HUMAN RIGHTS: A THREAT TO LAW?
| 26(2)
UNSWLJ 418
|
 |
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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