"Human rights occupy a peculiar position at the present time. Pretty well every other idea and practice — gender, nation, family and the like — is deconstructed and dismissed as an artefact of power. But deconstruction seems not to extend to rights, and even as other values and institutions are condemned as moribund or oppressive, human rights are inflated and extended to cover practically every human interaction.
Numinous objects of piety and reverence, rights carry an authority no moral or political argument can match. As a result, questions in ethics and politics to which in the past there could be a variety of reasonable responses are now seen as having only one correct answer. If you find that answer unsatisfactory, you are not just disagreeing with other people. You are rejecting an imperative from which dissent is not permitted.
The position of rights is particularly incongruous in this country. More than in any other modern state, Britain’s constitution consists of precedents and conventions arising from historic political settlements. There is no body of rights codified in law that can constrain the sovereignty of parliament, while parliament itself is governed by precedent and accepted procedures.
The European Convention of Human Rights was incorporated into UK law in the Human Rights Act of 1998, and since then, the judges of what has become Britain’s Supreme Court can determine whether the rights recognised in the Convention are being respected by governments and legislators. But authority and legitimacy still reside in parliament rather than in any judicial body, and the ultimate determinant in any major public issue remains a political decision, not a legal interpretation.
A situation in which major issues are resolved through the compromises of politics is intolerable to contemporary liberal thinkers. For them, law is a repository of moral truth, which can be determined beyond reasonable doubt. Disagreement on basic moral issues is evidence of error, which law should correct. If you think like this, British institutions are fundamentally defective...
Jonathan Sumption’s Reith lectures on “Law and the Decline of Politics” present a considered response to these demands. His argument throughout is that inflating human rights beyond a baseline guaranteeing individual security and freedoms of expression and association imposes too great a burden on law, and leads to a dangerous shrinkage in political participation. Effectively, law is usurping politics...
"Very many judicial decisions about fundamental rights are themselves political choices only made by a smaller and unrepresentative body of people.”...
In the late Eighties, an American discourse of rights had already displaced the British liberal tradition embodied in the work of John Stuart Mill. It tends to be forgotten that Mill is not a theorist of rights. It is true that his celebrated principle of liberty, which forbids curbing individual liberty except when harm to others may be done, stakes out a protected zone of individual freedom. But the scope of that zone is not determined by rights. It is identified by a calculus of utility, the results of which will vary according to changing circumstances...
As an attempt to revive this British tradition, Sumption’s lectures make a pivotal contribution to public discourse. We need reminding that the empire of rights is recent and comes with large costs. Whether Sumption’s argument will be heeded is doubtful, however. The hollowing out of politics that has occurred, along with the expansion of rights, is hardly inadvertent. It reflects the anti-political liberalism that is in vogue in English-speaking countries.
As formulated by John Rawls and Ronald Dworkin among others, American liberal legalism understands politics as a sphere of collective decision-making containing only what is left over once the demands of justice and rights have been met. The marginalisation of politics is the principal objective of the new liberalism that has come to power over the past generation...
Liberalism has mutated from being a philosophy of tolerance that allows individuals and communities with different values to live together peaceably, to one that aims to enforce what are judged to be the correct values on everybody. Along with the practice of public shaming and ostracism, the proliferation of rights is one of the central strategies adopted to achieve this end.
The result is a culture of conformity in some ways more repressive than that of Victorian times. John Stuart Mill may have complained bitterly against the tyranny of public opinion, but what he had to contend with was chiefly unpleasant gossip about his irregular friendship with Harriet Taylor. He was not threatened in his career or livelihood, whereas dissidents from today’s orthodoxies may face being driven from both.
The censoriousness of rights-based cultures today is not accidental. The inflation of rights endangers not only democracy but also personal freedom, for it de-legitimates what was once an accepted diversity of moral viewpoints. If only one view of a contentious issue — abortion, say — is judged to be in accord with human rights, all other views are not only mistaken, but criminal...
An over-extended empire of rights comes with a number of disadvantages. It hollows out democracy by removing ever more issues from public political choice. It imperils personal freedom by criminalising what used to be legitimate moral differences and polarises society by turning those differences into conflicts that cannot be settled by reasonable compromise. In all of these ways, the empire of rights has the effect of undermining social acceptance of liberal values.
But the illiberal empire of rights has another and more fundamental disadvantage. It is inherently unstable. There are many ways of understanding populism, but one that seems plausible to me is that it is a reaction against an attempt to remove certain issues from the domain of democratic decision-making. If only one view of immigration is deemed rational and morally tolerable, the issue is effectively excluded from public debate. At the same time, a space is created for demagogues."
On judicial activism
There was a chap who claimed that the UK was oppressive because until the Human Rights Act, there was no codified list of rights, ignoring the long tradition of British common law