"Nonsense on Stilts."

Roger Scruton on Natural Rights

Prepared for a Conference on Human Rights, Lincoln's Inn, London, 2011.

The idea that there are universal human rights was expressed by its early defenders — notably by John Locke in his Second Treatise of Government — in another way. According to Locke there are 'natural' rights — rights which attach to individuals by virtue of their 'nature' as human beings, and independently of any man-made 'convention'. The distinction between nature and convention was a cornerstone of the Stoic philosophy of ancient Athens, and an important input into Roman jurisprudence. The Roman jurists distinguished the ius naturale or natural law, whose force derives from human nature and which is therefore recognised as binding by all people everywhere, from the ius civile or civil law, which summarises the rights and duties conferred by Roman jurisdiction on the citizen. The idea of a 'natural law' thereafter entered the thinking of philosophers and theologians, to become a standing justification offered by bishops for ecclesiastical jurisdiction, and for the right of the Church to adjudicate conflicts between sovereigns.

          Aquinas frequently refers to the natural law as the true foundation for every legitimate jurisdiction, but does not give a clear account of what it says. Nevertheless, it was one of the achievements of medieval Christendom to persuade people that laws exist which are not made by princes. These 'natural' laws do not provide a complete legislative programme, sufficient to govern a real human community in all the contingencies that generate the conflicts for which law-courts are needed. But they set limits to the civil law. Natural law describes the boundaries which cannot be transgressed without forfeiting the legitimacy of the jurisdiction. It therefore provides the fulcrum outside the political system, whereby the system's claim to legitimacy can be overturned.

          Modern discussions of natural law began with Grotius, the author of De jure belli ac pacis, the first comprehensive treatise on international law, and one to which we are all in the modern world indebted. Grotius argued that if there is such a thing as natural law it is not law because God so commands it; it is law because reason so discerns it. Even if God did not exist, Grotius argues, there would be a natural law, and rational beings would be equipped to recognize its claim on their behaviour. Although Grotius famously qualifies his observation, by condemning atheism as an intolerable sin, his thought has been endorsed by all defenders of the natural law in our tradition, and most notably by Kant, whose theory of the Categorical Imperative can be seen as providing metaphysical foundations for a natural-law theory of government.

          There is an important contrast here with Islamic law. In no respect does Islam recognize the existence of natural law. Although the shari'ah stands in judgement above all human codes, it is, like them, simply another system of universalised commands — although a system issued by the highest authority. There is no requirement that the commands of God should correspond to anything other than the will of God; certainly no requirement that they should correspond to a law independently accessible to all rational beings.[1] Nonsensical commandments, such as the forbidding of foods arbitrarily pronounced unclean, stand side by side with laws forbidding murder, rape and fraud, as though sharing the same authority. And the arbitrariness of the one command in time communicates itself  to the other so that, as we have seen, Muslims who begin from the trembling sense that all is forbidden, can quickly end in the defiant belief that everything is permitted — including the mass murder of innocents. It is precisely our natural law tradition that prevents us from going in any such direction. The natural law is a system of constraints - rules that forbid things, even to God who, being rational, freely both commands these rules and conforms to them. These constraints form a wall around every individual — they are the sum of what cannot be done to him. How they are justified is a deep question of moral and legal philosophy; but unless they can be justified, the law becomes as much a threat to the individual as a shield. Laws that protect the individual from the community and from the state are, according to natural law theory, the sine qua non of legitimate government. Such laws are not imposed from the top down, by a system of sovereign commands. They are built up from below, by studying the freedoms and constraints that reside in rational nature itself, and which must be respected if the law is to be accepted as legitimate by those subject to its demands. Not surprisingly, therefore, the idea of natural law tends to be stated in terms of the natural rights of the individual.

