Exclusive: Guest Post by Sir Roger Scruton. How do we decide which human rights should be protected in law?

Theresa May’s Government has floated the idea that the next election might be contested on a pledge to incorporate all the rights guaranteed by the European Convention on Human Rights, while leaving the European Convention and the jurisdiction of the European Court of Human Rights. There are plenty of arguments against such a course – not least the practical one that the midst of tricky Brexit and post-Brexit negotiations might not be the best time to take on an avoidable burden of human rights law reform – but it is in some ways a more coherent policy than the previous one which, insofar as it could be discerned at all, was to dilute some of the Convention rights in UK law while agreeing to abide by the decisions of a ECtHR which would not agree to any such dilution.

Critics have largely concentrated on the political and diplomatic pitfalls of abandoning the European Convention, and with it the Council of Europe. Would it really be right that Britain should join Belarus, Kosovo and The Holy See as the only sovereign nations outside the Council of Europe? On the other hand, do we really want to be part of a human rights club that includes Vladimir Putin’s Russia?

But leaving aside these international issues, should Theresa May’s proposal become official Conservative policy, it will mark the final acceptance by the Conservative Party that the common law alone is inadequate to protect human rights, and a recognition that “universal human rights” have a central part to play in British law.

But what are these “human rights?”

Should they all be equally protected by law?

Are some rights more universal than others, and if so how do we decide which are deserving of either protection or special status?

It is easy for lawyers to become complacent and to stop thinking. Nowhere is this tendency better demonstrated than in the law of human rights where each side of the debate tends to dig itself into deep trenches, while being more willing to engage in bad tempered name-calling than in constructive debate.

Barristerblogger is therefore proud to publish this exclusive guest post by the country’s leading conservative philosopher and thinker, Professor and Bencher of the Inner Temple, Sir Roger Scruton.

The European Court of Justice and the European Court of Human Rights are courts whose decisions are made by judges trained in jurisdictions with distinct traditions of legal reasoning, many from former communist states in which law, as an independent source of authority, was deliberately extinguished. These judges cannot be removed from office by any procedure that a citizen could initiate, and their judgments override the legislative and judicial decisions of sovereign countries under their sway. This opens an avenue for transnational elites to impose their will on people in defiance of local customs and national sovereignty.

Rights have always been important in our common law. They govern the procedures of the courts, and the standing of the person who appears before them. The right to a fair trial, the right to compensation from the one who injures you, the right to the fulfilment of a contract freely engaged in – all such rights are implied in common law procedure and the sum of them defines the liberty of the British subject. In the 1689 Bill of Rights some of these rights were made explicit, in recognition of the fact that they had been overridden or ignored in the previous decades of civil conflict. But in normal peace-time it has never been necessary to pass statutes guaranteeing what the courts have always upheld, namely the rights implied by the very ideas of impartial judgment and equality before the law.

In the wake of the two world wars, however, a new conception of human rights was adopted. These rights were to define a position outside and above the jurisdiction of any particular nation state, and were conceived as a priori constraints on what a government – any government – might do. Human rights, so understood, set limits to government, and existed in order to protect human beings from oppression by those who governed them. The original text of the European Convention on Human Rights suggests that human rights are freedoms from state control and government interference, like the rights to life, liberty and the pursuit of happiness advocated in the American Declaration of Independence.

However, the search for liberty was already associated with a countervailing search for ‘empowerment’. The negative freedoms offered by traditional theories of natural right, such as Locke’s, do not compensate for the inequalities of power and opportunity in human societies. Hence egalitarians, who dislike hierarchies of every kind, began to insert more positive rights into the list of negative freedoms. These positive rights come in two forms: claims for benefits, and rights to ‘non-discrimination’ accorded to privileged groups. Claim rights are already apparent in the UN Declaration of Human Rights, which begins with a list of freedom rights and then suddenly, at article 22, begins making radical claims against the State – claims which can be satisfied only by positive action from government. Here is article 22:

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

The inclusion of this and similar clauses is due to Eleanor Roosevelt’s growing socialist convictions. Contained within this right is an unspecified list of other rights called ‘economic, social and cultural’, which are held to be indispensable not for freedom but for ‘dignity’ and the ‘free development of personality’. Whatever this means in practice, it is quite clear that it is likely to involve a considerable extension of the field of human rights, beyond those basic liberties acknowledged in the American Declaration. Those basic liberties are arguably necessary for any kind of government by consent; the same is not true of the claims declared in section 22 of the UN Declaration.

