by Conor Gearty. New York and Cambridge: Cambridge University Press, 2006. 190pp. Hardback. $70.00. ISBN: 9780521866446. Paper. $22.99/£12.99. ISBN: 9780521685528.
Reviewed by Fiona de Londras, Centre for Criminal Justice and Human Rights, University College Cork, Ireland. Email: fionadelondras [at] mars.ucc.ie.
In the 2005 Hamlyn Lectures, presented as three essays in CAN HUMAN RIGHTS SURVIVE?, Conor Gearty delivers a number of skillfully crafted questions about the future (and past) of human rights as a movement, a body of law, a political reality, and a limiting force on state action. In doing so Gearty considers what he perceives to be three of the main areas that must be dealt with in order for human rights to properly come to terms with the challenges that face it in the future, such as the ethics of genetics, the environment, the start and end of life, and so on. These three challenges are what he terms the crisis of authority, the crisis of legalism and the crisis of national security.
The concept of rights has always endured a crisis of authority – the notion that we ought all to love one another, take care of one another (or at the least not obstruct each other in taking care of ourselves) and treat one another with respect is by now ubiquitous, but Gearty’s primary concern in his first essay is with the why of these pronouncements. The crisis identified by Gearty and his attempts to resolve it in some way are worthy of close attention, for unless the why of human rights and the basis for their authority can be answered, then the move to recognising dignity on the basis of attributes (epitomised by the division between ‘good’ and ‘evil’ in contemporary counter-terrorist narratives) is difficult to resist and threatens to undermine the ‘equality of esteem’ that is central to the entire project of rights. Unlike Bentham, Gearty does not identify rights as obstructions to well-intentioned utilitarian goals; but neither does he adopt a Dworkian perspective that sees rights as trumps over other concerns. Rather Gearty appears to perceive of rights as human endowments that must necessarily be taken into account in conjunction with other legitimate concerns in all law and policy making and implementation. The crisis of authority makes it difficult to persuade those who make law and policy that rights are worthy of a permanent, prominent and real (as opposed to merely facial) place in their considerations and are not merely to be taken into account when they do not make economic or security concerns too difficult to achieve. This risk is all the more real, Gearty contends, when the concept of rights has achieved its prominence without ever staking out an agreed and objectively justifiable explanation for its role in the modern cosmological conversation.
Gearty is undoubtedly right in identifying a crisis of authority, and his brief survey of a number of philosophical and legal conceptions of rights immediately excludes any possibility that the crisis emerges from a [*377] lack of contemplation. Rather the crisis emerges from the fact that human dignity – upon which the modern project of rights is based – is so highly contested in terms of its source. Is it mere humanity, in biological terms, that endows us with this dignity and, if it is, should we not allow that biology to govern and allow natural selection and survival of the fittest to determine the extent of the individual dignity to which all persons are apparently entitled? This Darwinian concept is clearly incompatible with human rights ideals, although Darwin’s theory of evolution had an undoubtedly important impact on the human rights project by proving that, in physiological and chromosomal terms at least, all human beings are essentially the same, having all emerged from the same steaming cesspool at the same time. However, once one rejects an evolution-based concept of dignity, one is then left floundering for other explanations – all of the alternatives identified by Gearty and, indeed, more broadly in the literature, arguably suffer the same Kelsenian flaw: they are all based on the concept of the individual as dignified and deserving of respect without necessarily explaining why the individual deserves and holds this dignity – the Grundnorm remains elusive. For some, the only plausible Grundnorm basis for the doctrine is sacredness (or the idea that the dignity arises from creation by God), although that too is improvable. Gearty dismisses the religiosity/sacredness approach rather swiftly for the simple reason that religious pronouncements do not have the same rhetorical power in a world confounded by the impossibility of absolute truth. This dismissal is disappointing, for Gearty’s perspective on the work of human rights and religion scholars, such as Michael Perry (1998) and Abdullahi An-Na’im (1990), would have been interesting. Gearty does, however, implore human rights advocates to consider ways in which new and dynamic strategic alliances can be made with the world’s religions, given the recent resurgence in devoted religious belief. This appears to be central to the survival of human rights, and Gearty is to be commended for his recognition thereof in a discipline that so often reveres only the ‘new religion’ of secularism and tends to reject religion as an obstruction to effective rights protection. Gearty does not resolve the crisis of authority in this book – indeed one might suggest that it is essentially irresolvable – but he usefully and candidly examines it and considers various possible approaches to its resolution in a manner that is both insightful and direct – characteristics by which this work is enriched throughout.
The second crisis considered by Gearty is that of legalism. In Chapter 3, Gearty considers the opportunities afforded by enshrining rights in law but also considers the potential pitfalls of seeing human rights and the discourse of rights as purely legal notions. Gearty starts the chapter from the premise that human rights law has “shed its activist personality and turned into the state” (p.62). Although this premise may appear unsustainable at first, when one broadens consideration to include domestic bills of rights, for example, as well as international human rights treaties, the premise rings true. The arguments raised by Gearty in relation to [*378] the crisis of legalism are of vital importance to those who wish to achieve enforceability and effectiveness of human rights standards. The very concept of enshrining human rights within the politico-legal system is subjected to scrutiny by Gearty, who describes it as a “Faustian bargain” in which we allow the human rights perspective, with its concentration of ethics and equality of esteem and flourishing and love, to be placed in a position where it must “compete in the political market-place” (p.67). This, as Gearty rightly says, allows the internal principles of human rights to be debated and subjected to political and legal whimsy instead of operating as moralesque rules that tell us what is right and wrong and identify the acceptable boundaries of social discussions and proposals.
