Thomas More Institute

Linguistic Vagueness and Pluralism in Human Rights Adjudication

Human rights enjoy a privileged status in western liberal democracies in that they are exempt from the majoritarian principle and handed down by unelected and generally unaccountable officials. Underlying this special status are two ideas: first, that rights safeguard values that are in some sense prior, captured by Dworkin’s description of rights as ‘trumps’ which should override all other legal, political and enforceable moral claims; and, secondly, the notion that they have certain features – conceptual, linguistic or otherwise – that render them justiciable in a manner that other values are not.

In this brief paper I shall seek to show that this idea is mistaken and that the alleged moral primacy of human rights, and the special legal status derived therefrom, are foundationless in the dual sense that they lack both

1. a proper ontological foundation; and
2. such linguistic and normative attributes as are necessary to ensure that rights cannot be manipulated by judicial rather than parliamentary will.

The paper is divided into three sections.

1. First, I shall briefly outline three sources of legal uncertainty which are central to my argument.
2. Second, I shall show how these three sources affect human rights adjudication no less than the prior issue of the appropriate content of human rights charters.
3. Third, I shall briefly mention a few cases which illustrate the almost limitless power of the judiciary in manipulating human rights concepts.

The illustrative cases I shall discuss relate to the European Charter of Human Rights (ECHR), but my argument is intended to apply more generally.

 I. Three sources of legal uncertainty

The first of these is imprecision, characterised by the susceptibility of an expression to the ‘tolerance principle’ – namely, that a tiny change in an object in a respect relevant to the application of the expression of the object cannot make the difference between the expression’s applying and not applying.

The tolerance principle generates a paradox, which can be illustrated by the word ‘bald’. A bald man will still be bald if he grows one additional hair. We may formalise this as follows.

For any n, if x(n) is bald, then x(n+1) is bald.

Of course, x(0) is bald. So, if the tolerance principle holds, it follows that x(1) is bald.

And if x(0) is bald, then not only is x(1) bald, but so is x(2) and also x(3) and x(4).

In fact the tolerance principle can be applied again and again, leading to the conclusion that x(150,000) is bald. It in fact yields the paradoxical conclusion that a man with a full head of hair is bald, and is an assertion of the ‘no-sharp-boundary’ claim: borderline cases are puzzling precisely because we cannot identify a sharp boundary.

The second source refers to uncertainty which derives from the notion of an ‘Essentially Contested Concept‘ (ECC)’. The term was coined decades ago by the philosopher, W.B. Gallie. ECCs are concepts about which there is meaningful or rational disagreement, arising from the fact that they are internally complex concepts. Internal complexity means that the concept can be broken down into a set of aspects or component features the relative weight and importance or which are not clearly defined and may vary, depending on which aspect of the complex is stressed. Resulting disagreements about their respective importance and weight are therefore actually nothing more or less than disagreements about which criteria are sufficient and necessary for this or that concept to apply. Gallie offers the example of an imaginary sporting championship in which participant teams might compete with wholly distinct and incommensurate methods and strategies.

One way to understand Gallie’s idea of ECCs is to distinguish between a concept and various conceptions of it. Each conception has at least some characteristics associated with the core-concept. In the case of the celebrated Hapsburg lip and chin, generally counted as a family resemblance, we can locate examples in portraits of members of that family with more or less, sometimes even with very little evidence, of the characteristic.

Thirdly, there is the notion of value pluralism which goes back to Max Weber, and, in its more developed, widely-known, variant, to Isaiah Berlin. Value pluralism implies rejection of the idea that all ethical questions have single correct answers and, instead, asserts that there are multiple ultimate values which are equally correct and fundamental, and yet may be in conflict with each other. It also asserts that in many cases such values may not only be incompatible but also incommensurable in the sense that there is a breakdown of transitivity between them so that it cannot be said that so many units of value x are equivalent to so many units of value y. Obvious examples of conflicting values in this pluralistic sense are liberty and equality, mercy and justice, knowledge and happiness.

 II. Relevance of the Three Sources of Legal Uncertainty to Human Rights Systems and Adjudication

i) Value pluralism is relevant to human rights systems at the two levels of initial selection and subsequent adjudication.

First, at the level of original choice, or of elevation of some values to the legally privileged status of human rights over and above others. In general moral estimation, there is no settled agreement as to the priority of the value of liberty over the right to healthcare, or, to give another example, over the right to basic needs satisfaction. Ditto, with the right to privacy which is not obviously more important and factually more widely valued than certain considerations of justice, public morality or other countervailing considerations. Yet the ECHR and the Human Rights Act (HRA), as well as most other bills of rights, allocate rights status to privacy and liberty, whilst they generally tend to deny the same to considerations relating to equality or solidarity.

