Excellent essay. I concur with all of it except in one important respect. I do not think it is helpful to view 'Human Rights' - and the degenerated 'woke' version of it - as "serving the interests of the dominant class". Except perhaps in a narrow definition of 'serving the interests'. I do not think it is serving the interests of anyone.....rather it is a kind of mass psychosis; one that ensnares everyone - rich and poor (especially the rich if anything), young and old etc. I see it rather as a stage on the Shakespearean tragedy of Western Liberal Individualism - Feudalism > Freedom > Narcissism > Psychosis (something like that).
Yes - the psychosis point is important. That is a very McGilchristian point, but I've been for a long time thinking about writing a post on how we can only really understand where we're headed by resorting to SF fiction.
I have been convinced for a long time that every Govt intervention drives diametrically opposite outcomes to those on which the intervention is sold. It's nice to see you draw out that far from standing up to Govts, the HRA actually strengthens the political class current direction of travel - I wholeheartedly agree that freedom of speech is now much more curtailed/contingent than it was even 30yrs ago. Yet more evidence of the Iron Law of Govt intervention - I think it's (the system of Governance) a fault of design rather than intent. Not one I'd seen before but thank you so much for shining a light on this. Another brilliant piece of work.
It is a fault of design and intent. The important point to remember is that 'government' is a product of the activities of those who govern, and their incentives are always to increase the power of government.
While I certainly agree with much of what you say here - especially that contemporary human rights lawyers don't really have any interest in upholding the idea of rights as limits to state action - I also have some comments and issues, beyond my usual point that all of this throws away the Kantian basis for the condition of right (Recht), and is thus very depressing.
Regarding Liberty, I signed up for their newsletter during the Nonsense because I couldn't believe there was to be no pushback on the bizarre anti-scientific, anti-rights, anti-human bizzarro garbage that was being enacted to "keep us safe" (which of course, actually killed more people than the virus, as could have been predicted at the time). Liberty did attempt some pushback then, and thus came to my attention. Since then, their newsletters have been painfully passe, and the organisation seems to have fallen back in lockstep with the ruling zeitgeist, which is more or less what you accuse here.
Now more importantly on the matter of human rights: while I realise that the 1948 Universal Declaration of Human Rights was not a legally binding document, it is rather shocking to me that while the Council of Europe did draft some kind of legal framework in 1950 (two years later) in reaction to this (and this before the EU exists, I note) you are telling me that the UK did nothing at all to integrate the concept of human rights into law until 1998 - by which point, Kantian concepts of rights were already understood by no-one, and the entirety of a condition of right (Kant's Recht) was already dead and buried.
But the UK was a founding member of the Council of Europe. So what happened here? Did British conceptions of 'human rights' exist solely as a 'serving suggestion' for half a century...? So they went from nebulous advice, to direct opposition to Kantian rights? I feel like there's another story here that this piece isn't telling.
Lastly, Marx (unlike most people today) was familiar with Kant's work, or at least had read him (this doesn't guarantee understanding Kant, by any means). But Marx is talking about the Rights of Man, and not 'human rights', which refer to two very different approaches to these issues. As a result, you cannot accurately use it to underpin your points, as what Marx was criticising was a very different conceptual and legal regime to the one you are attacking here.
This is an important point, and one covered exceptionally well by Hannah Arendt. The failures of the two World Wars included in part failures to care for those who were reduced to refugee status. Hence Arendt's explanation for the failure of the old regime of the 'Rights of Man', and the emergence of 'human rights' to replace it. This is why Marx's remark cannot, as you have used it, be taken as a criticism of twentieth century human rights (which are anyway not the same as twenty first century conceptions of 'human rights') without losing some important context. For more on this, see this essay of mine from 2022, "The Barbed Wire Labyrinth", which is primarily an exposition of Arendt's key points in this regard:
It's not that the existence of the ECHR had no influence on UK courts between 1953 and 1998. And of course sometimes people did successfully appeal decisions of the House of Lords as it then was to the European Court of Human Rights in Strasbourg. There is indeed a long story there - one that would be too long in the telling.
My aim in bringing in Marx is only to refer to the vast body of Marxian literature on human rights (much of it written after the ECHR came into existence) - I just began the piece with that quote because I like it!
Perhaps we now have a Constitutional Parliament to match or Constitutional Monarchy?
From Wikipedia:
"Constitutional monarchy, also known as limited monarchy, parliamentary monarchy or democratic monarchy, is a form of monarchy in which the monarch exercises their authority in accordance with a constitution and is not alone in making decisions. Constitutional monarchies differ from absolute monarchies in that they are bound to exercise powers and authorities within limits prescribed by an established legal framework."
So although 'Parliament is sovereign' it seems to me that our politicians have *chosen* to exercise powers and authorities within limits prescribed by an established legal framework. Which would explain a great deal, the lawyers have executed a slow bloodless coup.