The risk that the legalism of human rights brings in this context is ably demonstrated in contemporary discourses on torture. While international human rights law identifies the prohibition of torture as an absolute jus cogens right, the legalism of human rights has resulted in discourses about the acceptability of torture to limited degrees and in limited circumstances. This is epitomised in the work of Alan Dershowitz (2002) who does not condone torture but simply urges law to recognise that it happens and, in an attempt to limit it in scope and in scale, to try to regulate torture through the use of a system of judicial warrants. If human rights law played the external role suggested by Gearty, such a discourse would be more or less inconceivable, for human rights would step in to say that torture is absolutely prohibited and energies ought to be expended on preventing – rather than regulating – its occurrence. When human rights standards are legalised, however, they are up for discussion along with all of the other considerations in law and policy making, arguably holding no higher esteem than economic considerations and voter desire.
Gearty also identifies the legalism of human rights as a threat to politics. In his view, the internalisation of human rights norms within legal systems has resulted from and helped to perpetuate the false dichotomy between politics and law, while at once over-legalising politics by the use of human rights norms to interfere in political processes in ways that are not always benign. Politics has now become more about the censored voice of the people as distilled through legal processes than about activism, meaningful participation and civil society. In Gearty’s view, the legalism of human rights norms can result in a political unwillingness to criticise developments of this kind. The parliamentarian who objects to a court decision that his opponent’s ability to buy many times more media time than he because there are no limits on private contributions to political campaigns as a result of the right to free expression, for example, is likely to be portrayed as anti-rights, whereas in fact he is more likely to be anti-malignant-application of rights norms. As Gearty says “[a] particularly unfortunate consequence of the legalisation of what are effectively political decisions is that the dressing up of them in constitutional or ‘human rights’ form deprives the political [*379] community of the opportunity properly and critically to comment or engage with them” (p.84). Whether this result flows from the internalisation of human rights norms within the legal system or from the abuse of the legal system by big-monied interest groups and, on occasion, ‘moral entrepreneurs’ is somewhat tangential to Gearty’s critique it seems, for neither explanation would be possible without the legalism of rights.
This legalism also has the potential to affect the judiciary negatively, however, by overly politicising law. Any legal system that has entrenched concepts of rights can not be completely depoliticised – to say otherwise is to perpetuate a “Lockean delusion” according to Gearty (p. 86). The book uses some examples from the United States Supreme Court to illustrate this point, although this certainly is not the only system in which the trends identified might be said to be present. The legalism of human rights norms enables judges to make ‘politicised’ decisions such as ROE v. WADE (1973) but then makes the future of that politicised decision a central feature in the future of the Court and, in particular, in the future appointments to the Court. A Justice’s commitment to human rights norms may also put that individual at some risk from those whose political beliefs and perspectives are completely at odds. CAN HUMAN RIGHTS SURVIVE? features extracts from an interview with Justice Blackmun about the impact of his judgment in ROE on the rest of his life, including the need for body guards and relatively frequent receipt of death threats. The more recent examples of ROPER v. SIMMONS (2005) and LAWRENCE v. TEXAS (2003), after which members of the Supreme Court received death threats for referencing international human rights law and Congress considered an Act to preclude the use of ‘foreign law’ in the U.S. Supreme Court, act equally well in the proof of Gearty’s hypothesis: the incorporation of human rights into politico-legal discourse in its current form is detrimental to both.
Gearty takes the somewhat dangerous step of suggesting a solution – dangerous because when one proposes a model it is all too easy for critics to focus on the technical flaws therein rather than the principled arguments therefore. He concludes that the solution lies in something along the lines of the UK Human Rights Act 1998 – a bill of rights through which international norms are made enforceable in terms of obligating state organs to act in compliance therewith, but where courts can not strike law down on the basis of incompatibility: they merely declare it incompatible and let the political system do its work. The rights incorporated are already subject to limitation where necessary and proportionate within the European Convention on Human Rights, with some rights being non-derogable. The incorporation takes place by means of a political process (i.e., the passage of an act of parliament), and the incorporation can be undone by a simple majority through a repealing act, although the political system itself is likely to resist any such moves if the human rights norms are sufficiently internalised. Although Gearty’s proposal appears sensible and well thought out, there are some practical critiques that [*380] can be offered – the proposal does not deal with situations where a legal system may require sub-constitutional incorporation because the constitution itself has a Bill of Rights (as happened in Ireland), and the New Zealand Bill of Rights offers a counter narrative to the success of the UK Human Rights Act that is not fully handled in the book (Erdos, 2007) – however the model proposed appears to be more concerned with what the ingredients of successful legalism are, rather than what the technical format ought to be. In this it answers well the difficulties with constitutional rights legalism that had previously been outlined.
