over many years at Strasbourg, but as it has developed, it has been used in many different ways. I have read learned monographs by academic lawyers trying to find the essential principles on which it works, and they are baffled by it. There are so many variables in calculating this margin, that there is no consistency and thus no predictability.

I will just give you one example. One key element in calculating how much margin of appreciation should be allowed by Strasbourg in a particular case is what they call the consensus of states. This means simply how many of the 47 member states of the Council of Europe have this law, or do not have this law. If your country is taken to Court at Strasbourg for having some law and most countries do not have that law or even have the opposite, that is said to narrow the margin of appreciation. If there are many countries with this law, on the other hand, then you have a wider margin of appreciation. Now, I said earlier that I do not expect a mathematical precision in the law. You might think, however, that here is something useful that is arithmetical that could be calculated in order to reach consistent decisions. If so, you would be wrong. Look at how this principle has been used by the Court in Strasbourg and you will find there is no consistency at all. In one important case in 2015 on same sex marriages, 51 per cent was enough for the judges to say that there was a consensus – 51 per cent of the 47 countries, that is, gave a consensus. In another case on changing the birth certificates of transsexuals, however, 89 per cent was said to be insufficient to form a consensus. The Irish law on abortion, which has recently been the subject of a referendum, was upheld by Strasbourg when Ireland was one of only four states in the whole of the Council of Europe that had such a strict anti-abortion law. So 91 per cent of member states were on the other side, but apparently that 91 per cent was not enough to create a consensus even though on another issue 51 per cent was. Of course, if you are the only country to have a particular law, that will count strongly against. You will be given very little margin of appreciation – and on an arithmetical model that at least makes sense. But then I would just turn back to the phrase, “the tyranny of the majority”, and ask whether that principle is being fully respected in those cases.

Let us now look at how the human rights law is applied in a little more detail. There is one fundamental abstract principle which I must discuss for a moment. This is proportionality. The basic idea is that when judges calculate this balancing act of rights and limitations, they may well say that it is possible for freedom of expression to be limited for the sake of national security for example, journalists cannot publish sensitive defence information but the way that limitation is embodied in law must be proportional. In other words, it must do just enough to safeguard national security but no more. Now that in itself is a very sensible, I would say obvious, principle, but many of these balancing exercises are more complex than that. Various different factors are involved. To say you must do just enough to satisfy this interest, but not so much so that you go against that interest – all this is like an equation that lacks any clear values. How do you know what is just enough in any particular circumstance? As I said, there is no science of this.

It is easy to see that everything depends on circumstances, but this has led to what I call in the book “a cult of circumstance” where judgements say: “Oh this is wrong because it didn’t look closely enough at the circumstances.” But they give no guidance on what rules you would apply at the level of detail, if you did look at the circumstances. I will give you one example which I mentioned, a British one. In Britain, if a woman gives birth while in prison, she keeps the baby for a maximum of 18 months and then the baby is handed over to foster parents. Here the reasoning is that it is good for the baby to be with its mother at the beginning, but that when it is growing older, it is not good for a baby to be brought up inside a prison. You have got to have some cut-off date – whether it is 18 months or 20 or whatever – but the law said 18 months. A case was brought by a woman who wanted to keep her baby longer. This law was found to be a violation of human rights because it did not attend enough to the circumstances of the mother, and because this was in a British court, the judgement gave a number of possible circumstances that would be relevant (whereas the Strasbourg Court would not normally give that level of detail). It never said, though, how you would work the equation. Would you give more value to this or that aspect of the woman’s background? Or to the question of how soon she was going to be released? Or to the nature of the prison? It put in various other factors, but if you do not know how to do the actual equation here, what does it mean to say, “oh, you have not looked closely enough at this circumstance or that”. You may end up with a situation now where in different prisons, women will have very different judgements made about them, some 12 months, some 18, some 36. And this will be determined on bases that are not comparable, and where it is very possible that one is well treated, and another is treated relatively badly. A kind of systematic injustice can thus be brought in, ostensibly to achieve a more precise application of justice. I just give that as an example of how attending more closely to circumstances so that everything can be exactly proportional can lead. It is easy to prescribe in the abstract but it raises very serious difficulties in practice.