          It is not only Islamic law that sees top-down commands, rather than bottom-up constraints, as the ultimate source of law. Jurists like Jeremy Bentham and John Austin saw law as a system of universalised commands, laid down by a sovereign power, and enforced against transgressors. They recognized the existence of laws which define rights, powers, liabilities and freedoms; but saw these as parasitic upon the commands that held the system in place. And they recognized a distinction between justified and unjustified laws; though it was one that they analysed in utilitarian terms.[2] The idea of natural law seemed to them absurd. Either it meant a law laid down by God — and therefore another species of universalised command, not different in kind from that of any human legislator — or it referred to law without a legislator, without an enforcer, without an identifiable source in the world of written records, and without any court to decide its verdicts. At best the idea of such a law was a pious hope, at worst 'nonsense on stilts', to use Bentham's famous phrase. Genuine law, for Bentham and Austin, was 'positive' law, not natural law — law 'posited' by convention and enforced by a sovereign power. And the dispute between this legal positivism and the legal naturalism of Grotius, Locke and Kant continues in one form or another to this day.

          Bentham was explicitly referring to the emerging philosophy of 'natural rights'. For he was writing in the period of the French Revolution, when the clamour for the 'rights of man' was reaching fever-pitch. Bentham's ridicule notwithstanding, the idea of natural or human rights has lost none of its appeal, and has even become the first legislative principle of international bodies, and indeed the sole rational ground for adjudication in at least one court of law — the European Court of Human Rights in Strasbourg. The pursuit of human rights is fundamental to the UN Charter, and the European Court of Justice, whose remit is to adjudicate disputes under the insane regime of regulations invented by the European Commission, is also under an obligation to align its judgements with those of the ECHR in Strasbourg. The UK has followed the example of other Member States within the EU, and incorporated the European Convention on Human Rights into its municipal law, and all attempts at international order are accompanied by the rhetorical demand for the protection of human rights, as the sine qua non of any lasting agreement. In an age of official scepticism, in which authoritative liberal thinkers, from Hart and Rawls to Dworkin and Nussbaum, assume that law is or ought to be neutral regarding the individual's 'conception of the good', there seems nevertheless to be complete agreement about the underlying principles of morality, and a desire to enforce them against all-comers. These underlying principles are those enshrined in the doctrine of human rights. The stilts have got longer since Bentham's day, but the question remains whether the thing that sways on top of them is really nonsense.

          The topic of natural rights was controversial in the years following Bentham's treatise on legislation, not only on account of the conflict between his utilitarianism and prevailing theories of natural law, like those of Locke and Samuel Pufendorf.[3] The experience of the French Revolution was fresh in people's memory; people recalled the paper constitution of the Revolutionaries — the Dιclaration des droits de l'homme et du citoyen — which had been put forward as the fount of all revolutionary law, shortly after the storming of the Bastille. When the doors of the Bastille were thrown open, seven prisoners emerged, two of whom proved to be insane and had to be reincarcerated. Two years later 500,000 people were in the prisons of France, a great many of them dying, most of them imprisoned on trumped up charges, and none of them with any hope that those rights announced in the Declaration could be demanded from the people who had so glibly declared them. The Revolutionary Tribunals denied to the accused a right of representation, even a right of self-defence, and judge and prosecutor were identical. This violation of natural justice was defended as the only way to ensure that the population as a whole could enjoy their natural rights. Nonsense on stilts, but nonsense with teeth.

          Nowadays, of course, we think of human rights precisely as a shield against that kind of despotism — which Robespierre called the 'despotism of liberty'. And the construction of this shield has brought about the coexistence in the current legal orthodoxy of two seemingly incompatible views: first that all law is positive law, whose validity is established by convention, and secondly that all law must conform to human rights, which have a universal and overriding validity of their own. This seems like an uncomfortable amalgam of positivism and naturalism: it certainly calls out for an explanation. It seems as though, at the very moment when the law is being re-shaped as an instrument of moral relativism, by which the freedom of the individual is exalted above all the virtues that might restrict it, the prevailing ideology is becoming ever more absolutist, insisting on a list — and a constantly growing list — of human rights as the sole and sufficient justification for all political action.

