Legal Critiques of WWWR:
A Reply to Napel & Hill QC
This article is part of our “What’s Wrong with Rights?” series.
If you’d like to check out other articles in this series, click here.
First of all, let me thank David Little, Jennifer Herdt, John Milbank, Joel Harrison, Hans-Martien ten Napel, and Mark Hill for taking the time and trouble to comment on my book. The process of responding to what they have written has helped me understand my own thinking better, even when it has not led me to change it. I will respond to each commentator in turn, in no particular order, except that I have bunched the theologians and ethicists together, followed by the lawyers.
Responding to Hans-Martien ten Napel’s “Is Nigel Biggar’s ‘What’s Wrong with Rights?’ sufficiently realistic?”
Hans-Martien ten Napel approves of my lodging the concept of rights in the larger context of natural law or morality, since it restrains the popular and judicial proliferation of the individual’s rights. However, he doubts that the modern world, having abandoned the idea of objective (natural) morality in the 1960s, can be persuaded back into recovering it. Rather, he thinks that, given the advocacy of authorities such as the 2020 US Commission on Unalienable Rights and the Roman Catholic Church, the recovery of talk about inalienable natural rights is a more achievable, “fallback option.” My rejection of natural rights-talk, therefore, seems to him “unrealistic.”
That is an interesting thought, to which I have three immediate responses. First, my objection to talk about natural rights as misleadingly connoting an institutionally generated strength that does not exist still stands. Second, I think that the modern West’s attitude to objective morality is much more diverse, equivocal, and confused than one of simple rejection. On the one hand, we disguise moral concepts, rendering what is morally wrong merely as “inappropriate” and preferring to talk of “skills” rather than “virtues,” and we repudiate adverse moral judgements as “judgmental.” On the other hand, we know much more about duty and virtue than we dare say out loud, we are often not at all shy of making fiercely moralistic condemnations, and we demand the granting of new legal rights with a passion that can only be called moral. And third, settling for natural rights-talk is not enough, because we also need to untie our tongues, so that we can speak more freely and honestly about the imperfect duties that are not generated by rights, and about the virtues we need to develop if we are to become a people capable of respecting rights. So I think that those of us who are clear-eyed about the unavoidability of reference to objective morality, and about the need for talk about imperfect duty and virtues, are called to do so with natural confidence. Our example will help those who know more than they say, to begin to say what they know.
Responding to Mark Hill QC’s“Nigel Biggar, What’s Wrong With Rights?”
Whereas the law professor, ten Napel, thinks that What’s Wrong with Rights? “makes a fundamental contribution from a theological point of view, which lawyers are well advised to take to heart,” the practicing lawyer, Mark Hill, QC, begs to differ. His commentary on what he kindly calls an “excellent” volume is oddly dyspeptic. Since he does not pull his punches, I will pay him the equal respect of not pulling mine, while resisting the temptation to rise to every bait.
Some of his complaints are, to be frank, petty to the point of silliness: for example, that the reader has to wade through lots of pre-publication plaudits; that my self-definition as a Christian ethicist implies a claim to personal moral superiority; and that my failure to follow lawyerly practice in spelling “judgement” without the “e” suggests that I am a “rookie lawyer” with a superficial grasp of things legal. To respond briefly: no reader is forced to read the plaudits, which are mainly designed to persuade lawyers and philosophers that a theologian’s book might be worth their trouble; my professional status as an academic ethicist implies no superior personal virtue, any more than Hill’s status as a lawyer sets him above criminality; and, aware of lawyerly custom and for the sake of consistency, I did in fact abandon my normal practice and wrote of e-less “judgment” throughout the whole book — as the manuscript shows. Unfortunately, my copy editor reversed this decision and I failed to notice it. But, really, what does it matter?
The first of Mark Hill’s three more weighty criticisms is that public discourse is already ethically richer than I acknowledge: rights imply duties and do not pretend to supplant public morals. I am very open to persuasion that the specific, English legal department of public discourse incorporates moral concepts — not just the perfect duties that rights imply, but also imperfect duties and virtues. Indeed, now that I think about it, it is almost certainly true. And I do not argue that public discourse in general is entirely lacking in moral concepts — social life would hardly be possible, if it were. Rather, my argument is that, for cultural reasons, we have become tongue-tied in talking in public about morals, whereas we are perfectly fluent in talking about rights; that that moral reticence distorts public discourse about rights; and that, for the sake of less problematic rights-talk, we need to recover a broader ethical fluency. If legal tradition could help us do that, I would be delighted.
