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England’s terror of the French Revolution: the historical roots of resistance to the Rights of Man and the case against the Human Rights Act

03/16/2017

England’s terror of the French Revolution: the historical roots of resistance to the Rights of Man and the case against the Human Rights Act

Bill Bowring

In Frederick Cowell (ed) Critically Examining the Case Against the 1998 Human Rights Act (forthcoming)

Introduction

In this chapter I argue that the roots of English (nowadays British) unease and in some cases downright hostility towards the Human Rights Act (HRA), and the European Convention on Human Rights (ECHR) which it partially incorporates into UK legislation, is to be found in the sharp, even intemperate, responses to the Déclaration des Droits de l’Homme et du Citoyen of 1789 by the fathers, respectively, of English conservatism and English liberalism, Edmund Burke and Jeremy Bentham. I also seek to show that their tone and their arguments found their way into the influential writing of Albert Venn Dicey in the late 19th century, into the mind-set of the proponents of ‘political constitutionalism’ in contemporary Britain, and underlie contemporary opposition to the HRA.

I start in the recent past with some remarks on the drafting process for the ECHR in 1949-50, and the reasons why the ECHR is, as the UK desired, a much more limited document than the Universal Declaration of Human Rights adopted by the United Nations in 1948. The ECHR contains ‘first generation’, ‘justiceable’, human rights, in a concise form which is remarkably similar to that of the Déclaration, even if this is not expressly noted by contemporary scholars.

Second, I turn to A V Dicey’s remarks on the Déclaration and indeed all written constitutions especially those containing declarations or definitions of rights: his targets were the French and Belgian Constitutions of his time. I note that he commences with a quotation from Edmund Burke, from 1791, and that in passing he praises Bentham for having refuted the supremacy of natural rights. Third, I examine Burke both in his writings of 1790 and in the posthumous construction of his thought into a foundation of English conservatism. Fourth, I explore Jeremy Bentham’s posthumously published frontal attack on the Déclaration and the reasons why he may have reacted in this way. Fifth, I trace the echoes of Burke, Bentham and Dicey in the work of Richard Bellamy, a leading contemporary exponent of “political constitutionalism”.

It is my case that this colourful history is at the root of the opposition to or at least unease with the HRA which is the subject matter of this collection. In conclusion, I find support for my argument in the cover of a collection, focusing on one of the most outspoken opponents of the ECHR and HRA, Lord Sumption, published in 2016. The cover shows a print from 1794; and the Note on the print brings my argument full circle.

The drafting of the ECHR

The Universal Declaration of Human Rights (UDHR)[1] was adopted by the United Nations General Assembly on 10 December 1948 at the Palais de Chaillot in Paris.[2] Even a cursory glance at this document reveals that its 30 articles, with 26 substantive rights, contain many more rights than those listed in the ECHR. These include the right to social security (Article 22), the right to work, to equal pay for equal work and just and favourable remuneration and the right to form and join trade unions (Article 23), the right to rest and leisure including paid holidays (Article 24), the right to an adequate standard of living including food, clothing, housing, medical care, social services and social protection (Article 25), the right to education (Article 26), and the right to participation in the cultural life of the community (Article 27). That is, the social, economic and cultural rights which are noticeably absent from the ECHR. I have argued elsewhere that the UK and the other common-law countries share a profound scepticism concerning or even an allergy towards social and economic rights, not least because they are thought not to be susceptible to adjudication.[3]

Morsink not only highlights the “question of whether or not there are two kinds of rights in the Declaration, “real” civil and political rights and “utopian” social, economic and cultural ones”, and observes that “Some delegations thought that no cuts should be made in the area of social and economic rights, for they were the new and recently accepted rights.[4] These newer rights, it was thought should be spelled out in greater detail that the older eighteenth-century civil and political ones.”[5]  He also notes that “… a cursory reading of the Declaration might suggest that the drafters did not think of these “new”, nineteenth-century rights as having the same status as the older and more established civil and political rights that hail from the eighteenth century.”[6]

Brian Simpson relates that the negotiations in the Council of Europe which produced the ECHR took place from August 1949 to September 1950, and that the UK’s Foreign Office emphasised that the approach of the Council of Europe “should be on the right lines”.[7] The initial plan was for “a statement in concise form” of fundamental personal rights based mainly on the UDHR.[8] The issue was which rights were capable of legal enforcement[9], and the proposal was for a “minimum list of rights susceptible of legal enforcement”.[10] That is, the cutting of the “utopian” and non-justiciable social and economic rights in the UDHR. Simpson does not note the rather striking fact that that the final text of the ECHR , with its twelve substantive rights, was remarkably similar to the eighteenth-century civil and political rights to which Morsink referred. That is, the rights set out in the Déclaration des Droits de l’Homme et du Citoyen adopted by the National Assembly of France on 26 August 1789.[11] Furthermore, these are precisely the substantive rights to be found in the HRA, and although the authors of much contemporary criticism of the HRA may not be in any way conscious of it, their hostility echoes the outspoken condemnation of the English critics of the 18th and 19th centuries. I do note, with approbation of their historical sense, if not approval for their arguments, commentators such as Professor Guglielmo Verdirame, who recalls Edmund Burke as follows:[12]

“The British genius, as Burke understood, was to entrench liberty in the beliefs, traditions and habits of the British people, realising that this matters even more than abstract pronouncements. The association of liberty with tradition instils a sense of individual and collective ownership of those rights. It connects the individual with past and future generations. It minimises the atomising effect of purely individualistic entitlements.”