          In fact, however, the two currents of opinion are connected. The emphasis on individual freedom. and the desire to see the law as an instrument for maximizing that freedom, arises from a profound distrust of government. From Mill to Robert Paul Wolff, the idea has been prevalent that all claims to authority are fraudulent, that no-one really has authority over anyone else, and that the sole excuse for government is that it makes us more capable of exercising our freedom.[4] No-one is entitled to dictate to anyone, and no moral judgement has a greater right to be enforced than any other: the law should remain neutral for the simple reason that it shouldn't be there at all, and is necessary only because people have the intolerable habit of restricting each other's freedom — a habit that can be rectified only by coercive rules.

          The emphasis on human rights comes from the same anti-authoritarian stance. All governments, and all claims to authority, are a potential threat to the individual. He must be shielded from their worst effects by a wall of rights. These rights protect his ability to go about his business undisturbed. And the first concern of government must be to uphold those rights, since the legitimacy of government is determined (perhaps entirely) by the extent to which it protects the individual and his liberties from encroachment. Behind the doctrine of human rights, therefore, there lies the same deep suspicion of government and authority that animates the view that law should be morally neutral. Human rights have, as a result, been shaped as moral absolutes which protect moral relativism. They confer on us the absolute right to repudiate all absolute duties. And that is part of their point: they belong to a world beyond duty, in which nobody can tell us what to do. 

          That makes it look as though human rights are to be understood always as fundamental liberties — freedom rights which we respect by leaving people alone. The doctrine of human rights is there to set limits to government, and cannot be used to authorize any increase in government power that is not required by the fundamental task of protecting human freedom. The original text of the European Convention on Human Rights certainly suggests that this is so; and the rights there specified spell out implications of those rights — to life, liberty and the pursuit of happiness — advocated in the American Declaration of Independence.

          However, the search for liberty has gone hand in hand with a countervailing search for 'empowerment'. The negative freedoms offered by traditional theories of natural right, such as Locke's, do not compensate for the inequalities of power and opportunity in human societies. Hence egalitarians, who dislike hierarchies of every kind, have begun to insert more positive rights into the list of negative freedoms. The liberty rights specified by the various international Conventions have therefore been supplemented by certain claim rights — rights which do not merely demand non-encroachment from others, but which impose a positive duty on others. This is particularly apparent in the UN Declaration of Human Rights, which begins with a list of freedom rights and then suddenly, at article 22, begins making radical claims against the State — claims which can be satisfied only by positive action from government. Here is article 22:

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

There is a weight of political and social philosophy behind that article.  Contained within this right is an unspecified list of other rights called 'economic, social and cultural', which are held to be indispensable not for freedom but for 'dignity' and the 'free development of personality'. Whatever this means in practice, it is quite clear that it is likely to involve a considerable extension of the field of human rights, beyond those basic liberties acknowledged in the American Declaration. Those basic liberties are arguably necessary for any kind of government by consent; the same is not true of the claims declared in section 22 of the UN Declaration.

          The Declaration goes on in this vein, conjuring a right to work, to leisure, to a standard of living sufficient to guarantee health — and other rights which are, in effect, claims against the State rather than freedoms from its encroachments. I don't say that these are not rights: but even if they are rights, they are not justified by the same philosophical arguments as justify the freedom rights granted earlier in the Declaration. Moreover, they open the door to the 'rights inflation' that we have witnessed in recent decades, and to an interpretation of human rights which is prodigal of conflicts.

