Salus populae supremo lex esto. The health of the people is the utmost law. This is an adage coined by Marcus Tullius Cicero in Book III of De Legibus, and its connotations get to the heart of what I am going to discuss in this piece. In an age of debate over immigration, growing distrust of supranational institutions, and sections of the Human Rights Act 1998 (HRA) being legally disapplied, many have raised concerns over the future of human rights as the conceptual frame by
which international dialogue is conducted. I will address this in detail later, but I feel that public discourse on human rights in the UK and beyond is beginning to harken back to much older ideas of what‘rights’ are. To understand this, we can return to the quote at the beginning, which reflects the attitude Cicero himself took when he ordered the execution without trial ofseveral prominent men.1It is not the focus of this article by any means, but the classical world provides excellent demonstrations of one of the conflicting models of rights that this piece discusses.
In the infamous case of these executions, it was deemed that- considering the aforementioned principle (and of the senatus consultum ultimum)2- the conspirators were essentially no longer citizens, and therefore no longer the beneficiaries of rights to life and a fair trial. By contrast, when Cicero had presented his In Verrem some seven years beforehand, one of the key points of his argument was that the accused3 had, without trial, flogged and crucified a Publius Gavius as he protested that he was a Roman Citizen. Ordering torture and execution without trial was not itself the charge: the accusation levelled was what amounted to a violation of the sanctity of Citizenship. There is no assumption here that the human being itself comes packaged with expectations, boundaries, and rights. In fact, throughout history, it was usually quite the opposite. Slaves, foreigners, and criminals all had what we would rightly consider to be their human rights regularly violated, discarded, and trampled upon by others who considered them to exist outside a closed system of privileges—generally bound to membership in a polity. Going back toCicero’s aphorism, we can read it in quite a literalsense. As such, the health of the people, in matters of law, war, and politics, refers to THE people (in his case the Roman People), not ‘people’ generally. Comparing this to our current supranational infrastructure and the assumptions underpinning it, it becomes apparent that the presence or absence of the definite article is of fundamental importance to how we see ourselves as a global community.
Since the Enlightenment, and arguably even earlier, a universalist concept of Human Rights has developed into what we now regard as the ‘traditional’ position. The claim is that there are moral rights that all individuals have by virtue of being human, “universal and of unrestricted validity, binding all individuals and societies whatever their religion, tradition, or culture”.4 In legal terms, an innate web of erga omnes obligations5applying to all individuals and states. AsI have explained, this assumption has not always held when it comesto the way we view rights(which has changed considerably throughout history). The simple aim of this article is to discuss how it changed, why it changed, and whether we have cause to believe it might someday change back.
Anyone brave enough to have been listening to the news lately may have heard politicians speaking darkly about the HRA and, as a corollary, the European Convention on Human (ECHR). There have, for a while now, been calls for a ‘British Right id Bills’ (or similar) to replace existing human rights legislation, and moststrikingly, Suella Braverman has advocated for Britain to pull out of the Convention on Refugees, the ECHR and the HRA (which she referred to the ‘CriminalRights Act’). As of today, the government has won a vote in the Commons on a bill that disapplies sections 2, 3, and 6 of the HRA to allow for a tighter framework of immigration, and this belies the underlying causal assertion of a link between human rights and positive law (which naturally raises questions regarding membership and the status of non-citizens). This, I think, gets to the heart of some of the discursive and identitarian strife that has been brewing across Europe and the wider world for some time. As Louis Henkin points out, “international human rights law is a revolutionary penetration of the once impermeable state”.6Indeed, there are several evolving examples from across the world of countries bucking the ideals of international human rights in favour of national sovereignty. Trumpian border policies prioritising order over the protection of non-citizens, various EU states in Eastern Europe casting doubt on free movement and humanitarian considerations(in the face of a migration crisis), and China’s treatment of ethnic and cultural minorities like Uighurs (stemming froma view of them as ‘outsiders’ to a socio-culturally uniform polity). The are a host of human rights issues ranging from land encroachment in Brazil and the future of Geert Wilders’s Holland, to institutional tensions in Poland and Hungary, that one could contort into being linked with the central issue but what I am focused on here isthe growing distrust in supranationalstructures.
On a political level, this can be observed in the ire surrounding the UN’sstance on Israel— but in terms of international law and the presumptions that underly it, some countries have chafed at the idea- at least in certain areas of practice- that a universal metaphysic exists to be instantiated, codified and even enforced on a global scale. Henkin points out that “an increasingly activist Human Rights Committee continues to confront protests from ‘sovereignty’”.7 This raises the obvious question of what those objecting to the existing framework of human rights mightsuggest as a replacement.
Firstly, I want to go back a bit and discuss how the idea of rights has developed throughout history. We often talk proudly about how Western democracy is the descendant of the Greeks and Romans. In fact, democracy itself has gone through the same historical wringer as human rights in the sense of becoming- and this is arguably broadly Christian- universalised and internationalised. Athenian
democracy was built on a model of civic rights for the people, of demos8; an Athenian fruit seller was worth more than a Spartan nobleman. We are undoubtedly possessed of the legal and institutional kratos9, butthe question hanging overthe international enforcement of human rights is whether there is a demos. Do we really have a global connection to each other and institutions to maintain that reality? Is international democracy possible, and by extension international human rights?
