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HUMAN RIGHTS AND WHY THEY ARE NOT NECESSARY FOR THE RULE OF LAW

Updated: Dec 2, 2023

Are human rights laws necessary for the ‘rule of law’ to be in operation? I will argue that they are not.


When considering the above the question, one first needs to understand what is meant by ‘the rule of law’.


The concept of the rule of law dates back to antiquity.[1] The rule of law is not synonymous with mere legislation and legal process. Lon Fueller identified 8 requirements for the rule of law.[2] These requirements are:


Laws must be general (#1), specifying rules prohibiting or permitting behaviour of certain kinds. Laws must also be widely promulgated (#2), or publicly accessible. Publicity of laws ensures citizens know what the law requires. Laws should be prospective (#3), specifying how individuals ought to behave in the future rather than prohibiting behaviour that occurred in the past. Laws must be clear (#4). Citizens should be able to identify what the laws prohibit, permit, or require. Laws must be non-contradictory (#5). One law cannot prohibit what another law permits. Laws must not ask the impossible (#6). Nor should laws change frequently; the demands laws make on citizens should remain relatively constant (#7). Finally, there should be congruence between what written statute declare and how officials enforce those statutes (#8).

The requirement for laws to be prospective and general, is a curtailment on arbitrary power, i.e., laws cannot simply be enacted to achieve what those with the power to enact them desire. The other requirements are necessary for laws to be functional. I agree with all of Fuller’s pre-requisites, although they may not be an exhaustive list. In so far as it is not covered by number 8, the law must be applied and enforced impartially. Additionally, no individual should be immune from the rule of law.


Indeed, a more succinct summary of the rule of law is that it is the antithesis of arbitrary power. A state ruled by a dictator with no restriction on the exercise of his power, or alternatively where the only restriction is the mere formal passing of legislation, is not governed by the rule of law.


If human rights laws are inherent to the rule of law, one would expect them to have been found in the earliest legal systems, even in a nascent form. Yet this does not appear to have been the case. For the ancient Greeks, justice in the legal sense of the term represented good proportion, the equitable proportion between possessions and duties.[3]


Similarly for the Romans the ‘jus’ [justice] represented the just share that should be attributed to everyone. The jurist is one who determines this just distribution. The aim of justice is to achieve harmony within the group. [4]


Consequently, human rights laws as they are understood today, with their premise being that a right can be inalienably linked to a particular individual without reference to a society, would have been unthinkable to the ancient Greeks or the Romans.[5]


What then is the argument for human rights laws being an inherent part of the law of law?

In his book ’The Rule of Law’, Lord Bingham, argues in favour of the proposition, focusing on the rights enshrined in the European Convention on Human Rights (“ECHR”) [6] He compares the ‘thick’ and ‘thin’ definition of the rule of law and argues that a state which does not respect the rights listed within the ECHR is not operating within the rule of the law.


In support of his argument, he cites the examples of the USSR and Germany under NDSAP government, as state actors who committed large scale democide and genocide but nonetheless passed legislation to authorise their actions.[7]


For the reasons given above, I agree with Lord Bingham that the mere formal enacting of laws is not sufficient for the ‘rule of law’ to be in operation. Yet when trying to explain why the rights enshrined in the ECHR are inherent to the rule of law, he does little more than describe them.[8]


The irony of Lord Bingham referring to the USSR as a state that operated outside of the rule of law due to its disregard for human rights, is that the USSR had a written constitution that purported to guarantee certain human rights, that was strikingly similar to the Universal Declaration of Human Rights adopted by the United Nations (this being similar to the ECHR).[9]


Indeed, there are striking similarities between the Jacobin declaration of the Rights of Man which followed the immensely violent and barbaric French revolution, the Soviet Constitution and the UN Declaration.[10]


The atrocities committed in the name of the first of the aforesaid declarations are well known. Further, the regime that proclaimed religious freedom publicly de-frocked the bishop of Paris and deported, detained and seized the property of, those clergy who would not swear allegiance to ‘liberty and equality’.[11]


Whilst one could simply attribute the above to the evil of individuals and a lust for power, the vagueness of the rights-based declarations, could be regarded as inherently dangerous and antithetical to the rule of law in particular, with regard to Fuller’s fourth principle. For instance, article 6 of the ECHR, provides for a right to a public hearing, unless inter alia, in the opinion of the Court this would prejudice the interests of justice. This is said to apply in special circumstances and restrictions should only be made to the extent necessary.