Now, the other problem which I want to talk about rather briefly here, but which occupies a large central part of my book is rights expansion. I analysed eight different ways in which this happens in the book, and I can only talk about one of them now. There are various reasons for rights expansion, and on an elementary level, it is not surprising that rights have expanded over the years that this Court has been operating. But the way it expands, I think, derives in the first place from the fact that it starts with these very open-ended abstract words like private life, life, liberty and security of the person. This is rather different from most other areas of criminal law or civil law where a new law already has a large background of legal interpretation around it where we know quite precisely what those words mean. Here a whole field of meanings have been developing from 1950 onwards in a much more open-ended way. All laws develop, but this kind of law consists of interpreting the wording of a treaty – because the European Convention is a Treaty – and it is subject to the basic rules of treaty law.

There are learned studies of how treaty law can evolve in meaning while a treaty is in force. The main form involves updating the meanings of specific terms, especially technical terms in the treaty, but more generally, meanings can also be updated in accordance with new developments in international law. In the case of the European Convention, technical terms do not really arise, but there are some more general terms that can evolve in meaning. The word “family” is one. Nobody imagined in 1950 that where the Convention says “family” this would include a homosexual couple. Today most people in Europe have no difficulty in assuming that that can also be described as family life and should have the protections of law. That kind of development is absolutely right, but as I show in the book, I think there are many other ways in which this law has developed that go beyond what could be justified by the law of the interpretation of treaties.

I will briefly give some examples. Take Article 8, for example, which is on the right to respect for Private and Family Life, Home and Correspondence. “Private” life has been interpreted in one key judgement to include business activities. The word “home” has been interpreted to mean one’s office or place of work – which it plainly does not. In one case it has been interpreted to mean an area of Arctic Tundra where Lapps in northern Norway were grazing their reindeer. The reasoning in the “office” case this was Nimitz versus Germany in 1992 – said that, I quote from the judgement, “to interpret the words ‘private life’ and ‘home’ as including certain professional business activities and premises would be consonant with the essential object and purpose of Article 8 … namely to protect the individual against arbitrary interference by public authorities”. But that is a “purpose” which they have read into the article and not what the article says. It simply specifies “the right to respect for … private and family life, home and correspondence”, which are the things public authorities should not interfere in. This appeal to what the judges call the “aim” or the “purpose” of the Article, or the object of the whole Convention is what is called “teleological interpretation”. And once you open the gates of teleology, then it is possible to develop a text like this in all sorts of new directions.

We have had key judgements from Strasbourg saying that the purpose of the Convention is to protect “human dignity”, “psychological integrity”, “the development of the personality”, “personal autonomy”, and “respect for human dignity and human freedom”. Now these are huge things, all of great value, and I am not against any of them, as I hope you will not be surprised to hear. But please just think about this carefully. If we say “everything protected by the European Convention is to do with human dignity and human freedom”, that may well be true. But in simple logic it does not follow that “everything to do with respect for human dignity and human freedom is protected by the European Convention”. There is an assumption behind this kind of thinking that everything that is morally important in human life must be protected by human rights law, and that judges are doing something good and positive whenever they extend the scope of the rights laid down in this Convention to more things that are themselves of undoubted moral importance. But I have to repeat that the more this extension and expansion continues, the more it will trespass on areas that we have normally assumed to be the business of democratic decision-making through parliaments. This trespassing, these expansions, would be justified if the judges had a science that could just prove that these things are of such overriding importance that they should override democratic law-making. But as I argued earlier, they have no such science.

So I come back to my initial question, what are human rights?, and now I will try to give the difficult answer. The difficult way of answering is to engage in some philosophical arguments about what human rights really are, where they come from, and why we think they are important. And it is a strange fact that after more than 60 years of having these human rights as part of our political and legal landscape, after huge mountains of books on the subject, and innumerable university chairs and learned journals, and so on, to this day there is no agreed theory of what exactly they are, where they come from, how they are derived. Now, of course, you might say the same thing about morality itself. That is absolutely true, and perhaps we should not be shocked by it; but we have not set up a special body of law called “morality law” to which we have then given the power to, in effect, override ordinary democratic law.