          Here is an example that might help to focus the issue. Between the wars there was much concern in Britain over the growth of urban sprawl, and the way in which the countryside was being invaded by 'ribbon development', using the road network as a cheap substitute for  proper urban infrastructure. Businesses were relocating to the edge of towns, to take advantage of lower rents and rural amenities, town centres were decaying and the countryside was being eaten up in a random and destructive way. The process — which we still witness in modern America, and which has been the subject there of radical and unanswered criticism from Jane Jacobs and Howard Kunstler, among others[5] — was widely deplored, and the war-time government decided that, as soon as the emergency was over, the problem must be addressed. The aim was to find a policy that would reconcile as many of the interests as possible — interests of the towns in retaining businesses in the centre, of urban residents in being shielded from pollution and noise, of rural residents in retaining their tranquillity, of farmers in retaining undisturbed fields, and of all of us in maintaining a self-sufficient agriculture in a beautiful countryside. The result was the 1946 Town and Country Planning Acts, which have remained in force, and which created the green belts around the towns, while strictly controlling building in the countryside. This legislation has met with widespread approval, and has helped to stabilize land use and land prices in the countryside. Planning controls mean that someone who buys a house in the countryside can be more or less certain that it will still be in the countryside when he sells it, since no building will be permitted in the vicinity, except according to strict guidelines, and he himself has a statutory right to raise objections and influence the course of any planning inquiry.

          I don't deny that there are negative aspects to this legislation. But it illustrates an important point: namely that the law can aim at a compromise solution, that it can take many competing interests into consideration; and it can provide a set of rules which achieve the most reliable way of reconciling the conflicts that are generic to the activities that stand to be regulated: in this case the conflict between the one who wishes to develop land, and the neighbour who will thereby suffer a loss of amenity, and a loss in the value of his property. All in all, it is one of the reasons for preferring legislation over adjudication, as a source of law, that a legislature can take the widest possible view of the many interests that need to be addressed and if possible reconciled.

          All went reasonably well until Irish travellers, taking advantage of the EU's freedom of movement provisions, began to settle in the English countryside, buying fields from farmers at agricultural rates, and then developing them as sites for mobile homes. The farmer cannot sell these fields for agricultural use, since agriculture is in a state of crisis. Nor can he obtain planning permission for any other use, and specifically for development as houses. So the deal offered by the travellers is the best he can get. Their practice is to scrape away the top-soil and replace it with concrete, then install mobile homes, and gradually change the mobile homes to stationary prefabs. Why, you ask, is this permitted? Well, it is not. However, since the incorporation of the European Convention of Human Rights into UK law, the travellers have argued that they have a right to pursue their traditional way of life, a right to which they are entitled as an ethnic minority, to deny which would be tantamount to 'discrimination' as forbidden by that very same law, and that this right entitles them to move freely about the country, settling where they will. Of course this is a piece of nonsense — nonsense on stilts, of a kind that makes one sympathize with Bentham. Nevertheless the courts have upheld the argument, and therefore granted a right that effectively nullifies one of the most carefully considered and expensive pieces of UK legislation, and one that represents an enormous investment on the part of the whole community.

          The consequences of this are worth studying. In the village of Minety, near where I live, the development of farming land as a travellers' camp has led to the collapse of property values all around, causing enormous social tensions between residents in the camp and those whose savings they have wiped out. It has also led to anger among villagers who have had planning permission for this or that comparatively innocent addition refused, and who now refuse to obey the law, causing huge problems of enforcement. So far there have been no murders — which distinguishes the Minety case from a similar case in Cambridgeshire — but there is also no sign that people are or ever will be reconciled to the decision of the court.

          The case illustrates four very important matters. The first is that, as Dworkin puts it, 'rights are trumps'.[6] That is, in a court of law, if you can show that your interest in the matter is also protected by a right, then you win the case against anyone whose interests, however great, are not so protected. (Rights provide 'exclusionary reasons', in Raz's plausible way of putting it.[7]) The huge interest of the Minety residents in retaining the value and amenity of their properties (which represent, for most of them, their life's savings) counted for nothing in the case I am considering, since — although protected by planning law — those interests were not protected as a right, but only as an interest.

