HUMAN RIGHTS:
A THREAT TO LAW?
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26(2) UNSWLJ
418
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 |
Doc.
No. 2003.008 |
Introductory
note by Francis Bennion
I was asked to write
the following article by the Editor of the University
of New South Wales Law Journal Thematic Issue
for 2003. He explained that the Thematic Issue
is devoted to a single topic of legal (and, indeed,
general) interest, and that previous Thematic
Issues have focused on, for example, The Centenary
of the Australian Constitution, Evidence and Procedure
and Freedom of Property. He said that the
topic for the 2003 Thematic Issue was The
Common Law, adding: ‘The issue will
consider the function of the common law today,
with articles structured around tensions existing
at the three “levels” of the common
law:
1. The common
law as opposed to equity;
2. The common
law as opposed to statute;
3. The common
law as opposed to the civil law and other legal
systems.’
The Editor went on:
‘ Given
your eminence and expertise in the area, I was
hoping you would contribute a piece on human rights
protected by courts and human rights protected
by statute. After the advent of the European Union,
Australia has been described (admittedly only,
to my knowledge, by Australian judges) as one
of the few remaining “pure common law” jurisdictions.
I had in mind an article by you on whether (and
how) the European Union and the Human Rights Act
1998 (UK) have brought about a qualitative change
in the way human rights are protected in UK law.’
That envisaged an
article favouring human rights law, but the result
below did not quite turn out that way. Philip
Davies MP, who does not favour human rights law,
wrote to me in 2006:
‘ I
am delighted to read that you are a lawyer who
is not focused on “human rights”.
If only you were in Parliament! Your article should
be compulsory reading for anyone at law school!’
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HUMAN RIGHTS:
A THREAT TO LAW?
Page 418
FRANCIS BENNION
What is
the best sort of law for a common law country?
It is often thought nowadays to be one that protects
what are known as ‘human rights’. This much-used
concept may however threaten law itself. It may
therefore endanger the rule of law, a principle
which protects the supremacy of regular as opposed
to arbitrary power. It may also threaten the vital
concept of law and order. In the present article
I examine these questions with particular reference
to the common law, since that is the subject of
this Thematic Issue.
I THE
NATURE OF HUMAN RIGHTS
Human
rights are now, in the language of legal educators, ‘a
pervasive’. The
concept has been called ‘the great idea of our
time’. On
the other hand a commentator has referred pejoratively
to the fatal moment when ‘the human rights juggernaut
came roaring down the road’. I
for one prefer to be governed by the law rather
than by a populist juggernaut. If it crashes into
the law and damages it, that must be a matter
of grave concern.
Human
rights as now known are a worthy product of muddled
thinking. They postulate that every human being
living on the face of the planet is in possession
of a comprehensive bundle of supportive personal
rights applying directly to themselves. Whether
this is true or not partly depends on what is
meant by a right here. It must either be a legal
right or a moral right, for there is no other
kind. The human rights concept, as usually proclaimed,
does not make clear which of these two meanings
is intended or indeed whether either is intended,
the thinking of its promoters perhaps not having
got that far. Possibly they do not really view
them as rights at all. Edward Rothstein said that
here the language of rights is just the .................Next
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