Human Rights and Its Malcontents

I am not a lawyer. I have not been to law school. This blog is not legal advice

The Rule of Law by Tom Bingham is a wonderful exploration of what the rule of law is, and why it is necessary. In this post I want to dig into some of the theoretical aspects of what human rights are, and how they apply to the rule of law.

First, what is the rule of law? And why is it important?

The phrase "rule of law" is attributed to Professor A. V. Dicey in his 1885 An Introduction to the Study of the Law of the Constitution. This work was of huge influence in the United Kingdom, and abroad. Dicey explains

It is better for the law to rule than one of its citizens ... so even the guardians of the law are obeying the laws

This brings us to the first point of law - it is seen in a personified manner. Professor Hans-Hermann Hoppe explains the deep history of this view in his lectures Economy, Society and History

Now, in these feudal times ... Law was at that time considered something that was given. Law was not considered to be something that was made by people, but something that existed eternally and was just simply discovered. People learned what it was. New law was from the very outset considered to be suspicious, because law had to be old, it had to be something that had always existed. Anybody who came up with some sort of new law, was automatically dismissed as probably a fraud

Indeed even by the time of Feudal Europe law was seen as something ancient, natural and discovered. The importance of law to every day life was likely greater then than it was now. As S. J. Gunn explains in Early Tudor Government

The proper execution of justice was one of the most fundamental duties of kingship ... Every monarch was warned when taking the coronation oath: "You shall make to be done after your strength and power, equal and rightful justice in all your dooms and judgements and discretion, with mercy and truth". The dictates of the king's conscience were reinfored by the example of great rulers of the past celebrated for their wisdom in doing justice and making good laws, from Moses, Solomon and Justinian to St Louis and Henry V

The view that law is something fundamental, eternal and natural is now no longer held quite so rigidly. For instance, Mehdi Hasan on Twitter said

43 million Americans who were promised relief by an elected president just got screwed over by an unelected group of justices, half of whom were appointed by a president who lost the popular vote and benefited from a stolen seat.

Yep. It’s all totally fine. Nothing to see here.

At the time of writing, that tweet had 4.2 million views and 27.7k likes (actually, quite a poor ratio). This view is now quite well in vogue. By the way, the context of this tweet was that the Supreme Court sided with Nebraska in Biden vs Nebraska. As a hilarious aside, every Democrat Twitter account tweeted something out about the case, except Nanci Pelosi. This is probably because Justice Roberts cited her in his majority opinion

“People think that the President of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress.” Press Conference, Office of the Speaker of the House (July 28, 2021).

Anyway, what does Hasan mean by his tweet? He means to say that law is simply the creation of the President. This could be seen as the "democratic" view of law. The idea that any law can be created at any time, simply by popular vote. This may at first glance appear to be a sensible position. However, I will offer some counterexamples. While these will not be a serious refutation of the principle, I hope they will for now make you suspicious of this principle.

Imagine a nation with two different ethnic groups. The Redesians are 51% of the population and the Bluesians are 49% of the population. As you can imagine, elections in this nation are quite close. One year, the Redsians manage to make a strong sweep and take the executive (President) and the legislator (Congress). The President's platform was promising disenfranchisement for those ugly Bluesians. He passed this bill by executive order, which was blocked by the Supreme Court. As it so happens, 5 of the 9 justices were appointed by a previous Bluesian President! What luck for those Bluesians. On Gwitter, Gehdi Gasan gweets

43 million Redsians who were promised electoral reform elected president just got screwed over by an unelected group of justices, half of whom were appointed by a president who lost the popular vote and benefited from a stolen seat.

Yep. It’s all totally fine. Nothing to see here.

Imagine now a different country. This country has seen civil war after civil war. Finally, with some help from international peacekeepers, the country is finally able to hold an election. A compromise government is formed, and a President is elected. The President wants to pass a bill that will allow him to take strong anti-terrorist activity. This includes powers such as imprisonment without trail for up to 180 days, withholding evidence from the accused, unrestricted torture of anyone deemed an enemy of the state, no warrant searches of homes, no warrant surveillance of electronic devices and on and on. A court rules this bill is illegal and violates basic rights of the citizens. In response, the President fires all the judges and overturns the decision.

Imagine a third scenario. You are a member of a small tribe that lives on an island. One day, a huge "ship" arrives from nowhere filled with people you have never seen before. Within weeks, they have set up on the island. One day you hear that a vote is happening on who owns the land you live on. This is alarming to you - this is your land. You were given this plot of land by your father, and he got it from his father before him going back to a time nobody remembers. You rush to the building that these new people built and ask around.

"Why yes" they explain "there will be a vote on who owns the land that you currently occupy"

"But, I have lived there all my life" you explain "it has been in my family from a time before memory. Until you showed up, nobody ever thought this could belong to someone else"

"But, shouldn't we be democratic about this?" asked the new arrivals "after all, the people can make all these decisions by a vote"

"But you outnumber us greatly" you protest "and have only just arrived. You are not one of us, and will vote for your own benefit with no care of who we are."