          The second important point is that, unlike the solutions issued by a legislature, those issued by a court are not compromises: they are not attempts to reconcile the many interests involved in a situation, and even if you think that Dworkin is right that questions of policy can play a part in determining the outcome of adjudication, the court does not see itself as formulating a policy for the good government of a community — that is the task of a legislature, not a court. The court sees itself as resolving a conflict in favour of one or other of the parties. In normal circumstances, a case before a civil court is a zero-sum game, in which one party wins everything, and the other loses everything. There are no consolation prizes. Moreover, the doctrine of precedent ensures that the court's decision will punch a hole in any legislation designed to solve issues of the kind that come before it. The decision could do irreparable damage to a delicate piece of legislation, and destroy a process of conciliation and compromise that has issued in that legislation. This is what has happened with the Town and Country Planning Acts. And it is a very good illustration of the dangers inherent in 'human rights' legislation — namely, that it places in the hands of the ordinary citizen, a tool with which even the most vital piece of public policy can be overturned, and overturned in favour of the individual, regardless of the common interest and the common good.

          The third important point is that the human rights declared by the various pieces of legislation, and the various decisions of the courts, are not obviously of the same philosophical, moral or political standing. A doctrine of natural rights is entitled to the name only if the rights declared under it can be established a priori. The attempt to do this, in the case of basic freedom rights, has been made by various writers — by Nozick, beginning from Kantian premises; by Finnis beginning from Thomist premises; and so on.[8] I think we can all see the force of the idea that there are certain things that cannot be done to human beings — certain basic goods, including life itself, that cannot be taken away from them unless they in some way forfeit them. Life, limb and the basic freedom to pursue our goals undisturbed (compatible with a similar freedom enjoyed by others) are plausible candidates. You can see how the entitlement to these things lies at the heart of political cooperation: for without some guarantee that, in these respects at least, people are protected from invasion, there really could not be a system of law that enjoyed the consent of those subject to it. And the rights in question correspond to basic deliverances, both of the Thomist argument concerning the fundamental goods which are the premises of practical reasoning, and of the Kantian categorical imperative.

          Furthermore we can understand those basic freedoms as rights partly because we can understand the reciprocal duty to respect them. My right to life is your duty not to kill me: and duties of non-encroachment and non-infliction are naturally upheld by morality and easily enforced by the law. However, once we step outside this narrowly circumscribed area of basic freedoms, the freedoms presupposed in consent, we enter a much more shady and conflictual territory. The travellers' case depends upon the provision for 'non-discrimination' — a provision that steps outside the area of basic freedoms, into that of justice. And the amazing thing is that this provision, meant to prevent one group of citizens from arbitrarily enjoying privileges denied to another, has been used precisely to claim minority privileges that are legally denied to the majority. Nonsense on stilts this may be; but it has an uncanny ability to survive the criticisms made in court.

          Fourthly, the case illustrates the increasing intrusion into the field of human rights law of the concept of a 'group right'. The original invocation of natural rights by Locke, Pufendorf and others was designed to protect the individual from arbitrary power. You held your natural rights, according to those thinkers, as an individual, and regardless of what group or class you belonged to. These rights force people to treat you as a free being, with sovereignty over his life, who has an equal claim on your respect. But the new ideas of human rights allow rights to one group that they deny to another: you have rights as a gipsy, a woman, a homosexual, which you can claim only as a member of that group. To think in this way is to resurrect the abuses to which Locke and others were in search of a remedy — the abuses which led to people being arbitrarily discriminated against, on account of their class, race or occupation.

          The case is one of many, which has led to a certain disaffection towards the idea of human rights, and a belief that it has been used illegitimately at both the legal and the political level, to dispense arbitrary justice in disputes that ought to be resolved by compromise, and not by zero-sum solutions. One thing is certain, which is that those who announce human rights seldom if ever attempt to prove that there are any such things, or that the rights they propose are included among them. The increasingly arbitrary lists that form the substance of international declarations seem to be more the product of political orthodoxies or social aspirations than any well-founded intuition concerning the a priori  grounds of law. So how should we proceed in winnowing out the plausible from the implausible candidates?