Throughout much of history, the concept of citizenship was tied to a political community, a city state or a national unit. Citizenship conferred the rights and privileges people enjoyed, making them essentially political in nature. The example of Cicero highlights our social instinct, when danger becomes clear, to prioritise collective security over the sanctity of the individual. We saw this after 9/11 and now a similarly atavistic sentiment has bubbled to the surface with the European migration crisis. That is not to say that this ‘closed’ framework of rights is practical. Atavism is one thing, but the structures of global society make it difficult, practically and morally, to stick to the assertion that Jean Cohen sums up as “an adequate conception of human rights cannot be derived from moral rights attached to one's humanity”.10Casting rights as a civic and political concept is essentially an admission that they are arbitrary and defeasible. The 20th century shows this in very unpleasant ways.
Historical citizenship was often limited to a small group of free, male, property-owning individuals. As societies evolved and expanded, this definition became increasingly inadequate to address the rights and needs of a diverse and growing population. The rise of empires and feudalsystems created more complex societies, leading to a re-evaluation of the concept of rights. Some have questioned whether the historical lack of universal human rights was simply a practical consequence ofsocieties without any mechanism for supranational enforcement. I do not think that is true at all; some governments and politicians still buck against it now even with supranational infrastructure in place.
By the medieval period, theologians such as Aquinas were emphasising the moral worth of all individuals11- reflecting the traditional belief that humans are created in the image of God and possess inherent dignity. The real advent of liberal human rights was brought on broadly by two factors. Firstly, the Reformation, which emphasised the direct relationship between the individual and God. This led to a growing recognition of individual autonomy and the importance of individual moral values. The second factor, which lends itself to a more legal perspective, is the interpretation of natural law12. This provided a moral framework for understanding human rights and the inherent rights of all people, irrespective of their social or political status. Blackstone is perhaps the most famous jurist who drew on natural law to frame the Enlightenment socio-legal philosophy that begat human rights law. He sought to ensure that “great tenderness in our laws is shown to foreigners in distress”13 and “strangers who came spontaneously”14. This is the legal effect, but the underlying legal cause isthe idea that “law isthe moralsentiment of the people”15 and that a natural right is “justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the laws of society”.16 Blackstone's meaning is simply that no human law has any moral validity or force against a natural law, and that no human law can affect the content of human rights. I do not want to getsidetracked by how thisfiltered down through Rousseau’s state of nature, the Categorical Imperative17 and American constitutional jurisprudence (which was used as a basis for the Universal Declaration of Human Rights); the important question is whether we have good historical, conceptual and practical reason to defend the existing system, which “has moved beyond state values towards human values and towards commitment to human welfare broadly conceived”.18
AsI have said previously, one canmake a very strong case that the practicalities ofthe contemporary world render it almost morally impossible to simply reverse the Enlightenment ideas thatshaped our society. The model of civic rights that pre-existed them is ill-suited for the nineteenth-century shibboleth of the ‘nation-state’ (those two words did not always come as a pair). Global colonialism, the Atlantic slave trade, and the Industrial Revolution laid the groundwork for the exponentialrise in state power, social inequality, and the reach of the law. Whether or not you believe that the universalist philosophy behind liberal human rights is valid, I would argue that it is practically necessary for there to be a system of protections that are equal in scale and force to the tools now available to cause human suffering. By its very nature, this must transcend nationalist principlesin an internationalist world. The same events happen, but the difference liesin perspective; “wars not only overwhelm states, they kill people. Conquest by another state does not overwhelm only state interests”.19 If the 20th century taught us anything, it is the dangers of collectivism. This is often mistakenly conflated with international governancewhen people raise objectionsthat human rights conflict with security and freedom. My position- at least in the British context but in other scenarios too- is that what is being objected to is not actually human rights law, but the “Human rightism”20 discussed by Steven Wheatley: the overly sentimental implementation and interpretation of provisions. It bears the same relationship to international law as theology does to law in general: “a virtue perhaps, but one that is alien to its object”.21 Fundamentally, I have been more than a little alarmed by the shift in discourse surrounding human rightslaw that’s taken place in the last few years. The reason it is so evocative to me of older, nationalist models of rights is because it is being portrayed as something externally formulated and enforced to the detriment of national security and independence. That argument is very likely true if we are talking about the European Union, but the same line of attack cannot be transplanted so simply onto the international law of basic human rights.
