What’s Wrong with (Some) Judges? Al-Skeini, Al-Jedda, Smith, and the Fog of War

What is wrong with rights might lie in several places. Some accuse the very concept of a right belonging to an individual as a kind of property. Chapter 6 considered this charge and found it wanting. Instead, Chapters 5, 7, 8 and 9 identified problems in misleading connotations of talk about ‘natural rights’, the failure to reckon with the contingency of rights upon economic and political conditions, and the importation of what is paradigmatically a legal idea into ethical deliberation. An additional possibility is that problems lie not only in concepts of rights, but also in the way in which judges treat them. This is the topic of this chapter and the following one. The present chapter examines recent decisions of the European Court of Human Rights (Al-Skeini [2011], Al-Jedda [2011]), and the Supreme Court of the United Kingdom (Smith [2013]), which threaten the UK’s military power. It concludes that, in these cases, the jurisprudence of the European court is vitiated by an imprudence born of a limited historical and political imagination, a culture of risk-aversion, and an ideological rights-fundamentalism. Such imprudent jurisprudence serves to weaken the military effectiveness of European States Party and their ability to support politically fragile states, to undermine states’ confidence in international treaties, and to provoke calls for states’ withdrawal from the Convention altogether.

Are Human Rights Universal?

Broadly speaking, a human right is the same as a natural right, insofar as it is the property of anyone participating in human nature. However, ‘human rights’ usually refers to those bodies of rights that have attracted international recognition by states since 1945. Rights subscribed to by states possess a special authority that derives from national recognition, is confirmed by some international consensus, and is reinforced by international courts. This legal authority endows a natural, moral claim with the characteristic force of ‘a right’. From the early 1970s, international human rights have provoked the complaint from non-Western societies that they embody ‘neo-imperialist’ assumptions about the intellectual and moral superiority of Western culture. This chapter examines that complaint. It concludes that the human goods that rights seek to protect are universal, and it is therefore unlikely that any society has ever existed without establishing customary or legal rights that enjoy some security. Moreover, there is empirical evidence that some non-Western societies have in fact established rights, many of them familiar to Westerners. There are, however, different ways in which a good can be protected by a legal right, and the way chosen by a particular society will be shaped by its historical, cultural, and other circumstances. Therefore, while the good to be protected is universal, and while the means of protecting it by establishing a right is very probably universal, the specific form of the protective right will not be universal.

What’s Wrong with Subjective Rights?

Whether a right is natural or legal, it is a kind of property. This chapter examines the thought of five contemporary Christian thinkers, who hold that the modern concept of a right is tied—certainly historically but perhaps also logically—to Hobbesian social contract theory or Ockhamist nominalism, and therefore to radical individualism and moral subjectivism: Alasdair MacIntyre, Joan Lockwood O’Donovan, Oliver O’Donovan, John Milbank, and Ernest Fortin. It concludes that these critics variously misinterpret Ockham and overestimate the influence of Hobbes. Nevertheless, they are correct to discern that modern rights-talk does tend to shut out other kinds of moral discourse—that ‘rights’ do tend to displace ‘right’. As a consequence, it obscures the contingency of rights upon other moral considerations and so upon justice, all things considered in the circumstances.

Are there Natural Rights? The Sceptical Critique and Contemporary Theories

This chapter completes the testing of the Sceptical Tradition’s objections to natural rights, by examining the thought of a selection of contemporary thinkers, in addition to that of John Finnis (in Chapter 4). Those selected are Onora O’Neill (and in relation to her, John Tasioulas, Elizabeth Ashford, and Henry Shue), Nicholas Wolterstorff, and James Griffin (and in relation to him, Allen Buchanan). From this examination the conclusion is drawn that the arguments made by Shue, Tasioulas, Ashford, and Griffin fail to dislodge O’Neill’s ‘radical’ critique, namely, that where capable holders of feasible correspondent duties have not been identified, universal human rights are illusory. This implies that rights are contingent on the circumstances of feasibility and capability, and that there is no constant natural right. The chapter then proceeds to draw general conclusions from the testing of natural rights-talk in Chapters 2 to 5. One seminal conclusion is that the paradigm of a right is positively legal, commanding the support of such institutions as police and courts. This is what explains its distinctive authority vis-à-vis other claims. It follows that a natural right, existing apart from civil society and so lacking institutional support, is, at best, analogous to a proper, legal right. However, since the very concept of a right connotes the stability and security of a legal right, natural rights-talk misleads and is best avoided. Therefore, while there is natural right or law or morality, and while there are legal rights justified by natural morality, there are no natural rights.

Are there Natural Rights? The Sceptical Critique and the Modern Roman Catholic Tradition

This chapter examines the modern Roman Catholic appropriation of rights-talk, in order to see whether or not Catholic tradition has proven better than other ‘modern’ traditions at meeting the sceptics’ objections to natural rights. It focuses particularly on Rerum Novarum, Jacques Maritain, ‘Pacem in Terris’, and John Finnis and, in passing, it criticises Samuel Moyn’s construal of twentieth-century Catholic thought on rights. It concludes that, through its affirmation of a larger moral order (‘natural law’), Catholic thinking about rights has shown itself more ready to talk in terms of moral categories other than ‘rights’. It is also unusual in the prominence it gives to the concept of the common good, although typically without offering any exact explanation of how this relates to individual rights—except in the case of John Finnis. Finnis also identifies a common problem with much other ‘modern’ rights-talk: that, since the very concept of a right has an absolute, ‘conclusory’ force, rights-talk has the logical tendency to shut down wider deliberation about justice. Instead, he argues, rights should emerge at the end of deliberation about a range of factors—moral, social, and political—rather than be invoked at the beginning. This appears to affirm socially contingent positive rights rather than absolute natural ones. But that is not the whole story, because the Catholic rights tradition consistently asserts some absolute natural rights. These, however, are either tautologous or practically unilluminating.