"The Great Charter was not legislation but a promise by the head of state to the people in perpetuity."
So how can Parliament legally be sovereign? Is that not treasonous since Magna Carta 1215 is the written English (British) constitution and undermining it is treason. Surely the people are sovereign so that we can hold out government to account through the process of Trail By Jury which allows the Jury to decide if a statute is fair, or not, and if not, to annul it. If Parliament were sovereign, they could enact whatever despotic statutes they wished, which was what Constitutional Common Law was meant to safeguard against and should again.
The first quote was taken from the below:
"Finally, our modern-day parliament, and the government more broadly, makes the claim that the later re-written, legislated forms of Magna Carta produced in (among others) 1225 and 1297, can somehow overwrite or supersede the 1215 original. The Great Charter was not legislation but a promise by the head of state to the people in perpetuity. The only way an uncomfortable establishment could attempt to extricate itself from the limitations in which it is bound would be to pretend to others or even themselves that their legislative powers give them that authority to alter those principles of the original Magna Carta. Our history is littered with veiled attempts by the legislature, largely through confusion and obfuscation, to throw off the shackles of this constitutional
framework in which it sits. Although they can't legitimately do so, it might be seen by those with a controlling mindset as imperative that they try to obscure and bury the confirmation of the people's sovereignty contained within the 1215 Magna Carta's Articles of Common Law. For the citizens to have authority over government that was successfully established by the Charter, coupled with the perpetual nature of it—establishing these government limitations in perpetuity on all subsequent monarchs and administrations, was a bombshell to all future collectivist or statist thinkers."
Suffrage is not democracy; the sovereign people should have the final say over what laws they wish to live under.
It is in the administration of justice, or of law, that the freedom or subjection of a people is tested. If this administration be in accordance with the arbitrary will of the legislator—the government is a despotism, and the people are slaves. If, on the other hand, the rule of decision be those principles of natural equity and justice, which constitute, or at least are embodied in, the general conscience of mankind, the people are free in just so far as that conscience is enlightened.
from 'An Essay on the Trial by Jury' by Lysander Spooner, 1852
Excellent essay. I concur with all of it except in one important respect. I do not think it is helpful to view 'Human Rights' - and the degenerated 'woke' version of it - as "serving the interests of the dominant class". Except perhaps in a narrow definition of 'serving the interests'. I do not think it is serving the interests of anyone.....rather it is a kind of mass psychosis; one that ensnares everyone - rich and poor (especially the rich if anything), young and old etc. I see it rather as a stage on the Shakespearean tragedy of Western Liberal Individualism - Feudalism > Freedom > Narcissism > Psychosis (something like that).
Yes - the psychosis point is important. That is a very McGilchristian point, but I've been for a long time thinking about writing a post on how we can only really understand where we're headed by resorting to SF fiction.
I like that idea.
Thanks for putting human rights law into context, David. That was really helpful. It makes total sense.
I have been convinced for a long time that every Govt intervention drives diametrically opposite outcomes to those on which the intervention is sold. It's nice to see you draw out that far from standing up to Govts, the HRA actually strengthens the political class current direction of travel - I wholeheartedly agree that freedom of speech is now much more curtailed/contingent than it was even 30yrs ago. Yet more evidence of the Iron Law of Govt intervention - I think it's (the system of Governance) a fault of design rather than intent. Not one I'd seen before but thank you so much for shining a light on this. Another brilliant piece of work.
It is a fault of design and intent. The important point to remember is that 'government' is a product of the activities of those who govern, and their incentives are always to increase the power of government.
Hi David,
While I certainly agree with much of what you say here - especially that contemporary human rights lawyers don't really have any interest in upholding the idea of rights as limits to state action - I also have some comments and issues, beyond my usual point that all of this throws away the Kantian basis for the condition of right (Recht), and is thus very depressing.
Regarding Liberty, I signed up for their newsletter during the Nonsense because I couldn't believe there was to be no pushback on the bizarre anti-scientific, anti-rights, anti-human bizzarro garbage that was being enacted to "keep us safe" (which of course, actually killed more people than the virus, as could have been predicted at the time). Liberty did attempt some pushback then, and thus came to my attention. Since then, their newsletters have been painfully passe, and the organisation seems to have fallen back in lockstep with the ruling zeitgeist, which is more or less what you accuse here.
Now more importantly on the matter of human rights: while I realise that the 1948 Universal Declaration of Human Rights was not a legally binding document, it is rather shocking to me that while the Council of Europe did draft some kind of legal framework in 1950 (two years later) in reaction to this (and this before the EU exists, I note) you are telling me that the UK did nothing at all to integrate the concept of human rights into law until 1998 - by which point, Kantian concepts of rights were already understood by no-one, and the entirety of a condition of right (Kant's Recht) was already dead and buried.
