Head, Michael --- "Tom Campbell, K. D. Ewing & Adam Tomkins Sceptical Essays on Human Rights, Oxford University Press 2001" [2004] AUJlHRights 24; (2004) 10(2) Australian Journal of Human Rights 24

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Sceptical Essays on Human Rights

Tom Campbell, K D Ewing & Adam Tomkins Oxford University Press 2001

This volume of essays sets itself an ambitious task. It claims to provide ‘a critical examination, by an international array of legal and political scholars, both of the global phenomenon and of the UK’s — somewhat belated — participation in it’.¹ Moreover, the authors promise a sceptical analysis of the ‘global phenomenon’ of human rights law. It seems to this reviewer, however, that the scepticism is somewhat superficial.

Partly, this is due to the limitations set by the contributors themselves. Their immediate concern is with the impact of the United Kingdom’s Human Rights Act 1998 (UK Act), which incorporated into domestic law the substantive provisions of the European Convention on Human Rights and Fundamental Freedoms (ECHR), a treaty by which the UK had been bound, but only as a matter of international law, since it came into force in 1953.

The collection does not purport to critically examine the concept of human rights itself, nor the overall political character of the package of rights involved, merely the wisdom of incorporating prevailing human rights standards in legislation that, to some extent, makes the judiciary the arbiter of these rights. The 21 authors subscribed to a ‘mission statement’ that included the following propositions:

All the participants endorse the importance of human rights within any democratic system of government, but question whether the primary responsibility for the articulation of these rights ought to be taken away from the normal political processes of representative government. Specifically, the extensive shift of political authority to the judiciary which is involved in the UK Act is critically examined and other ways of specifying and promoting human rights in more democratic forums are considered.²

In addition, the volume ‘has as one of its principal objectives the task of offering a set of alternative perspectives’.³ This suggests that the editors provided for a range of diverging views, which include traditional conservative, liberal and left wing approaches. The selection produces some interesting convergences, as well as diversity, but is not conducive to sustained critique.

One searches in vain for any assessment of, or explanation for, the rise of the ‘global phenomenon’ in the aftermath of World War II, or its belated adoption in the UK by the Blair Labour Government. Nor is any attempt made to locate the issues raised in the deeper historical context of the centuries-old struggles from below for civil, political and social rights against ruling castes or elites. Instead, the frame of reference assumed by most of the essays is the post-war period, in which human rights were readily adopted, at least formally, by officialdom, via the UN.

If the judiciary is increasingly being made the custodian of human rights, there is not a great deal of examination of why that is so. To the extent that public opinion, both official and popular, has shifted to entrusting this responsibility to judges, rather than parliamentarians, how can that tendency be explained? Does it point to rising public disaffection with the parliamentary establishment and the need to examine the causes of that alienation? The introduction speaks of placing the UK Act in its political, as well as constitutional and legal, settings,⁴ yet the political dynamics behind its adoption are not much probed.

Three broad variants of scepticism are said to be detectable in the essays:

First, there are those who express scepticism about rights. Here we find arguments about the appropriateness of casting the relationship between the individual and the state in terms of rights. Second, there are those who are sceptical of the wisdom of having those rights enforced by judges, or at least by the judges that we presently have. Here we find arguments about the politics of the judiciary, and the limitations of using the adjudicative mechanisms of litigation in seeking to have rights protected. Third, there are those who express scepticism as to the content of the specific rights which are enshrined in the ECHR (and thereby the UK Act). Here we find more specifically focused legal arguments as to the limitations of those rights which do find their way into the ECHR (and the UK Act), as well as arguments lamenting what is omitted from the Convention.⁵

The first and the third of these strands offer the possibility of going deeper than the concentration outlined in the ‘mission statement’ — that is, the appointment of the judiciary as the custodian of fundamental rights. Questioning the consequences of defining the relationship between the individual and the state in terms of rights raises many important issues. As Raymond Wacks has observed, for instance, the concept of human rights comes under challenge by at least seven schools of legal and political theory: communitarianism, relativism, utilitarianism, socialism, legal positivism and critical legal theory.⁶