The standard assumption of all the various competing theories about the basis of human rights is this is fundamentally an issue in moral philosophy. They are called human rights because they are derived from something in the essential nature of humanity; so we need some process by which to examine human nature, and derive from it, in a reliable way, the identity of these special rights and the corresponding duties that go with them. And all sorts of competing theories have developed on this assumption – theories based on human rationality, autonomy, personhood, dignity, agency, or some more down-to-earth ones that just talk about basic interests, even basic needs. None of them has really proved its case, and certainly all the others disagree with any one that claims to prove its case. And there is a danger that if they did work – if these theories really did prove what human rights were from the ground up, from the absolute basic facts of human nature – they might succeed too well.

What I mean is they might in fact generate the whole of morality, and if you get the whole of morality from your theory, then you have done too much because we need human rights as a very special subset. It is not every moral duty that is a human rights duty. There are plenty of morally important things that are not in the field of human rights. Gratitude to your parents is an important thing, but they are not suffering human rights violations if you are ungrateful to them.

So then, some people say: let us have some sort of model of ascending values of important rights and duties, and then we need a threshold, some kind of cut-off point: above that level, everything is so important that we will call those things human rights (with their corresponding duties). But how do you calculate the threshold? On what criterion do you say: above that line it is a matter of human rights; below it, it is not. No theorist has produced any abstract argument that will show how you would calculate where that threshold is.

Another problem is if there are human rights based simply on the fact that we are human beings, then presumably they apply to all human beings always and everywhere, the “always” going back to the Neolithic period. So the rights in the European Convention to a fair trial for example should have applied also to Neolithic humans. Theorists have struggled with this problem, and have found ways of finessing it, but it is still in principle, I think, a problem. Anyway, I will not go on about the problems because there are so many of them, but in the last ten minutes of this talk I will try to take out my sword and cut the Gordian knot by presenting my theory, set out in this book which I think does differ in some important ways from the previous ones.

My proposal is that we have to start on a different basis: not moral philosophy but political theory. I think human rights are of vital importance, but to understand their importance, we have to think in terms of fundamental political theory – of what the state is and what we want state power to do and not to do to us. And to lead you into this way of looking at it, the simplest thing I can say is: when you look at these human rights, notice how they are all concerned with actions of the state against us. That is the real point of them. Moral philosophy theorists build up a theory of human rights which they then apply to relations between me and John, and between him and anybody else in this room. They apply it, so to speak, horizontally across everybody. But when we actually want to use our human rights, what we are concerned with is relations between us and the state. If a thief steals my car I may be very angry, but I will not go around saying “I’m the victim of a human rights violation”. But if government agents come and take my car with no good reason, and with no compensation, then I do say I am the victim of human rights violation. Indeed, that comes under Protocol 1, Article 1, on the right to peaceful possession of private property.

Again, if my neighbour is murdered by the next neighbour, that is a terrible thing, but do we send the murderer to court on a human rights violation charge? The right to life is set out in Article 2 of the Convention, and it is obviously the most important right, but we do not say that every murder is a violation of it. However, if it was a government secret agent who climbed into my neighbour’s house at night and killed him because of some government programme, we would most certainly say this was a human rights violation.

So my key point is: this is a political question. It is to do with relations between individuals and the state. Just look at that list of human rights: it is what they are all about. Fundamentally, the duty on the state is not to kill its people, not to torture them, not to arrest them arbitrarily; it has the duty to let trials take place fairly, the duty to let people express their opinions freely, to gather in public meeting, and so on. These are all duties of the state vis-à-vis the people. They are the fundamental minimal requirements we make on state power. They are mostly negative – the ones that I just read out are – but there are also some positive ones, less in the European Convention than in the international conventions that most countries have also signed (though many have not ratified). For example, we now expect some basic level of welfare: we think a decent state should provide for sick people, for people who cannot get jobs, and so on. We would find it intolerable, I think, if the state just abandoned that whole side of its responsibilities. So there is a positive duty on states, not just a negative one. We can include that quite properly in our list of human rights requirements, but we should also note that maybe we 100 years ago would not have required the same obligation. Around 1900 if you had asked sensible and reasonable people whether it was a fundamental duty of the state to provide this level of welfare, they would have said that is not what states do. My point is that our expectations and our fundamental demands on the state change over time.