Furthermore, a Conservative politician has also cited Burke with approval when calling for repeal of the HRA.  In a Westminster Hall Debate, concerning a “British Bill of Rights”, Bill Cash MP described Burke as having identified “a proper kind of freedom” which he contrasted unfavourably with the “entirely abstract and in the event utterly destructive approach” represented by natural rights.[13] I show in this Chapter that opposition to the Rights of Man, to the French Déclaration of 1789, and latterly to the HRA, has a long and distinguished pedigree in English conservatism.

Dicey and the 1789 Déclaration

In the Appendix to his 1885 Introduction to the Study of the Law of the Constitution (The Law of the Constitution), Albert Venn Dicey (4 February 1835 – 7 April 1922) commented on the “rigidity” of the French Constitutions, starting with the Constitution of 1791 which contained the Déclaration, and the twelve French constitutions up to the 1875.[14] He commented that “An English critic smiles at the labour wasted in France on the attempt to make immutable Constitutions which, on an average, have lasted about the years apiece.”[15] Each one contained the Déclaration. The very first line of the preamble to the 1958 French Constitution (of the Fifth Republic) is as follows:

“The French people solemnly proclaim their attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946.”[16]

Dicey is frequently referred to today by English constitutional lawyers, an example being Alison Young in her 2008 Parliamentary Sovereignty and the Human Rights Act, who discusses Dicey at length.[17] The issue in her text is the compatibility of the HRA with Dicey’s doctrines of parliamentary sovereignty and the rule of law. But it is symptomatic of such contemporary engagements with Dicey, and hers in particular, that there is no reference to the 18th century antecedents to Dicey’s 19th century theorisation of the English Constitution, no mention of Burke or Bentham, and no mention of his constant engagement with the 1789 Déclaration in its contemporary (to him) manifestations on the continent.  In fact, throughout the Law of the Constitution, Dicey referred, adversely, to both the French and Belgian constitutions. The whole book should in my view be read as a polemical refutation of the call for protection of rights by way of written declarations or lists of rights. I do not apologise, therefore, for quoting Dicey at some length.

Belgium adopted its first constitution in 1831, drawing on French, Dutch and English models.[18] As Lefebvre pointed out, the Belgian Constitution differed from the French and American Constitutions in that it did not have a separate Droits de l’homme et du citoyen or Bill of Rights, but incorporated most of them into the main body of the Constitution so as to make them legally binding.[19] Dicey commented that

“… it is a mistake to think that the whole law of the English constitution might not be reduced to writing and be enacted in the form of a constitutional code. The Belgian constitution indeed comes very near to a written reproduction of the English constitution, and the constitution of England might easily be turned into an Act of Parliament without suffering any material transformation of character, provided only that the English parliament retained – what the Belgian Parliament, by the way, does not possess – the unrestricted power of repealing or amending the constitutional code.”[20]

That is, parliamentary sovereignty or supremacy. This passage immediately preceded the statement by Dicey of the

“… three traits of Parliamentary sovereignty as it exists in England: first, the power of the legislature to alter any law, fundamental or otherwise, as freely and in the same manner as other laws; secondly, the absence of any legal distinction between constitutional and other laws; thirdly, the non-existence of any judicial or other authority having the right to nullify an Act of Parliament, or to treat it as void or unconstitutional.”[21]

This formulation brought Dicey straight to his point of comparison. In Chapter IV, “The Rule of Law: its Nature and General Applications”, Dicey commented:

“…the English constitution… was not created at one stroke, and far from being the result of legislation, in the ordinary sense of that term… [is] the fruit of contests carried on in the Courts on behalf of the rights of individuals. Our constitution, in short, is a judge-made constitution, and it bears on its face all the features, good and bad, of judge-made law… Hence flow noteworthy distinctions between the constitution of England and the constitutions of most foreign countries. There is in the English constitution an absence of those declarations or definitions of rights so dear to foreign constitutionalists.”[22]

Later in the book, Dicey was even more explicit as to what he was opposing. In Chapter VI “The Right to Freedom of Discussion”, Dicey wrote:

“The Declaration of the Rights of Man and the French Constitution of 1791 proclaim freedom of discussion and the liberty of the press in terms which are still cited in text-books as embodying maxims of French jurisprudence…”[23]

