In Human Rights and Political Wrongs, one of the UK’s most eminent historians of ideas offers a powerful critique of the existing system of human rights law, and an original analysis of the fundamental principles on which any such law should be based.
As Noel Malcolm shows, the European Court of Human Rights at Strasbourg operates on erratic and uncertain principles; it expands the scope of the European Convention beyond what was agreed by the signatory states; and it erodes democracy, encroaching on matters that should be decided by democratic legislatures. The Court not only tries to deduce law from unclear abstractions, but also invents ones that are not in the text of the Convention, such as ‘personal autonomy’. The result is bad law-making, of a subjective and open-ended kind.
Human rights, Malcolm argues, need to be re-thought from the foundations. They are not statements about everything that is most valuable about being human; no coherent legal system can be based on that. Rather, they are essential political statements about the limits of state power – the things that governments absolutely must not do to their people. And, since human rights are the fundamental political rights of people under democratic government, they should be used to protect democracy, not to erode it.
This is the first ever study that both analyses all the essential flaws in the Strasbourg Court’s methods and reconsiders the fundamental nature of human rights. It offers a new understanding, on which a better system of human rights protection can be built.