1. Alan Smith explores the problem with human rights


There is a culture war throughout most of the western world. It is between those who believe that human law should be based on natural law—the universal moral law that is understood by everyone who thinks seriously about the subject—and those who believe that human law should be based on human rights that can be deduced from a general system of principles.

The ‘natural lawyers’ hold that the common law, in those jurisdictions where it exists, is rooted in natural law and that statute law, introduced to deal with problems not covered by common law, should be developed by a parliament, representing the people of the country concerned in a way that is not inconsistent with natural law. The ‘human righters’ believe that statute law should be modified where necessary according to directives from judges who decide that existing statute law does not conform to the established code of human rights.

An important difference between the two is that natural lawyers do not believe that every edict of natural law should be enforced by state law. Guidance is given by St Thomas Aquinas, in Summa Theologiae Ia IIae, 96, 2. Question 96 discusses the power of human law; article 2 asks ‘is it the business of human law to restrain all vice?’ In his answer, Aquinas states: ‘Law is laid down for a great number of people, of which the majority have no high standard of morality. Therefore, it does not forbid all the vices, from which upright men can keep away, but only those grave ones which the average man can avoid, and chiefly those which do harm to others and have to be stopped if human society is to be maintained, such as murder and theft and so forth.’ What is required is for one or more authorities, independent of the state, to offer interpretations of natural law to guide in the formulation of human law.

For human rights in the United Kingdom we need to look at the Universal Declaration of Human Rights (UDHR) and the European Convention on Human Rights (ECHR). The UDHR was drafted by representatives with different legal and cultural backgrounds from all regions of the world and proclaimed by the United Nations General Assembly in Paris on 10 December 1948. The ECHR is an international convention to protect human rights and political freedoms in Europe, and it was drafted in 1950 by the then newly formed Council of Europe and entered into force on 3 September 1953. Natural lawyers can have no legitimate objection to such general statements of human rights. After the Second World War when most of the countries of Europe had been subjected to the tyranny of the Third Reich or the Soviet Union, and some unfortunate countries suffered successively under both, it was useful to have declarations of the rights that could be expected in free societies.

However, a problem arose when the Human Rights Act 1998 gave the ECHR the force of statute law and it was left to the judicial system to interpret the result which, of course, is done in the light of the opinions of the dominant classes. Their interpretations are then given a status which cannot be changed by parliaments. The result is an ever-decreasing power of parliaments, representing the views of the people, to pass laws of which the people approve. It is not at all clear that any two systems of human rights law, developing at different times in different places would be essentially the same.

The danger of the Human Rights Act is best illustrated by the supposed right of a pregnant woman to have an abortion; a convention on human rights developed in the middle of the 18th century could well have included the right to own slaves. The most fundamental human right is the right to life so clearly the right of a pregnant woman to have an abortion is in conflict with the right to life of her unborn child. Some human righters would deny that the unborn child is human; one wonders whether they would deny that the occupants of the womb of a pregnant cat were feline or the occupants of the womb of a pregnant bitch were canine.

Natural lawyers must be prepared to point out the inconsistencies in any claim to human rights, perhaps asking whether the case under consideration was one that the drafters of the UDHR or the ECHR had in mind when they produced their documents. Otherwise they will be like the two women shouting at one another from houses on opposite sides of an Edinburgh street, provoking from Revd Sydney Smith the comment: ‘They will never agree, they are arguing from different premises.’