And later in the same chapter

“The Revolution (it may be fancied) put an end to restraints upon the press. The Declaration of the Rights of Man proclaimed the right of every citizen to publish and print his opinions… the Constitution of 1791 guaranteed to every man the natural right of speaking, printing and publishing his thoughts without having his writing submitted to any censorship or inspection prior to publication. But the Declaration of Rights and this guarantee were practically worthless.”[24]

Even more significant for the purposes of this chapter is the quotation with which Dicey started his book, on page 1, under the heading “The true nature of constitutional law”. Dicey’s quotation was as follows:

“Great critics,” writes Burke in 1791, “have taught us one essential rule… It is this, that if ever we should find ourselves disposed not to admire those writers or artists, Livy or Virgil for instance, Raphael or Michael Angelo, whom all the learned had admired, not to follow our own fancies, but to study them until we know how and what we ought to admire; and if we cannot arrive at this combination of admiration with knowledge, rather to believe that we are dull, than that the rest of the world has been imposed on. It is as good a rule, at least, with regard to this admired constitution (of England). We ought to understand it according to our measure; and to venerate where we are not able presently to comprehend.”[25]

The reference given by Dicey in his footnote is simply “Burke, Works, iii (1872 ed.), p.114. This was in fact a quotation from Burke’s From An Appeal from the New to the Old Whigs, in Consequence of some late Discussions in Parliament, Relative to the Reflections on the French Revolution, of 1791.[26] Dicey did not refer to Burke much in his text, but added in the same Chapter:

“The present generation must of necessity look on the constitution in a spirit different from the sentiment either of 1791 or of 1818[27]. We cannot share the religious enthusiasm of Burke, raised, as it was, to the temper of fanatical adoration by just hatred of those “doctors of the modern school”, who, when he write, were renewing the rule of barbarism in the form of the reign of terror…”[28]

What I have shown is that throughout the Law of the Constitution Dicey was arguing with the continental tradition of constitutionalism with its roots in the French Revolution and the Déclaration of 1789. And Dicey was most certainly following in Burke’s footsteps, as I will show, and as the quotation at the start of his book made absolutely clear.

Edmund Burke on the French Revolution

Edmund Burke (1729-1797) is often referred to as the “founder of modern conservatism”. The work which Dicey cited was written towards the end of his life, when he was 63 years old, and one year after his Reflections on the Revolution in France which Burke wrote from February to the summer of 1790.[29] It was, as Jeremy Waldron points out, an immediate success, selling more than 17,000 copies by the end of the year.[30] Burke was publicly congratulated by the king and other political leaders. But in 1794 his case for the impeachment of Warren Hastings (the then Governor of Bengal) for maladministration in India failed, his son died that year, and the French revolution had apparently achieved victory, and he died a bitter and troubled man in 1797. Burke’s starting point in his Reflections was to characterise English constitutionalism in terms of property and inheritance, terms which would be at once recognisable to his aristocratic and landed readers:

“You will observe, that from Magna Carta to the Declaration of Right, it has been the uniform policy of our constitution to claim and assert our liberties, as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity…”[31]

 

This was to be contrasted to the “rights of man” philosophy of the French revolutionaries:

 

“I shall only say here, in justice to that old-fashioned constitution, under which we have long prospered, that our representation has been found perfectly adequate to all purposes for which a representation of the people can be desired or derived… To detail the particulars in which it is found so well to promote its ends, would demand a treatise on our practical constitution, I state here the doctrine of the Revolutionists, only that you and others may see, what an opinion these gentlemen entertain of the constitution of their country…”[32]

In passing, he noted that the revolutionaries considered the English House of Commons as only a ‘semblance’, ‘a form’, ‘a theory’, ‘a shadow’, ‘a mockery’, perhaps ‘a nuisance’ – though he did not disclose the source of these epithets. Like Jeremy Bentham, to whom I turn next, he regarded the ideas of the French revolutionaries as intellectual terrorism, or more precisely an underground mine to blow up everything of value in a grand explosion.

 

“It is no wonder therefore, that with these ideas of everything in their constitution and government at home, either in church or state, as illegitimate and usurped, or, at best as a vain mockery, they look abroad with an eager and passionate enthusiasm. Whilst they are possessed by these notions, it is vain to talk to them of the practice of their ancestors, the fundamental laws of their country, the fixed form of a constitution, whose merits are confirmed by the solid test of long experience… They despise wisdom as the wisdom of unlettered men; and as for the rest, they have wrought under-ground a mine that will blow up at one grand explosion all examples of antiquity, all precedents, charters and acts of parliament. They have ‘the rights of men’. Against these there can be no prescription; against these no agreement is binding; these admit no temperament, and no compromise: anything withheld from their full demand is so much fraud and injustice. Against these their rights of men let no government look for security in the length of its continuance, or in the justice and lenity of its administration.”[33]

 

Thomas Schofield, Professor of the History of Legal and Political Thought and Director of the Bentham Project at University College London, where Bentham’s ‘auto-icon’ is preserved, analysed the effect of Burke’s polemic on contemporary English conservative thought.[34] He pointed out that the rights-of-man doctrine of the French revolutionaries posed as much of a danger to social order as the more tangible military threat posed by revolutionary France.[35] Indeed in his Letter to a member of the National Assembly and Thoughts on French affairs, Burke argued that the Britain and other European powers “should aid counter-revolution and expurgate rights-of-man philosophy”.[36] After the events of 1792 Burke’s polemic convinced conservatives that the proponents of rights-of-man philosophy, with its central principle of the sovereignty of the people, believed it should be universally applied, to every European state.