The Declaration goes on in this vein, conjuring a right to work, to leisure, to a standard of living sufficient to guarantee health – and other rights which are, in effect, claims against the State rather than freedoms from its encroachments. Even if these are rights, they are not justified by the same philosophical arguments as justify the freedom rights granted earlier in the Declaration. Moreover, they open the door to the ‘rights inflation’ that we have witnessed in recent decades, and to an interpretation of human rights that is prodigal of conflicts.

Rights to ‘non-discrimination’ are a more recent development, and have been fundamental to the attacks on national legislation initiated by the European Courts. A right to non-discrimination is essentially a privilege accorded to some favoured group, which enables members of that group to impose their will on others, and which enables the courts to overthrow any legislation that ‘discriminates’ against the protected class of litigant. Many of the interventions that have caused resentment have been based on such alleged rights of non-discrimination: the abrogation of planning law for the benefit of Travellers, for instance, or the wedding cake cases and hotel bedroom cases under the rubric of ‘gay rights’. Study of such cases illustrates four very important matters.

The first is that, as Dworkin puts it, ‘rights are trumps’.1 That is, in a court of law, if you can show that your interest in the matter is also protected as a right, then you win the case against anyone whose interests, however great, are not so protected. The huge interest of the local residents in retaining the value and amenity of their properties (which represent, for most of them, their life’s savings) have counted for nothing in cases against Travellers, since – although protected by planning law – those interests were not protected as a right, but only as an interest.

Second, unlike the solutions issued by a legislature, those issued by a court are not compromises: they are not attempts to reconcile the many interests involved in a situation, and the court does not see itself as formulating a policy for the good government of a community – that is the task of a legislature, not a court. The court sees itself as resolving a conflict in favour of one or other of the parties. In normal circumstances, a case before a civil court is a zero-sum game, in which one party wins everything, and the other loses everything. There are no consolation prizes. The problem is exacerbated when the decision in first instance is in the hands of a court outside the jurisdiction, like the ECHR. The judges in that court do not pay the cost of their decisions, nor do their countries, as a rule, pay the cost. Legislation involving the long-term investment and protection of precious resources, such as our Town and Country Planning Act, can be sunk by a single judgment granting Travellers the ‘right’ to ignore it.

Third, the human rights declared by the various decisions of the courts are not obviously of the same philosophical, moral or political standing. A doctrine of human rights is entitled to the name only if the rights declared can be established a priori. I think we can all see the force of the idea that there are certain things that cannot be done to human beings – certain basic goods, including life itself, that cannot be taken away from them unless they in some way forfeit them. Life, limb and the basic freedom to pursue our goals undisturbed (compatible with a similar freedom enjoyed by others) are plausible candidates. You can see how the entitlement to these things lies at the heart of political cooperation: for without some guarantee that, in these respects at least, people are protected from invasion, there really could not be a system of law that enjoyed the consent of those subject to it.

Furthermore we can understand those basic freedoms as rights partly because we can understand the reciprocal duty to respect them. My right to life is your duty not to kill me: and duties of non-encroachment and non-infliction are naturally upheld by morality and easily enforced by the law. If you have a right to x then you are wronged by the person who takes x away. However, once we step outside this narrowly circumscribed area of basic freedoms, we enter a much more shady and conflicted territory. The Travellers’ cases depend upon the provision for ‘non-discrimination’ – a provision that steps outside the area of basic freedoms, into that of justice. And this provision, meant to prevent one group of citizens from arbitrarily enjoying privileges denied to another, has been used precisely to claim for the minority privileges that are legally denied to the majority.

Fourth, the case illustrates the increasing intrusion into the field of human rights law of the concept of a ‘group right’. The original invocation of natural rights by Locke, Pufendorf and others was designed to protect the individual from arbitrary power. You held your natural rights, according to those thinkers, as an individual, and regardless of what group or class you belonged to. Natural rights oblige people to treat you as a free being, with sovereignty over his life, who has an equal claim on your respect. But the new ideas of human rights allow rights to one group that they deny to another: you have rights as a gipsy, a woman, a homosexual, which you can claim only as a member of that group. To think in this way is to resurrect the abuses to which Locke and others were in search of a remedy – the abuses which led to people being arbitrarily discriminated against, on account of their class, race or occupation.