Nonetheless the exception is vague enough to be akin to making the right to a public hearing subject to judicial discretion. On the question providing a judge with a discretion over whether a hearing is conducted in public, in a pre ECHR English case, Lord Shaw stated:


What has happened [the hearing of proceedings in camera/private] is a usurpation – a usurpation which could not have been allowed even as a prerogative of the Crown, and most certainly must be denied to the judges of the land. To remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand”.[12]


To shift the right to a public hearing as guaranteed by the English common law to judicial discretion on the question of whether morality requires that the hearing is conducted in private, would certainly be a shift from the rock to the sand.


The problem of vagueness is greater for some of the other ECHR articles. For example, the right to free expression guaranteed by article 10 can be infringed on grounds such as, the protection of public morals. Furthermore, laws against so called hate speech have been deemed compliant with article 10; the concept of 'hate speech' is nebulous and determining what amounts to 'hate speech' necessarily involves invoking the judge’s political biases.


In addition to vagueness, there may be something inherently problematic with seeking to break with all past legal tradition and make bold declarations as to the rights of man; see Fuller’s sixth rule above.


As Edmund Burke opined:


A spirit of innovation is generally the result of a selfish temper and confined views. People will not look forward to posterity, who never look backward to their ancestors”[13]


The British Constitution in Burke’s view was the result of patrimony and maintaining what had worked over the years, rather than being based on any abstract principles. He argued that the British Constitution was indissoluble with the houses of Parliament and the Crown not being permitted to abolish themselves or each other, instead being obliged to ‘hold their faith’ with each other and the citizens.[14]


This did not mean in his view, that change was impossible. However, the inherited Constitution provides stability with some immutable safeguards and prevents a situation where:


“no law be left but the will of a prevailing force”.[15]


In contrast to Burke, proponents of human rights laws, tend to claim that such rights are autonomous, universal, and based on the laws of nature, rather than being divine laws, or laws based on tradition.


Yet when one analyses this claim, the philosophical justification for human rights laws does not extend beyond tautology; human rights laws appear to be based on an inherent dignity that is apparently attached to being human, but without reference to the divine where does this dignity come from? Is it a fact or a right; does it derive from human nature or from human reason[16]? The problem with the former can be found HERE and the latter alone cannot escape the tautology.


It is unsurprising that when the UN convened a commission with the aim of establishing a consensus as to the philosophical basis for human rights, it ended in failure.[17]


In conclusion, I would argue that human rights laws are not integral to the rule of law. It would not be accurate to state that without modern human rights laws, a state will inevitably be able to exercise power in an arbitrary fashion. Further, modern human rights laws are not required to achieve Fuller’s pre-requisites.


Additionally, there is no reason why a state must submit to a supra-national authority or accede to any specific legal instrument, in order to operate within the rule of law.


Indeed, there are serious dangers with grand declarations that have no regard to legal tradition and that are malleable enough to be manipulated by malevolent tyrants.


NOTES

[1] See for instance Aristotle, ‘Politics – 3.16’ & Omnes legum servi sumus ut liberi esse possumus – we are all servants of the rule of law in order that we may be free (attributed to Marcus Tulius Cicero), i.e. because without a concept of a rule of law that transcends the will of man, mankind is placed in a Hobbesian state of Nature – T.Hobbes ‘Leviathan’ 1651 at Part I C13 [2] Fuller, Lon, Morality of Law, rev. ed. (New Haven: Yale University Press, 1969), p. 39 [3] A De Benoist – Beyond Human Rights p26. See also Aristotle 'The Nicomachean Ethics' - P118 book V part iii - Penguin 2004 Ed, translated by J Thompson

[4] Ibid [5] Ibid [6] T. Bingham ‘The Rule of Law’ First published by Allen Lane 2010, PII C7 [7] Ibid p67 [8] Ibid at p66 & see Chapter 7 generally [9] See K Bolton – ‘The Tyranny of Human Rights’ pp50-53 - 2022 Antelope Hill Publishing [10] Ibid [11] Ibid 52 & 60 [12] Scott v Scott [1913] AC 417, p477 [13] E Burke, Reflections on the Revolution in France 1790, p19 Archeron Press

[14] Ibid p10 & p15 [15] Ibid [16] De Benoist Op Cite p188 [17] De Benoist Op Cite p3

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