The next chapters will discuss theoretical critiques of human rights with reference to cases decided by the European Court of Human Rights. This will be done without explaining how these cases have emerged and how they fit into European human rights law. The present chapter offers a ‘black-letter law’ introduction to the European Convention on Human Rights, especially for the benefit of the reader who is not familiar with it.

In the Anglo-Saxon legal jargon, the expression ‘black-letter law’ refers to the law which can be read, printed on paper, in legislative, judicial and possibly doctrinal documents. A black-letter study stresses the letter of the law, without paying much attention to its theoretical, political or social significance; its main aim is to investigate what a lawyer can do with the law. Black-letter accounts can be highly sophisticated or thoroughly rudimentary. The introduction offered here is of the latter kind.

The work of the Council of Europe

The European Convention on Human Rights owes its existence to the Council of Europe. This European organization must not be confused with the European Community/Union. It was set up in 1949 as one of a number of initiatives to secure peace and security in Europe. Originally made up of ten states, it now counts forty-six member states, including Turkey (since 1949) to the south and the Russian Federation (since 1996) to the east.

Bentham's critique of the French Declaration was not primarily utilitarian in inspiration. As we have seen in the previous chapter, ‘Anarchical Fallacies’ denounced three aspects of the Declaration: its meaninglessness, the risk of insurrection it allegedly generated, and the emptiness of its promises. A text directly derived from utilitarianism (rather than merely compatible with it) would have been chiefly concerned firstly with opposing an absolutist reasoning and secondly with stressing the need to pursue the general interest. Why this is so will become clear below.

I cannot think of a classical text which presents a utilitarian critique of human rights. By contrast, the literature is replete with critiques of utilitarianism which lament its antagonism to the idea of individual human rights, as in the statement at the head of this chapter. In response, utilitarians often defend their political philosophy by saying that they are not opposed to rights, to which their detractors reply that they (the utilitarians) can never truly believe in rights. This debate, which is directly relevant to this part of the human rights credo which asserts that human rights are ‘fundamental’ and ‘inalienable’, provides the starting-point of this chapter.

Finally, we come to the question: what are human rights? There is no single answer to this question because it depends whom you ask. In support of this admittedly controversial contention, this chapter seeks to map out the various concepts of human rights which are encountered in human rights scholarship. Its primary aim is therefore descriptive rather than normative: documenting and making sense of the way the expression ‘human rights’ is used rather than propounding a particular theory as to how the concept should be understood. I suggest that there are four main concepts of human rights which are in competition with each other. To present them in the briefest manner, those I call ‘natural scholars’ conceive of human rights as given; ‘deliberative scholars’ as agreed; ‘protest scholars’ as fought for; and ‘discourse scholars’ as talked about.

I attach these four concepts to four ‘schools’. The term ‘school’ came to me as I was writing about various ‘scholars’. It is admittedly misleading. The scholars I bracket together do not necessarily know each other and may not wish to recognize themselves in the groupings I have created. Moreover, I believe that the concepts I have identified are not peculiar to the scholarly world but are also found in the way ‘lay’ people conceive of human rights. However, a term needs to be used.

Cultural relativism is widely recognized as the doctrine which stands opposed to the idea, central to the human rights credo, that human rights are universal. It is generally understood as asserting that each culture nurtures its own values and ways of being and doing; is understandable and must be understood within its own terms; and should not be morally assessed by a culture external to it, even in the name of human rights. The doctrine tends to result in a denunciation of human rights as an expression of imperialism.

Discussions about human rights and relativism typically involve references to Asia, Africa and/or the Middle East. This is because the debate between universalism and relativism tends to be conducted as if it were concerned with how the rest of the world should react to something which originated in the West. This chapter springs from the view that this is not the most fruitful way to conceive of it.

The chapter shows that the debate is inescapable even within the confines of Europe, i.e. internally to the fairly homogeneous region from which human rights are said to have originated.

The first article of the ‘Declaration of the Rights of Man and of the Citizen’ adopted by the French National Assembly in 1789 proudly stated: ‘Men are born and remain free and equal in rights’. One year later, Olympe de Gouges asserted in a pendant ‘Declaration of the Rights of Woman’, of her own making: ‘Women are born free and remain equal to men in rights.’ This stance did not go down well. On 3 November 1793, de Gouges was guillotined – like a man – for having forgotten the virtues of her sex and having inappropriately sought to become a statesman.