          First we should do well to respect the classic analysis of W. N. Hohfeld[9], whose typology of legal rights brought order into an increasingly disorderly discussion. Hohfeld was not dealing with natural rights, but with rights as defined by a legal system, and he distinguished claim rights from liberty rights, and both from powers on the one hand and immunities on the other. It is the first two of those, and the distinction between them, that is of principal concern to the discussion of human rights. A claim right typically arises from some past circumstance whereby one person becomes responsible to answer a claim made by another. For example, if I have transferred to you my house in accordance with a contract of sale, then I have a claim against you for the agreed price, and this is a claim-right of mine — in other words, a right that would be upheld in a court of law, should any dispute arise. Claim rights also arise in tort. If your negligently allowing your cows onto my lawn causes £500 worth of damage, then I have a claim-right against you, for that sum.

          In those straightforward cases of contract and tort, we easily see that every claim-right in one person defines a duty in the other. Indeed, Hohfeld defines a claim right as a 'directed duty' — a duty directed towards the particular person who has the claim. And this duty is a legal burden. Often it cannot be discharged: the person claimed against may not have the means to satisfy the claim. However, he ought to satisfy it, and the law will compel him to do so to the best of its power. Furthermore, the duty that the law imposes arises from a relationship of responsibility. In both contract and in tort — as well as in trust — the law holds someone liable for a claim made by another. And this liable person is identified, either as an individual, or a company or a group, which has acted so as to incur the liability in question.

          Hence claim rights, in the normal cases when they arise, are quite different from freedom rights. A freedom right imposes a general duty on others to observe it; but it may arise from no specific relationship, and may make no specific demands of any individual. It is a right that may be invaded by others; but by doing nothing they respect it, and the duty to observe it is neither onerous nor a special responsibility of any particular person. Such is my right to move freely from place to place, my right to life, limb and property, and the other rights traditionally acknowledged as flowing from the natural law. You respect them by non-invasion, and the duty to respect them falls clearly and unambiguously on everyone.

          This does not mean that there are no legal difficulties over enforcing freedom rights, or that special relations may not bear on them. For one thing, freedom rights can conflict: as when my freedom to grow vegetables in my garden conflicts with your freedom to plant a leylandi hedge next to it. The law takes the sensible view that freedoms of this kind are not unqualified, and that the conflicts can be resolved by inserting the qualifications. Nevertheless, if you really have a right to do something, then you are wronged by any judgement that forbids you to do it. A conflict of rights, which cannot be resolved by qualification, is strictly analogous to a moral dilemma, in which one is obliged to perform two incompatible courses of action. This absolute nature of rights should not be misunderstood. Rights define what Raz has called exclusionary reasons — i.e. reasons whose validity excludes countervailing arguments — not overriding reasons, i.e. reasons which must prevail. My right to close my door against you is breached by your decision to break it down. However unknown to me, but observed by you, a fire has broken out on the second floor and you are breaking in to fight it. In such a case your moral duty to save my life over-rides my right to exclude you. Nevertheless, your decision to break down my door is a violation of a right. 

