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conducted. Lacking its characteristic features, it may have been
the language of morals, ethics or politics, but it was not the
discourse of the law.
(Re)conceptualisation
Rights claim universality. When they compete, they do so in respect
of appropriateness or applicability, not validity. When the courts
decided that the soldiers right to life should prevail, that did not
imply that the victims right to an enquiry in which their families
and the survivors could have confidence was invalid or subject to
any limitation which could be inscribed as a qualification of the
right. Indeed, the claim underlying the right to openness, namely
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CONCLUSI ONS
that justice should be manifestly seen to be done, can be enlisted
just as well on the soldiers side. By allowing them to assist the
tribunal to achieve its fact-finding goal without public disclosure,
the tribunal gave them cause to believe in its impartiality.
The approach adopted by the analyses on both sides of the debate
was the same: one right was weighed against the other. The right to
life and the public right to open justice are both socially valued.
They are not arranged hierarchically with predetermined weights.
So both sides of the argument sought to convince by rhetoric. Thus,
the court stressed the  fundamental nature of the right to life. In its
turn, the other side referred to the  fundamental duty of the tribunal
 to observe the principle of open justice in a democratic society .
The fact that the invocations of fundamentalism on both sides of
the argument cancelled each other out is unsurprising, since all rights
can make a justified claim to be basic or fundamental.
Assuming that I am right in categorising the arguments as
rhetorical, so setting them apart from arguments in legal language,
can the recourse to rhetoric in this case be explained? The answer, I
suggest, is that rights are not, and for the most part do not include,
concepts.  Openness and  life have not been reconceptualised within
the lexicon of legal language.
By contrast, when a decision turns on the appropriateness or
applicability of a singular right, instead of a situation where
competing rights both apply, matters are otherwise.
CASE STUDY
The European Court of Human Rights held that corporal
punishment inflicted on a pupil in an English private boarding
school did not constitute degrading punishment under Article
3 of the Convention.40 This prohibits torture and inhuman or
degrading treatment or punishment. The punishment had con-
sisted of a slippering on the buttocks. Although the Court had
misgivings about the automatic nature of the punishment and
the wait before its imposition, it considered that the minimum
level of severity to constitute degrading treatment had not been
attained. Even then, the court divided, five votes to four.
The case is noteworthy because of the comparison made
with one of its own earlier decisions. In that case, the victim
had been sentenced in the local juvenile court to three strokes
of the birch, administered three weeks later in a police station.
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CONCLUSI ONS
The court had held that to amount to degrading punishment.
The comparison was based on a detailed but not necessarily
exhaustive exploration by the court of the concept of degrading
punishment. Such a legal conceptualisation makes possible
movement in borderline cases in response to, or even ahead
of, cultural shifts.
David Pannick has also noticed a loosening of the criteria in
respect of the legal concept of torture as a result of the human
rights jurisdiction of the Strasbourg court. This, he expects,
will have a knock-on effect on the lesser concept of inhuman
or degrading treatment or punishment.41
Grammar
For similar reasons, the grammatical features that were identified as
typical of, and which largely contribute to the complexities of, the
legal text are absent from rights-based law, the opposite being the
case when qualifications, exceptions and rights of derogation are
stated. See how the familiar tortuousness of legal grammar imme-
diately reappears, for example, in the qualification attached to the
right to freedom of expression (Article 10):
The exercise of these freedoms, since it carries with it duties
and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society &
Experience at conferences intended to promote human rights on a
global scale shows that the reluctance of some states to enter into
commitments expresses itself in the form of proposals to make rights
subject to conditions and qualifications. The grammatical construc-
tions embodied in such proposals, as in legal language in general,
determine the illocutionary force of the provisions; in this case, by
watering it down.
Reasonable or fair
In the analysis of its characteristics, the trio  fair, just and reasonable
represented the flexible words which leavened the precision of legal
language. Now, leaving out the middle term  just , I want to consider
the others in the context of the adjudication of issues arising from
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CONCLUSI ONS
competing rights. In the Saville Tribunal case, the court judged that
the tribunal s decision to refuse anonymity was unreasonable. Blom-
Cooper, for his part, in attacking the court s decision, argued that a
decision s  unreasonableness was insufficient to justify judicial
review, the right standard being  irrational , which he in turn rendered
rhetorically as an affront to common sense. Against that I want to
propose that, whereas reasonableness (or the reasonable man, acting
reasonably) often operates as the fulcrum of legal decision-making,
it is fairness that performs that function in the area of human rights
law where rights compete.
Rights are observed as obligations. The fair value of a right, there-
fore, is measurable against the weight of the obligation or hardship
it entails for another or others. From that viewpoint, the Saville
Tribunal case can be seen as a judgement that the achievement by
the victims of complete openness of the enquiry, by involving the
soldiers exposure to serious risk, would have been unfair to the
soldiers. Again, in the case which concerned the admissibility of the
sexual history of rape victims, the court canvassed the similar question
of proportionality. A balance had to be struck between  the important
legislative goal of countering the twin myths (that unchaste women
were more likely to consent to intercourse and were less worthy of
belief) and the accused s right to a fair trial. Fairness had to prevail.
The conclusion is that human rights cases may be shuffled into
two categories: those where rights are limited or qualified, and those
where rights collide or compete. In the latter category, contestation
takes place and judgements are couched in language that does not
partake of the key features that characterise legal language. Nor is
the text amenable to interpretation in any special sense other than
in the semantically extrinsic form of a presumption that the legislator,
in saying what he did, would not have intended to infringe a human
right.
It is fair to say that Habermas might find it difficult to agree to
this conclusion. His thesis is that legitimate law requires both the
protection of moral autonomy (through human rights) and popular
sovereignty. Human rights must not be imposed by virtue of their
moral justifiability alone but should be institutionalised by a process
of self-legislation. Otherwise,  the addressees of law would not be
able to understand themselves as its authors . The argument goes on:
[they] are no longer free to choose the medium in which
they can realise their autonomy. They participate in the
production of law only as legal subjects; it is no longer in
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CONCLUSI ONS
their power to decide which language they will use in this
endeavour. Consequently, the desired internal relation
between  human rights and popular sovereignty consists in [ Pobierz całość w formacie PDF ]

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