In their early formulations, the natural rights of man were not meant to be the rights of every human being. The great majority found compelling rather than repulsive the idea that some categories of people, including women and slaves, fell outside their ambit. This is no longer the case. Today few would dare to deny that human rights are meant to be the rights of every single human being. A feminist critique has nonetheless emerged in the last two decades which argues that human rights have been and remain typically male in their conception.

This chapter takes issue with the claim – at the core of the human rights credo – that human rights are natural or self-evident. It explores how the perceptions of two bodies of theory which oppose this claim could be said to be reflected in the Strasbourg case law.

The first critique on which the chapter focuses is that which was mounted by Jeremy Bentham against the 1789 French Declaration; the second, that which implicitly emanates from international relations (IR) realist scholars. These two unrelated theoretical perspectives are juxtaposed in this chapter because they both reject the idea that there exists a natural law which governs the conduct of the state and which is therefore superior to positive national law (Bentham) or which is fit to regulate the way states interact with each other (IR realism). In its own way, each theory stresses the principle of national sovereignty. Both theories regard the idea of human rights as emanating from above/outside the state/society as nonsense. They thus urge us not to believe in the human rights orthodoxy.

This chapter will give many examples which indicate that it is possible to consider that the Convention and its case law are dominated by realist considerations. This is particularly clear in respect of Article 15 which allows the use of derogation in times of national emergency, suggesting that we cannot believe the words of the provisions which purport to guarantee rights.

Is the rule of law optional for liberal democratic societies? In the wake of the attacks on the United States on 11 September 2001, the Bush administration seemed to say that it is. And in the wake of the attacks on London in July of 2005, Tony Blair has indicated that the rule of law is a luxury, dispensable when the going gets rough. In particular, he has indicated that judges have to be reined in from their disposition to enforce the rule of law against the executive, even if this requires both legislating how they are to balance liberty against security and amending the Human Rights Act 1998. In contrast, the Spanish government elected in the immediate aftermath of the attacks on Madrid on 11 March 2004 did not see fit to renege on a commitment to the rule of law.

Blair's comments fit within a trend whereby many liberal democracies since 9/11 have used either legislation or executive order to create a variety of legal black holes, situations in which individuals suspected of being threats to national security are detained indefinitely. In the United Kingdom, they were detained because, while they were aliens who would ordinarily be deported after a determination that they threatened security, the government is committed to not deporting anyone to a country where that person faces a serious risk of torture.

Introduction

This book explores the idea that there is a constitution of law, exemplified in the common law constitution of Commonwealth countries. It looks mainly to cases decided in the United Kingdom, Australia, and Canada in order to show that law provides a moral resource that can inform a rule-of-law project capable of responding to situations which place legal and political order under great stress, for example, states of emergency or executive decisions about national security. My argument is that the rule-of-law project is one in which judges play an important role but which also requires the participation of the legislature and the executive.

Two obstacles to such an argument will strike anyone familiar with the history of legal responses to such situations. First, in such situations the government usually claims that the exceptional nature of the situations requires a departure from the rule-of-law regime appropriate for ordinary times and so whatever role one accords to judges in ordinary times has to be significantly rethought. And often the government will follow through on this claim by procuring through a statute powers for itself which seem to permit it to act outside of the ordinary constraints of the rule of law. The government could be wrong in the claim that it needs such powers, but, and this is the second obstacle, as a matter of fact the judicial record in enforcing the rule of law in such situations is at worst dismal, at best ambiguous, and this fact might serve to buttress the government's claim.

Constitutional positivism

It is conventional to speak of the legislature as constituted by rules that speak to the number of members, their regional distribution, the way in which bills become statutes, and so on. But I mean by the constitution of the legislature the fundamental legal values that constitute its authority, whether or not there is a written constitution. I will start with the dramatic example of an alleged state of emergency. We saw in chapter 1 that Carl Schmitt argued that legal norms cannot apply to exceptional situations. He thus claimed that in a state of exception or emergency the writ of the rule of law does not run. I will show that contrary to Schmitt there is a genuine choice in any real or alleged emergency whether to respond to the emergency through the rule of law. I will also argue that where judges are involved in making that choice clear to a government that controls the legislature, they should articulate fully the basis for their decision.

It is a mistake then for judges to adopt the stance of judicial minimalism we saw Cass Sunstein outline in chapter 1. That stance requires judges to say as little as possible about the justification for the result they reach and it also asks them to intrude as little as possible into the work of the legislature by confining the scope of what they order. They should, that is, prescribe as little as possible to the legislature.