But the UK was a founding member of the Council of Europe. So what happened here? Did British conceptions of 'human rights' exist solely as a 'serving suggestion' for half a century...? So they went from nebulous advice, to direct opposition to Kantian rights? I feel like there's another story here that this piece isn't telling.
Lastly, Marx (unlike most people today) was familiar with Kant's work, or at least had read him (this doesn't guarantee understanding Kant, by any means). But Marx is talking about the Rights of Man, and not 'human rights', which refer to two very different approaches to these issues. As a result, you cannot accurately use it to underpin your points, as what Marx was criticising was a very different conceptual and legal regime to the one you are attacking here.
This is an important point, and one covered exceptionally well by Hannah Arendt. The failures of the two World Wars included in part failures to care for those who were reduced to refugee status. Hence Arendt's explanation for the failure of the old regime of the 'Rights of Man', and the emergence of 'human rights' to replace it. This is why Marx's remark cannot, as you have used it, be taken as a criticism of twentieth century human rights (which are anyway not the same as twenty first century conceptions of 'human rights') without losing some important context. For more on this, see this essay of mine from 2022, "The Barbed Wire Labyrinth", which is primarily an exposition of Arendt's key points in this regard:
https://onlyagame.typepad.com/only_a_game/2022/08/the-barbed-wire-labyrinth.html
Thanks, as ever, for a stimulating exploration of the issues.
Chris.
It's not that the existence of the ECHR had no influence on UK courts between 1953 and 1998. And of course sometimes people did successfully appeal decisions of the House of Lords as it then was to the European Court of Human Rights in Strasbourg. There is indeed a long story there - one that would be too long in the telling.
My aim in bringing in Marx is only to refer to the vast body of Marxian literature on human rights (much of it written after the ECHR came into existence) - I just began the piece with that quote because I like it!
Thanks for clarifying, David - much appreciated!
Perhaps we now have a Constitutional Parliament to match or Constitutional Monarchy?
From Wikipedia:
"Constitutional monarchy, also known as limited monarchy, parliamentary monarchy or democratic monarchy, is a form of monarchy in which the monarch exercises their authority in accordance with a constitution and is not alone in making decisions. Constitutional monarchies differ from absolute monarchies in that they are bound to exercise powers and authorities within limits prescribed by an established legal framework."
So although 'Parliament is sovereign' it seems to me that our politicians have *chosen* to exercise powers and authorities within limits prescribed by an established legal framework. Which would explain a great deal, the lawyers have executed a slow bloodless coup.
It is more that politics and law work in concert, in such a way as to sustain a particular governing framework.
"The Great Charter was not legislation but a promise by the head of state to the people in perpetuity."
So how can Parliament legally be sovereign? Is that not treasonous since Magna Carta 1215 is the written English (British) constitution and undermining it is treason. Surely the people are sovereign so that we can hold out government to account through the process of Trail By Jury which allows the Jury to decide if a statute is fair, or not, and if not, to annul it. If Parliament were sovereign, they could enact whatever despotic statutes they wished, which was what Constitutional Common Law was meant to safeguard against and should again.
The first quote was taken from the below:
"Finally, our modern-day parliament, and the government more broadly, makes the claim that the later re-written, legislated forms of Magna Carta produced in (among others) 1225 and 1297, can somehow overwrite or supersede the 1215 original. The Great Charter was not legislation but a promise by the head of state to the people in perpetuity. The only way an uncomfortable establishment could attempt to extricate itself from the limitations in which it is bound would be to pretend to others or even themselves that their legislative powers give them that authority to alter those principles of the original Magna Carta. Our history is littered with veiled attempts by the legislature, largely through confusion and obfuscation, to throw off the shackles of this constitutional
framework in which it sits. Although they can't legitimately do so, it might be seen by those with a controlling mindset as imperative that they try to obscure and bury the confirmation of the people's sovereignty contained within the 1215 Magna Carta's Articles of Common Law. For the citizens to have authority over government that was successfully established by the Charter, coupled with the perpetual nature of it—establishing these government limitations in perpetuity on all subsequent monarchs and administrations, was a bombshell to all future collectivist or statist thinkers."
Suffrage is not democracy; the sovereign people should have the final say over what laws they wish to live under.
It is in the administration of justice, or of law, that the freedom or subjection of a people is tested. If this administration be in accordance with the arbitrary will of the legislator—the government is a despotism, and the people are slaves. If, on the other hand, the rule of decision be those principles of natural equity and justice, which constitute, or at least are embodied in, the general conscience of mankind, the people are free in just so far as that conscience is enlightened.
from 'An Essay on the Trial by Jury' by Lysander Spooner, 1852
I really enjoy your articles, though, thanks.