Second, Hill thinks that I have been seduced by “some extreme commentators” into supposing that human rights are absolute, whereas they contain inherent limitations, including proportionality. I do not doubt that, if we are talking of legal rights — and of “human rights” insofar as they are legal. And if I have written anything that implies otherwise, I should not have done. The problem of absoluteness arises when we are talking of natural rights and of “human rights” understood as moral rights deriving from universal human nature. But maybe I did not make myself sufficiently clear on that.
Third, Hill accuses me of making a general, “ill-informed and ill-evidenced” attack on British lawyers (in Chapter 12). He says that I have mistaken “a handful of campaigners who happen to have legal qualifications” for the whole legal profession; and that I catalogue “self-evidently light hearted and frivolous remarks” by these “outliers” in order to make ad hominem attacks on them.
I reject all the charges, m’lud. The chapter was deliberately entitled “What’s Wrong with (Some) Human Rights Lawyers?,” and I explained my selection of targets for analysis thus:
As Director of Liberty from 2003-16, Shami Chakrabarti rose to public prominence through her opposition to ‘excessive’ anti-terrorist legislation. She now sits in the House of Lords. [I should have added that she was elevated to a peerage, so that from October 2016 to April 2020 she could be the Shadow Attorney-General in the Labour Party’s parliamentary Opposition.] Conor Gearty is Professor of Human Rights Law at the London School of Economics, where he directed the Centre for the Study of Human Rights from 2002-9. He is also a practising barrister and a Fellow of the British Academy. Anthony Lester, QC, has been described as “the founding father of modern human rights in the UK” and “Britain’s greatest human rights lawyer”, and has been a peer in the House of Lords for over two decades. I make no pretence to comprehensiveness in my scrutiny of their work, and will only refer to a handful of publications that they have addressed to the general public, since it is the quality of their public advocacy, rather than their court-room skills, that are of interest here. Nor do I argue that these three are representative of all human rights lawyers in the U.K. Yet, while it is possible that they are eccentric, it is doubtful. After all, they have been propelled into public and professional prominence by the esteem of influential others. Again, it is possible that, since they are all British, their views and attitudes are peculiar to the U.K. and have no wider significance. But that, too, is doubtful, since, as we shall see, their views echo and amplify what we have already heard from judges in Strasbourg and Ottawa, and from Human Rights Watch in New York. 1Biggar, What’s Wrong with Rights?, pp. 309-10.
Hill himself describes Gearty as a “distinguished academic and professor of law” and admits that Lord Lester did practice at the Bar. The criticisms I make of them are not directed at their persons but at what they have written, which I quote extensively so that readers can see for themselves. I see no reason at all to think that they did not mean what they wrote. It was indeed frivolous, but it was seriously intended. Hill does not quarrel with my invocation of Mary Ann Glendon as evidence that the problems I identify in the rights-talk of these British advocates are wider spread in the American legal world. Indeed, he describes Glendon as “a distinguished American academic” and her relevant observations as “pertinent.” His objection is that they are not present in the British Bar, which is more heavily regulated by a detailed Code of Conduct, and whose members advance their cause in a “restrained and moderate manner.” But then he concludes with this:
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…. 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.
That does not seem very restrained or moderate to me, and it does seem ad hominem. If Hill has a good reason to suppose that my failure to reject what he considers a “false narrative” is due to a lack of courage, rather than, say, innocent ignorance, he does not share it with us. But maybe he is being light-hearted and frivolous. Maybe I should not take him seriously. Yet I rather think he wants me to take him seriously. And so I shall, since my respect for him obliges it. But if I do take him seriously, what he himself has written indicates that the problems I have identified infect British lawyers rather more than he says. And the fact that the two Oxford and Cambridge law professors, the former Legal Counsellor in the UK’s Foreign Office, the London QC, and the former justice on the UK’s Supreme Court, who all read the three “legal” chapters (10, 11, and 12) in manuscript form, made no complaint about my view of either the problems or the extent of them, tends to confirm that.
Mark Hill and I were due to have lunch before the pandemic struck. I hope we still shall. I’ll pay. ♦
Nigel Biggar is Regius Professor of Moral and Pastoral Theology at the University of Oxford and author of What’s Wrong with Rights? (Oxford University Press, 2020).
Biggar, Nigel. “Legal Critiques of WWWR: A Reply to Napel & Hill QC.” Canopy Forum, April 16, 2021. https://canopyforum.org/2021/04/16/legal-critiques-of-wwwr-a-reply-to-napel-and-hill-qc/