          Claim rights arise in contract and tort — as Hohfeld recognizes. I doubt that, in Hohfeld's day, there was any legal recognition afforded to claims against everyone by anyone, regardless of the relation between the parties. However, this is the kind of right that has begun to creep into the lists of supposed 'human rights' proposed by trans-national legislatures. The switch from freedom rights to claim rights is made easier by the ambiguity of many formulations. Take the right to life. As proposed in the American Declaration of Independence this meant the freedom to go about my business without threat to my life. It imposes on others the duty not to kill me, and since this is a duty under any moral understanding, and one that Kant, for example, held to be justifiable a priori, there is no intellectual difficulty in including the right to life among the list of natural rights. However, the phrase 'right to life' can easily be inflected so as to acquire another meaning, as the right to be protected against anything that threatens to take my life away — disease, for example. A person with a life-threatening illness is, on this understanding, suffering a breach in his rights. And if we put it that way, we are immediately saddled with the question of duty: whose is the duty to help him, and how? Suppose there is a doctor somewhere who can cure the disease, but who is too tired, too far away, too fed up with unpaid demands on his time, and so on, and who therefore does not respond to the call for help. We might reproach this doctor. But do we want to go along with the claim-right understanding of the phrase, and say that he has violated another's 'right to life'? At the very least we can see that this is controversial in a way that the freedom-right understanding of the phrase is not. We surely have other, and better ways, of describing the duties involved in cases like this, ways which do not place the kind of absolute claim on another's conduct that is implied in the language of rights.

          Now it is easy to see why a libertarian might object to the expansion of the list of human rights to include claim rights — especially claims to non-specific benefits like health, education, a certain standard of living and so on. For, in the absence of any relation of liability, specifying who is to satisfy these claims, they inevitably point to the state as the only possible provider. And large, vague claims require a massive expansion of state power, a surrender to the state of all kinds of responsibilities that previously vested in individuals, and the centralisation of social life in the government machine. In other words, claim rights push us inevitably in a direction which, for many people, is not only economically disastrous, but morally and politically dangerous. Moreover it is a direction which is diametrically opposed to that for which the idea of a human (natural) right was originally introduced — a direction involving the increase, rather than the limitation, of the power of the state.

          But there is another reason for disquiet over the idea that claim rights might also be human rights. Hohfeld argued that the concept of a right belongs in a family of concepts — liability, immunity, duty, permission, power and so on — which are like modal concepts, such as possibility, necessity and probability — in identifying interlocking operations of rational thought. The concept of a right belongs to a 'circle of juridical terms', which are intricately interdefinable, and which between them specify a systematic operation of the rational intellect. There is, as I would prefer to put it, a kind of 'calculus of rights, responsibilities and duties', which rational beings use in order to settle their disputes and to reach agreement over matters of common or conflicting interest. The availability of this calculus is one of the things that distinguish us from the lower animals, and it would be available to us even if we did not attempt to back it up with a shared legal system. The concept of justice belongs to this calculus: injustice residing in the denial of rights or deserts, undeserved punishment, and so on.

          There is an interesting philosophical question as to how this 'rights talk', as it has been called, is grounded. And there is another question, partly philosophical, partly anthropological, as to the function of rights talk. Why do human beings make use of juridical terms? What do they gain from it, and why has it stabilized in so many different parts of the world, so as to be received as entirely natural? I would like to venture an answer to those questions. It seems to me that rights talk has the function of enabling people to claim a sphere of personal sovereignty: a sphere in which their choice is law. And spheres of personal sovereignty in turn have a function, namely that they give the advantage to consensual relations. They define the boundaries behind which people can retreat and which cannot be crossed without transgression. The primary function of the idea of a right is to identify something as within the boundary of me and mine. If I have a right to sit in a certain room then you cannot expel me from it without wronging me. By determining such rights we define the fixed points, the places of security, from which people can negotiate and agree. Without those fixed points negotiation and free agreement are unlikely to occur, and if they occur, their outcome is unlikely to be stable. If I have no rights, then the agreement between us provides no guarantee of performance; my sphere of action is liable to constant invasion by others, and there is nothing that I can do to define the position from which I am negotiating in a way that compels you to acknowledge it.

          Rights, then, enable us to establish a society in which consensual relations are the norm, and they do this by defining for each of us the sphere of personal sovereignty from which others are excluded. This explains  Dworkin's view, in Taking Rights Seriously, that 'rights are trumps'. A right belongs to the fence which defines my sovereign territory: by claiming it, I put an absolute veto on things that you might do. It also explains the direct connection between right and duty: the absoluteness of the right is tantamount to a duty to respect it. And it explains the zero-sum nature of disputes in a court of law, when rights are invoked to decide them.

