The European Convention on Human Rights is a unique hypocrisy amongst
Instruments claiming to protect liberty. For all the supposed liberties it grants (which reflect select values of a few lawyers and civil servants and not the people of Europe that its title grandiosely seems to claim), it allows the state to define circumstances in which to take them away. But it is more than this, in classic ‘anti-liberal’ spirit, the Convention also defines the limits of the right through the exercise of the provisos upon which it can be used.
The nature of rights is to have an unlimited number of claims against the state. That it is the duty of the state to provide for them, irrespective of the merit of the individual bringing forward the claim. One sees in its most primitive political form as the bogus: ‘all men are equal’ doctrine. For the claimants it is conveniently forgotten that the state is really the public personified. The human rights brigade forget that with every claim there is a burden and a cost. The only way these claims are to be met is by increasing the size of the state to meet those demands. This reduces the choice of what those that do not want rights in the machinery of Government. For example, the right to housing is a burden of tax. The right to privacy will encumber some other legitimate claim to information, and so on. This is the inherent ‘anti-liberalism’ of the claim.
In the true John Stuart Mill sense of liberalism, a right cannot legitimately exist if it is a burden to others. Otherwise one is simply claiming the right to swing one’s fist despite punching others on the nose. Secondly, Mills tells us that a right cannot be espoused in the spirit of liberty unless it can manifest through legitimate state action that prevents its exercise interfering with others. The one proviso is ‘harm’. As far as the European Convention is concerned it is for the Government in question to define harm. However, this cannot be a liberal reading of the concept of a right. The liberal reading must be that the right exists 'unrestrictedly unless it is exercised harmfully'. Otherwise state action could define the limits to exercising the right, before the right is exercised. This is exactly what, however, the growing European Human Rights law does.
Now to demonstrate how the claims machine works in practice, look no further than the tragic case of Gita Saghal. Gita was sacked by Amnesty international for criticizing its pro-terrorist approach to rights claims. But of course she was, this sits in with the ‘anti-liberal’ approach: rights must be for all irrespective of duty, conduct and demonstrable vindication of obligation to one’s fellow man. Worryingly of all for the state is the more subtle espousal of immoral greed of human action without responsibility that this conceptualisation of rights espouses. Taken to its extreme it leads not only to anarchy in practice when these claims remain unfulfilled, but anarchy in theory when the state is seen as secondary to any individual interest. Therein lies its potential to destroy the equilibrium of society, through its imbalance of the economy of public policy. To echo the words of Thomas Paine, it is better to have no rights and a state, rather than the other way around, as in the latter there is no rule of law.
Lawyers and Governments that seek vindication of these political choices through the legal system, do so at the cost of politicizing the judiciary and weakening it through allowing it to infringe the separation of powers. This reduces the legitimacy of the judiciary in the eyes of the public, undermining the rule of law.
Another spurious logic fostered by the human rights vigilantes is the overall benefit doctrine. E.g. Signing up to rights can be likened to telling a taxi driver that he is better off being restricted in his trade through licencing, as the safety that licencing brings increases the trade. Unfortunately it does not, as once the cost burden outweighs the incentive to trade, there is, well simply: no trade. In this way one persons unrestricted right can cause harm to others (e.g. my right to cross-roads safely, against the number of drops a cab can make). The problem arises when one argues polar opposites of this example, the subtle balancing act that is needed to preserve liberty, is lost as the proverbial baby with the bath water.
Abhijit PG Pandya
Copyright Birkenhead Society.