Saturday, October 22, 2022

where are your priors?

October 18, Open Democracy, "Suella Braverman quietly tries to give herself fresh anti-protest powers"

Suella Braverman is quietly handing herself new powers to clamp down on the government’s political opponents, civil right advocates have warned.

The home secretary pushed through a last-minute amendment to a widely criticised anti-protest bill on Tuesday that would allow her to apply for injunctions against anyone she deems ‘likely’ to carry out protests that could cause ‘serious disruption’ to ‘key national infrastructure’, prevent access to ‘essential’ goods or services, or have a ‘serious adverse effect on public safety’. The proposal would also give police the power to arrest anyone they suspect to be breaching such an injunction.

Leading human rights groups say that the Public Order Bill, which passed a final vote in the Commons yesterday, would align the UK’s anti-protest laws with those in Russia and Belarus.

The bill includes new powers, such as protest banning orders, that the government was forced to exclude from its Police, Crime, Sentencing and Courts Act (PCSC) after they were voted down in the House of Lords earlier this year. Peers could reject the measures once more when the bill progresses to the Lords in the coming weeks.

2015, future former home secretary Suella Fernande [now Braverman] in The Telegraph

"Britain is so obsessed with human rights it has forgotten about human duties" 

The plight of millions of people belies the noble aspirations of the Universal Declaration of Human Rights, adopted by the UN General Assembly those many decades ago.

One reason for this is because the Universal Declaration was never a treaty in the formal sense. It was not ratified by nations, never became international law, and had no real provision for enforcement.

Another reason is that the rights are described in imprecise, aspirational terms which allow governments to interpret them in any way they see fit. The US, for example, did not undertake to outlaw racial segregation until many years later. And there are hundreds of international human rights – rights to work and education, to freedom of expression and religious worship, to non-discrimination, to privacy, to pretty much anything you might think important in a perfect world. The sheer volume and array of rights imply an all-embracing protection. This is impossible, because there will always be trade-offs in which some rights are sacrificed to uphold others.

Professor Eric Posner makes this point forcefully in his book, Twilight of Human Rights Law. In Brazil, there have been several cases of the use of torture by the police in the name of crime prevention. They justify this by putting a general right to live free from crime and intimidation above their rights of those who are tortured. To wipe out torture, the government would need to create robust, well-paid policing and judicial services to guarantee the same results. The government might argue that this money is better spent on new schools and medical clinics, protecting wider rights to freedom of education and health. These sort of value judgments, inherent in the practical application of human rights (whether we agree with them or not), undermine their "universality".

But across most of the West, something else has happened which devalues human rights. A fatal misassumption plagues our whole approach to civil liberties: the predominance of the individual over the communal. The importance of the individual is seen as the defining axiom upon which we should base our policy and gauge its success. Emerging by reference to individual instincts and desires, rights and entitlements are paramount in our society, prevailing over considerations of how our choices affect others, over reference to past experience, or over the consequences for those born later on.

2004, Balkin, "Vermeule and [Eric] Posner Defend the Torture Memo"

2014, Eric Posner, The Twilight of Human Rights Law, OUP, 

[P]roblems with so-called positive or social rights are well known. Less well known is that the same problem exists for the “negative rights” in the ICCPR, such as the right not to be tortured. One might think that a state could comply with the prohibition on torture at no cost by refraining from torture. But it turns out that local police officials frequently engage in torture even though they are not authorized to do so. To stop torture, then, the government must not only enact laws, but must also invest resources in investigating allegations of torture, punishing torturers, and purging and retraining law enforcement. Thus, the key question for a state is how much of its resources it must devote to countering torture at the expense of building health clinics and public schools. The treaties provide no guidance as to how resources should be allocated. If there is no way to distinguish positive and negative rights, and we are skeptical about whether judges can enforce positive rights, then we ought to be skeptical about whether they can enforce negative rights as well. The real question is not the nature of the rights but the extent to which we can trust judges or other enforcing agents to distribute resources between competing rights.

There is yet another problem. Although not all treaty terms are vague, the actual legal effect of even specific norms is often ambiguous because they conflict with terms in other treaties as well as with broader norms of public international law. Consider sections 3 and 4 of Article 9 of the ICCPR:

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. . . .

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

Whatever else these rights require, they do clearly prohibit a state from detaining people without charging them. Thus, many commentators accused the United States of violating the human rights of Al Qaeda and Taliban suspects by detaining them without charging them and taking them before a judge for a trial. However, the United States argued in response that the ICCPR does not apply to wartime conditions: the Geneva Conventions and other laws of war, which do not require the involvement of courts for detention, are lex specialis, and thus override human rights law.

The principle of lex specialis is well established in international (and domestic) law. Different sources of law conflict, and a principle is needed to resolve such conflicts. Many human rights advocates believe that the human rights treaties provide a moral minimum that other bodies of law can never supersede, much like the rights in the U.S. Bill of Rights. However, the human rights treaties themselves do not say this, nor does any other authoritative source of international law. There is no clear resolution of the dispute between the United States and its critics. [p.89]

1979, Richard Posner, "Utilitarianism, Economics, and Legal Theory",  

Among the severest critics of the use of economic theory to explain and sometimes to justify the principles of torts, contracts, restitution and other fields of Anglo-American 'judge-made law' are those who attack the economic underpinnings of the theory as a version of utilitarianism. Their procedure is first to equate economics with utilitarianism and then to attack utilitarianism. Whether they follow this procedure because they are more comfortable with the terminology of philosophy than with that of the social sciences or because they want to exploit the current tide of hostility to utilitarianism is of no moment. The important question is whether utilitarianism and economics are really the same thing. I believe they are not and, further, that the economic norm I shall call "wealth maximization" provides a firmer basis for a normative theory of law than does utilitarianism.

1948, John Houston (and B. Traven) 



But across most of the West, something else has happened which devalues human rights. A fatal misassumption plagues our whole approach to civil liberties: the predominance of the individual over the communal.

1987, Thatcher, the same point from the opposite direction.

I think we have gone through a period when too many children and people have been given to understand ‘I have a problem, it is the Government’s job to cope with it!’ or ‘I have a problem, I will go and get a grant to cope with it!’ ‘I am homeless, the Government must house me!’ and so they are casting their problems on society and who is society? There is no such thing! There are individual men and women and there are families and no government can do anything except through people and people look to themselves first.

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