Vol. 17 No. 9 · 11 May 1995

Rights, Wrongs and Outcomes

Stephen Sedley proposes an agenda for human rights in the 21st century

6808 words

The end of history seems a good moment to take stock. Fukuyama’s conceit (I mean it in both senses) that the triumph of Western liberalism has stopped the clock of change – has put an end to history – is already waning. We may reflect that human rights themselves have played a sacrificial role in this process, for the demise of the regimes of Eastern Europe was accelerated by a megaphone rhetoric about human rights from states, including our own, with an embarrassing capacity for overlooking human rights abuses among their own allies and clients and even within their own frontiers. The message between the lines has been that human rights are a commodity like any other, capable of being traded for political or economic advantage, and the rhetoric little more than the conduct of politics by other means.

This is not, however, a complaint about the politicisation of human rights. They are by nature political, for they seek to condition how states treat individuals. The reason why we feel able to lecture others about them is that human rights are historically and ideologically the property of the liberal democracies of the West. In their received and accepted form, whether one takes the European Convention or the Universal Declaration as the example, they enshrine values which are universal neither in time nor in place. They are in essence the Enlightenment’s values of possessive individualism, derived from the historic paradigm, which has shaped our world, of the conscious human actor whose natural enemy is the state – a necessary evil – and in whose maximum personal liberty lies the maximum benefit for society. To accept, as we can and should, that this view is rooted in time and place is not to consign it to the bin of relativism, for the same has been and will continue to be true of all historic proclamations of self-evident and universal truths. After all, the two most self-evident truths of life on this planet are that the earth is flat and that the sun goes round it. The truth that all men are created equal was far from self-evident to the slaves owned by some of the men who proclaimed it at the dawn of American republicanism. That free speech or family life is today a fundamental individual right is by no means self-evident in a number of the contemporary world’s states, where history and conditions have made it apparent that they are primarily the state’s business; and it is entirely conceivable that the states of Western Europe may during the coming century recast their thinking about family life, and the right of the incurably or expensively ill to life itself, as social and economic pressures bear down on ethics and theology. Who will then be right: our grandchildren or us?

It is perfectly possible to recognise the localisation of ideas in time and place and to assert that they are none the worse for it: indeed, that ideas which pretend to universality are historical delusions. But this carries two corollaries. One is that, as times change, our premises and assumptions about the content of fundamental rights will change. Secondly, what courts and adjudicators make of currently accepted rights in each country and each generation is itself a function of time and place. Law spends its life stretched on the rack between certainty and adaptability, sometimes groaning audibly but mostly maintaining the stoical appearance of steady uniformity which public confidence demands. But lest the mask become the face, it is important that new generations of lawyers should become actively curious about why the certainties of the law themselves change constantly. How and why is it that the same American Constitution in 1896 legitimated racial segregation in public services and then in 1954 forbade it? How does it come about that not dissimilar abortion laws have in recent years been struck down by Canada’s Supreme Court as too restrictive and by Germany’s Constitutional Court as too permissive? On our own patch, how did it come to be self-evident to the Court of Appeal in 1925 that it was perfectly all right for an education authority to sack married women teachers on the ground that their duties lay at home or, in 1948, that it was perfectly all right for Wednesbury Corporation to use its cinema licensing powers to stop young people going to the pictures on Sundays? Not one of these decisions, each of them affecting what we would recognise now as fundamental human rights, is intelligible today except by situating the reasoning of the deciding court in its peculiar time and place; and the same will, I hope, be true of the decisions handed down by this judicial generation – for it would be only in an ossified and retrograde society that the laws of one generation were good enough for the next. Precedent, far from becoming redundant, takes on an organic role in this scheme of things: not perhaps in the grand Tennysonian image of freedom slowly broadening down in a kind of Fabian long march to happiness, but a centuries-long culture of reasoning and principle which ebbs and flows, so that, for example, the charge of contempt of court made on behalf of a Zairean asylum-seeker against the holder of one of the three great offices of state, the Home Secretary, could be founded on Sir Edward Coke’s assertion of the sovereignty of the courts in the face of the Crown’s prerogatives, and on Wilkes’s recovery of punitive damages from an earlier Home Secretary, Lord Halifax, for the unlawful issue of a general warrant. A former jobbing electrician who became a distinguished teacher of law once told me that in both jobs he had found the most useful part of his equipment to be a well-filled box of junk; and while I would not put the great cases I have been referring to in that class, an eclectic mind is not a bad asset in a modern lawyer.

