Human Rights and Political Wrongs: A new approach to Human Rights law  by Noel Malcolm

This book will annoy those most in need of its insights so greatly they will try to avoid reading it. For Noel Malcolm demonstrates that the whole edifice of human rights rests on no coherent philosophy.

It is a house without foundations. The assumption of moral superiority by its practitioners cannot be traced to a superior moral system, one which demonstrates that simply by virtue of being human, we possess, and always have possessed, the rights codified in 1945 by the United Nations in the Universal Declaration of Human Rights.

Malcolm’s work is so powerful because he does not make this claim simply on his own authority. He has examined the extensive literature of human rights, most of which is composed by firm adherents to that system of belief, and finds that they too admit, in the words of Louis Henkin, one of the great American scholars: “The justification of human rights is rhetorical, not philosophical.”

Or as Jack Donnelly, author of one of the standard textbooks, puts it:

“How does being human give rise to rights? To answer this question we need a theory of human nature… Unfortunately, no philosophical theory of human nature has widespread acceptance. Furthermore, many moral theories, and their underlying theories of human nature, deny human rights… In what follows I assume that there are human rights; that is, that we have accepted some sort of philosophical defence for the existence of human rights. This theoretical evasion is justified by the fact that almost all states acknowledge the existence of human rights.”

Believers in human rights will at once retort that other doctrines may be just as contentious. Malcolm hastens to agree with them on that point:

“It is of course the case that many very important issues – in morality, religion etc – are subject to general disagreement. It would be foolish to suppose that all true theories must be universally agreed, or for that matter that all universally agreed ones must be true; neither supposition is made here. But the lack of even elementary agreement on this topic is nevertheless troubling, for a particular reason. Human rights are presented as taking priority over ordinary law and democratic policy-making, not merely because our government happens to have signed a convention to that effect, but because it is thought that they are of such overriding importance, on an objective scale of values, that even democratic legitimacy should give way to them. That is a huge claim.”

It is not possible, in the course of a short review, to do justice to every element in Malcolm’s analysis. For that, it is necessary to read his 143 pages, which can be found here online.

Those who wish to opine on the vexed question of whether prisoners should be allowed to vote – an issue which has set the European Court of Human Rights in Strasbourg at odds with the British Government and British public opinion – will find on pages 13 to 17 a masterly account by Malcolm of the flaws in the Court’s arguments.

In Italy, he points out, those who have been imprisoned for more than five years are normally barred for the rest of their lives from voting or standing for office – a ban which looks like a far more serious infringement of human rights than the UK’s prohibition on voting for the duration of a prisoner’s sentence.

But the Italian system is permitted because it includes some gradations of severity, which satisfy the Court’s requirement of “proportionality”. In practice, the Court is continually obliged (as courts usually are) to balance different factors, many of which are a matter of opinion rather than of objective truth.

The judges in Strasbourg are not simply promulgating immutable principles with which no reasonable person would disagree. They have to work out what to do when those principles conflict with each other.

And most of the articles in the European Convention on Human Rights, which was drawn up by the Council of Europe in 1950, contains two elements: first the principle and then the limitations to that principle. Malcolm cites Article 8, which says:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being 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.

It is hard to avoid wondering, as one reads that list of limitations, whether the European Convention on Human Rights is quite such an admirable document as its supporters assume. The Convention gives, and in the next sentence it takes away.

The scope for judicial interpretation is enormous, so is the temptation for governments to plead reasons of state, and so is the risk that the Court will assume greater and greater power over difficult matters where democratic legislatures might quite reasonably reach different conclusions from each other.

How does one balance different interests against each other in order to achieve the desired “proportionality”? Malcolm observes that after an exhaustive study of Strasbourg case-law, Sébastian van Drooghenbroeck has concluded that although the doctrine of proportionality has the outward appearance of objectivity and universality, in practice it turns out to be “fluid…or even, to be honest, gaseous”.

In the original French, this sounds worse: “fluide…voire même franchement gaseuse”.

But Malcolm takes care to acknowledge contrary views. So he gives us this contention by Conor Gearty, Professor of Human Rights Law at the London School of Economics:

“Courts deal in fact and data. Their weapon is reason… Politicians in contrast deal in the carelessly thrown together passing truths of the moment. Their careers depend on the sum of these producing a positive reaction in a polling booth every five years or so… Solid argument is their enemy.”