Critically examining the economic and political paradigm behind specific rights embodied in the ECHR and the UK Act would pose fundamental questions. How do the highly qualified civil and legal rights recognised by these instruments compare to the sweeping ‘natural’ and ‘inalienable’ rights inscribed upon the banners of the English, American and French revolutions of the 17th and 18th centuries for example? (‘Life, liberty and property’ in the case of England — at least as defined by John Locke; ‘life, liberty and pursuit of happiness’ in the 1776 American Declaration of Independence; ‘equality, liberty, property, security and resistance to oppression’ in the 1789 French Declaration of the Rights of Man and the Citizen.)

The most obvious feature of the ‘Convention rights’ which the UK Act partially incorporates into UK law is that they do not include economic, social and collective rights, except a minimal protection against being denied the right to education and a commitment to hold regular free elections.⁷ There is no right to protection from unemployment and hunger, or guaranteed free access to education, health care, housing or other essential services, let alone rights to economic and social security or social equality.

The listed civil and legal rights are mostly subject to far reaching exceptions, including ‘national security’ and ‘public safety’ — leaving great leeway for draconian measures, such as those imposed by the British and many other European governments in the name of fighting the ‘war on terrorism’. Even the right to life is carefully circumscribed to permit killing by state forces in order to effect arrests, prevent escapes from detention and quell riots and insurrections.⁸ The rights of non-citizens (so called ‘aliens’) are treated with particular contempt — they can be detained without trial, denied political rights and forcibly deported.⁹ Governments can derogate from any obligations under the ECHR ‘in time of war or other public emergency threatening the life of the nation’.¹⁰ As one of the essayists concludes, ‘it is not difficult for a state to bring its action within one of the stated exceptions’.¹¹

Moreover, the UK Act is not an entrenched bill of rights. A court cannot strike down offending legislation; its powers extend only to declaring that the legislation is incompatible with a ECHR right. Parliament retains the power to decide whether or not to amend the provision, and if so, how.¹²

Finally, both and ECHR and the UK Act are predicated upon upholding the rights of the economically powerful to accumulate unlimited private property, employ others as wage workers and dominate economic, social and political life through the operations of the financial markets. Thus, the right to exclusive property ownership is protected for both natural and corporate legal persons.¹³

One of the more insightful essays in the compilation is Judy Fudge’s ‘The Canadian Charter of Rights: recognition, redistribution, and the imperialism of the courts’. She explains that the 1982 Canadian Charter of Rights and Freedoms (the Charter) was sold to the public as a ‘people’s package’ in which ‘power would be transferred from the political elites to the people and democracy would be enhanced’. However, the driving force was a federal government that saw an entrenched bill of rights as a device for centralising political power in the face of threatening regionalism, particularly in Quebec. ‘It was also a response to the growing disaffection with traditional parliamentary politics and part of a worldwide trend to institutionalise respect for fundamental human rights.’ Fudge notes the dissenting voices of critical legal or socialist scholars who emphasised the indeterminacy of the abstract language of rights and the institutional history and jurisprudential legacy of the courts. These issues deserve further elaboration, but at least Fudge mentions them.¹⁴

Fudge’s main line of argument, which is well illustrated by prominent Canadian cases, is that the Supreme Court has favoured ‘recognition’ claims for formal legal equality by groups (such as women, gays and lesbians) whose injustice claims are primarily cultural and symbolic, but not ‘retributive’ claims that would require, or even assist any fight for, redistribution of income, let alone political-economic restructuring. Thus, for example, the Supreme Court has held that the freedom of association protected in s 2(d) of the Charter does not include either the right to bargain collectively or to strike.