The ministerial contempt case illustrates, too, the way in which modern public law has carried forward a culture of judicial assertiveness to compensate for, and in places repair, dysfunctions in the democratic process. It is a remarkable fact that a judiciary which has taken a public battering in recent years over miscarriages of criminal justice has in the same period earned large public approbation for its willingness to prevent and correct abuses of governmental power. When the history of modern judicial review is written, it will recount how the coming of the adult male franchise through the two great 19th-century Reform Acts was matched by the introduction of the Northcote-Trevelyan Civil Service, replacing ministers’ placemen with an intellectual and administrative élite from the same schools, universities and clubs as the judges themselves, and encouraging the judiciary to retreat from its prickly Victorian invigilation of the executive into a passivity which, by the Fifties, had allowed executive and local government an unprecedented measure of unchallenged power, to the extent that even the administrative tribunals set up to adjudicate between citizen and state were treated as instruments of departmental policy. It will also, I hope, observe how the subsequent reassertion of judicial oversight of government which has been the achievement of the Seventies and Eighties in this country has been replicated all over the common law world as judiciaries have moved to fill lacunae of legitimacy in the functioning of democratic polities – a process of which the Pergau Dam decision can stand as a sharp recent illustration. The historian’s conclusion may well be that the last three decades of the 20th century have seen a judicial refashioning, with sufficient popular support to mute political opposition, of our organic constitution. If so, its consequence is that we have today both in this country and in those with which it shares aspects of its political and judicial culture a new and still emerging constitutional paradigm, no longer of Dicey’s supreme Parliament to whose will the rule of law must finally bend, but of a bi-polar sovereignty of the Crown in Parliament and the Crown in its courts, to each of which the Crown’s ministers are answerable – politically to Parliament, legally to the courts. That the government of the day has no separate sovereignty in this paradigm is both axiomatic and a reminder of the sharpest of all the lessons of Eastern Europe: that it is when state is collapsed into party that democracy founders.

To assume a jurisdiction of this kind is of course to assume, without having argued it, the primacy of democracy. It is therefore worth remembering how temporary and vulnerable the desirable sense of democracy is. A term of abuse synonymous with mob rule in Burke’s vocabulary, its contemporary feelgood usage finds its origin in America, where from its first known modern use in the Rhode Island constitution of 1641 it became a vehicle of challenge to the colonial power in the hands of Hamilton and his contemporaries. In due course the word was similarly adopted in this country, by the Chartists and their successors, who used it against the rotten boroughs and aristocratic oligarchies which electoral reform was eventually to sweep away. But although the power of the word has become such that there is now barely a regime anywhere in the world which has not sought to characterise itself as democratic, there is nothing which determines that the notion of democracy as the higher-order law beneath which constitutions must operate is there for all time. If anything, history should lead us to expect the reverse; but apart from watching phlegmatically as the nation-states, the great oxymoron of the late 19th century, fissiparate and trucial superstates now arm the world’s poor nations to kill each other, we cannot peer very far into that darkness.

For these and other reasons I have trouble with the concept of a higher-order law as the basis of human rights adjudication. To postulate such a law is to attract all the theological problems which attend any argument from a first cause and which can ultimately only be answered by an act of faith. It may be in the end that a society’s consensus about its basic values is an act of faith, but my own preference is to reason, as Hobbes or Bentham might have done, that it is society itself which is given and which, for its own existence, poses certain overriding needs. While shared perceptions of what those needs are change as societies change, there are moral and practical continuities – of which the democratic principle is one – which can be powerfully represented as fundamental values, at least within the temporal and social horizons of each society. This relatively modest foundation for the legitimacy of human rights has perhaps the virtue that, without reducing all discourse to incoherent subjectivity, it recognises that a single ‘right’ outcome to every issue is attainable, if at all, only locally and temporarily, and that just as the only universal truth is that there are no universal truths, true objectivity may well consist in recognising the reality of history and change. When Chief Justice Hughes of the US said sixty years ago that ‘the Constitution is what the judges say it is,’ he was speaking of all rights instruments at all times, and to a realist concerned with human rights he was offering not despair but hope.