Just what rights are universal human rights, and how do we prove that they have this standing? The increasingly arbitrary lists that form the substance of international declarations or which emerge from the decisions of the European courts seem to be more the product of political orthodoxies or social aspirations than any well-founded intuition concerning the a priori grounds of law. So how should we proceed in winnowing out the plausible from the implausible candidates?

We should distinguish claims from liberties. A claim arises from obligations incurred. For example, if I have transferred to you my house in accordance with a contract of sale, then I have a claim against you for the agreed price, and this is a claim-right of mine – in other words, a right that would be upheld in a court of law, should any dispute arise. Claim-rights also arise in tort. If your negligently allowing your cows onto my lawn causes £500 worth of damage, then I have a claim-right against you, for that sum.

In those straightforward cases of contract and tort, we easily see that every claim-right in one person defines a duty in the other. And this duty is a legal burden. Often it cannot be discharged: the person claimed against may not have the means to satisfy the claim. However, he ought to satisfy it, and the law will compel him to do so to the best of his power. Furthermore, the duty that the law imposes arises from a relationship of responsibility. In both contract and in tort – as well as in trust – the law holds someone liable for a claim made by another. And this liable person is identified, either as an individual, or a company or a group, which has acted so as to incur the liability in question.

Hence claim-rights, in the normal cases when they arise, are quite different from freedom-rights. A freedom-right imposes a general duty on others to observe it; but it may arise from no specific relationship, and may make no specific demands of any individual. It is a right that may be invaded by others; but by doing nothing they respect it, and the duty to observe it is neither onerous nor a special responsibility of any particular person. Such is my right to move freely from place to place, my right to life, limb and property, and the other rights traditionally acknowledged as flowing from the natural law. You respect them by non-invasion, and the duty to respect them falls clearly and unambiguously on everyone.

Now it is easy to see why a classical liberal might object to the expansion of the list of human rights to include claims to non-specific benefits like health, education, a certain standard of living and so on. For, in the absence of any relation of liability, specifying who is to satisfy these claims, they inevitably point to the state as the only possible provider. And large, vague claims require a massive expansion of state power, a surrender to the state of all kinds of responsibilities that previously vested in individuals, and the centralisation of social life in the government machine. In other words, claim rights push us inevitably in a socialist direction. Moreover it is a direction which is diametrically opposed to that for which the idea of a human (natural) right was originally introduced – a direction involving the increase, rather than the limitation, of the power of the state. Likewise a classical liberal would object to the inclusion of non-discrimination rights, since they provide unearned claims against all-comers, and are enforced by coercion on the part of the state. There may be good reasons of policy for including them as civil rights; but these reasons are reasons of policy, not reasons of natural justice. Hence non-discrimination rights are matters for the legislature, and not for a ‘court of human rights’. It is precisely because non-discrimination has been elevated to the status of a human right, that it has conferred on extra-territorial courts the power to undermine the entire social and legislative inheritance of the nation states of Europe. (See the reports of European Dignity Watch in this matter.)

It seems to me that rights talk has the function of enabling people to claim a sphere of personal sovereignty: a sphere in which their choice is law. And spheres of personal sovereignty in turn have a function, namely that they give the advantage to consensual relations. They define the boundaries behind which people can retreat and which cannot be crossed without transgression. The primary function of the idea of a right is to identify something as within the boundary of me and mine. If I have a right to sit in a certain room then you cannot expel me from it without wronging me. By determining such rights we define the fixed points, the places of security, from which people can negotiate and agree. Without those fixed points negotiation and free agreement are unlikely to occur, and if they occur, their outcome is unlikely to be stable. If I have no rights, then the agreement between us provides no guarantee of performance; my sphere of action is liable to constant invasion by others, and there is nothing that I can do to define the position from which I am negotiating in a way that compels you to acknowledge it.

Rights, then, enable us to establish a society in which consensual relations are the norm, and they do this by defining for each of us the sphere of personal sovereignty from which others are excluded. This explains Dworkin’s view, in Taking Rights Seriously, that ‘rights are trumps’. A right belongs to the fence which defines my sovereign territory: by claiming it, I put an absolute veto on things that you might do. It also explains the direct connection between right and duty: the absoluteness of the right is tantamount to a duty to respect it. And it explains the zero-sum nature of disputes in a court of law, when rights are invoked to decide them.

