Nigel Biggar, What’s Wrong With Rights?
Mark Hill QC
Nigel Biggar’s publications are predictable, but never uninteresting: predictable in that he is unashamedly a conservative moral philosopher who self-defines as a professional Christian ethicist, a description which seems to imply that mere amateurs, myself included, function with a less well-developed moral compass, or perhaps without one at all. His new book What’s Wrong With Rights? does not disappoint, even though one has to wade through seemingly endless commendations from a host of individuals before reaching Biggar’s own text. This volume does not need the prefatory pre-publication puffs of fellow philosophers, theologians, and jurists. It is sufficiently hefty, lucid, and compelling without them. It is a great read and will be thoroughly enjoyed by those who share Biggar’s worldview as well as by those who strongly disagree.
The volume does not purport to provide a systematic theory of rights. Instead, it offers a carefully considered response to a variety of questions. It assumes a natural morality, meaning “a body of ethical principles which are objective or real … rather than being the whimsical creatures of human desire and choice.” While the problems recognized by Biggar may be contested and over-stated, his remedy is clear:
“The solution to these problems lies in the abandonment of rights-fundamentalism and the recovery of a richer public discourse about ethics, one that includes talk about the duty and virtue of rights-holders.”
Conscious that other commentators have also been commissioned by Canopy Forum to respond to this volume from their own perspectives, I will forsake the traditional practice of the reviewer of meekly rehearsing the author’s intention and assessing whether it is realized. Instead, I will offer short punchy responses on three discrete matters which strike me as worthy of comment.
Public Discourse is Already Much Richer than Biggar Acknowledges
Biggar is behind the curve. For example, he makes no mention of the Punta del Este Declaration on Human Dignity for Everyone Everywhere (2018), which has been highly influential in shaping approaches to and conversations within human rights structures. Clause 2 reads:
“Human dignity for everyone everywhere is valuable as a point of departure for exploring and understanding the meaning of human rights, as a basis for finding common ground regarding human rights and consensus about their content and meaning. It provides an approach to building bridges between various normative justifications of human rights, including those with religious and secular theoretical groundings. Respecting human dignity for everyone everywhere facilitates discussions on different conceptions of shared values. Human dignity is a broad concept that nevertheless invites in-depth reflection within differing traditions and perspectives.”
In British jurisprudence, it is rare to read of rights divorced from duties. Human rights provide tools to assist decision makers, including judges, to negotiate contested territory in everyday life. Those rights are reflective of the ethical assumptions of the legislator and are amenable to change over time. But they are not a substitute for public morals, nor do they operate in a vacuum. A tiny fraction of disputes reach the domestic courts, and vanishingly few get as far as the European Court of Human Rights. Biggar ignores communitarian and mediated settlements between neighbors and on the shop floor where rights-based claims are resolved without recourse to the fundamentalism that Biggar identifies. The tiny handful of hard cases upon which Biggar draws cannot bear the weight which he seeks to place on them. Hard cases make bad law. And extrapolating from these hard cases is fraught with danger. Biggar’s myopic approach dissects the bark of a single branch of a modest sapling, while the expansive forest — rich, verdant, and fruitful — goes completely unnoticed.
Biggar’s Ill-judged Attack on Lawyers
One of the questions addressed by Biggar provides the title for Chapter 12: “What’s Wrong With (Some) Lawyers?”: a bold assumption, worsened (rather than ameliorated) by the parenthesis. His guns are really trained on a handful of campaigners who happen to have legal qualifications, and ought not to have been directed towards the legal profession more generally, particularly not to those lawyers practicing in the United Kingdom.
Biggar exposes himself as a rookie lawyer. He includes an additional letter “e” in the word “judgment” when applied to the reasoned decisions of courts and judges, which practitioners and jurists studiously omit; and he is yet to master the subtle differentiation between round and square brackets in case citations. These small matters are telling because they give the impression that his engagement with judicial utterances tends towards the superficial.
Foreshadowing the British Home Secretary’s attacks on “lefty” or “activist” lawyers, Biggar puts his case as follows:
“Human rights lawyers, who understand themselves as champions of the weak, sometimes succumb to an excessive self-regard that makes it harder for them to achieve a fair understanding of their opponents – and so do justice to them.”