This will be thought perverse by many whose views I respect and who point to what happens when the judges are put in the driving seat in order to show that that way constitutional madness lies. They point, among many other examples, to the record of the Privy Council as a constitutional court composed chiefly of English judges, veering between indefensible interference with democratic decisions (for example, with the legislation by which Canada was trying to replicate Roosevelt’s New Deal, and which the Privy Council actually wrecked because Canada could deploy no equivalent of Roosevelt’s threat to pack the Supreme Court), and indefensible abstention in the face of illiberal and oppressive conduct by Commonwealth regimes. They point, too, to the outcomes of a series of cases from Northern Ireland decided in the House of lords and in the European Commission and Court of Human Rights, in which principle seems to have taken second place to expediency and the lesson of Liversidge v. Anderson (the now-repudiated House of Lords decision on wartime internment) been forgotten. These critics are opposed, however, by a respected school of rights discourse which holds that once fundamental human rights are articulated and set down, to attack them for their outcomes is to substitute venality for principle and to drag rights adjudication in the political mud. For reasons which I have touched on, I have little sympathy with this critique: it not only makes ahistorical assumptions about the primacy and universality of currently accepted principles of political and social conduct, but assumes the neutrality of adjudication and at worst ascribes rogue decisions to rogue judges.

It is equally plain, nevertheless, as the end of the century approaches, that the argument for a Bill of Rights for the United Kingdom is being won by its proponents, and that the off-the-shelf solution of incorporation of the European Convention heads the list of possible measures – if only on the practical ground that adherence to a set of standards enforceable on the state by an international tribunal but not by its own citizens in its own courts makes no sense at all. Moreover, the House of Lords has now recognised that our constitution knows such a thing as a fundamental law – the European Communities Act 1972 – capable of overriding subsequent primary legislation if the courts find the two to be in conflict; so self-evident in fact was the doctrine that the House in Factortame (No. 2), the case which resulted in the striking down of part of the 1986 Merchant Shipping Act, found it unnecessary to articulate it before giving it effect. Our agenda for the 21st century is not necessarily confined to a choice between a rights instrument interpreted for better or for worse by a judiciary with a long record of illiberal adjudication, and rejection of any rights instrument in favour of Parliamentary government. Certainly, the better government becomes, the less scope there will be for judicial review of it: it is not mere piety to say that the aim of the nominated judges is to work themselves out of a job. But for the foreseeable future we have a problem, shared in large part with other developed democracies: how to ensure that as a society we are governed within a law which has internalised the notion of fundamental human rights. Although this means adopting the rule of law, like democracy, as a higher-order principle, we do have the social consensus which alone – and without the need of a leap of faith – can accord it that primacy. And if in our own society the rule of law is to mean much, it must at least mean that it is the obligation of the courts to articulate and uphold the ground-rules of ethical social existence which we dignify as fundamental human rights, temporary and local though they are in the grand scheme of things.

The largely unexplored avenue to this end, and the one I want to explore, is what I will perversely call the principle of outcomes. In common with the critics of a Bill of Rights, I believe that in a democracy people have every right to scrutinise and appraise not merely the integrity of the judicial process but what it actually delivers. It is one thing, however difficult, to explain to the public that a directed acquittal because of an improperly extracted confession seeks to preserve the integrity of legal process as a greater good than the conviction of a possibly guilty individual without due process; it is another to try to justify by reference to the legal principles which undoubtedly explain them the kinds of award made in major libel actions. There is nothing wrong with the argument that if this is the due result there is something wrong with the principles or the process that have produced it. Refusing to accept the objectionable outcome alongside the welcome one is not simply allowing predilection to triumph over principle: it is to recognise that outcome – the result we want – is symbiotic with principle, because it is only for their concrete effect that we consider principles worth having and fighting over.