"Democracy is our greatest strength", they reply.

So, why is the rule of law important? Many reasons could be offered for this, but I offer two.

First, is my "theoretical" reason. Ultimately, it is a good thing in of itself. It is ethical that we should treat people with dignity, and not arbitrarily violate them.

Second, I offer the idea that good law creates a framework for economic activity. Without a solid framework of law, investment (in the broadest possible sense of the term) is more expensive due to uncertainty. This, in turn, reduces the amount of possible investment. Thus, lower overall quality of life than there could have otherwise been.

Bingham explains the Human Rights Act 1998 as the kind of crowing glory at the end of around a thousand years of English law development. In a moment we will analyse and critique the Act, but what Bingham does not adequately explain in his book is where law comes from in the first place. We've already offered some benefits of the rule of law, but what is its ultimate source? What is the motivations and causes of its existence? Does the cause of law lead us to conclude that it is discovered or invented?

What is law? It is ultimately a method by which conduct between people is governed. Why between people? Consider a man alone on an island. Let's call him John. The question of social cooperation is a moot point for him. He can do whatever he pleases upon the island, and nobody will ever be harmed but himself. There is nobody to complain about his behaviour. No conflict can exist, since there is nobody with which he can come into conflict with.

As soon as a second person is introduced to the island conflict can arise. Let's call her Alice. What do we mean by conflict? Conflict, in this sense, is a disagreement over the use of objects within the island. For example, perhaps John wants a stick to be used for bashing things while Alice wants to burn the stick for warmth. Both these goals can not be fulfilled simultaneously. Now, some kind of decision process needs to be invented. Perhaps John and Alice can discuss the merits of each use for the stick and eventually Alice persuades John that it would be better to burn the stick. Perhaps Alice and John pre-agree that one half of the island's is Alice's and the other John's. In this way, even a computer could classify who is in the right - all sticks from Alice's half of the island are under the total jurisdiction of Alice and vice versa. Both of these seem like acceptable possible outcomes.

Here's an outcome I trust you will agree is not quite so desierable. John decides he's had enough of Alice's constant whining about being cold and decides to bash her dead, and thus answer the question once and for all.

Thus, from a definitional perspective, we are not inventing law but rather discovering it. We are discovering the proper methods and techniques that allow for proper conflict resolution. However, so far we have only defined the goal of law, which is nothing to say of the practicalities of implementing law. We will deal with this somewhat very shortly.

To summarise all this: law exists to attempt to ensure that very negative outcomes do not arise from disagreements over the use of goods.

President Biden (@POTUS) on 8th July 2023 Tweeted

On my watch, health care is a right not a privilege in this country.

(The Twitter Community Notes at the time of writing said "Joe Biden has never publicly supported universal healthcare or Medicare for All, and has suggested he would veto bills that implement such a system. His stated policy goal is 'affordable' healthcare achieved by expanding existing programs like the ACA and Medicare." And links to here and here)

What does Biden mean by his use of the term "right" here? As President he does not have the power to make healthcare a human right in the same sense as the human rights of the Human Rights Act. That requires an act of Congress. Perhaps he means access to healthcare but this was already possible long before Joe Biden was President. Ultimately, this is nothing more than a vapid statement meant to appeal to voters with no substance behind it. However, it is a great example of how the term human rights has come to be understood - vague, undefined, informal. You could fit a train though the definiton of human rights. You could

So, can we make any claims about what human rights are? I think that we reasonably can. Let's return to our island example, and try and avoid conflict. What would be necessary? One, John would not be allowed to kill Alice. Two, John would not be able to take Alice as a slave. Three, they would need some non-violent means by which they can determine who is able to say for what purpose any given object on the island is used for.

In fact, principles one and two flow directly from three. However we must take it as a given that every person is the sole individual who can say with what their body is used for. In other words, by saying that a person owns themselves, we need only one principle to outlaw murder, slavery, and other crimes against the person.

What of other objects on the island? For instance, sticks or even land? Professor Hoppe offers a clear solution to this problem

Everyone is the proper owner of his own physical body as well as of all places and nature-given goods that he occupies and puts to use by means of his body, provided only that no one else has already occupied or used the same places and goods before him. This ownership of “originally appropriated” places and goods by a person implies his right to use and transform these places and goods in any way he sees fit, provided only that he does not thereby uninvitedly change the physical integrity of places and goods originally appropriated by another person. In particular, once a place or good has been first appropriated by (in John Locke’s phrase) “mixing one’s labor” with it, ownership in such places and goods can be acquired only by means of a voluntary contractual transfer of its property title from a previous to a later owner.

Once this is accepted, then some of the Articles of the Human Rights Act 1998 fall into place. From here on I will (these categories are totally of my own invention) split the Articles into three camps: the "natural" rights, the "legal" rights and the "oddball" rights.

