MY RIGHTS CAN BEAT UP YOUR RIGHTS

The state can’t set you free (Roger Scruton, The Spectator, October 16th, 2004)

The idea of ‘‘human rights’’ did not originate in the courts. It stepped down there from the exalted realm of philosophy, but only by first putting a foot on to the throne of politics. It arose out of mediaeval speculations about natural justice — the justice that reigns supreme in Heaven and which stands in judgment over human laws. But the idea came into its own with the political philosophers of the Enlightenment, and specifically with Locke’’s version of the social contract, according to which all human beings retain a body of ‘‘inalienable natural rights’’ which no political order can override or cancel. The idea of the ‘‘rights of man’’ became thereafter a tool in the political struggles of 18th-century Europe, a weapon in the hands of the people (or, at least, in the hands of those who claimed to represent the people) against allegedly despotic sovereigns.

Hence, when the French revolutionaries faced the problem of forging a new constitution for France, their solution was to issue a ‘‘Declaration of the Rights of Man and of the Citizen’’. Attempts by a few cautious members of the National Assembly to include a Declaration of Duties were dismissed as covert apologies for the reactionary powers that had just been swept away. And what was the effect of this Declaration of Rights? When the Bastille was stormed in 1789, seven inmates were discovered and released amid general rejoicing (two of them turned out to be mad, and had to be locked up again). Four years later the prisons of France contained 400,000 people, in conditions that ensured the deaths of many of them. Justice was administered by Revolutionary Tribunals which denied the accused the right to counsel, and which punished people for offences defined in the same vague and philosophical language that had inspired the original Declaration, and which could therefore be interpreted to mean anything that the prosecutor desired. By the time the whole experiment came to an end, hundreds of thousands of Frenchmen had perished, and Europe was in the grip of a Continent-wide war. By removing justice from the courts and vesting it in a philosophical doctrine, the revolutionaries had removed all rights from the people and transferred them to those who expounded the doctrine —the self-appointed philosophers who had made themselves kings.

Stalin’s 1933 ‘‘constitution’’ for the Soviet Union likewise contained elaborate declarations of the rights of the Soviet citizen, causing gullible Westerners to hail the document as the most liberal constitution that the world had ever known. As with the French precedent, however, the constitution neglected to provide the ordinary citizen with the means to apply it. Application, interpretation and implementation were all vested where they had begun, in the ruling party, and ultimately in Stalin.

We should learn from these examples. Rights are not secured by declaring them. They are secured by the procedures that protect them. And these procedures must be rescued from the state, and from all who would bend them to their own oppressive purposes. That is exactly what our common law jurisdiction has always tried to do. Although the Bill of Rights declared some of the rights of the British subject, it was, in doing so, merely rehearsing established procedures of the common law, and re-affirming them against recent abuses. In particular it upheld the principle contained in the mediaeval writ of habeas corpus —a principle that is not upheld by the Code Napoléon, and which is still not enforced in Italy or France. If we compare the history of modern Britain under the common law with that of Europe under the civilian and Napoleonic jurisdictions that have prevailed there, we will surely be impressed by the fact that the jurisdiction which has so persistently refused to define our rights has also been the most assiduous in upholding them. This is because it recognises that rights define the limits of power, and that these limits must be enforced by the citizen himself, through the procedures of justice, rather than by the state, through some all-comprehending and in the event all-authorising doctrine.

The ever-thoughtful Mr. Scruton goes on to point out that the notion of rights as protections from interference with one’s freedom has now been intertwined with the notion of rights as something provided or delivered–usually by the state. The new proposed European constitution is rife with these. Popular confusion between the two concepts is now so widespread that serious public discussion of “rights” is all but impossible and so laden with confusion that the word has become little more than a rhetorical device. However, “the more rights, the fewer freedoms” is a pretty good working hypothesis for modern times.