If I thought there were any self-evident truths I would rank this high among them. Take the right to life, qualified as it ordinarily is in favour of limited inroads made into it by law. No rights instrument I know of tells you whether capital punishment is compatible with this fundamental right, but nobody suggests that for this reason the right is not worth articulating or that courts cannot adjudicate on it. It is simply that argument about the content of the right cannot be conducted in purely or even principally legal terms, and the answers given by constitutional courts are inevitably and rightly a function of that large debate. The new transitional constitution of South Africa, a country which till recently led the world in the rate of judicial executions, accords the right to life and permits derogation to any extent which is reasonable and justifiable in an open and democratic society, but not so as to negate the essential content of the right in question. The first case in the list of the new Constitutional Court has been a challenge to the constitutionality of the death penalty. Its judgment, whichever way it goes, will resolve an issue which politicians had consciously decided was better left to the courts, even if (as one suspects) the prohibition on derogations which negate the essential content of the right makes the outcome fairly certain. The Canadian Charter of Rights and Freedoms puts it very differently: ‘Everyone has the right to life ... and the right not to be deprived thereof except in accordance with the principles of fundamental justice’; but the words are capable of giving rise to much the same debate. In tomorrow’s world the role which courts have had to accept as society’s arbiter and conscience is a role capable of embracing issues of this kind. It is not a new role: it was the English courts which, however reluctantly, grasped the nettle that legislators would not touch and declared slavery – at least on these shores – illegal; although it is a fine irony that the famous phrase of Lord Stowell in the case which procured the liberty of the slave Grace in 1827, that the air of England was too pure for a slave to breathe, appears to have originated in a 16th-century decision of the Court of Star Chamber, which had used the same metaphor in depriving a visiting Russian nobleman of his slave. But to say that the courts are likely to continue to discharge this role, whether under the name of public policy or of human rights adjudication, tells us little about how and by what standards they will do it.

Until recently it was to Canada that we could most usefully look from this country to see how a common law judiciary might be expected to interpret and apply a modern rights instrument. These messages have been mixed: it has become apparent that the big battalions are getting an unfair share of Canadian rights adjudications; but there have been many decisions to cheer up liberal thinkers. But it is in Australia that the real problem has recently been highlighted: its High Court has reached into the bowels of the country’s now elderly Constitution and extracted certain modern human rights – a process that outcome watchers might applaud; but it has proceeded in one case to apply them to an effect which, seen from this side of the globe, looks so partial as to justify every fear the outcome watchers have expressed. In the first of two cases decided on the same day in 1992, a statute which criminalised criticism, justified or not, of members of the Industrial Relations Commission, was struck down as creating a fetter on free speech out of all proportion to the permissible objective. In the second, the court struck down a statutory provision which provided for free air-time for all parties in the runup to elections and allowed full and free journalistic coverage, but banned other broadcast political advertising in order to stop the loading of the dice in elections in favour of candidates or parties with wealthy supporters who bought television advertising time. The reasoning in the second case went like this: the Australian Constitution of 1900 contains no Bill of Rights and gives the courts no express power to review primary legislation; but it is predicated on the primacy of representative government, which in turn depends on the full and free communication of ideas; so that any legislation which obstructs the fullest desired flow of opinion in the electoral process is unconstitutional. In Australia, too, the constitution appears to be what the judges say it is, and these two decisions and their more recent successors have serious implications.

First, they illustrate vividly the trend in the free-market democracies for the courts, with a great measure of popular support, to keep government within the law by – if necessary – strong and innovative measures. In the UK we are already some way down the road of legislative review, and legislation may well carry us the rest of the way by the end of the century. Whether it does so by entrenchment, giving a power to strike down legislation on human rights grounds as well as European Union ones, or by infiltration along the lines of the New Zealand Bill of Rights Act 1990, may not matter very much – at least if we can expect in the latter event to emulate the approach to outcomes adopted by Sir Robin Cooke in a leading case last year. He said: ‘It is necessary to be alert in New Zealand to the danger that both the courts and Parliament at times may give, or at least be asked to give, lip service to human rights in high-sounding language, but little or no real service in terms of actual decisions.’ He went on to hold that there was now a cause of action for breach of the Bill of Rights Act, basing himself – to be fair – on a 1979 decision of the Privy Council.