          If we look at rights in this way, as instruments which safeguard sovereignty, and so make free deals between sovereign partners into the cement of society, then we see immediately why freedom rights have the best claim to universality, and why claim rights — detached from any history of responsibility and agreement — present a threat to the consensual order. A claim against another, if expressed as a right, is an imposition of a duty. If this duty arises from no free action or chain of responsibility which would provide a cogent ground for the claim, then by expressing it as a right we over-ride the other's sovereignty. We say to him: here is something you must do or provide, even though your duty to do so arises from nothing you have done or for which you are responsible. This is simply a demand that you must satisfy.

          How different such a case is, at least, from that of freedom rights. For these are by their very nature 'sovereignty protecting' devices. They are vetoes on what others can do to me or take from me, rather than demands that they do something or give something which I have an interest in their doing or giving. The duty that they define is one of non-interference, and the interest that they protect is the most fundamental interest that I have, namely my interest in retaining the power to make decisions for myself in those matters that most closely concern me.

          If there are such things as 'natural rights', therefore, they ought to have the essentially negative aspect of freedoms: rights not to be molested, rather than claims to be fulfilled. But no such limitation is acknowledged by the bodies that pretend to declare human rights in modern conditions. Bentham's view was the first conscious recognition of the danger represented by 'rights inflation', the danger that people might claim as a right, and on no legal authority, what is merely an interest.

          And that is what we have been seeing. The ordinary Italian wakes up one morning to discover that the crucifix on the wall of his child's classroom has been condemned as a violation of human rights. The ordinary Englishman wakes up to discover that the failed asylum-seeker who negligently ran over his daughter has a human right not to be deported to his home country and meanwhile to be maintained indefinitely at the taxpayer's expence. The ordinary Belgian has been told that saying the truth about radical Islam in public violates the human rights of his fellow citizens. The ordinary Pole has discovered that his country's abortion laws violate the human rights of women under the European Convention, which says nothing about the rights of the unborn child. The Catholic Church in Britain has been told that its policy of putting children for adoption only with heterosexual married couples is a violation of the human and legal rights of homosexuals. And so on. The cases (all recent) are controversial. But they have the accumulative effect of undermining the conception of human rights. That conception was supposed to provide a neutral standpoint outside legal and moral controversies, from which the legitimacy of any particular decision can be evaluated. In fact it is now used to take sides in political controversies, and usually the side congenial to liberals and offensive to conservatives. And since nobody who makes use of the conception, so far as I can see, ever asks how a right can be justified, I cannot help feeling that they have no greater trust in the notion than I have. They don't seem to care about the nonsense, so long as they can make use of the stilts.

         — Roger Scruton

[1] Such, at least, is the interpretation of Islamic law that prevails today, thanks to the triumph of the Ash'arite chool of theology in the 11th century of our era. See Robert Reilly, The Closing of the Muslim Mind, Wilimington Del. 2010.

[2] See Jeremy Bentham, Introduction to the Principles of Morals and Legislation, London 1789; John Austin, The Province of Jurisprudence Determined, London 1832.

[3] Samuel Pufendorf, De jure naturae et gentium, 1672.

[4] J. S. Mill, On Liberty, 1859; Robert Paul Wolff, In Defence of Anarchism.

[5] Jane Jacobs, The Death and Life of Great American Cities; James Howard Kunstler, The Geography of Nowhere.

[6] Ronald Dworkin, 'Taking Rights Seriously', in Taking Rights Seriously, Oxford 1977.

[7] Joseph Raz, The Authority of Law, Oxford 1979.

[8] Robert Nozick, Anarchy, State and Utopia, Cambridge Mass., 1974; John Finnis, Natural Law and Natural Rights, Oxford 1980.

[9] W.N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 1917.