Rights, Wrongs and Outcomes

Letters

Vol. 17 No. 11 · 8 June 1995

From Sanford Gabin

Stephen Sedley’s reference to Charles Evans Hughes’s well-known remark that ‘the Constitution is what the judges say it is’ (LRB, 11 May) got the quote right but the date wrong. Hughes made the comment not 60 years ago, as Chief Justice of the United States, but 88 years ago, as Governor of New York, in a speech at Elmira, NY on 3 May 1907. The entire sentence, from which the famous words are usually jerked out of context, reads: ‘We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution.’ Whether Governor Hughes was speaking, as Sedley asserts, ‘of all rights instruments at all times’, and whether he endorsed an expansive role for judges on behalf of rights beyond their clear constitutional meaning, cannot, I believe, be properly inferred from that sentence.

Sanford Gabin
Binghamton University

Vol. 17 No. 14 · 20 July 1995

From Alan Norrie

Stephen Sedley’s analysis of human rights (LRB, 11 May) correctly identifies the variable character of such ‘fundamental’ provisions. Human rights laws are historical and political instruments shaped by their context and an essential subject of dispute. He is also right to look to the outcomes of rights-based strategies in promoting social and political goals. Sedley is for a sceptical and realist account of human rights in order to make them effective means of intervention, not in order to bury them. How successful can he be?

Sedley’s support for human rights instruments in Britain is premised on ‘our present epoch’s consensus about society’s ground-rules’, and the need to protect the weak and poor from the strong and rich. A short retort to the consensual premise is provided by the last 16 years of British politics which have revealed amongst substantial sections of society a deep-seated contempt for forms of social protection against ‘market forces’. Sedley himself identifies a tension between a democratic government’s right to intervene to promote substantive equality and the claims of private power to formal equality (and freedom) under law, but he argues that politicians and lawyers rigorously committed to substantive equality will be successful in ‘fireproofing the juridical elements of life in a democracy and … preventing the appropriation of legal rights and democratic processes for private or partial ends’. Yet Sedley himself is ambivalent about the state, endorsing current disillusionment with its role as provider and the danger of it becoming a ‘Leviathan’, while arguing for the need to build a substantive jurisprudence, an achievement only possible under an interventionist state. This ambivalence must surely temper Sedley’s larger statements of principle, but with what effect on his proposed human rights jurisprudence?

The problem he faces can be encapsulated by considering two conflicts arising from the central political and legal concept of ‘negative’, or formal, liberty. On one hand, this concept involves the protection of the actual individual and what s/he is, does or has. It is in conflict with the idea of an authoritarian state, entitled to impose its will upon individuals. On the other, it also conflicts with the idea of ‘positive liberty’ and the view that the individual requires ‘substantive’ social rights from the state to redress inequality and to be empowered.

This double tension leads to inconsistency across the range of democratic politics. Social democrats tend to be for negative liberty in support of civil and political rights against an authoritarian state, but to be against it, and in favour of positive social rights and state intervention, when it is a question of empowerment of the poor and the weak. By contrast, conservative opinion (apart from extreme libertarians) tends to be for authoritarian law-and-order statism and against individual civil liberties, but against the state and for negative liberty when the state seeks to empower through positive reforms. Both sides accentuate negative liberty in one context, and state power in another, mirroring each other’s standpoint. Both find it hard to be consistent because of the tensions within our figurations of law and the state, which embody broader tensions in our society: between capital and labour, economic entrepreneurialism and the ‘social question’ (including issues of race and gender).

The problem, therefore, is not just the ‘baggage of inchoate assumptions’ which English rights talk inherited, but the inherent conflicts within Western society and its legal forms. Sedley is right to anchor his argument in a particular political conception of human rights because, as he says, law will otherwise be conditioned by established wealth and power. But it is difficult to be sanguine about the possibilities of ‘fireproofing the juridical elements of life’ by being politically rigorous. The contradictions of a left-liberal position must inform his own conception of law. One must be for and against individual freedom, positive and negative, and for and against state intervention. To decide when to go one way or the other can only be a matter of shifting political judgment in a context of conflicting alternatives.

A second problem concerns the political force which can promote the human rights of the weak and poor. Sedley wishes to build on the race and gender jurisprudence of the Seventies. Some will point to the limits (and contradictions) of that jurisprudence, but the important point is that its forms were generated by a much more left-oriented political culture than today’s. Sedley must recognise that no jurisprudence can operate without the support of such a culture, yet in today’s climate he wants to go further, with fewer political forces in support. Europe may help marginally, but can hardly offset the weaknesses of the current Left in Britain. Without a strong left-wing social-democratic current, the kind of rights Sedley wants to see simply will not exist.

But if a substantive, rights-oriented, left-wing democratic political project emerged, how successful would its associated jurisprudence be? Sedley’s comparative examples of recent rights discourses involve situations where judiciaries ‘have moved to fill lacunae of legitimacy in the functioning of democratic polities’. These manoeuvres have often been halting and tentative, backtracking as well as innovative. He seeks to go further: to use legal rights in a radically reformist social and economic agenda. Allowing the implausible scenario of a British government committed to such a strategy, it would surely evoke the most fundamental ideological conflicts. Played out through law, such conflicts would exacerbate the contradictions of negative and positive liberty, leading to division, paralysis and incoherence in the jurisprudence and practice of rights. This may not be a reason for not pursuing a socially substantive human rights project, but we should, as Sedley acknowledges, be aware of the consequences of employing rights instruments before we adopt them.

Alan Norrie
Queen Mary and Westfield College