The final crisis identified by Gearty is the crisis of national security. The themes raised by Gearty in this chapter are well known, particularly in the contemporary world which appears to be dominated by a security paradigm emerging from a hyper-power in a world of uni-polarity. In such a milieu it is perhaps unsurprising that human rights – which are often falsely juxtaposed with security concerns – are ‘at risk.’ Gearty, however, uses his expertise in the law and politics of terrorism to show that the difficulties faced in today’s world are no different from the counter-terrorist difficulties that countries have traditionally faced, and clearly locates the current ‘War on Terrorism’ in the Israeli-Palestinian conflict in which the language of civilisation v. barbarism was sophisticated on the contemporary global political front. One might argue that Gearty overlooks the ‘newness’ of contemporary terrorism, however this is to assume that the scale of one’s potential for destruction makes a terrorism new – terrorism continues to operate on the same bases and with the same ingredients (belief, chaos, fundamentalism, non-discrimination between civilians and combatants, and the like) now as it has long done in Spain, Northern Ireland, Columbia, and so on. Gearty also shows that the risks to which human rights are exposed by counter-terrorist laws are also well-worn trends – “[t]errorism trends challenge both the core proposition underpinning human rights [i.e. dignity and esteem] and each of its . . . manifestations. In place of equality of esteem they offer…inequality of esteem, judging people not by the fact that they simply are but by where they are from and by which culture or faith it is that they belong” (p.103).
Gearty’s examination of the crisis of national security is particularly useful for its focus not only upon the substantive rights protections that tend to be undermined and violated by counter-terrorism laws, but also on the institutional and procedural violations of the rule of law and the dictates of democracy. Both the Patriot Act (USA) and the Anti-Terrorism, Crime and Security Act 2001 (UK) attest to this – both were rushed through national parliaments in the wake of 11th September, represented as necessary for the preservation of democracy (although deeply offensive to notions of due process), and heavily weighted in favour of the state. Gearty usefully hints at an anxiety or panic-centric analysis of these trends, reflecting on “executive-induced hysteria” (p.106), but his main focus is on the moral rhetorical power of labeling something or someone as ‘terrorist’ [*381] when the concept is devoid of any objective definition. Once the moral work of labeling has been done, space is created in which human rights can become negotiable concepts, even in areas – such as the prohibition of torture – in which global consensus had previously been reached. This final essay in CAN HUMAN RIGHTS SURVIVE? usefully draws together themes from Gearty’s earlier work – the allowances for ‘national security’ built into human rights law, the effect of populism on lawmaking, the continuity of alleged ‘terrorist threats’ in modern states, the perpetuity of ‘emergency’ and so on – and presents a concise but comprehensive set of reflections on the risk to human rights in the midst of a security paradigm. For Gearty, the answer to the contemporary challenge to human rights is for the human rights ‘community’ to “stand firmly against [the] kind of distortion of [human rights’] essence” (p.136) that reintroduces the dialogue of ‘good versus evil’ into the politico-legal arena. This suggestion may appear somewhat obvious; however, the current body of ‘human rights’ scholarship that, for example, seriously discusses the regulation of torture and supports executive power without judicial oversight shows the necessity for clear, straightforward and well argued suggestions of this nature.
It is the clarity and comprehensiveness of Gearty’s argumentation, together with the controlled passion and graceful articulacy with which it is expressed, that commends this short book so highly to all of those interested in politics, law and human rights. Gearty does not promise answers in CAN HUMAN RIGHTS SURVIVE?, but in it he engages in impressively thorough considerations of difficult but vital questions. The book is highly commended to both experts and casual readers in the field.
An-Na’im, Abdullahi Ahmed. 1990. TOWARD AN ISLAMIC REFORMATION: CIVIL LIBERTIES, HUMAN RIGHTS AND INTERNATIONAL LAW. Syracuse: Syracuse University Press.
Bentham, Jeremy. 1843. ANARCHICAL FALLACIES.
Dershowitz, Alan M. 2002. WHY TERRORISM WORKS: UNDERSTANDING THE THREAT, RESPONDING TO THE CHALLENGE. New Haven: Yale University Press.
Erdos, David. 2007. “Aversive Constitutionalism in the Westminster World: The Genesis of the New Zealand Bill of Rights Act (1990).” 5 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 343-369.
Dworkin, Ronald. 1978. TAKING RIGHTS SERIOUSLY. London: Duckworth.
Kelsen, Hans. 1967. THE PURE THEORY OF LAW (Knight trans.). Berkeley: University of California Press. [*382]
Perry, Michael J. 1998. THE IDEA OF HUMAN RIGHTS: FOUR INQUIRIES. Oxford: Oxford University Press.
LAWRENCE v. TEXAS, 539 U.S. 558 (2003).
ROE v. WADE, 410 U.S. 113 (1973).
ROPER v. SIMMONS, 543 U.S. 551 (2005).
©Copyright 2007 by the author, Fiona de Londras.