What’s Wrong with (Some) Human Rights Lawyers?

This chapter turns from judges to human rights lawyers, whose role as advocates gives rise either to different problems or to the same ones in more overt form. It focuses on writings intended for the general public by Shami Chakrabarti, Conor Gearty, and Anthony Lester. All three are publicly prominent British lawyers, whose views echo and amplify those reported in previous chapters from judges in Strasbourg and Ottawa, and from Human Rights Watch in New York. The chapter argues that their advocacy for the rights of individuals is vitiated by habitual cynicism toward government, and a constantly deaf ear to its genuine concerns. Since it cannot persuade sceptics, this is poor advocacy. Moreover, since it is widely acknowledged in principle that few rights are absolute and unconditional, it follows that there are circumstances when it would be proportionate for rights to be limited or suspended, or not to be extended. Therefore, human rights lawyers should be more willing than are these three to think about what those circumstances would be, and to recognise them when they obtain, instead of treating every concession to circumstance as if it were a grubby betrayal of principle. A defence of rights that fully accepted that imperfect compromise can really be inevitable, and that acknowledged that sometimes the claims of the social good really do justify exposing individuals to greater risk, would be a more honest defence, and much the stronger for it.

Introduction

I did not know the answers when I began this book, but I did know some of the questions. Over eight years ago, when I was working on what would become In Defence of War,1 I noticed how David Rodin’s formidable critique of ‘just war’ thinking was largely based on a conception of ‘a right to life’, while the 1,500-year-old Christian tradition of such thinking, which he ignored, operated largely without any concept of rights at all. Did this mean that the Christian tradition was ...

What’s Wrong with Rights in Ethics?

Chapter 6 observed the tendency of contemporary rights-talk to push all other moral considerations off the table—an observation adumbrated in Chapter 5, where contemporary defences of natural rights were seen to lack awareness that the exercise of such rights might be subject to moral obligations and even contingent upon duties of virtue. Chapter 1 observed the complaint of sceptics that natural, moral rights are often not distinguished from legal ones, with the consequence that the stability and security of the latter are smuggled into natural morality or ethics. Such smuggling is part of a cultural inclination to assimilate morality to law and replace conscience with procedures, in order to abolish the possibility of a failure of conscience. It expresses an aversion to risk and denial of tragedy, whose cost is a practical, moral rigidity that ranges from the imprudent to the absurd. This chapter displays the problem as it appears in ethics, by analysing David Rodin’s War and Self-Defense. Rodin’s attempt to justify killing in terms of a fundamental (natural) moral ‘right to life’, which can only be forfeited through culpable wrongdoing, fails. As he himself inadvertently acknowledges, that right is contingent on a range of moral factors external to the right-holder. Whether it exists at all depends on the situation as a whole and can only be determined at the end of a process of moral deliberation, not posited at the beginning as fundamental. Talk about a (natural) moral right, connoting stability and security, misleads.

What’s Wrong with (Some) Judges? Carter and the Invention of a Right to ‘Physician-Assisted Dying’

This chapter argues that, in addition to rights-fundamentalism, another problem lies in the ‘progressive’ zeal, which moves some judges to exploit the room for creativity granted by abstract concepts, in order to invent novel rights. This, too, is imprudent in having courts, rather than elected legislatures, decide ethical issues that are politically controversial. The argument develops through an examination of Carter v. Canada, the 2015 judgement of Canada’s Supreme Court, which decided that an absolute prohibition of ‘physician-assisted dying’ violated the Canadian Charter of Rights and Freedoms. The chapter concludes that Carter shows that charters that include unspecified rights generate several problems: they give judges no determinate guidance in deciding cases; they purport to exist before their limits have been set in relation to competing rights, whereas a right’s existence cannot be known until competing claims have been considered; and they afford judges vast room for the exercise of philosophical discretion, in which they lack professional expertise or authority. In addition, there are also problems with the views of the interpretation of rights: that judges have privileged insight into what ‘real rights’ are; and that they are not simply interpreters but developers of law, responsible for keeping it abreast of ‘progressive’ social mores. These views incline judges to overlook the natural myopia of their case-focused attention, the limitations of courts in achieving a comprehensive view of social facts, judges’ lack of accountability for the policy effects of their decisions, and their relative immunity from direct challenge by diverse viewpoints.

Are there Natural Rights? The Sceptical Critique and Rights after 1776

This chapter moves to extend the testing of the Sceptical Tradition’s objections to natural rights from the pre-modern or early modern periods to classic modern affirmations. It begins with the American and French declarations of the late eighteenth century, before proceeding to two famous treatises of the same period, Thomas Paine’s Rights of Man and Mary Wollstonecraft’s A Vindication of the Rights of Woman, and then ending with the Universal Declaration of Human Rights and the International Covenants of the mid-twentieth century. The chapter concludes that its scrutiny of modern affirmations has found ample evidence to substantiate many of the sceptics’ charges: some of the rights asserted are truistic or merely aspirational; others are ludicrously or dangerously abstract, licensing unrealistic hopes and political recklessness; yet others conflate conditional positive rights justified by natural morality with natural rights, misleadingly endowing the former with the universality and inviolability of the latter. Further, David Ritchie’s claim has been substantiated: the content of certain rights cannot be determined by a sheer appeal to ‘nature’, and apart from consideration of the common good in the relevant circumstances. On the other hand, the critical survey of modern natural rights-talk also shows that it can acknowledge the insufficiency of rights for overall political well-being, talk of duties too, and recognise the need for virtue and a cultural matrix that generates it.