Moreover, Fudge concludes that the limited Charter based victories have had a debilitating political effect in diverting social movements into seeking legal successes at the expense of ‘grass-roots mobilisation, class inequalities and alternative models of family life’.¹⁵ On the basis of this evidence, her thesis is the following:

[T]he Canadian experience suggests that justiciable bills of rights have a broader and generally negative impact on political struggles for social justice in advanced liberal democracies. There are two reasons for this. First, recognition claims which are fostered by their favourable reception in the courts, tend to displace redistribution claims. Second, legal rights discourse, which reifies individualism, negative liberty, and private property, has imperialistic tendencies when it comes to political discourse and debate.¹⁶

Ironically, corporate Canada has profited greatly from the Charter’s ‘human rights’. Fudge points out that the Supreme Court’s vision of ‘freedom of expression’ has liberated business, including tobacco companies and free trade lobbyists, from some of the strictures of advertising, packaging and political expenditure regulation. As she argues, these decisions reveal the close connection between fundamental rights and economic interests, a linkage that has been reinforced by the drive for privatisation, contracting out and deregulation over the past two decades. ‘Liberating the market from state controls does not enhance democracy,’ she observes.¹⁷

It must be said that Fudge’s conclusions from this experience are limited. Perhaps reflecting the human rights orthodoxy that has arisen over recent decades, she states that fundamental human rights remain crucial for democracy and argues that the question of whether an entrenched bill of rights enhances respect for these rights is an empirical question, to be determined from the track record. She proposes certain parliamentary reforms — proportional representation, mirror representation for minority groups, limits on electoral funding — as better means of institutionalising respect for human rights and enhancing democracy. But, as Fudge herself suggests, these measures will do nothing to overcome the underlying economic and social inequality that dominates the exercise of political and legal power. Indeed, the danger is that peripheral reforms of this kind will legitimise the growing social divide and power imbalance.

KD Ewing’s essay ‘The Unbalanced Constitution’ reflects some of the concerns registered by Fudge. He begins with a cutting reference to the Times law report of a decision under the headline ‘Company’s human rights were abused’. This apparent oxymoron illustrates the reality that in the UK, as in Canada, corporate interests are likely to be among the main beneficiaries of the UK Act, despite their lack of human personality.¹⁸ Ewing also points to the UK Act’s ‘distorted’ vision of human rights, which excludes the social rights and commitment to social solidarity professed by the 2000 Charter of Fundamental Rights of the European Union. He cites Rousseau’s aphorism that without ‘a large measure of equality in social rank and fortune ... equality in rights and authority will not last long’.¹⁹

One could go further and quote Rousseau’s brilliant Discourse on the Origin and Foundation of Inequality Among Men, in which he traced social inequality to the emergence of private property. Such property, he explained, was not a natural attribute of human existence; it was a product of civilisation that destroys man’s humanity and enslaves him. In Rousseau’s words:

The first man who, having fenced off a plot of land, thought of saying, ‘This is mine,’ and found people simple enough to believe him was the real founder of civil society. How many crimes, wars, murders, how many miseries and horrors might the human race have been spared by the one who, upon pulling up the stakes or filling in the ditch, had shouted to his fellow men, ‘Beware of listening to this impostor; you are lost, if you forget that the fruits of the earth belong to all and that the earth belongs to no one.’²⁰

Rousseau’s observation suggests not only that legal equality can mask and exacerbate economic and social inequality, but that the source of social polarisation and hence denial of basic rights lies in the accumulation of private and corporate wealth through the profit system and the dominance of market relations. Ewing justifiably warns that the UK Act may become a device for strengthening these relationships, reflected in private law. ‘There is a danger that [the UK Act] will provide a shield for the bearers of private power who are the targets of social regulation.’²¹

One essayist, Martin Loughlin, does attempt to analyse the political processes by which a rights based conception was brought forward in the UK from the 1960s, initially championed by political conservatives anxious to combat the growth of the welfare state after World War II. Loughlin suggests that the harsh experience of Thatcherite deregulation during the 1980s caused ‘many on the left’ to adopt a similar solution ‘as a constraint on the potentially absolute power of parliamentary majorities’. He characterises the UK Act as a ‘partial realisation of the agenda of that unusual coalition’.²² This analysis has the advantage of focusing attention on the recent political evolution of the human rights project in Britain, although it remains in the realm of the political elites rather than the experiences of ordinary working people. Perhaps the emergent Conservative-New Labour consensus on entrenched rights is best understood as part of a wider convergence on enforcing the requirements of global markets, aided by the legitimising power of pledges to equally respect the ‘human rights’ of all, including the major corporates.