“There was now widespread agreement with Burke’s view that these doctrines tended ‘to the utter subversion, not only of all government, in all modes, and to all stable securities to rational freedom, but to all the rules and principles of morality.’”[37]

Democratic principles and the threat of sedition were now inseparable. In 1792 William Pitt the Younger (1759-1806)[38], the British Prime Minister who was a ferocious opponent of the French Revolution, and led Britain in the wars against France (which declared war against Britain in 1793) and Napoleon, explained to the House of Commons:

“This whole system of insurrection … would appear… to be laid in the Rights of Man, that monstrous doctrine, under colour of which the weak and ignorant, who are most susceptible of impression from such barren abstract speculations, were expected and attempted to be seduced to overturn Government, law, property, security, religion, order, and everything valuable in this country, as they had already overturned and destroyed everything in France, and endangered every nation in Europe.”[39]

 

In my view Pitt’s denunciation of the Rights of Man as a “monstrous doctrine” continues to resonate in the debates concerning the Human Rights Act. Benedict Douglas has noted that the intellectual legacy of both Bentham and Burke and their scepticism towards  rights has contributed to   the perception that there is a lack of popular ‘ownership’ over the  contents of the HRA.[40] It is noteworthy, however, that the antagonists in the debate over the future of the HRA  rarely refer to this history and speak as if  they are ignorant of it.

Schofield sums up the convictions of conservatives as follows[41]:

“Conservatives proceeded to argue that the inequalities of property and rank, as they existed in Britain, were perfectly just, in conformity with nature, and promoted both the individual and general welfare. This form of government, founded on property, guaranteed stability, equal civil rights and proper reward to industry and skill. The revolutionary government of France however had an unnatural basis, the sovereignty of the people. The revolution had destroyed security of property and instituted tyranny. By attacking property, it had assaulted the true principles of government, and because it was universal in its doctrines, it was universal in its application. The revolution was more than the destruction of the ancient monarchy of France; it constituted a world-wide onslaught upon civilization.” [42]

The historian Emily Jones has recently shown that by 1914 Burke had been firmly established as a ‘conservative’ political thinker whose work was directly associated with British Conservatism.[43] She observes that ‘Burkean conservatism’ centres round key concepts, drawn primarily from his Reflections on the revolution in France (1790), such as ‘the authority of tradition’, the organic, historic conception of society, and the necessity of order, religion, and property. Thus, she observes, Burke, who never produced a theory of government, is now generally referred to as the ‘founder of modern conservatism’.”[44]

Indeed, Burke never set out to be a political theorist, let alone a theorist of conservatism. As the title of his 1791 text shows, he saw himself as a Whig. He was an example of a polemicist and politician whose status as a “political philosopher of conservatism” was constructed by a “burgeoning literature in higher education”, systematising his letters and speeches, at the same time as a substantial number of political Conservatives appropriated his “conservatism”. Thus, Burke’s thought was moulded into “a much baggier but more polemically useful ‘theory’ of conservatism which eventually became seen as the basis of political Conservatism.” [45] Jones points out that Dicey defended the existing constitution against revolutionary ‘Jacobins’ in a series of books and articles. In these texts, Burke’s “Reflections”, a defence of the liberty of aristocrats and clergymen against atheists and the multitude as well as a eulogy of the British constitution, became a key source. The Fortnightly Review claimed: ‘It is the fashion in these days to quote Burke.’ In this perspective, says Jones, Home Rulers became French Jacobins, intent on destruction and not reform.”[46]

I agree with Jones’s estimation that ‘Burkean conservatism’ came to symbolise relatively vague concepts, such as hostility to constitutional change (including the critique of abstract ahistorical thought in politics, and the need for balance in the constitution), and support for private property, religion, historicism, and the organic nature of society. [47] Jones, however, does not focus on Burke’s specific attack on the “rights of man”, nor does she refer to Schofield’s publication in the same journal. However, the influence of Edmund Burke on Dicey and on the British attitude – and hostility towards – Rights of Man cannot be denied, in the context of his role as the “father of English conservatism”.