“Perhaps, in the wake of Adolf Hitler and the Holocaust, the framers22 assumed that human rights needed no definition”.23 This is a bold but perceptive statement. Ultimately, the corpus of international law stemming from the UDHR is open to interpretation in the sense that you can disagree about what it really means. The historical foundations of these ideas might indicate a genuine metaphysical reality waiting to be codified, the natural law of God instantiated in the world of men. I think that is a rather bold claim to be making of anything. If we break down the idea of exclusively civic or political rights, we find that with a little prodding, it can be reduced to legal positivism. If we take it as read that it too reduces to positivism, then the tension simply becomes one between nationalism and internationalism. The same principle of codified protections (perhaps based on intuition) operating at different scales and upon different groups. The practical realities of the past hundred years or more have shown us the need for the world to come together. “In view of the importance of the rights involved, all States can be held to have a legal interest in their protection”.24 Nation states are perilously transient, and in an international world, simply looking inwards to try to form one’s own model for moral governance is politically immature. Look at what is happening in France, where a draft law would enable the authorities to issue an order to leave French territory even if a person falls into protected categories like family situations or being the spouse of a French national. This is precisely what is being debated in the UK. Regardless of whether they like the existing provisions and treaties, I would argue that it behooves nation-statesto find new solutions that can function in the modern world. Any rhetorical stirrings aside, I do not see any convincing prospect of the global order changing its position on human rights to a degree that would vindicate or accommodate a rise in nationalist sentiment. The whole subject is summed up quite aptly by Mother Theresa, and I believe we must act as if this is true forthe sake of what is now an internationalsociety: “human rights are not a privilege conferred by government. They are every human being’s entitlement by virtue of his humanity”.
References
[1] They had conspired with Lucius Sergius Catilina to orchestrate a violent uprising in 63 BC
[2] 'Senatus Consultum Ultimum' from The Oxford Dictionary of the Classical World (4th edn, OUP, 2007).
[3] Gaius Verres, Governor of Sicily
[4] Jean L. Cohen, ‘Rethinking Human Rights, Democracy and Sovereignty in the Age of Globalisation’ (2008) 36(4) Political Theory, 582.
[5] ‘Erga Omnes Obligations’-A right owed towards all, enforceable against anyone infringing it from’ from Johnathan Law and Elizabeth Martin A Dictionary of Law (7th edn OUP, 2009).
[6] Louis Henkin, ‘Human Rights and State Sovereignty’ (1996) 25(1) Journal of International and Comparative Law 39
[7] ibid. 42
[8] ‘’Demos’ from The Oxford Dictionary of the Classical World (OUP 2007); What philosopher Roger Scruton refers to as‘the politics of the first-person plural - Roger Scrunton, How to be a Conservative (Bloomsbury, 2014).
[9] ‘κράτος’ meaning ‘Institutional power’ from Wordsense Dictionary (online edn, 2024).
[10] Jean L. Cohen (n 4), 583
[11] I give this example purely because Thomas Aquinasis the most well-known and relevant advocate of the Christian foundations of law. The idea underpinning human rightslong predates the medieval period and arose out of aworld devoid of the assumption that the poor or the weak had any value whatsoever.
[12] An influentialformof teleology promulgated by Aquinas which consisted of five ‘precepts’ (preserve life, preserve the species, educate the young, live in society, know God) as set out in Summa Theologica (1294), Parts I-II, Question 94 articles 2-6.
[13] William Blackstone, Commentaries on the Laws of England (1765), Book 4 ‘The Laws of Nations’
[14] ibid.
[15] ibid.
[16] ibid, Book 1 ‘Of the Nature of Laws in General’.
[17] The legal-ethical doctrine of Immanuel Kant; that actions should be assessed ‘in a vacuum’ of intrinsic rectitude and no one should be used as a means to an end, introduced in Immanuel Kant, The Groundwork of the Metaphysics of Morals (1785)
[18] Louis Henkin, International Law: Politics and Values (Brill, 1995)
[19] Louis Henkin (n 6) 33.
[20] Alain Pellet, “Human Rightism” and International Law [Gilberto Amado Memorial Lecture (2000)]
[21] Steven Wheatley, The Idea of International Human Rights Law (online edn, OUP, 2019)
[22] Of the UDHR
[23] Louis Henkin (n 6) 34
[24] Case Concerning Barcelona Traction, Light, and Power Co., Ltd (Belgium v. Spain) ICJ Rep 1970 3, paragraph 33.
Bibliography
Cases
Case Concerning Barcelona Traction, Light, and Power Co., Ltd (Belgium v. Spain) ICJ Rep 1970 3.
Secondary Sources
Aquinas T, Summa Theologica (1294)
Blackstone W, Commentaries on the Laws of England (1765)
Cohen J L, ‘Rethinking Human Rights, Democracy and Sovereignty in the Age of Globalisation’ (2008) 36(4) Political Theory.
Henkin L, ‘Human Rights and State Sovereignty’ (1996) 25(1) Journal of International and Comparative Law
Kant I, Groundwork for the Metaphysics of Morals (1785)
Law J and Martin EA, A Dictionary of Law (7th edn, OUP 2009).
Pellet A ‘“Human Rightism” and International Law’ (Gilberto Amado Memorial Lecture 2000). Roberts J W, The Oxford Dictionary of the Classical World (OUP 2007).
Wheatley S, The Idea of International Human Rights Law (OUP 2019)
