Letter to Philosophy Now
Published in April/May 2017 edition, Issue 119
"Undoubtedly the law of nature has often been resorted to in support of causes dubious and retrogressive. But this ambivalence of the ideology of natural law is only slightly relevant in the field of international law. There, by and large, it has acted as a lever of progress. The law of nature has been rightly exposed to the charge of vagueness and arbitrariness. But the uncertainty of the 'higher' law is preferable to the arbitrariness and insolence of naked force.”
In other words, although natural law
has no intrinsic validity, he thought it
better than the alternatives. A bit like
democracy, I suppose.
wider sense, the binding force … of
international law... is based on the law of
nature as expressive of the social nature of
The idea of human rights of course took flight as a result of the heinous actions of both the Nazis and the Japanese during the second world war. The Nazi party had altered the law in so many ways to enable the horrors of that period to be carried out lawfully. And so, after the war, there was a desire to say that complying with the law of a State could not be used as justification for barbaric acts. That law itself had to judged against a higher standard, an internationally accepted standard of how we should all act. Individuals were therefore to be held to account for their willingness to blindly follow that unjust law. "Following orders" was no longer an excuse. In the light of what had occurred, it was relatively clear what principles could be stated in order to diminish the chance of same thing happening again. And so we have the creation of the 20 century concept of human rights – actually a pragmatic attempt to impose at least some semblance of control upon would-be dictators and even dictatorial democracies – based on the vivid experience of those engaged in the Nuremberg trials of what horrors unchecked power could produce.
Some further thoughts -
It is worth recording that there was significant opposition from the then President of the American Bar Council in 1950 to the Universal Declaration of Human Rights (adopted by the United Nations). In his view, not only did it quite 'unjustifiably interfere with domestic law' by prohibiting interracial marriage and racial segregation, but it imposed on the USA a requirement to provide social benefits in various ways to those in difficulty. Altogether, it was seen by this gentleman as an un-American attempt to make a fundamental change to the nature of the country.
For many years in this country there has been an opposition from the right wing to ‘interference’ in this country's affairs by the European Court of Human Rights. That the Convention was largely drafted by British lawyers seems to escape their attention. For them, such overarching supranational statements of law, imposed by a body which has not been directly democratically elected by us are simply unacceptable - even though our democratically elected government signed the convention. As a way of addressing these concerns Parliament passed the Human Rights Act and so incorporated the Convention into our law. This democratic step has still not been enough for some on the right wing and so there have been suggestions that the Act should be repealed and replaced by a 'British Bill of Rights', adjudicated upon solely by our Courts.
Quite how this would differ from the existing situation, we have not been told. Obviously those calling for such a change are unaware that the Supreme Court is not at the moment actually bound by the decisions of the European Court of Human Rights in any event. And in a future without direct input from the European Court of human Rights, the Supreme Court would still be able to take its decisions into account to the extent that they do now, and just as they always have with decisions of other Courts of other jurisdictions. However, the government seems at the moment to accept that reducing the rights available to our citizens, the voters, would not be very popular and so currently the proposal is languishing in the long grass.
Now, I am more than happy to see human rights play a prominent role in society. I am, I suppose, by nature a liberal. But I also have to accept that democracy may one day bring about the erosion of those human rights. And in the debate which will surround it, I think that we shall need a better argument than ‘natural law’. Which is why we need to remember the origins of human rights in order to provide a good reason for their existence. A reason based on the avoidance in the future of the horrific events we have seen in past seems to me to be a good and convincing way of proceeding.
In the meantime, and in order to put off that day as far as possible, we would be well advised not to support the creation of more and more ‘inalienable’ human rights, such as a universal right to internet access, as, eventually, this may cause people to decide to push back against all human rights. The Courts should also reign themselves in in terms of the expansion of their interpretation of the conventions. The ‘Human Rights Lobby’ is already too easily spoken of in the same breath as “Health and Safety gone mad” and “curved bananas”. Better to content ourselves with core rights and leave any expansion to democratically decided national law which, by its nature, will be more likely to command assent.