Jeremy Bentham and ‘Anarchical Fallacies’

Dicey did not refer in his Law of the Constitution to Edmund Burke’s younger contemporary Jeremy Bentham (1748-1832), except in the introduction, where he stated that the “dogma of natural rights” was in England condemned and confuted (refuted) by Bentham and his disciples. In Dicey’s view the declining influence of utilitarianism appeared to have given new strength to this doctrine.[48] Dicey did not tell his readers how Bentham had performed this service. Bentham’s attack on ‘rights-of-man philosophy’ was written in much stronger terms even than Burke’s. Bentham began working on his response to the 1789 Déclaration in 1795 and finished them in 1796. The document was originally entitled Pestulance Unmasked, but remained unpublished, though offered to an anti-Jacobin magazine under the splendid title No French Nonsense: or a Cross Buttock for the first Declaration of Rights: together with a kick of the A— for the Second… by a practitioner of the Old English Art of Self Defence.[49]

But it was not published under this title or any other until after Bentham’s death in 1832, and although there was a publication in French, it did not appear in English until my ancestor John Bowring edited The Works of Jeremy Bentham in 11 volumes in 1843.[50] There it appeared under the title Anarchical Fallacies; being an examination of the Declaration of Rights issued during the French Revolution.[51] Jeremy Waldron sets it out in full in his collection already mentioned.[52] Bentham’s vigorous condemnation of the Déclaration is well known

“Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense, – nonsense upon stilts.. But this rhetorical nonsense ends in the old strain of mischievous nonsense; for immediately a list of these pretended natural rights is given, and those are so expressed as to present to view legal rights. And of these rights, whatever they are, there is not, it seems, any one of which any government can, upon any occasion whatever, abrogate the smallest particle.”

 

So much for terrorist language.[53] In another text which Waldron includes in his collection, Bentham’s Supply without Burden[54], first published in 1795, Bentham wrote:

“When I hear of natural rights… I always see in the background a cluster of daggers or of pikes introduced in the National Assembly with the applause of the President Condorcet for the avowed purpose of exterminating the King’s friends.”[55]

Hugo Bedau also refers to Bentham’s opinion, citing his colourful phrases, that the Déclaration

“… consists of “execrable trash,” that its purpose is “resistance to all laws” and “insurrection,” that its advocates “sow the seeds of anarchy broad-cast,” and, most memorably, that any doctrine of natural rights is “simple nonsense: natural and imprescriptible rights, rhetorical nonsense,-nonsense upon stilts.”[56]

In his later essay Philip Schofield noted that while Bentham was, until 1789, actively engaged in putting forward proposals for the reform of the French electoral and constitutional systems, Bentham was increasingly shocked by the violence of the Terror in France, and became ever more convinced of the superiority of the British preference for slow evolution, representative democracy through a sovereign parliament, and rights defined and determined by the courts.[57]

These events were the insurrection of 10 August 1792 when the Tuileries was attacked and the Royal family forced to flee, the September Massacres, the success of the French armies in Europe following the Battle of Valmy on 20 September 1792, and the abolition of the monarchy two days later. Bentham noted that the ‘characteristic properties’ of democratic government were ignorance, violence, extravagance, discontent, frequent wars, and danger of violent revolution.[58] Indeed, the feature which Bentham criticized most severely was the lack of intelligence in the people to conduct the business of government.

Schofield concludes that Bentham was edging towards the development of a radical utilitarian politics until the excesses of the French Revolution persuaded him to abandon this course, and instead to defend the existing institutions of the British polity. The historian J. H. Burns also noted[59] the divergence between the hopes of reformers and the reality of revolution in France. Even at his most sympathetic to the cause of radical reform Bentham was, according to Burns, already aware of the ideological gulf between his doctrines and those of the National Assembly. “The phrase natural right” he remarked in one of the unfinished letters to Mirabeau, “when opposed to utility is altogether an unmeaning one.” At that time Bentham had not yet turned his attention to the Déclaration, but his opinion of it was not be doubted.[60]

The American philosopher Hugo Adam Bedau (1926-2012) asked why Bentham described the Déclaration as containing “anarchical fallacies”.[61] He turned directly to why Bentham thought that the French “Declaration sow[s] the seeds of anarchy broad-cast,” and that it is a doctrine of “the rights of anarchy – the order of chaos.”  According to Bentham, the French Déclaration did this because of its tacit message “People, behold your rights! If a single article of them be violated, insurrection is not your right only, but the most sacred of your duties.”[62] As Bedau pointed out that this was a startling remark, since no such radically anarchic language actually appeared in the Preamble or in any of the seventeen articles of the French Déclaration. The only language coming at all close to this was to be found in the second article, where all persons are told they have “…natural and imprescriptible rights … [including the right of] resistance to oppression[]” (la résistance à l’oppression)[63].  Bedau pointed out that this was not to be found either in the American “Bill of Rights” of 1791 or in the 1948 UDHR. However, this assertion led Bentham to heap scorn on the very idea of an “imprescriptible” right – a right that no political or legal authority may or can suspend, modify, or nullify…[64]. Furthermore, Bedau pointed out that Bentham never explained why an insistence on “natural rights” as they were affirmed in the French Déclaration, were the sole or the dominant cause of political unrest in France.[65]

