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What’s Wrong with Rights? by Nigel Biggar

by
09 July 2021

Malcolm Evans puts in a plea for lawyers and judges under criticism

WHAT’s wrong with rights? Quite a lot, it would seem. What’s wrong with this book? Possibly the author’s failure to adhere to his own advice: “the strongest case is always one that strains to be just and charitable toward the opposition, and whose criticism therefore tells forcefully against the real target, not a straw man.”

There is not a great deal of charity on display towards some judges and human-rights lawyers in its final chapters. Perhaps more importantly, there is a tendency to present international human-rights law as making for itself claims that most international human rights-lawyers simply would not recognise.

For example, Biggar says that it is “crucial” to his argument that “a ‘right’, being paradigmatically legal, is stricter, more stable, and more secure than ‘moral right’,” a proposition that many might regretfully contest. And few would take the view that all human rights are necessarily natural rights. To imply this, as at times seems to be the case, is indeed “straw man-ism”.

In some ways, this book is not, like football, “a game of two halves”, but two halves of rather different games. The first chapters explore the idea of natural rights, starting with a presentation of the “sceptical” tradition over time, as reflected in the writings of Burke, Bentham, Ritchie, and O’Neill, followed by a “testing” of these criticisms against the concepts of natural rights found in the late medieval and early modern periods. This is followed by explorations of other approaches to, and critiques of, natural rights.

The general gist is that the idea of absolute rights is dangerous, since everything must be understood in its context. There are no such things as “natural rights”, but there is “natural right, law or morality” and there are “legal rights” that can be justified by that morality. This is an inevitably simplistic rendering of the author’s subtle and complex argument, but that argument ultimately serves to underline the core message: that framing something as a legal “human right” does not it with the authority of natural right or morality. No matter what such rights may claim for themselves, they are contingent and relative.

alamy photo of the european court of human rights, strasbourgSculpture outside the European Court of Human Rights in Strasbourg

This is reflected in following chapters, which challenge the subjective (individual) and absolute nature of legal human rights. The sole identified exception is the right not to be tortured, though torture “will not always be morally wrong”, and in such cases the “interrogator should follow his conscience” and leave the consequences to a Court.

While the phenomenon of rights is universal, human rights as found in international declarations and conventions “are not universally appropriate either” — indeed, they may even, it is implied amount to a “moral vice”. It is not that he is necessarily “against” human rights: it is just that he does not want the moral universe defined by them.

The odd thing is that many human-rights lawyers would agree. It is, then, unfortunate that in the remainder of the book they become targets — particularly as regards the part played by human rights in relation to overseas conflicts. The picture painted of the jurisprudence of the European Convention on Human Rights on this topic lacks nuance. One does not have to agree with the Court’s decisions to disagree with Biggar’s critique of them, which appears designed to find fault.

His impatience with rights-based judicial reasoning spills over into consideration of the decision of the Canadian Supreme Court concerning assisted dying, before undergoing its apotheosis into the concluding diatribe against “some” (named) human-rights lawyers, whose work he does not think very much of at all.

There is, however, much in this book to provoke thoughtful reflection, and much that provokes critical challenge — as well as parts that simply provoke. For all these reasons, it demands the serious engagement that it is sure to receive.

Dr Evans is Professor of Public International Law at the University of Bristol.

What’s Wrong with Rights?
Nigel Biggar
OUP £30
(978-0-19-886197-3)
Church Times Bookshop £27

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