If we look at rights in this way, as instruments which safeguard sovereignty, and so make free deals between sovereign partners into the cement of society, then we see immediately why freedom rights have the best claim to universality, and why claim rights and non-discrimination rights – detached from any history of responsibility and agreement – should be adopted, if at all, only with caution. A claim against another, if expressed as a right, is an imposition of a duty. If this duty arises from no free action or chain of responsibility that would provide a cogent ground for the claim, then by expressing it as a right we over-ride the other’s sovereignty. We say to him: here is something you must do or provide, even though your duty to do so arises from nothing you have done or for which you are responsible. This is simply a demand that you must satisfy.

How different such a case is, at least, from that of freedom rights. For these are by their very nature ‘sovereignty protecting’ devices. They are vetoes on what others can do to me or take from me, rather than demands that they do something or give something which I have an interest in their doing or giving. The duty that they define is one of non-interference, and the interest that they protect is the most fundamental interest that I have, namely my interest in retaining the power to make decisions for myself in those matters that most closely concern me.

1 Ronald Dworkin, ‘Taking Rights Seriously’, in Taking Rights Seriously, Oxford 1977.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

13 thoughts on “Exclusive: Guest Post by Sir Roger Scruton. How do we decide which human rights should be protected in law?”

  1. Human rights in an overpopulated world need to be more basic. The right to be housed, the right to be fed, the right to education and health care. Things which most British Judges have very little interest in.

    1. So, if we, our partners, and our two children per family are shipwrecked on a resource scarce island:

      And I and my partner work all hours possible, often risking our lives, with our children helping out as best they cann to survive:

      And we barely manage to put a roof over our heads, and scrape together a starvation level diet:

      While you and your partner spend your days sitting on your plump posteriors and your nights popping out more progeny:

      You have the “right”, in “law”, to demand from us, not just: “to be housed, the right to be fed”, but even “the right to education and health care”?!

      How’s that work then?!

      Is it any wonder civilisation as we know it is about to disappear!!!

      Does anyone remember the report by Frank Field, the Labour MP, which found that, to have the same disposable income as a single mother with two(?) kids who worked 16 hours per week on minimum wage, a couple with the same number of kids, on minimum wage, would have to work well over a hundred hours a week?!

      Why does that single mother have the “right” to have that couple donate part of the fruits of their labour, the “right” to deprive that family of part of what they produced, the “right” to force that family to “enjoy” a poorer lifestyle than the single parent family?!

      And why do the full time workers have a “duty” to sacrifice their own family for the benefit of the single mother?!

  2. Good read. I can see the libertarian case made.

    To clarify, are you suggesting that we return to a common law basis of individual freedoms?

    And do you consider rights to only exist to the extent that a law does not remove that right? In other words, that no rights are immutable.

    As an extension of that last question, are you of the view that the rule of law is not concerned with individual rights?

  3. Roger Scruton’s position is ‘libertarian’ in a classically conservative sense: it is designed to protect the interests arising from the status quo. It becomes apparent from the frequent illustrations he uses from issues around the ‘rights’ of Travellers how anchored his thinking is in ages when the only people with suffrage were male landowners and householders. As a result, at that time, legislation was skewed towards protecting those people’s rights and privileges at the expense of others. Legislation could abolish the rights of whole classes of people who lived in different ways, as, infamously, occurred in the ‘terra nullius’ ruling in Australia.

    His distinction between freedom-rights and claim-rights is valid in the sense of an abstract definition. However, he gives the game away by branding the latter as ‘socialist’ and therefore bad. In a situation of entrenched privilege of a particular group, which uses legislative or executive power to protect its interests, such a distinction will become more blurred. Of course policy and law will be intermingled at this point, which is why it is politicians who make legislation. A society which allows flexibility in the interaction between policy and law will be one which is able to accomodate change without lawless revolution.

    Traditionally, democratic societies have been able to change in such ways (allowing universal suffrage to replace property rights, for instance), but they still harbour the danger of dictatorship by the majority, often in the form of indirect discrimination. If my planning laws provide nowhere for Travellers to stop (where previously roadside verges were available) I am effectively outlawing their way of life. This is an extreme case, chosen by Scruton to guarantee the hackles of country landowners will rise in unison, but there are many other more mundane ones which arise in Europe, and which provide justified cause for legal recourse beyond national sovereignty. For example, if a British national wishes to work as a teacher of English in another European country, he or she will often be subject to restrictions which demand qualifications only available in that country, which cannot easily be obtained in any other way. Such restrictive practices are a clear case of protectionism of a kind which Scruton might be reluctant to accept. Yet the only way of preventing discrimination of this type is surely through supranational courts, which, far from being dominated by unreformed ex-Communists, as Scruton implies, are a tribute to the fine legal minds, many of them British, that set them up.