The footprints of Burke, Bentham and Dicey in contemporary “Political constitutionalism”

In this section of my chapter I trace some of the lasting effects, the continuing resonance, of English and British hostility to Rights of Man, in present day scholarship. Richard Bellamy is a leading contemporary exponent of “political constitutionalism” – as opposed to the “legal constitutionalism” of those who believe that it is high time that the UK followed the example of the rest of the world and adopted a written constitution.[66]  He points out that the UK presents a rather intractable puzzle to scholars of constitutionalism, a real paradox. Despite the absence to this date of a written constitution or even entrenched constitutional provisions – or even the equivalent of Israel’s Basic Laws[67] – the UK (or more accurately England) can claim to be the inspirer and originator of two key elements of modern “legal constitutionalism”: the separation of powers (the inspiration for Montesquieu’s 1748 De l’esprit des lois) and a bill of rights (as found in the 1689 Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown). Bellamy notes that “from more or less the same period” Parliamentary sovereignty emerged as the distinctive constitutional feature of the UK.[68]

I would say (which Bellamy does not) that this was fixed in constitutional practice in England in the seventeenth rather than the eighteenth century, and I would contend that parliamentary sovereignty is the direct consequence of Parliament’s victory in the English Revolution (or Civil War). This was noted in 1993 by Lord Templeman in the House of Lords in M v Home Office[69], when he characterised the submissions of the Home Office as “a proposition which would reverse the result of the Civil War”. This war culminated in the execution of King Charles I in 1649 and led to the first and last attempt at a written constitution for England, the Instrument of Government, drafted by Major-General John Lambert in 1653.[70]  Bellamy goes on to argue that parliamentary sovereignty has been a characteristic of the English constitutional order that “commentators from the late eighteenth century onward have believed negated, or at least trumped, both of these attributes of a legal constitution” – the separation of powers and a bill of rights. At this point Bellamy turns to Dicey:

“As Dicey, who became this doctrine’s chief ideologist, famously and approvingly noted, there is ‘in the English constitution an absence of those declarations or definitions of rights so dear to foreign constitutionalists.’”[71]

And mentions in passing Burke:

“However, from Edmund Burke onward, a host of defenders of the Westminster system have regarded it as offering a distinct and superior model of political constitutionalism, which protects British liberties far more effectively than could the paper parchment of a “legal” Constitution.”[72]

Bellamy is clear that his aim is “less to assess if current judicial practice suggests the HRA is compatible with a distinctly political conception of the constitution and more to explore if it could be so.”[73] At this point he returns to his opening paradox –

“In this way, skepticism about the possibility of a political constitution turns into skepticism about constitutionalism itself. And so we come back to the opening apparent paradox, the resolution of which arises by virtue of the British constitution’s remaining true to its history in successfully combining both the separation of powers and a bill of rights not in despite of but because of Parliamentary sovereignty.”[74]

Bellamy has returned to this theme in his contribution to a collection devoted to Lord Sumption’s 2013 lecture “The Limits of Law”.[75] In expressing his trenchant views concerning the Human Rights Act 1998 and the dangers of “judicial lawmaking”, Lord Sumption did not mention Burke, Bentham or Dicey, though their ghosts, I suggest, are always present at his shoulder. Bellamy’s contribution is entitled The Limits of Lord Sumption: Limited Legal Constitutionalism and the Political Form of the ECHR.[76] According to the book’s index, Burke, Bentham or Dicey are nowhere referred to in the collection. Bellamy is highly critical of Lord Sumption’s “conservative” approach:

“However, whereas his arguments are institutionally and to some degree politically conservative, this is less so with regard to political constitutionalism. By and large, political constitutionalism has been proposed by those on the left of the political spectrum as much concerned by the judiciary’ s failure to uphold rights as by their propensity to discover new rights. From the political constitutionalist perspective, Lord Sumption’s limited legal constitutionalism is as contentious and as open to abuse as the more extensive versions he criticises, such as those he associates with Ronald Dworkin, John Rawls and the ‘ living instrument ’ doctrine of the ECtHR.”[77]

Conclusion

However, even if the Index is notable for the absences I refer to above, the cover illustration and the anonymous “A Note on the Cover” of The Limits of Lord Sumption , serve to help me to make my point. The illustration is the 1793 print by James Gillray, “Fashion before ease; or, a good constitution sacrificed for a fantastic form”. The Note reads:

“The print shows an unhappy Britannia being laced into a corset by Thomas Paine. Paine was the author of, amongst other books, The Rights of Man – and the title of this volume can be seen on the measuring tape, which dangles from his pocket next to his tailor’s shears. The Rights of Man, published a couple of years before Gillray’s print, called for the introduction of a written constitution for the United Kingdom (sic), the recognition that natural rights constrain the state… Paine’s intellectual rival, Edmund Burke, would have sympathised with the manner in which Gillray has chosen to depict the scene. For Burke, the British state was an organic entity, one that had developed over time, intertwined with the community of which it was a part. The rationalist attempt to draw up a set of rights that limited the states was bound to create discomfort: the protection of liberties is a function of a well-formed state, and not something that can be imposed on it from outside.”[78]

