Judge-Made Rights

By Kaminer, Wendy | The American Prospect, September 11, 2000 | Go to article overview

Judge-Made Rights


Kaminer, Wendy, The American Prospect


On October 2, 2000, the European Convention on Human Rights will be incorporated into English law through the Human Rights Act. Britain ratified the international convention some 50 years ago, but did not codify it domestically and give English courts and English judges the power to enforce it. Litigants have had to travel to Strasbourg, France, to the European Court of Human Rights, in order to have claims under the convention vindicated.

The European convention, adopted shortly after World War II, is hardly an unequivocal declaration of rights: A few rights are absolute, notably the rights not to be tortured or enslaved, and the convention is fairly forthright in its guarantee of fair-trial and due-process rights; but expressive rights--freedom of thought, religion, speech, and assembly--are greatly qualified. Speech rights, for example, are expressly limited by whatever restrictions are "prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

Virtually any restriction on speech can be justified by these provisions; censors always claim that they're acting to protect the public health or safety, not to mention morals. Still, American civil libertarians are apt to view Britain's new Human Rights Act as a welcome and perhaps even essential step toward securing rights and liberties. It's hard to imagine how our own freedoms would have been secured without the Bill of Rights and the willingness of courts to enforce it. So, on a recent visit to London, I was surprised to hear some of our English counterparts express dismay that judges would soon be empowered to second-guess the legislature and define individual rights.

The judicial determination of rights is undemocratic; judges are unelected and unaccountable, several civil rights activists and civil libertarians asserted. These arguments against judicial power are quite familiar, but in America they're usually raised by people on the right, outraged by what they consider the ravages of judicial activism: abortion rights, the abolition of official school prayer, or the Miranda warnings and other rulings protecting the rights of the accused. Of course, courts sometimes deny citizens their fundamental rights. The arbitrariness of the death penalty is partly a consequence of the judiciary's failure to provide fair trials in capital cases. Still, on balance, civil libertarians have grown used to viewing the judicial system as an ally: Courts were essential to the American rights revolution of the twentieth century.

Some English liberals (at least the ones I encountered) are skeptical that their judges will join in any similar revolution, partly because they are creatures of their class (I guess that's why they're called "law lords") who have backgrounds in commercial law. "Criminal lawyers who concern themselves with what most assume is the stuff of human rights are at the grubby end of the trade," a recent article in The Guardian explained. The class system may well account for some English resistance to judge-made rights; maybe a democratically determined majority tyranny seems preferable to the tyranny of the minority ruling class. Some wariness of the Human Rights Act from the left may also reflect the fact that it was a New Labor initiative. Under Tony Blair's leadership, the government has been no great friend to civil liberty. It has, for example, proposed empowering police to impose instant fines on people charged with "drunken, noisy, loutish and anti-social behavior," without bothering to try them first. It has championed a new law prohibiting people labeled "potential hooligans" from leaving the country to attend football games. …

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