A Hidden History of Human Rights
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ON November 8, 1998, the Human Rights Act received Royal Assent in the United Kingdom. The Act codified into British law the rights specified by the European Convention on Human Rights. However, far from ushering in a golden age of liberty, the Act has led to rulings that have threatened the safety and prosperity of British society. These include the use of taxpayers’ money for a burglar to sue the man whose house he broke into; a convicted serial killer being given hard-core porn in prison because of his ‘right to information and freedom of expression’; the prevention of government deportations of terrorists and other violent criminals, and has, directly and indirectly, provoked a general stifling of freedom of speech for fear of legal challenge.
The progressive consensus is that the revocation of the Human Rights Act, and a withdrawal from the European Convention, would ‘diminish people’s human rights’. This possibility is bemoaned as if these modern laws had summoned universal rights into existence in the twentieth century, and any scepticism of them implies a wish to revert to barbarism or totalitarianism. This false paradigm dangerously distorts the complex meaning of the term ‘human rights’ as a non-negotiable pillar of any just society, when the term merely refers to the recent phenomenon of secular doctrines of universal entitlements and freedoms codified by international and national institutions, not to historical philosophies of natural and legal rights claims from which it developed, and which have undoubtedly formed a weighty cornerstone of Western exceptionalism.
The list of transgressions against natural freedoms and public safety as a result of human rights law has indeed received criticism, if not any meaningful opposition, in Westminster. In the lead-up to the 2015 election, Prime Minister David Cameron claimed that he was frustrated that people could abuse current rules. However, could Cameron honestly define these incidents as an ‘abuse’ of the rules when it is the ‘human rights’ rules themselves that blatantly facilitated such injustice?
The foundation of universal natural and legal rights far predated the modern ‘human rights’ dogma responsible for the aforementioned scandals and is unquestionably the legacy of the dialogue between philosophy and biblical theology, specific to European Christendom. The society-wide alienation from such crucial aspects of the past is unsurprising in such a regressed educational climate as exists in Britain today, even in regards to relatively recent history. A 2012 poll, for example, revealed that two-thirds of young people did not know when the First World War ended. Thus, ignorance of the relation between Europe’s historic Christianity and universal rights is even less surprising. One does not have to be a religious believer to acknowledge that Western morality is indebted to its civilisation’s rich heritage of Christian doctrines and debate. The idea of an ordered universe comes from Genesis, as does the Western concept of universal laws that can operate only within an ordered universe. Thus, it was Christendom that developed the tradition of universal truths that underpin universal laws for man, his surroundings and his morality. In Christian doctrine, humans are created with equal and immortal souls and are subject to divine justice. This teaching provided a basis for compatibility with the idea of natural law that had its cruder beginnings in classical Greece and Rome. When paired with Christian ideas of man’s God-given distinctiveness, this tradition developed the idea that all men are owed certain unconditional respects due to their possession of equal dignity with the rest of the created species.
Medieval life may not have been glamorous for peasants. However, their world does not resemble the anti-intellectual and despotic ‘dark age’ invented by the sneering eighteenth-century philosophes. As shown by scholars such as Susan Reynolds, Harold Berman and Brian Tierney, medieval Christendom was characterised by a plurality of legal authorities such as the Church, the Crown, Lords, universities, cities and the guilds of various professions. This array of competing jurisdictions led to vivid debate over what norms should naturally guide them all and was able to function only due to the common Christian values that kept each in check. Medieval lawyers were thus able to develop a robust language of rights derived from discussions of natural law. As Thomas Woods outlines, centuries before John Locke or Thomas Jefferson, medieval jurists ‘defined the rights of property, self-defence, non-Christians, marriage, and procedure as being rooted in natural, not positive (i.e. granted by a human authority) law, and by placing these negative rights squarely within the framework of natural law, the jurists could and did argue that these rights could not be taken away by the human prince’.
Unlike the ‘enlightened’ despots of the early modern kingdoms and bloodthirsty twentieth-century dictators, the medieval ruler generally had no jurisdiction over rights-based on natural law. Magna Carta embodies precisely this rich tradition of rights discourses and controversies. Signed in 1215 and incorporated into English law at the end of the thirteenth century, this compact between King John and his disgruntled barons affirmed various rights of British subjects (e.g. the property rights of widows) that had been compromised under John’s troubled reign. English kings thereafter felt bound by its tenets, and it is a powerful example of how pre-modern Christendom set law and justice above even the King. This convention permitted the flourishing of an intellectual tradition of inalienable rights that no earthly authority could revoke or enhance (though many would try).
This sophisticated legal framework would have been impossible without the Christian idea that infused medieval discourse of an ordered universe in which men are metaphysically equal. This decentralised equilibrium fizzled out once the Protestant Reformation and Machiavelli’s ‘reason of state’ catalysed the rise of centralised states with a monopoly on jurisdiction. The medieval idea of equality and rights is not interchangeable with the modern one. However, it possessed a sophisticated and logical set of philosophically rigorous principles that justified negative claims against various authorities and bound together societies with a robust and shared set of values. Modern ‘human rights’ philosophy denies its basis in the synthesis of Christian metaphysics and natural law. It thus leaves itself with a long list of claims that, without agreed-upon absolute justifications, are subject to change based on political activism rather than philosophical truth.