Gillray’s print and the Note support, I think, my argument that the case against the HRA has a great deal to do with the historical development of English constitutionalism. The intellectual origins of both Conservatism and Liberalism in their English manifestations, and with the horror felt by Burke and Bentham not only towards the French Revolution itself, were characterised against the idea of natural rights, in particular the intellectual ‘terrorism’ of the Déclaration. This led to a cultural scepticism of the concept of natural rights which were often cast as the direct anti-thesis of British constitutional traditions. In a similar way the contemporary debate about the HRA repeal frames supposedly British traditions, such as parliamentary sovereignty, against European notions, such as the protection of rights by the ECHR.

 

 

 

[1] Universal Declaration of Human Rights UNGA Res 217A(III) 10 Dec 1948.

[2] Johannes Morsink The Universal Declaration of Human Rights: Origins, Drafting and Intent (University of Pennsylvania Press 1990).

[3] Bill Bowring “Forbidden Relations? The UK’s Discourse of Human Rights and the Struggle for Social Justice” (2002) n.1 Law, Social Justice, and Global Development, at

http://elj.warwick.ac.uk/global/issue/2002-1/bowring.htm accessed 14 October 2016.

[4] Morsink (n.3) 84.

[5] Ibid.164. The delegations in favour of cutting were those from the USA, UK and India.

[6] Ibid. 222

[7] Brian Simpson Human Rights and End of Empire: Britain and the Genesis of the European Convention (OUP 2001) 649.

[8] Ibid 650.

[9] Ibid. 658.

[10] Ibid.661.

[11] Jeremy Waldron Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man (Methuen 1987) 24.

[12] Guglielmo Verdirame “Why Britain should scrap the Human Rights Act” The Spectator 3 October 2014, at http://blogs.spectator.co.uk/2014/10/why-britain-should-scrap-the-human-rights-act/ accessed 24 November 2016.

[13] WH Deb 17 March 2011 Volume 525 col 116.

[14] A. V. Dicey Introduction to the Study of the Law of the Constitution ( first ed 8th ed 1885Macmillan 1931) 469.

[15] Ibid 474.

[16] English translation approved by the French authorities, at

http://www.thisnation.com/library/france.html (accessed on 14 October 2016)

[17] Alison Young Parliamentary Sovereignty and the Human Rights Act (Hart 2009). In her Conclusion, Young (p.161) makes it clear that her book argues for possible ways in which rights can be entrenched while preserving parliamentary sovereignty. She contends (p.162) that Dicey’s theory has been regarded as the “prevailing conception of sovereignty”.

[18] Edwige Lefebvre “The Belgian Constitution of 1831: The Citizen Burgher” (ZERP Diskussionspapier, Bremen 4/97) available at https://www.jura.uni-bremen.de/lib/download.php?file=13752639d7.pdf accessed on 14 October 2016.

[19] Lefebvre (n.18) p. 27

[20] A. V. Dicey Introduction to the Study of the Law of the Constitution (Macmillan, 8th ed, 1931); first ed 1885 86.

[21] Ibid 87.

[22] Ibid 192.

[23] Ibid. 234.

[24] Ibid. 252.

[25] Ibid. 1.

[26] Edmund Burke From An Appeal from the New to the Old Whigs, in Consequence of some late Discussions in Parliament, Relative to the Reflections on the French Revolution (London 1791), facsimile available at https://archive.org/details/appealfromnewtoo00burkiala (accessed on 14 October 2010), p.140-141

[27] This is a reference to the work of the historian Henry Hallam (1777 to 1859) View of the State of Europe during the Middle Ages, (12th ed), Volume 2, p267: “No unbiased observer who derives pleasure from the welfare of his species, can fail to consider the long and uninterruptedly increasing prosperity of England  as the most beautiful phaenomenon in the history of mankind…”.

[28] Dicey (n.20) 3.

[29] Its full title was Reflections on the Revolution in France and on the proceedings in certain societies in London relative to that event. In a letter intended to have been sent to a gentleman in Paris by the right honourable Edmund Burke, facsimile of the 2nd edition at

https://archive.org/details/reflectionsonre04burkgoog accessed on 17 October 2016.

[30] Jeremy Waldron (ed) Nonsense upon Stilts. Bentham, Burke and Marx on the Rights of Man (London, Methuen, 1987), Chapter 4 “Edmund Burke’s Reflections on the Revolution in France” (1790) 82.

[31] Ibid. 100.

[32] Ibid. 102.

[33] Ibid 103-4.

[34] Thomas Philip Schofield ‘Conservative Political Thought in Britain in Response to the French Revolution’ (1986) 29 The Historical Journal 601.