    1. I’m effectively disabled and have been since before I graduated, but despite that have worked practically every day of my life (usually much longer than 9-5 and often 6-7 days a week, paying all my taxes and National “Insurance”.

      My condition has deteriorated to the extent that now, in in my 60s, I’m unemployed, and unemployable, with years to go before “retirement”.

      But as I am a “landowner and householder”, and my wife still (has to) work, I’m not entitled to any benefits.

      Strangely, if I park on “my” verge, or even on the road outside my house, never mind the local park or playing field, the police my taxes pay for will soon be feeling my collar.

      Ditto if I don’t tax, insure, MOT and maintain what’s left of my car.

      And the Inland Revenue would be equally quick to stick their nose into my affairs if I failed to pay taxes due, or my wife refused to fund a Traveller lifestyle because she had a disabled husband to support.

      Ditto the planning dept if I didn’t get permission for building works, especially dodgy ones.

      And you think I’m unhappy about all that because my thinking is anchored in ages when the only people with suffrage were male landowners and householders?!?!?!!!!

  4. Sir Roger Scruton’s essay on How do we decide which human rights should be protected in law is at http://barristerblogger.com/2017/01/08/exclusive-guest-post-sir-roger-scruton-decide-human-rights-protected-law/ . He is introduced as ‘the country’s leading conservative philosopher and thinker’. This may be an ambitious claim; but it is not the purpose of this note to deny it. It is fair to ask: why do we have to ‘decide rights to be protected’; but space prevents an answer to that – the real question. And, in any event, Scruton does not answer it. He merely tells us what he considers to be rights and what – though part of the think behind European Convention 1950 are not, in his view, rights.

    His paper divides rights into freedom-rights and claim-rights (or benefit rights). The former are the classic rights to which an individual may be said to be entitled: a right to life, to a fair trial, to compensation in tort for injury; and certain rights to protect the individual from government oppression (torture, privacy etc). These rights create in the rest of us matching duties not to encroach on them. They are the rights of the individual and, by definition, entirely selfish.

    Claim rights are the main thrust of Scruton’s argument and opprobrium. He appears to date them largely to a post-Second World War period (on the evidence of this paper Scruton’s grasp of history is not strong). He categorises these rights as: ‘claims for benefits, and rights to “non-discrimination” accorded to privileged (sic) groups’.

    Let us dispose immediately of ‘privileged’. A knowledge of discrimination laws surely indicates that its whole purpose is not to provide privileges but to increase to a general level, rights which others already have. Thus in 1928 all women over 21 got more or less the same rights as men to vote – was that a privilege? – and since then they have become entitled to equal status (but perhaps not yet equal access) as students, judges and company directors. It took a civil war in the States to erode slavery; and discrimination was still (still is, perhaps?) strong. It is cheap, I am afraid, to take – as Scruton does – Travellers and gay’s wedding cakes as the hall mark of your anti-discrimination argument. There are much more significant and larger groups whom discrimination protects.

    My favourite discrimination is that which the zebra-crossing creates for the pedestrian over the otherwise all-powerful (subject to regulation by speed limits, taxation etc etc: yes I know…). For me the car is the supreme exemplar of Toryism and selfishness; and for pedestrian, moving along at 3/4 mph, to be able to step out in front of and momentarily control the car driver is a true freedom.

    And of benefits rights: you don’t have to be a Christian – a reading of the Bible, as a valuable historical and political text, might help – to know the parable of the ‘Good Samaritan’. If so, you know that this approach to our responsibilities to the needs of others, is well over two thousand years’ old. It was this attitude which informed medieval ideas of community (one of the oldest administrative law cases is establishing the early modern duty of the community as a whole to provide flood defences), the Tudor poor laws (Wolsey is credited by some with initiating the first legal aid scheme; and where would modern criminal lawyers be without some access to legal aid); and, yes, of the shift in the 19th century from charity to rights.