Unlike in medieval and classical philosophies of man and his rights, there is no ‘Why?’ to modern ‘human rights’ philosophies, beyond that it simply is. This metaphysical vacantness is a characteristic that infuses all manner of modern moralities and is just one symptom of the disease of relativism — the idea that all actions and opinions are ‘equal’. In the case of human rights, this fact is understandable when one considers that the post-war ‘human rights’ declarations drafted by international bodies such as the United Nations were little more than a diplomatic compromise, seeking aspirational agreements on fundamental rights between a multiplicity of governments. It was never their purpose to attempt a consensus on the philosophical basis for right. However, this means that in the absence of Christian morality, the recent ‘human rights’ project has trickled down from the international stage to fill the vacuum in our courts and our children’s classrooms. The Church of Human Rights has provided little more than a malleable ‘feel-good’ answer to injustice. It has not proposed any real understanding of what rights are, where they came from, and the difference between negative freedoms and the ever-expanding list of positive entitlements such as state benefits, non-offence, NHS gender transition surgery and even internet access which progressives wish to redefine as ‘human rights’.
Predictably so, the ‘human rights’ lobby has since gone further than merely omitting the inconvenient fact of its religious parentage, and denies and attacks it. Article 14 of the 1998 Act states that ‘There ought to be no discrimination on grounds such as sex, race, religion, birth, marital status, national or social origin, political opinion.’ However, the Act also enshrines the right to freedom of opinion and expression and private life. Yet merely to exist and possess opinions is to be discriminatory. Thus, even the gentlest and most tolerant among us must always be destined to unravel the alleged coexistence of freedom and non-discrimination proposed by human rights law. If I am a devout Christian or Muslim who believes homosexuality is a grave sin, I will probably choose not to attend a homosexual wedding. Similarly, if I am a practising Jewish person, I will likely discriminate against non-Jews (and non-religious Jews) in my choice of marriage partner. If I am a non-white person, it is unlikely that I will befriend someone whose ‘political opinion’ includes hatred of my ethnicity. Discrimination in the case of these decisions does not constitute an irrational hatred that ought to be punished by law, but shapes decisions that may be judged as right or wrong, but that each individual has the freedom to make in regard to their private lifestyle.
Thus there is a contradiction at the heart of modern ‘human rights’ doctrines, which ultimately allows activist lawyers to use their power to arbitrarily decide which ‘rights’ matter more than others, and religious freedoms that are perceived to conflict with secular modernity have often been the convenient casualty. Guardian columnist Deborah Orr even wrote in 2013 that ‘for human rights to flourish, religious rights have to come second to them’, undoubtedly summarising not just her personal views, but those of her progressive, metropolitan habitat. For example, in 2011, a Christian couple was barred from acting as foster parents due to their religious beliefs, namely that they would not tell the children in their care that they approved of homosexuality. However, the judge ruled that their view on sexual lifestyles did not flow from their Christianity and thus did not qualify for legal protection granted to ‘minorities’. Therefore, even though Christianity was demonstrably fundamental to the blossoming of the theory and practice of universal rights, modern ‘human rights’ zealots seek to use their apparatus to humiliate and fill its vacuum with the secularist agenda of state-enforced equality and diversity. As Melanie Phillips detailed in the same year of this shameful ruling, we should gather that this agenda ‘does not seek to extend tolerance to marginalised groups, but instead to transfer power to such groups to destroy the very idea of a normative majority culture rooted in the morality of Christianity and the Hebrew Bible’.
It is difficult to see how the rot of ‘human rights’ can be unstuck from the cultural-political trajectory of modern Britain. Those employed by the public sector, or by private companies who trade with it, are contractually bound to bow down at the altar of the new Church of Human Rights, regardless of their private principles. The notion of legally enforced equality and diversity rears its head in all areas of the curriculum dictated to our young and impressionable minds who are taught to see ‘non-offence’ as an entitlement, but principles of free speech as dangerous to their safety. Schools routinely propagate the myth that Christianity is an oppressive, backwards ideology, but that any criticism of Islam must come from an irrational hatred of its adherents. Of course, there exists opposition to this ‘human rights’ catastrophe in the UK, but it has often been voiced as part of the Eurosceptic movement. Rather than seeking to abolish these doctrines altogether, criticisms have instead taken the route of campaigning for an updated ‘British Bill of Rights’ — an idea that was shelved by David Cameron but has regained momentum since 2016. Just a few weeks ago, the even Attorney General voiced his support for such a move.
Nevertheless, we ought to remain unimpressed with these proposals. Lists of specific legal ‘rights’ that extend beyond negative claims against the state are antithetical to the English common law tradition that one is free until the law forbids you, and instead echoes the Continental, civil law presumption that one is free only if the law explicitly says so. This route also, rather than proposing a real change in the ‘human rights’ dogma rife in our law and institutions, simply moves one’s right to appeal ‘human rights’ decisions to the United Kingdom rather than Strasbourg. These proposals do not seriously challenge the fuzzy and unwarranted modern idea of rights that are subject to the inflationary and predatory wish-fulfilment of progressive lawmakers of Labour and Conservative governments alike, and that threaten the very freedoms they have claimed to champion. The only solution to the rot of modern ‘human rights’ dogma is to eliminate spiralling notions of positive entitlements from our culture and institutions by reviving an appreciation for the Christian concepts of man’s inherent dignity and freedom from coercion, along with the natural law’s emphasis on human liberty apart from the state. Whether a rights renaissance of this nature remains possible in a Britain where Christianity’s contributions are belittled and ridiculed, and where the godless theocracy of ‘human rights’ reigns supreme, remains to be seen.
Further Reading Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition • Kalman P. Bland, Medieval Jewish Perspectives on Human Rights • Melanie Phillips, The World Turned Upside Down • Susan Reynolds, Kingdoms and Communities in Western Europe, 900–1300