[35] Ibid. 601

[36] Ibid. 603

[37] Ibid 603, and Edmund Burke, The works of the Right Honourable Edmund Burke. a new edition (12 vols., London, 1808-13),VI, I48.

[38] He became the youngest Prime Minister in 1783 at the age of 24. He left office in 1801, but was Prime Minister again from 1804 until his death in 1806. He was also the Chancellor of the Exchequer throughout his premiership. See http://www.bbc.co.uk/history/historic_figures/pitt_the_younger.shtml accessed on 22 November 2016.

[39] Schofield (n34) p.604; and The Parliamentary Register (2nd series, 45 vols., London, I781-96), XXXVIII, 247.

[40] Benedict Douglas, ‘Why Human Rights Have Not Been Accepted in the UK’ U.K. Constitutional Law Blog 4th May 2015 available at http://ukconstitutionallaw.org accessed 20 November 2016.

[41] Schofield (n.34) 621.

[42] Ibid 621.

[43] Emily Jones ‘Conservatism, Edmund Burke, and the Invention of a Political Tradition, c. 1885-1914’ (2015) 58 The Historical Journal 1115.

[44] Ibid 1116.

[45] Ibid. 1118.

[46] Ibid 1121.

[47] Jones (n.43) 1123.

[48] Dicey (n.20) lxii.

[49] Waldron (n.30) 32.

[50] Hugo Bedau mistakenly gives the date of publication in English as 1834 – see Hugo Adam Bedau “Anarchical Fallacies”: Bentham’s Attack on Human Rights” v.22 (2000) Human Rights Quarterly 261.

[51] Jeremy Bentham Anarchical Fallacies in The Works of Jeremy Bentham edited by John Bowring (Edinburgh, William Tait, 1843), vol II, p.489-535, facsimile edition at

http://oll.libertyfund.org/sources/2124-facsimile-pdf-bentham-the-works-of-jeremy-bentham-vol-2/download (accessed on 17 October 2016)

[52] Waldron (n.30) 46-76.

[53] Ibid 55.

[54] Jeremy Bentham Supply without Burden in The Works of Jeremy Bentham edited by John Bowring (Edinburgh, William Tait, 1843), vol II, p.585-598, facsimile edition at

http://oll.libertyfund.org/sources/2124-facsimile-pdf-bentham-the-works-of-jeremy-bentham-vol-2/download accessed on 17 October 2016.

[55] Waldron (n.30) 74.

[56] Bedau (n.50) 263.

[57] Philip Schofield ‘Jeremy Bentham, the French Revolution and political Radicalism’ (2004) 30 History of European Ideas 381, 396.

[58] See University College London Library, Bentham Papers, xliv. 5.

[59] J. H. Burns ‘Bentham and the French Revolution’ (1966) 16 Transactions of the Royal Historical Society 95.

[60] Ibid. 103.

[61] Hugo Adam Bedau ‘”Anarchical Fallacies”: Bentham’s Attack on Human Rights’ (2000) 22 Human Rights Quarterly 26.

[62] Ibid 266.

[63] Article 2: “Le but de toute association politique est la conservation des droits naturels et imprescriptibles de l’Homme. Ces droits sont la liberté, la propriété, la sûreté, et la résistance à l’oppression.”

In French on the web-site of the French Conseil Constitutionnel, at

http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/la-constitution/la-constitution-du-4-octobre-1958/declaration-des-droits-de-l-homme-et-du-citoyen-de-1789.5076.html accessed on 18 October 2016. In English: “The goal of any political association is the conservation of the natural and imprescriptible rights of man. These rights are liberty, property, safety and resistance against oppression.”

[64] Bedau (n.61) 267.

[65] Ibid 268.

[66] See Richard Bellamy ‘Political constitutionalism and the Human Rights Act’(2011) 9 International Journal of Constitutional Law 86.

[67] See Basic Laws at  https://www.knesset.gov.il/description/eng/eng_mimshal_yesod.htm accessed on 18 October 2016.

[68] Bellamy (n.66) 87.

[69] M v Home Office [1993] UKHL 5.

[70] See Peter Gaunt ‘Drafting the Instrument of Government, 1653–54: a reappraisal’ (1989) 8 Parliamentary History 28.

[71] Bellamy (n.66) 86-7.

[72] Ibid 87.

[73] Ibid 88.

[74] Ibid.111.

[75] Lord Sumption: the 27th Sultan Azlan Shah Lecture, Kuala Lumpur, 20 November 2013 available at https://www.supremecourt.uk/docs/speech-131120.pdf accessed on 18 October 2016.

[76] Richard Bellamy “The Limits of Lord Sumption: Limited Legal Constitutionalism and the Political Form of the ECHR” in Nicholas Barber, Richard Ekins, Paul Yowell (eds), Lord Sumption and the Limits of the Law,  (Hart Publishing 2016).

[77] Ibid. 195.

[78] Ibid.

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