Secondly, however, the two Australian cases illustrate the fickleness of outcomes. Speaking for myself as a citizen I applaud the first and deplore the second. The first cuts down an indefensible protection of public figures from civilised criticism. But the second adopts, it seems to me, a very particular and partisan view of what free speech is: because democracy demands a free flow of ideas, the court holds that to accord a hearing to ideas in proportion to the wealth of those who hold them is not only a democratic course but the only democratic course; and in doing so it assumes a symmetry which simply does not exist between freedom of speech and freedom of information. In Britain, where we have lived all our lives with Representation of the People Acts predicated (despite judicial inroads) on financial limits and a level playing-field for all contenders, and with a complete prohibition on political advertising on television, the fallacy is more readily seen. In the United States, by contrast, there is a long history of legislative attempts to stop wealth buying seats, frustrated every time by a Supreme Court with both eyes fixed mesmerically on the First Amendment, with results that are well known in terms of the wealth needed to run for office. The Australian decision certainly makes it harder to defend the fitness of the courts to undertake constitutional adjudication on human rights issues, for the High Court of Australia has taken to be self-evident and universal views which many would regard as partial and highly contentious.

What then is to be done? The answer, whether we like it or not, is in large part being determined for us. The courts of these and other countries – India prominent among them – are by now embarked on a broad highway of constitutional adjudication along which issues of fundamental rights relentlessly present themselves. In this country, as I have outlined, the modern growth of public law and the internationalisation of our jurisprudence have moved adjudication towards a new catholicity of subject-matter and a greater preparedness to intervene to right wrongs in the polity. The only choice in this situation – and it is a choice which the judiciary can make for itself but which Parliament can no longer realistically make for it – is to retreat from rights adjudication into the long sleep of Wednesbury and before, or to develop the role with which we are now becoming familiar and to continue to move in the direction of a rights culture compatible with constitutional adjudication in a democracy. With all its pitfalls, the latter looks to be the only worthwhile choice. There is no means of standing still; but neither is there any virtue in proceeding down the path of constitutional and human rights adjudication without taking very careful stock indeed of where it might lead us. This is why it is to outcomes as much as to principles that we need to look for the future, recognising that even then the future will one day be the past and its decisions be seen, like ours, to be creatures of a dialectic of time, place and principle. It is also why there is nothing unprincipled in arguing from outcomes.

The first and most important lesson that experience is teaching us is that human rights can be treated as commodities and, like commodities, can be appropriated by those who have the means to do so. I began by mentioning this on the international plane, but it is equally true domestically, and the free speech issue provides perhaps the sharpest illustration of how and why. The splendour of American First Amendment jurisprudence sets a standard which nobody can ignore: the marketplace of ideas, the heresy that grows into orthodoxy. It is between the glories of the First Amendment and the horrors of a Ministry of Truth that the region of debate lies, for all societies place a restraint at some point on who can say what. Time and again in recent years it has been the free speech issue which has come banging at the court’s door, asking it to open up in the name of fundamental human rights – in this country, from the Sunday Times Thalidomide case to the Sinn Fein broadcasting ban, in Australia in the television broadcasting case and a number which have followed it. I do not for a moment contest the right of any of these plaintiffs or applicants to do so, nor the vast importance of the Miltonic freedom, and I might privately applaud what each of them was setting out to achieve. But if I ask myself why of all human rights issues should it be the issue of free speech which is constantly at the head of the queue for rights adjudication, the answer is very clear: it is because for the mass media free speech is a valuable commodity and litigation a worthwhile investment. This in itself in no way negates the importance of the issue, for there is no law against doing well in the process of doing good; but it throws up a series of further issues which either a future rights instrument or the courts are going to have to address. For example, freedom to speak includes freedom to keep silent. In relation to the state, this is one thing – though not a thing beyond the reach of our law if we are prepared to take freedom of information seriously. For a transnational corporation on which hundreds of millions of people depend for their information about the world, it is another: the power to suppress information, which we would firmly deny to the state, is a power possessed by the media corporations. Would human rights theory then have anything to say if a transnational media corporation, in order to secure TV rights for China, were to agree not to transmit BBC broadcasts because they have a standard of objectivity which the Chinese government dislikes? Is it perhaps a corollary of the right to speak freely that others have a right to listen freely, and not merely to hear what those who control the media think they should hear? If so, who is to articulate this right and on whose behalf? Are human rights there for corporations or for people? Are they a form of property or a constraint on power? If freedom to speak is a right, does it carry correlative obligations towards those who wish to hear? Above all, by what test of democracy or of equality before the law is it possible to pose the state which maintains a high standard of public service broadcasting as the unique natural enemy of individual liberty, and a media corporation possessing far greater resources than any state as a disempowered candidate for freedom from state interference? And where in this grand contest does the intended human beneficiary of the dialogue sit? However the problem is posed, it is as impossible to discuss principles divorced from outcomes as it is outcomes divorced from principles: if the reception of news and information at large is a principle which matters, the operative matrix in which the principle is to be cast cannot matter less.

