This brilliant and highly interesting essay examines the nature of polities that place central emphasis on the rule of law and thereby upon the language of rights, a language which “smothers and extinguishes” alternative forms of ordering. (P.553.) In doing so, the language of rights erodes its own foundations, leading to a society of no rights but instead of technocratic reasoning. Rights are peremptory. Simmonds describes the sharp distinction between human goods (e.g. it would be good to do x) with rights(I have a right to do x). The distinction is not metaphysical but the result of artifice that underpins our familiar form of association. (P.553.) This does not exclude those aspects of human flourishing that are better understood in terms of goods, values, or interests, where peremptory reasoning gives way to weighing and balancing. In setting out the issue in this way, Simmonds puts a significant new perspective upon arguments he has been advancing for some time: the relationship of rights to ordinary forms of human activity, the mutability of rights discourse, and a preference for the will theory of rights over the interest theory.
Simmonds is appalled by recent trends in constitutional law, which mistake the relative importance of rights for their peremptory force. Where such force is eliminated in favour of questions of importance or proportionality, the traditional hallmarks of legality and legitimacy are significantly eroded. (P.556.) Simmonds returns to this theme at a later point in the article.
Simmonds argues passionately that law should be understood as a body of rules operating within a domain of fidelity, a concept familiar to readers of Lon Fuller and which applies not only to judicial reasoning but to the legislative process as well: the notion of fidelity displacing that of a rule of recognition. (P.557.) This aspect of Simmonds’ argument is a fairly recent departure from his earlier work, which emphasized (alongside the work of the legal historian AWB Simpson) the common law’s fundamental nature as a body of ever-evolving reasons for decision. The central reason advanced is that “[s]ound legal thought always involves an attempt to create and sustain a just and coherent body of law that serves the common good, and this enterprise is always endangered by the diversity and particularity of moral considerations that might be considered to be of relevance.” (P.557.) Legal rights claims do “both more and less” than claims that a given action is good. (P.558.) This is because rights claims may be contrary to good, and thus less: the right of a wealthy person to a sum to be taken out of the purse of one in poverty (surely an instance of Aquinas’s doctrine that it is sometimes necessary to forgo one’s right in order to avoid scandal or disturbance. [scandalum vel turbatio]: ST I-II.96.4 ad 3.) Or they do more because they articulate standards that are insulated against the broader flow of practical reasoning. (P. 558.) But Simmonds suggests a distinction between the peremptory force of rights and their (lack of) absolute force.
How does this distinction preserve the thought that rights are other than mere counters to be moved in good-centric arguments generally? Simmonds proposes only a highly schematic response to this problem, referring to what he calls the “relational aspect of rights”; roughly, Y fails to observe X’s right in circumstances that highly justify the breach (create some good or avoid some evil). (P.559). But the language of rights demonstrates that such breaches come at a cost: X is denied what she is due or (better)owed. Thus, there are some rights that it is possible to breach, but others that may not be breached in any circumstance. (P.559.) I am not sure that this solves the problem, which some may (incorrectly) take as a distinction between the protections of the criminal law and those of private law, given the article’s example of intentional killing. But the general picture should be of interest to anyone who practises or theorizes about law, that of the need to locate rights within a broader moral framework of values, common good(s), and collective human flourishing, a framework which must not be entirely displaced by notions of right and in which, presumably, rights are not always the decisive idea (P.560.) The key difference is that rights are “respected or honoured” rather than “advanced or promoted” (but does not X advance her right against Y? Is that not an important feature of the “language of rights”?).
Rights are not correctly understood, but they are of central importance as being amongst the most fundamental building blocks of society (P.563.) Simmonds argues that “we can see that the peremptory force of rights is dependent upon the fact that rights are not self-standing individual interests, but are essentially relational: the bond created by the right is at least as important as any interest protected by the right” (P.565.) This relational aspect of rights is brought out by Hohfeld’s analysis. If we do not pay attention to Hohfeld, we may think that if X has a right to A and Y has a right to B, and A and B conflict, then we are in the impossible situation that the rights of X and Y conflict. How can that be? The answer is that X may have a right to A generally, but no such right against Y: Simmonds gives the example that I have a right to be free from assault generally, but not against my opponent in a boxing match (P.568.)
Over the unfolding pages, Simmonds sets out a sense of the consequences of an abandonment of Hohfeld’s analysis, an attempt to restore a pre-Hohfeldian notion of rights as internally complex. Thus, for example, a right of free speech would then be deemed to be the basis for the imposition of duties on others to respect the right: when, in fact the “right” may turn out to be a mere permissibility (liberty, privilege) also held by others (you may talk, but I may talk louder). The result is a “toxic monoculture” in which the notion of right is “extended to any good or interest which is being pressed as of considerable importance” (P.571.) In the area of constitutional rights, increasingly interests are deemed to form rights against which is to be applied a broad doctrine of proportionality. The result is stark: “A polity departs from the rule of law not only when judges and other officials fail to apply the law, but also when the law they apply confers upon them extensive discretionary powers” (P.572.) Thus, finally, “To collapse the distinction between rights and goods is to remove an important basis for the state’s legitimacy, and to convert the state into a technocratic instrument for managerial social policy” (P.573.)
In short: this is a rich and deeply interesting essay, the implications of which ought to give pause to academic and practising lawyers alike in whose hands law is steadily sliding into a mere instrument of a technocratic state, giving up the idea of law as a rich and subtle aspect of human civility.