Even more debatably, the ECHR and, implicitly, many other bills of rights affirm the right to found a family, which, while desirable, can hardly be said to have the same morally compelling status of, for instance, the rights to basic healthcare and a minimum standard of education and welfare. Dignified human life is not possible without basic education or shelter, but it is possible, as every celibate priest knows, without issue.

Secondly, value pluralism is relevant at the level of adjudication. Many rights concepts conflict, or contain conflicting elements, and they are moreover often incommensurable. Illustrations are the conflicts between privacy and freedom of speech on the one hand and public order on the other, or the conflict between freedom of religion and public order in some instances where certain religions are rightly or wrongly regarded as potentially threatening the existing political order. The trouble is not only that these legally enshrined values are incompatible but also that, in addition, we cannot say how much privacy should be sacrificed for what degree of public order or security, or how much interference with freedom of speech is worth how much more privacy. This is what is meant by incommensurability. There is no ‘master value’ or common currency into which losses and gains in different values can be translated.

ii) Let us move on to the essential contestability of Human Rights concepts. The very concept of Human Rights is itself an ECC. Are these rights inalienable or qualifiable; based on social consensus or on absolute moral standards; negative or positive; and so on?

Privacy, as protected by Art. 8 of the ECHR, is an ECC. By one view, privacy is confined to actions which take place in private and in the security of one’s home. By another, it extends to conduct in public whenever it is not anyone else’s legitimate business. By yet another, privacy does not mean mere protection against publicity, for such protection would be of little value if the individual, while protected against publicity, remained constrained and without individual freedom. The worth of liberty, on this view, presupposes the liberty to do as one pleases subject to certain legal constraints and the privacy of others. Privacy, by this extreme but not uncommon approach, extends to self-determination.

The problem with each of these several conceptions of privacy is that the concepts of privacy and liberty both lack an agreed set of necessary and sufficient attributes.

‘Democracy’ is mentioned as a qualifying condition in some of the ECHR rights and it underlies others. Yet the term ‘democracy’, too, is a complex concept of which the different aspects have requirements that do not necessarily pull in the same direction. The following are all part of the cluster of attributes central to the concept of democracy: majority rule; effective accountability; a viable political culture; freedom of expression; pluralism; and toleration. It is a matter of endless dispute which of these conceptions represents the right concept of democracy.

iii) Imprecision is the ‘no-sharp-boundary’ claim implied by the tolerance principle. National security and public order are concepts susceptible to the tolerance principle. If there is an agreed condition wherein national security is safeguarded, no single incident of disorder and no isolated security threat that falls short of an act of war will amount to a breakdown of law and order. And if one of these does not, so two, three, four, and so on, will not either. It follows that there is no sharp boundary between a condition of law and order and another wherein that order is seriously threatened. The same thinking might be applied to the democratic character of a particular state, or to the procedural, rule-of-law requirements of fairness, publicity, independence and other attributes commonly identified with judicial due process.

III. Case Examples of Judicial Rights-Making and Undoing due to these Uncertainties

i) van Kück v. Germany (Application no. 35968/97); JUDGMENT 12 June 2003

In this case the European Court of Human Rights (ECtHR) posited a right to self-determination based on the idea that the right to privacy had worth only if accompanied by individual freedom. The ECtHR has opined that the concept of ‘private life’ is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person (X and Y  v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 22). The right can sometimes embrace aspects of an individual’s physical and social identity (Mikulic v. Croatia, no. 53176/99, § 53, 7 February 2002). Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8 (see, e.g., B. v. France, cited above, § 63; Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280-B, § 24; Dudgeon v. the United Kingdom, judgement of 22 October 1991, Series A no. 45, § 41; Laskey, Jaggard and Brown v. the United Kingdom, judgment of 19 February 1997, Reports 1997-I, § 36, and Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 71, ECHR 1999-VI). Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world (see, for example, Burghartz v. Switzerland, Commission’s report, op. cit., § 47; Friedl v. Austria, Series A no. 305-B, Commission’s report, § 45). Likewise, the Court has held that though no previous case has established as such any right to self-determination as being contained in Article 8, the notion of personal autonomy is an important principle underlying the interpretation of its guarantees (see Pretty v. the United Kingdom, no. 2346/02, § 61, 29 April 2002).