If then, without abandoning principle, we are to escape the cold wind of history which blows sooner or later on higher-order laws and self-evident truths, it is to our present epoch’s consensus about society’s ground-rules that we have to turn. To admit this is to admit, as perhaps we should, that different societies will agree on different ground-rules, and to accept accordingly that we have both a right to review and recast our standards and an obligation to make the case for the adoption of them by others, rather than simply asserting loftily that ours, being self-evident, are the only acceptable ones. It certainly denies us any moral right to preach to others what we do not practise ourselves.

One of the keynotes of our epoch was struck by the Civil War radical John Warr who, writing in 1649, looked for ‘a spirit of understanding big with freedom and having a single respect to people’s rights’ (a phrase a hundred and fifty years ahead of its time). Warr contended that justice was anterior to law and postulated as the prime function of law ‘the protection of the poor against the mighty’. One of the principles we have derived from the upheavals of the 17th and 18th centuries is the primacy of democracy, but it is a principle which carries with it a baggage of inchoate assumptions – free speech according to means is only one of them – which are capable of subverting the principle itself. Both in enacting our own rights instruments for the future and in applying them by adjudication, it is important to understand that such principles are not self-implementing and that in their application they can readily be hijacked by those who already possess the greatest power in society. It is only by being rigorous, as Warr was, about a second such ground-rule or principle – substantive equality before the law – that it becomes feasible to set about fireproofing the juridical elements of life in a democracy and to be serious about preventing the appropriation of legal rights and democratic processes for private or partial ends. There is a potential tension, in other words, between the principle of democratic government and the principle of equality before the law. If human rights theory has an urgent job in the coming years it is to turn this tension from its present destructive direction towards a creative balance between the individual whom democracy offers to empower and the sources and the repositories of power, both within and outside the apparatus of state, which a democracy has both to license and to control.

This is why a rights instrument for the 21st century needs to address the imbalances and appropriation of power which threaten the values – possibly even the meaning – of democracy: and it is equally why a judiciary charged with upholding the rule of law in a democracy has, in making its adjudications, to address the same questions. To take a modest example, in the US an enacted right of reply has been struck down as an unconstitutional interference with freedom of expression – conceiving the freedom, therefore, as a form of property; and an informal right of reply is resisted here for the same reason. In an attempt to meet this problem, an ANC draft of South Africa’s transitional Constitution proposed that ‘there shall be freedom of thought, speech, expression and opinion, including a free press which shall respect the right to reply.’ The last formulation was omitted from the final document, but the issue remains a real one and the Constitutional Court may one day be asked to decide, since the legislature has declined to do so, what responsibilities are bound up with this and other human rights.

If then we are to anticipate a continuing debate about outcomes, these too can and should be debated in terms of principle, focused by experience on the more complicated subtext which every rights instrument silently carries. To say that the courts are not fit to absorb and respond acceptably to such a debate is to assume both too much and too little: too much because our judicial culture has historically pretended to be insulated from public debate and so has always had to disguise its social and ethical judgments as value-free adjudications; too little because our capacity for open and intelligent response to the wider issues of human rights is as a consequence largely unexplored – it is a language in which we are not entirely illiterate but are certainly dyslexic, and in which with remedial help we can probably do a great deal better. The tale told in Canada that a Supreme Court judge, debating an early Charter case and told by his clerk that Dworkin had written something on the point, said, ‘Who’s Dworkin?’, while apocryphal, can stand as a parable of the expansion of a common law universe under the impulse of rights adjudication – for many of today’s Charter decisions have a degree of legal literacy and an intellectual catholicity which our courts have so far been able (I am thinking principally of the judgments on termination of life support in the Tony Bland case) to touch on only briefly. I hope that in constitutional adjudication, which is what our public law cases are, we shall be moving in the not too distant future towards the reception of amicus and Brandeis briefs – submissions on the wider aspects of the issues of a kind that were desperately lacking in the arguments on teenage contraception in the Gillick case. To do so will help us to escape the pincers which at the moment are closing on us: the pressures, which cannot be wholly resisted, towards omnicompetent adjudication, and the want of any corresponding expansion in the data and culture with and within which we carry it out. There are no guarantees that better educated courts will get everything right, but to be sent – as history is sending us – on a voyage without modern navigational aids and supplies is to experience the worst of both worlds, the old and the new. My argument is that we should assemble the equipment and go on.

