Rule-of-Law Rights and Populist Impatience

Rule-of-Law Rights and Populist Impatience

Description

Human rights are a mixed bag, and populist antipathy towards human rights is not spread evenly across its contents. The idea of a human right as such is too abstract to be sustained as an object of political suspicion. Usually it is some subset of human rights or some particular aspect of human rights practice that excites critical attention from populist politicians and the citizens who support them. The subset of rights that I want to concentrate on I will call “Rule-of-Law rights.” By that I mean the cluster of rights in each of the main human rights instruments that protect Rule-of-Law values, particularly procedural values. In the International Covenant on Civil and Political Rights (ICCPR), these are the rights referred to in Articles 9 and 14–16. They prohibit arbitrary arrest and detention, they require persons arrested to be informed of the charges against them and brought quickly before a judicial officer, they empower detained persons to challenge their detention, they entitle those charged with criminal offenses to trial within a reasonable time, with detailed procedural guarantees such as the presumption of innocence, a right to the assistance of counsel, a right to compel and examine witnesses, a right to appellate opportunities, and the benefit of protection against double jeopardy. They also comprise rules against retrospective laws, and rules governing pre-trial custody and release. There is a similar list of Rule-of-Law rights in Articles 5–7 of the European Convention on Human Rights (ECHR). National constitutions and Bills of Rights include these measures too: the UK Human Rights Act, obviously (because it is a domestication of the ECHR), and—from a much earlier era—the various due process (or procedural due-process) guarantees of the Constitution of the United States (such as the Fifth and Sixth Amendments). I call these “Rule-of-Law rights” (“ROL rights,” for short) to indicate that their function is to convey, in rights-form, the burden of certain principles of the political ideal we call “the Rule of Law.” This characterization calls for a brief digression. Among those who are interested in the Rule of Law there is a debate about whether that ideal should be understood to comprise substantive commitments to human rights or whether it should be treated as a “thin” formal/procedural ideal. It should be noted that the existence of human rights like those just mentioned does not affect this dispute. Rights such as Articles 5–7 of the ECHR and articles 9–10 and 14–16 of the ICCPR are not what defenders of a “thick” conception of the Rule of Law have in mind. They think it comprises rights like free speech, freedom of religion, and other civil liberties. It is true that “thin” conceptions of the Rule of Law haven’t given as much attention to procedural principles as they ought to have: following Lon Fuller, they have focused more on formal principles, like generality, clarity, prospectivity, publicity, stability, and so on.2 But the procedural principles mentioned in the second paragraph of this chapter are usually taken to be part of a “thin” conception of the Rule of Law. One other point: that some human rights provisions convey the importance of certain Rule-of-Law requirements doesn’t mean that human rights documents embody the full panoply of Rule-of-Law ideas (even on a “thin” conception). Of the formal principles just mentioned, only the principle of prospectivity figures explicitly in the human rights materials;3 human rights documents do not enact other aspects of Lon Fuller’s inner morality of law,4 though aspects of Fuller’s conception have figured in doctrine concerning what counts as “prescribed by law” or “provided by law” for the purposes of the exception provisos for freedom of thought, conscience and religion, free speech, and freedom of association. Though human rights present themselves as a simple list, no subset of rights can be considered in isolation, particularly so far as the attitudes they elicit in the community are concerned. As we shall see, populist (and, actually, even elite) reactions to the rights I have identified are affected by some other principles that govern their operation. Some of these are rights in their own right, like the ECHR’s Article 8 (the right to protection of family life). Others are interpretations of rights or doctrines that have grown up around ROL rights, such as principles restricting whole-life sentences and forbidding the disenfranchisement of prisoners. In what follows, we will consider the possibility that the entanglement of these principles with ROL rights has undermined respect for the latter, so that disentanglement might be seen as a way of offsetting populist resentment.

Source Publication

Human Rights in a Time of Populism: Challenges and Responses

Source Editors/Authors

Gerald L. Neuman

Publication Date

2020

Rule-of-Law Rights and Populist Impatience

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