Moreover, the very essence of the Convention being respect for human dignity and human freedom, the Court has taken these to imply that protection should be given to the right of trans-sexuals to personal development and to physical and moral security (see I. v. the United Kingdom, cited above, § 70; Christine Goodwin, cited above, § 90). The Court then proceeded to apply the right to self-determination, allegedly part of the right to privacy, to issues involved in sex-change surgery, and also to assert a right to reimbursement of medical expenses for sex changes. In a related case the Court famously ruled that where people had undergone a sex change, their birth certificates should be altered so as to show the acquired sex. It is altogether unclear, however, what public recognition of trans-sexuality and public funding of it have to do with the right to privacy.

ii) Douglas and others v. Hello! Ltd and others [2005] EWCA Civ 595

In Douglas v. Hello!, two well-known actor claimants had entered into an exclusive publication deal with a magazine, one which effectively converted photographs of the actors’ wedding from essentially private material into commercial and  publicly available material. The Court of Appeal found that illicit photographs taken by a rival magazine which then published these unauthorised pictures, violated the claimants’ Article 8 right to privacy on the grounds that the right protected not only against interference with actions carried out in private but likewise commercially valuable information.  In Lord Phillips’s words:

Where an individual (‘the owner’) has at his disposal information which he has created or which is private or personal and to which he can properly deny access to third parties, and he reasonably intends to profit commercially by using or publishing that information, then a third party who is, or ought to be, aware of these matters and who has knowingly obtained the information without authority, will be in breach of duty if he uses or publishes the information to the detriment of the owner.

With its decision in Douglas, the Court of Appeal in effect extended the concept of privacy not only to a right to self-determination and negative liberty, as the ECtHR had previously done, but also to a right to the economic interest attached to waiving that privacy. To rule in favour of the Douglases on the grounds that their right to property had been violated may have been defensible, but to reach that conclusion on the facts of the case by reference to an alleged breach of privacy does violence to the common use of language and ordinary meaning of the word.

In different but equally objectionable ways, the van Kück and Douglas cases illustrate the virtually limitless discretion courts have when asked to interpret concepts whose meaning is essentially contested.

iii) Hannover v. Germany

In Hannover the ECtHR held that, by adopting too narrow a conception of privacy in public places, the German courts failed in a positive duty to protect the applicant’s right to private life. The Court expressly rejected a simple test based on the distinction between conduct in public and intrusions into conduct in the private home. It adopted instead a distinct ‘Hanoverian’ approach to privacy that encompasses intrusions into a person’s life that may have taken place in public, when such interference does not concern some ‘issue of general interest’.

The Hannover case not only provides another illustration of the essential contestability of the concept of privacy; but also epitomises the relevance of ‘value pluralism’ in the context of adjudication. Privacy and freedom of expression represent legally enshrined values of equal or indeterminate rank, in the choice between which a Court will struggle with two distinct problems resulting from the incompatibility and incommensurability of these two rights: first, the impossibility of stating how many units of foregone freedom of speech will equal how many units of additional privacy; and, second, the difficulties associated with formulating an appropriate test for justified interferences with privacy. The Strasbourg Court in Hannover opted in favour of a test which effectively restricts freedom of speech by reference to a general or ‘public interest’ requirement. It would have been equally rational and open to the Court, however, to endorse the alternative test espoused by the German Constitutional Court, one based on a simple, and for this reason appealing and relatively certain, distinction between private conduct and public actions.

iv) A v.  Secretary of State for the Home Department

The facts of this case are well known to you all. The UK’s Antiterrorism, Crime and Security Act 2001 gives the Home Secretary the right to imprison people indefinitely without trial ‘in time of war or other public emergency threatening the life of the nation’.

In the first instance the Special Immigration Appeals Commission (SIAC) vindicated executive detention without reluctance on the grounds that there clearly was ‘a public emergency threatening the life of the nation’ and that ‘imprisonment without trial’ was ‘strictly required by the exigencies of the situation’. Although no other country has found it necessary so to derogate, the SIAC found that that ‘the United Kingdom could be distinguished from its neighbours’.  This was because the UK is regarded ‘as a prime target’, and that an attack against the UK will be ‘devastating’. The Court of Appeal agreed with this part of the SIAC’s decision and thought that decisions in the interest of national security, should, by definition, go largely unquestioned judicially. Only the House of Lords took a different view later on.

A v. Secretary of State for the Home Department illustrates the fateful consequences of the absence of clear boundaries as a result of the operation of the tolerance principle. There is no clear conceptual or empirically verifiable (or other) demarcation line between a state of lawful order and one of national emergency. As a result, the courts are free, almost at will, to uphold or strike down executive measures and oppressive legislation, depending on their own political leaning, tempered only by fear of a potentially damaging long-drawn-out conflict with the political authorities.

Conclusion

My main conclusion may be briefly stated. The elevation of some human values to the status of legally protected rights seems morally arbitrary. Conceptual imprecision and essential contestability, combined with the absence of any clear hierarchy of legal norms resulting from value pluralism, mean that such rights as have been elevated to that status are in effect whatever judges say they are.

A further conclusion, however, seems warranted. The cases discussed above, and many others which could not be brought up here due to limits of time, suggest that judges use their discretion in exactly the way they should not: they ignore rights when they matter most, and take them seriously above all when they are trivial.