    I give this last point to Scruton; but I base it (as a non-Christian) on ordinary West European impulses which I regard as wholly ‘Christian’. He might see them as ‘a socialist direction’: p 7 in my copy of his essay). I – as perhaps a modern liberal – say that the state should tax the rich and others with income (or, perhaps, assets). It should give to those (per Keynes, Beveridge): who need – the sick, children who need education, or who need help with protection of rights (eg lawyers); where the environment needs protection; for defence (perhaps); and so on. In other words: in ‘Christian’ or human – civilised, may I say? – terms the community (in the guise of the elected legislature) should recognise that in the millennia since Christ (at least) rights create not only individual rights, but also community responsibilities.

    15 January 2017

    1. >> “Thus in 1928 all women over 21 got more or less the same rights as men to vote – was that a privilege?” <<

      And they got the right to vote (albeit from age 30) at the same time as the men who survived the First World War.

      Interestingly, the Suffragettes spent their spare time, when not Suffragetting, handing out white feathers to disenfranchised men, and even boys, who were lucky enough to be sent home with shell shock, rather than be shot for lack of moral fibre.

      And from the hysterical (look it up) reaction of millions (billions?) of women around the world, including in real dictatorships, where there is real, not fabricated, misogyny, to the fact Trump was elected President of the US, it would appear 130 would be too young for women's suffrage!

    2. >> “a right to life, to a fair trial, to compensation in tort for injury; and certain rights to protect the individual from government oppression (torture, privacy etc). These rights create in the rest of us matching duties not to encroach on them. They are the rights of the individual and, by definition, entirely selfish.” <<

      It's "selfish" to "create" a "duty" on someone not to murder me?!?!

      Whereas I suppose you think:

      "Claim rights…… ‘claims for benefits, and rights to “non-discrimination” accorded to privileged (sic) groups’."

      Are doing the rest of us a favour, we should feel privileged to have the "right" to fund these benefits which we usually can't enjoy ourselves?!?!?!!!

    3. >> “[women] have become entitled to equal status (but perhaps not yet equal access) as students, judges and company directors.” <<

      Apparently most medical students are now female, causing a crisis in the NHS despite an initial oversupply of junior doctors.

      Because, despite their feminist tendencies, most women doctors get pregnant after the millions others spend on their training, take maternity leave, and then go back to work part time on family friendly hours.

      Charlotte Proudman, the equality activist, complained that "only" a quarter of judges were female. While I doubt that there is inequality in law student numbers, at least not to the disadvantage of women, as I understand it, when judges were starting out on their careers, hardly any women were going into law, most of those were becoming solicitors, and most of the rest left the profession for family reasons, and even at senior QC level only an eighth are women.

      So if a quarter of judges are women, there certainly is discrimination:

      Against men!

      As for the well known "fact" that targets of 40% and even 50% of FOOTSIE 100 directors should be women: most women work in other fields: medicine, nursing, social work, teaching, and other caring professions, some even, rumour has it, as mothers, where there are no boards of directors.

      And most women who work in the corporate sphere where there are boards of directors tend to choose careers that don't lead to the boardroom, or only have a token representative, not necessarily from that field, eg HR, or research.

      Only a fraction of women work anywhere near a greasy pole leading to the boardroom, and most of those have no desire to try to fight their way up it.

      So, again, if women are getting anywhere near 40%, never mind 50%, boardroom representation, if there is any discrimination: it's against men!

    4. >> “My favourite discrimination is that which the zebra-crossing creates for the pedestrian over the otherwise all-powerful (subject to regulation by speed limits, taxation etc etc: yes I know…).”

      “For me the car is the supreme exemplar of Toryism and selfishness; and for pedestrian, moving along at 3/4 mph, to be able to step out in front of and momentarily control the car driver is a true freedom” <> “For me the car is the supreme exemplar of Toryism and selfishness; and for pedestrian, moving along at 3/4 mph, to be able to step out in front of and momentarily control the car driver is a true freedom” <<

      .

  5. I like a basic exposition of Hohfeldian rights as much as the next person, but I’m baffled by the quantity of political baggage that Scruton has bolted on to this one. The idea that expounding rights claimable against society as a whole necessarily leads to state socialism strikes me as remarkably unimaginative, while characterising non-discrimination as a group privilege is absurd (was it intended as Wildean paradox?). And if we are to believe that Travellers have been guilty of so many and various offences against the rights of freeborn English property-owners, it would have been nice to see the citation of an identifiable case or two.

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