He then catalogues self-evidently light hearted and frivolous remarks by some individuals as a justification for ad hominem attacks on them. His selected victims are outliers: Shami Chakrabarti (campaigner turned politician) and Conor Gearty (distinguished academic and professor of law). While each is a vocal commentator in the public square, neither is a practicing lawyer, routinely representing private clients in legal proceedings. Admittedly, the late Lord Lester practiced at the Bar, but he was also active in politics, not least as a liberal democrat peer; and Biggar is a little kinder to him, but never loses sight of the fact that Lester was the principal driving force behind the drafting and enactment of the Human Rights Act 1998.
In seeking to expand his generic criticism from these three individuals (who are not really practicing lawyers at all) to the profession as a whole, Biggar relies upon some pertinent observations of Professor Mary Ann Glendon, a distinguished American academic. But these draw exclusively on U.S. practice as opposed to that of members of the Bar in Britain, which is more heavily regulated with a detailed Code of Conduct, including the so-called “cab rank” rule that compels barristers to accept instructions from any client. They cannot refuse to act for an individual simply because they may not share his or her views. This means that a barrister with expertise in human rights can be arguing a case against the government on one day, and on behalf of the government on the next. Vocal commentators such as Chakrabarti and Gearty may espouse extra-curial views with which Biggar disagrees, but this does not provide a proper basis for condemning a legal profession performing advocacy in court on a daily basis to be best of their professional ability.
Further, the legal profession in Britain does not “habitually engage in strategic exaggeration and overstatement,” a characteristic correctly identified by Glendon in their counterparts across the Atlantic. They would be disciplined were they to do so. The live-feed of proceedings in the United Kingdom’s Supreme Court clearly shows the restrained and moderate manner in which British lawyers advance their client’s cause. Biggar’s ill-informed and inadequately evidenced attack on (some of) the legal profession is a regrettable blemish on this otherwise excellent volume.
The False Absolutism of Human Rights
Biggar is not entirely consistent on the point, but seems to have been seduced by some extreme commentators into an understanding that human rights are absolute. Take the following:
“Moreover, it is widely acknowledged, even by human rights lawyers, that very few rights are absolute and unconditional. If that is so, then it follows that there are circumstances when it would be proportionate for rights to be limited or suspended, or not to be extended. In those circumstances, an injustice would be done, if rights were not limited or suspended, or if they were extended.”
In terms of jurisprudence, human rights are man-made constructs, just like the criminal law or coronavirus regulations. They are passed by the legislature and enforced through the courts, either as overreaching constitutional provision or as mundane domestic law, informed by international norms articulated in instruments such as the Universal Declaration of Human Rights or the European Convention. The rights can be repealed, revised, or amended. But (with very few exceptions) all human rights are qualified. So, to borrow from my field of expertise in religious liberty, freedom to manifest one’s religion is subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety; for the protection of public order, health, or morals; or for the protection of the rights and freedoms of others.
Inherent in the right is the limit of its operation. Proportionality is an essential feature of the right. It is the ligament which allows the right to flex when applied to infinitely variable sets of circumstances. When a judge refuses a litigant the remedy he seeks, this does not suspend the right. To the contrary, it affirms the existence and essential importance of the right but says something as to its reach in the particular case. Biggar allows himself to get riled by the overblown rhetoric of his pantomime villains such as Chakrabarti and Gearty, whose petty utterances he quotes extensively like playground grudges. He needs a thicker skin and the capacity to focus on reality, not the false narrative which he lacks the courage to reject.
All of us may occasionally disagree with where a judge draws the line in one or other contentious case. But – for good or ill – we have entrusted that function to the judiciary, subject to the checks and balances of a system of reviews and appeals and, ultimately, parliamentary sovereignty, whereby the legislature can redraw the boundary. And I, for one, would rather have an experienced judge making these decisions, than a professional ethicist – or a professor of human rights law.
So what’s wrong with rights? Nothing. ♦
Mark Hill QC is an Associate Professor at the Centre for Law and Religion, Cardiff University; the University of Pretoria; Notre Dame University Law School, Sydney; and King’s College London. He practises at the Bar in London.
Hill, Mark. “Nigel Biggar, What’s Wrong With Rights?” Canopy Forum, February 9, 2021. https://canopyforum.org/2021/02/09/nigel-biggar-whats-wrong-with-rights-by-mark-hill-qc