Later on, Malcolm quotes Gearty saying (as it came into force in 2001) that “the Human Rights Act neither is nor should become a substitute for politics” – a sensible view, but one often overlooked by human rights lawyers who imagine themselves to be in possession of superior wisdom to mere politicians.

A new branch of the legal profession imbued with an insufferably conceited idea of its importance has grown up. As individuals, these human rights lawyers may be delightful. But their collective tendency is to think of themselves as being above anything so careless and transient as democratic politics.

One trusts that in about six months’ time, a magisterial response to Malcolm by Gearty, or some other eminent authority on human rights, will appear in the London Review of Books. For public opinion is by now so sceptical about or even hostile towards human rights that this debate can no longer be ducked.

But meanwhile it should be emphasised that Malcolm’s work is by no means entirely destructive. Towards the end of his analysis, he points out that “human rights belong, fundamentally, not to moral philosophy but to political theory”.

Human rights, he observes, are invoked by citizens against the state. The state’s legitimacy (a political rather than a philosophical concept) derives from treating its citizens properly: it must not lock them up, torture them, deprive them of freedom of speech etc.

Human rights are a modern invention because they are an essential feature of liberal democracies. They should properly be called “fundamental political rights”. A violation of one person’s human rights affects every member of a society, for it breaks “the  implicit contract between the ruler and the ruled”.

So many difficulties fall away when one realises this. The doctrine of human rights was developed in the 1940s as a response to fascism and communism, both of which posed mortal threats to democracy.

In this battle to defend free government against tyranny, moral authority was required, and universal language was apposite.

Malcolm describes this “political” approach to human rights as “new”, but with characteristic modesty adds that this claim “may reflect only ignorance on my part”.

In a sense, he is restoring an understanding of human rights which used to be widespread, but which somehow got smothered by the grandiose moral claims made for the subject.

He quotes Pierre-Henri Teitgen, a leading French participant in the creation of the European Convention, who submitted his first full report on the work of the drafters in September 1949:

“The Committee unanimously agreed that for the moment only those essential rights and fundamental liberties could be guaranteed which are, today, defined and accepted after long usage, by the democratic regimes.

“These rights and liberties are the common denominator of our political institutions, the first triumph of democracy, but also the necessary condition under which it operates. That is why they must be the subject of a collective guarantee.”

“Only those essential rights and liberties”. Here is a phrase which had it been adhered to in perpetuity, instead of “for the moment”, would have prevented the Court from developing (in Malcolm’s words) “questionable doctrines to enable the generation of rights at an ever greater level of detail”.

The wider public has noticed the Court is taking power away from national parliaments, and is becoming an enemy of the democracy it was supposed to uphold.

But when one makes this point to human rights lawyers, they react with fury, and instead of engaging with the argument, accuse one of being a friend of tyranny.

From a literary point of view, one might wish that Malcolm was a more ostentatious writer, willing for comic or satirical effect to mock the grand panjandrums of human rights. He does not play to the gallery by holding up to public ridicule their self-deceiving claims to moral certainty and moral greatness.

His book may, however, have a greater (albeit slower) effect by being written with such restraint. This scholar is profoundly worried about what is going on, or he would not have taken the trouble to write his book.

A subdued vein of passion runs through his work. But he cannot be dismissed as some vulgar denizen of Grub Street who hurls abuse without any deeper understanding of the issues at stake. He fights with the same weapons as his opponents.

Malcolm says that “with regret”, he sees no alternative to leaving the European Convention, whereupon “it will become important to set up a Bill or Charter of Human Rights for the UK”.

He knows this proposal will be “branded as nationalistic, or even (absurdly) as anti-human rights”, but points out that it would make the UK “no more nationalistic than, say, Canada – a responsible democracy which runs its own human rights regime”.

When Edward Gibbon was wondering what career to pursue, his stepmother exhorted him to take chambers in the Temple and devote himself to the study of the law. But as the great historian remarks in his Autobiography,

“I cannot repent of having neglected her advice. Few men, without the spur of necessity, have resolution to force their way through the thorns and thickets of that gloomy labyrinth.”

Malcolm has on our behalf forced his way through the thorns and thickets of human rights doctrine. He presents a calm and lucid account of an over-mighty and intrusive Court which has become a threat to democracy. He deserves a calm and lucid reply.