The poverty of (rights) jurisprudence

Abstract

When, in 1983, I ran the first-ever human rights course in my Law School only four brave and idealistic students registered, making me almost abandon the exercise. I told these pioneers that human rights are the conscience of law, practised by a few idealistic lawyers and invoked by dissidents and rebels. How different things look today. If only thirty years ago rights were the repressed conscience of the profession, they have now become its dominant rhetoric. No law student graduates without having taken a specialist course in human rights. Human rights have crept up everywhere in the curriculum. Textbooks on human rights and contract, tort, company, crime, trade, the environment and every other part of the law’s empire appear with an alarming regularity. As friends complain, all law teaching today seems to be about human rights. The dissident pioneers have become the established majority, the repressed idealism dominant consciousness, the protest ruling ideology. ‘Sooner or later, every discussion of law in contemporary society seems to turn to the subject of rights’ opens an influential collection on rights. Liberal jurisprudence has set itself the task to explain and celebrate this amazing turnaround. ‘The discourse of rights is pervasive and popular in politics, law and morality’ a more recent textbook opens boldly. ‘There is scarcely any position, opinion, claim, criticism or aspiration relating to social or political life that is not asserted and affirmed using the term “rights”. . . It is not enough to hold that a proposal will lead to an improvement in wellbeing or a reduction in suffering, unless it can also be presented as a recognition of someone’s rights, preferably their human rights.’ According to Robert Nozick’s ode to extreme liberalism: ‘Individuals have rights and there are things no person or group may do to them (without violating their rights).’

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