If, as is almost inevitable, this voyage is going increasingly to take us into the deep water of fundamental rights, this is a culture which English lawyers are going to have to acquire and absorb. To rest, as our courts sometimes do, on the laurels of having been the first to articulate a number of the freedoms the world now takes for granted is not really enough, not least because the content of these rights has at present to be subordinated to the Diceyan monolith, giving the courts a currently watertight defence for illiberal decisions. But where, in John Mortimer’s metaphor, we have so far survived by clinging to the wreckage, rights adjudication under a fundamental law of some description is going to mean that we have to learn to swim. This much is uncontentious. What may be more contentious is the proposition that the waters in which we shall be swimming are shark-infested and that our human rights armoury at present gives us little protection against predators. The notion that the prime function of human rights and indeed of the rule of law is to protect the weak against the strong is not mere sentimentality. It is the child of an era of history in which equality of treatment and opportunity has become perceived – as it is not perceived in societies based on status – as an unqualified good, and of a significant recognition that you do not achieve equality by proclaiming it but only by levelling up from the inherited or systemic inequalities which make some social actors too weak to make use of their rights and others strong enough to stifle their aspirations. The deconstruction of the state as provider as well as entrepreneur is now a worldwide phenomenon; but because power in every society on this planet is and perhaps always will be unequally distributed, every society today has a problem not just with Leviathan, against whom contemporary rights instruments continue to be directed, but with Jaws. It is going to be the task of those who write and those who implement the human rights instruments of the next generation to build on the jurisprudence of substantive race and gender equality which has been one of the real achievements of this generation, so as to distinguish between the strong and the weak as claimants of fundamental rights and to avoid what has been characterised as a culture in which self-respect and human dignity depend on being in a position to make strident, querulous and adversarial claims.

I have not embarked in this essay on the vexed questions of group rights as against individual rights or of social and economic rights as fundamental human rights. As to the first, it seems to me that the dichotomy of individual and group involves at least in part a false antithesis, for as individuals we are defined by our relationships with others, and which social cadre is to be the context of an individual’s rights is itself a function of the rights debate; so that the Inuit woman comes by political choice to have rights as a Canadian citizen which deny the relationships of an aboriginal culture recognised but not entrenched by the Charter of Rights and Freedoms. Nor have I entered the debate about whether shelter or work can or should rank as a human right, for these are in my view questions to be answered by social consensus from time to time, not by definition a priori and certainly not by derivation from some higher law. I simply observe that the right not to suffer racial or sexual discrimination, which we now take as axiomatic, was entirely foreign – except perhaps as an aspiration – to the thinking of our grandparents’ generation; that rights to education or to justice could only have been treated as self-evident in their time – which is our time – by societies that could afford to provide them; that the right to an unpolluted environment which the Indian High Court has in recent years extracted from the constitutional right to life depends less on what a society can afford than on what it cannot afford; and that it is not easy to sec how in any humane society a right to shelter and food deserves any less regard than the right to life.

The path I hope we shall follow in this country is therefore not simply that of the European Convention with its inevitable historical limitations, but that of a juridical culture which does not imagine that the poorest citizen is made equal to the richest corporation simply by according both the same rights; which does not co-opt the powerless into the opposition of the powerful to the state; which perceives the role of power in determining who gets to drink first and longest at the well; and which understands above all that fundamental human rights, to be real, have to steer towards outcomes which invert those inequalities of power that mock the principle of equality before the law.

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Vol. 17 No. 11 · 8 June 1995

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

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

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