Culture, Nonsense and Rights: Contemplating the Human Rights Act: Rights and Democracy: Essays in U.K.-Canadian Constitutionalism

By Ward, Ian | Review of Constitutional Studies, January 2001 | Go to article overview

Culture, Nonsense and Rights: Contemplating the Human Rights Act: Rights and Democracy: Essays in U.K.-Canadian Constitutionalism


Ward, Ian, Review of Constitutional Studies


Culture, Nonsense and Rights:

Contemplating the Human Rights Act

RIGHTS AND DEMOCRACY:

ESSAYS IN U.K.--CANADIAN

CONSTITUTIONALISM

by G. Anderson, ed., (London:

Blackstone Press, 1999) pp. 276

"Nonsense on stilts," Jeremy Bentham famously observed on hearing Sir William Blackstone expound his theory of natural rights in a London lecture hall. Commenting on England in the late 1760s, Blackstone concluded that "[e]verything is now as it should be." No, it was not, Bentham rejoined. Everything was a shambles, the law a chaotic mess, the subjects of His Majesty rioting in England and rebelling in America. What England needed, as a matter of urgency, was constitutional reform. (1) In 1997, the U.K. elected a new Labour government with precisely this mandate, to reform the constitution. As part of this package, it has enacted a Human Rights Act, which from October 2000 has incorporated much of the European Convention on Human Rights into domestic law. (2)

Bentham would have been horrified. Rights-talk, he averred, leads to endless, debilitating metaphysical "gossip," the articulation of "superstitious fancy" and the advocacy of rival "splenetic deities." Advocates of fundamental rights, men such as Tom Paine or William Godwin, dealt "in sounds instead of sense, in caprice instead of reason, in darkness instead of light." Their intellectual supplicants, those who engineered revolutions in America or France, advanced the cause of "anarchy" rather than democracy, of "license" rather than "liberty." (3) What England did not need is more rights, more nonsense. What it needed was genuine legal and political reform. He would undoubtedly have said the same today.

It seems the culture, which was cast by the likes of Bentham and Edmund Burke, and later by Bagehot and Dicey, has been overcome. "Something is happening," according to Helena Kennedy, "a different Zeitgeist, a shift in the legal tectonic." (4) Translating the central concept, Francesca Klug refers to a "new spirit of the age." (5) The British, it appears, distrust rights no longer. Indeed, they cannot get enough of them: a new Human Rights Act in October 2000, a new European Union Charter of Fundamental Rights just two months later. Suddenly, the U.K. is awash with rights. Though not, perhaps, with rights-talk. For no one, it seems, has seen fit to let the British people know of this jurisprudential and cultural sea-change.

But why has the U.K. allowed itself to be so readily seduced, after centuries of resisting the wiles of right? What has happened? What does the future hold? Is it an affair that is destined to end in tears?

In Rights and Democracy: Essays in U.K.--Canadian Constitutionalism, a number of academic commentators seek to address this question; some by presenting the comparative experiences of the Canadian Charter, others by speculating more immediately upon the British Human Rights Act, and its immediate cultural context. In essence, what Rights and Democracy does is present a story of the Canadian experience of a charter of rights and then, from this story, suggest prospective histories for the Human Rights Act.

The purpose of this review article is to continue this story-telling. The first part will examine the various alternative histories of the Canadian Charter, presented in Rights and Democracy and elsewhere. The second part deals with the particular story of the British Human Rights Act. Part three continues this latter history, presenting an alternative story of the Human Rights Act; one that is cast in the particular light of European legal and political integration. The article concludes by suggesting the extent to which the rather different and particular stories of rights in Canada, the U.K. and Europe may indeed be able to furnish a credible prophesy for the future of the Human Rights Act and chart the prospects for the evolution of an essential 'culture' of human rights. …

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