In a footnote, Loughlin quotes Karl Marx’s early (1847) scathing dismissal of the inherently bourgeois conception of fundamental rights:

None of these so-called rights of man goes beyond the egoistic man, beyond man as a member of civil society, as man separated from life in the community and withdrawn into himself, into his private interest and his private arbitrary will. These rights are far removed from conceiving man as a species-being.²³

More than 20 years later, after immersing himself in the study of political economy, Marx indicted the ‘narrow horizon of bourgeois right’. ‘Law can never stand higher than the economic order and the cultural development of society conditioned by it,’ he noted.²⁴ That is, Marx did not reject ‘rights’ but saw them as narrow and limited conceptions that had to be superseded by transforming the actual conditions of life.

Writing in defence of the October 1917 Russian Revolution, Leon Trotsky commented on the evolution of appeals to natural and human rights, from battles cries against feudalism and absolutism to the sanctification of even greater inequality under capitalism:

Natural law, which developed into the theory of democracy, said to the worker: ‘all men are equal before the law, independently of their origin, their property, and their position; every man has an equal right in determining the fate of the people.’ This ideal criterion revolutionised the consciousness of the masses in so far as it was a condemnation of absolutism, aristocratic privilege, and the property qualification. But the longer it went on, the more it sent the consciousness to sleep, legalising poverty, slavery and degradation: for how could one revolt against slavery when every man has an equal right in determining the fate of the nation? In the real conditions of life, in the economic process, in social relations, in their way of life, people became more and more unequal; dazzling luxury was accumulated at one pole, poverty and hopelessness at the other. But in the sphere of the legal edifice of the state, these glaring contradictions disappeared, and there penetrated only unsubstantial legal shadows.²⁵

In other words, it is not enough to recognise, in theoretical and purely legal terms, the ‘equality of rights’. For the broad masses of people, the word ‘equality’ means far more than the abstract acknowledgment that all men have, in some technical sense, equal standing in a court of law. It means, rather, that all people have the right to enjoy a good life, and to partake of the just distribution of the wealth produced by society as a whole. The comfort and security that only a small number of people enjoy, on the basis of their personal wealth, as a privilege, should be available to all as a right. l

Michael Head, Senior Lecturer in Law, University of Western Sydney.

1 Sceptical Essays, Introduction by Adam Tomkins, p 1.

2 Page 2.

3 Page 2.

4 Page 5.

5 Page 8.

6 Raymond Wacks, ‘The end of human rights?’ (1994) 24 Hong Kong Law Journal 372; see also Wacks, Swot Jurisprudence (5th ed) London, Blackstone Press, 1999, pp 252-259.

7 Articles 2 and 3 of the First Protocol of the European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted by s 1 of the UK Act.

8 Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted by s 1 of the UK Act.

9 Articles 5 and 16 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted by s 1 of the UK Act.

10 Article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted by s 1 of the UK Act.

11 Sandra Freeman, ‘Scepticism under Scrutiny: labour law and human rights’ Sceptical Essays p 210.

12 UK Act, s 4.

13 Article 1 of the First Protocol of the European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted by s 1 of the UK Act.

14 Sceptical Essays, pp 336-337.

15 Page 343.

16 Pages 349-350.

17 Page 356.

18 Page 103.

19 Page 103, from Jean-Jacques Rousseau, The Social Contract, bk iii, ch 4.

20 Rousseau, Discourse on the Origin and Foundation of Inequality Among Men, Part II, New York, Lennox Hill Publishing and Distribution Co, p 97.

21 Sceptical Essays, p 111.

22 Page 55.

23 Page 55, citing Marx, ‘On the Jewish Question’ [1846] in J Waldron (ed), Nonsense on Stilts: Bentham, Burke and Marx on the Rights of Man, London, Methuen, 1987, p 147.

24 Karl Marx, Critique of the Gotha Program, International Publishers, New York, 1970, p 10.

25 Leon Trotsky, Terrorism and Communism, London, New Park Publications, 1975, pp 60-61.