That enables me to get out of that problem of whether everything applies equally to Neolithic man, or to medieval people in Europe, or in Ming Dynasty China. There is naturally a kind of historical cultural relativism built into this at a deep level. My key point is that these are the conditions of the legitimacy of the state. A state which tortures us, holds us in detention without trial, and so on, is a state that loses its legitimacy and thus its right to govern. Now I am talking here essentially about modern democratic states – or circumstances in which people want a democracy even if it is not quite what they are getting. This argument is not applicable to many societies in the past, especially in the more distant past where people were not thinking of the state in that way at all. A little thought experiment: if in Tibet in 1900 the whole population were Buddhists, pious Buddhists who were very, very happy to be ruled by a Lama who was the incarnation of Buddha (or whatever pious Buddhists believe about the Dalai Lama), it would be artificial to say that by not giving them free elections, he was violating their human rights. Thus the argument I am presenting is that human rights are a central and structural principle of any democracy. They are the essential conditions that, in a democracy, we set on those who rule us because in a democracy, or in a situation, in which people want to be ruled democratically, we expect government to be ultimately answerable to us, and to do the fundamental things for us that we need, and not to do the things that are fundamentally wrong to us. That is the nature of democracy. We have a programme of political claims on it, and this way of looking must focus essentially on modern democratic systems and societies.

So what are the advantages of this theory as opposed to the moral philosophy theory? Well, first of all, it gets away from that terrible requirement to demonstrate morality from the ground up. For political purposes, you do not need to have a demonstration from human nature as to why it is wrong to torture people, or why it is wrong to kill people. You just need to know that it is an obvious fact that people in democracy do not want their government to do those things to them. It may be that there are individuals in that society who, when you ask them to analyse why they are against being killed, will give very different reasons. Those whose ethics come from religion will have very different reasons from those whose ethics are secular, utilitarian, Kantian, or whatever. This theory does not need to bother with those distinctions; it just says that we take it as a political fact that citizens in democracies are opposed to state murder. Another advantage therefore is that this is appropriate for a pluralistic society where people do have plural values. In some ways this is one reason why human rights have risen to such a level of importance in the way we think about ourselves in recent decades. It gives us a language of ultimate values that we can share without assuming that we share the same opinions on religion, morality and social ethics across the board. We do not need that overall unity of moral opinion. We do not need to think that if I believe in religious ethics, then I am assuming that to get people to agree with me on fundamentals, they must have the same ethics as I do, or that if I am a secular ethicist, others too must be secular. We can accept the pluralism and say yes, but on these fundamental givens – the values that rule our society – these are the things that we share. I think that is valuable.

My theory also avoids the problem of saying why there is just that special level of human rights above a threshold. In order to justify their theory of human rights, the moral theorists have to have not only a theory of morality, but also another theory to explain where they put that threshold. I do not; I am just saying: it is a political fact that there are certain fundamentals in a democratic society that people want, such that if they are not done, or if the opposite is done, they will regard the government as losing legitimacy. I think that is a simple enough way of doing it.

Another advantage is that it avoids that problem of the timeless human rights being the same for all humans. As I have said, we do not need to apply these human rights to people in Neolithic Africa.

Finally, it emphasises that the whole point of human rights is bound up with democracy. They are, as I have said, essential and structural requirements of democratic rule. It is a theory that implies that wherever you have democracy, you must have human rights, and they must be treated as of fundamental importance. But something else follows. This also means that since human rights have a special relationship to democracy, there is a special duty not to engage in an endless expansion of human rights law to the point where it is eroding the business of democratic decision-making itself.

That is something that was fully understood by the original drafters in 1950, and I would just like to end with a quotation from the person who was probably the leading figure in that process, the lawyer Pierre-Henri Teitgen when he submitted his first full report to the Council of Europe in September 1949. He wrote “[O]ur committee unanimously agreed that for the moment, only those essential rights, and fundamental liberties could be guaranteed which are accepted and defined after long usage by the democratic regime. These rights and liberties are the common denominator of our political institution, the first triumph of democracy, but also the necessary conditions under which it operates. That is why they must be the subject of a collective guarantee.”

That I believe was the real object and purpose – to use the teleological phrase – of the European Convention of Human Rights.

(This article is adapted from a talk given at the Danube Institute in Budapest.)






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