The natural rights in the Human Rights Act are corollary of the principle that Professor Hoppe has laid out. These specifically are:

From Part 1

From Part 2

In each of these cases, to deny this right would be somehow to determine what is done with the body or original appropriated property of an individual by a third party. For instance, Part 1 Article 4 prohibits slavery. If I took a slave, then I would be determining where his body is, when, and what is done with it, without his consent.

The legal rights in the Human Rights Act are not so much rights as such but rather necessary conditions for us to trust the legal system. In order for the first group of rights to be possible there must be some system in place which is willing to enforce the principles laid out by Professor Hoppe. There are many competing systems for what that would in practice look like. For instance The Production of Security by Gustave de Molinari or Against Intellectual Property by N. Stephan Kinsellan propose systems whereby the state is absent from law. As interesting as that may be, it is beyond the scope of this article to explore this.

While we won't be exploring these no-state solutions to law. But, there is something important that we must take from their criticisms. When it comes to arbitration between private individuals and the state, the state is making a ruling on itself.

Perhaps this would be more enlightening with an example. If some gang wanted to murder you, I hope you see that having the gang leader as judge and gang members as jury would not be desirable for you one bit! Therefore, the next section of rights from the Human Rights act, that I am dubbing the "legal" rights are as follows:

From Part 1

From Part 2

These rights are all limitations on the state or the justice system which ensures that the system can be trusted. For instance, Part 1 Article 6 is of crucial importance. If people can not get fair trails, then in effect all of the other rights are void. The state can, at any time, simply subvert these rights. Bingham explains at length how in the United States certain aspects of law were suspended under the guise of anti-terrorist activity. In the end, many thousands of people were violated and it produced virtually no benefit. For instance, with regards to special laws brought about following 9/11, Professor Cole and Lobel wrote

The Special Registration program, which required 80,000 men from predominantly Arab and Muslim countries to register after September 11, resulted in not a single terrorist conviction. Of the 8,000 young men of Arab and Muslim descent sought out for FBI interviews, and the more than 5,000 foreign nationals placed in preventive detention in the first two years after 9/11, virtually all Arab and Muslim, not one stands convicted of a terrorist crime today. In these initiatives, this government’s record is 0 for 93,000

This can only be considered an embarrassing figure. Of course, there is the secon order interpretation that is that if this did not happen, then many more terrorists would have come into the country. While this is true to some extent, I still would have expected at least some potential terrorist threats to be identified, especially considering the scale of the surveillance that took place.

Furthermore, in order for the virtue state that McCloskey discusses in The Bourgeois Virtues: Ethics for an Age of Commerce to arise, I think these conditions must be fulfilled. McCloskey's argument is that in order for economic prosperity to flourish, then a virtuous population needs to arise. I think she makes a solid case for this, but overlooks the root cause of virtue as expressed in the mass population. Law is the foundation of this. Without solid rule of law, it seems unlikely that virtue can flourish.

Finally there are the "oddball" rights in this bill, which I just lump together here. These rights are not necessarily corollary of the principle of conflict avoidance given by Professor Hoppe nor the principles of the rule of law.

From Part 2

From Part 3

So, these oddballs basically cover two things. First, is education. Why education is here and not, say, healthcare, or internet or food is a curiosity. Education is a service, and so must be provided by someone. The wording of the act is "No person shall be denied the right to education" which is to say not that the state will necessarily provide education but that it can not be denied to anyone. Unfortunately this is vague - who is the one that can not do the denying here? If the interpretation of this is that the state could not say "this person can not be educated" then there is no contradiction with the principle of Professor Hoppe. If on the other hand the interpretation is that the state may instruct private providers of education "you must educate this person" then this is clearly in violation of Professor Hoppe's principle but also Articles 4 and 5 from Part 1 and Article 1 of Part 2 of the Human Rights Act.

Let's cover the death penalty articles another day.

So, where does all this leave us? What does the Human Rights Act 1998 achieve? Does it satisfy our original ideas about law? In the abstract, yes. It builds upon the framework we presented. There are the natural rights which aim to fundamentally protect the dignity of the human person. There are also the legal frameworks which aim to ensure trust in an independent judicial system. To what degree have these aims been fulfilled? That is a story for another time...

References

Bingham, T.H. (2011) The Rule of Law. Penguin Books.

Hoppe, H.H. (1993) The Economics and Ethics of Private Property. Ludwig von Mises Institute

Hoppe, H.H. (2021) Economy, Society and History. Ludwig von Mises Institute

Human Rights Act 1998 available at https://www.legislation.gov.uk/ukpga/1998/42/contents

Molinari, G. (1849) The Production of Security. Ludwig von Mises Institute

Kinsella, N.S. (2001) Against Intellectual Property. Ludwig von Mises Institute

McCloskey, D.N. (2006) The Bourgeois Virtues: Ethics for an Age of Commerce. University of Chicago Press

Gunn, S.J. (1995) Early Tudor Government 1485-1558. Palgrave Macmillan

Roberts. Biden v. Nebraska, 600 U.S. ___ (2023) available from https://supreme.justia.com/cases/federal/us/600/22-506/