A rising tide of prosperity that floats all boats is no longer the glue that can hold our society together. Whatever the consensus was in the boom years around the greater good that could be derived from economic growth driven by personal atavism, to make the same argument at the close of 2012 stretches credulity.
Those are hardly controversial statements.
What can replace that narrative is less clear, though from nationalism and religion to, in places, a resurgent socialism, there is no shortage of competition.
But could law, with its focus on fair and just outcomes, ever be an effective counterweight to the hard power represented by the apparently more Darwinian forces of greed, power and money?
Helena Kennedy QC and Liberty director Shami Chakrabarti are among those trying to answer that broad question at an ‘ideas festival’ in March (What connects us most/least). Also taking part will be scientists, environmentalists and people from the world of culture, media and politics.
Both Kennedy and Chakrabarti agree there is at least an ‘opportunity’ for law, and specifically human rights, to bid for that space with some confidence.
As Kennedy argues: ‘Neo-liberal economics spoke to the individual and the pursuit of one’s own needs, often at the expense of the needs of the community at large.’
She adds: ‘And I think that what was difficult in that context of that was language which was expressed in terms of winners and losers, that people who were not successful were losers – that there must be something about it that was a deficit in them that meant that they were doing so badly in good economic times.’
That, Chakrabarti points out, is a perception events have inevitably changed: ‘The banking crisis ought to open people up to a new way of thinking about their rights and freedoms and the law. What we’ve lived through shows that an unfettered market will eat itself, and will take the economy and society down with it.’
More than ever, she argues, people would accept that the market shouldn’t be governed by the ‘law of the jungle’, with a strong criminal law to tackle ‘robbers’ and an equally strong civil law to ‘keep people to the bargains they strike’. ‘That is almost a regulatory argument for human rights,’ she notes.
So far so good for fans of human rights, justice, fairness, the rule of law – all the ‘guys in the band’. But as already noted, this is a competitive space, and the disappearance of the halo above the ‘greed-is-good’ mantra has not also vanished the significant obstacles that Kennedy and Chakrabarti see in their way. ‘Trying to get us beyond that is difficult,’ Kennedy concedes.
Kennedy identifies active risks to human rights in the current environment. Earlier this week she and Philippe Sands QC, who had been committee members of a commission to consider a British bill of rights, dissented from its final report. She highlighted the danger of the report being misused by the prime minister as the basis to ‘decouple’ from both the convention and the European court of human rights.
Human right has, Kennedy concedes, ‘been seen as over-protective of certain categories of people’.
The QC and the Liberty director see the danger, then. But their sense that there is a very confident case to be made in promoting a stronger commitment to human rights persists.
That confidence seems to spring from a conviction that current opposition to human rights is based on misunderstandings, in an environment where the best case for the human rights lobby has yet to be made.
‘What is not understood widely enough is that many human rights include principles that are balanced against one another,’ Kennedy points out, ‘such as freedom of speech and privacy.’
And education on human rights is, Chakrabarti notes, currently poor. ‘In annual research we do we find very strong support for human rights principles among the public. We then ask them if they received any public education on human rights – 9-10% say they did, but for them that’s actually a false memory.’
Some strong supporters of human rights law imply that such is the well of opposition to human rights as wrongly conflated with an unpopular European Union, that a rebrand of those same values might provide a narrative that provides society’s glue more than the Human Rights Act, the human rights convention and the universal declaration.
Lord Lester set out such a position in his own paper added to the bill of rights report.
As an argument it is a non-starter, Chakrabarti concludes: ‘A British "botox" bill of rights won’t make the challenges we have in making the case for certain rights more palatable.’ It risks, she notes, being used as cover for removing key rights – something far more dangerous than a rebrand. ‘Who would imagine a bill of rights being introduced anywhere else in the world that is about diluting rights and not enhancing them?’
Kennedy, Chakrabarti and like-minded lawyers are not alone in making the case for law, human rights and fairness providing a better overarching narrative than ‘Darwinian’ neo-liberal economics. Nobel economist Joseph Stiglitz is among those giving the rule of law a starring role in what, he hopes, a new world order.
But the window available to make that case feels time-limited – there is a sense of urgency in these debates which is surely not misplaced.
Eduardo Reyes is Gazette features editor