HUMAN RIGHTS: A THREAT TO LAW?

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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’. 1 The concept has been called ‘the great idea of our time’. 2 On the other hand a commentator has referred pejoratively to the fatal moment when ‘the human rights juggernaut came roaring down the road’. 3 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 page