Human Rights and Wrongs -人权及其滥用

ANITA ANAND: Welcome to the third of this year’s Reith Lectures with the former Supreme Court Justice Jonathan Sumption. 

欢迎来到今年睿思第三次讲座听前最高法院法官Jonathan Sumption演讲。

We are in Edinburgh’s Parliament House, a building which dates back to the 16^th century. This place has long been home to the Court of Sessions, the highest court in Scotland, and here in the great hall we are dominated by a stunning stained glass window depicting the moment King James V confirmed the Court of Sessions right here in 1532. This is a place, therefore, steeped in regal and legal history, an entirely suitable setting for Jonathan Sumption to continue his series of lectures on the role of the law in our public and private life.

今天我们在爱丁堡议会大厦，始建于16世纪，这里长期以来一直是苏格兰最高法院——苏格兰高等民事法院所在地。在大厅里，令人惊叹的彩色玻璃窗俯视着我们，上面是国王詹姆斯五世于1532年在此确认高等法院的画面。因此，这饱含法律和法律历史的地方，非常适合Jonathan Sumption继续他关于法治与生活公私两面的讲座。

So far Jonathan has questioned what he calls “law’s expanding empire” and discussed how best democracy can accommodate political difference. Today he will be taking a look at human rights, in particular the role of the European Convention on Human Rights and the Strasbourg Court. The lecture is called Human Rights and Wrongs. 

迄今为止，Jonathan质疑了他所谓法律帝国的扩张，并讨论了民主应该如何容纳政治差异。今天，他将着眼于人权，特别是欧洲人权公约和斯特拉斯堡法院的角色。讲座的题目是“人权及其滥用”。

Please welcome the BBC 2019 Reith Lecturer, Jonathan Sumption.

有请BBC 2019睿思讲座主讲人，Jonathan Sumption。

(AUDIENCE APPLAUSE)

（掌声）

JONATHAN SUMPTION: Human rights are where law and politics meet. It can be an unfriendly meeting. A few years ago the then Prime Minister, speaking to the House of Commons, described a recent Supreme Court judgment about human rights as “appalling”. The same Prime Minister, on a later occasion, said about another human rights decision that it made him “physically sick”. These are strong words. What’s the fuss about?

人权是法律遇上政治的地方，这种相遇可能不友好。几年前，时任首相在下议院讲话时称，最高法院最近对人权的判决“骇人听闻”。同一位总理，后来又谈到另一项人权决定，称该决定让他“生理不适”。使用这些非常强烈的语言，所为何事呢？

There is nothing new about human rights apart from the name. A quarter of a millennium ago Sir William Blackstone, the author of the earliest methodical survey of the common law, called them “natural rights”. They were, he believed, recognised by the law because they belonged to human beings by the immutable laws of nature. The idea behind this is simple and undeniably attractive. It is that there are some inalienable rights which human beings enjoy, not by the largesse of the state, not by the forbearance of their fellow citizens, but because they are inherent in their humanity. This is the idea which underlies modern human rights theory.

除了名称之外，人权其实并不新。两百五十年前，最早对普通法进行系统整理的作者William Blackstone爵士称之为“自然权利”。Blackstone爵士认为，这些权利必须被法律承认，因为根据永恒不变的自然法则，他们属于人类。其背后的想法很简单，且具有无可置疑的吸引力。人类拥有一些不可剥夺的权利，不是来自国家的慷慨，不是来自同胞的宽容，而是这些权利是人类固有的。这是现代人权理论的基础。

There are, however, some problems about it which, if we are honest with ourselves, we must recognise. To say that rights are inherent in our humanity without law is really no more than rhetoric. It doesn’t get us anywhere unless there is some way of identifying which rights are inherent in our humanity and why, and that is essentially a matter of opinion.

但是，如果我们对自己诚实，就必须认识到这种说法中存在一些问题。说人类有一些固有的先于法律而存在的权利，无非是一种修辞。除非能够通过某些方法确定人类固有的权利是哪些，以及为什么是这些权利，否则我们的思考无法前进。而固有权利的内容和根源，在本质上是一种个人见解。

In a democracy differences of opinion on what rights ought to exist are resolved politically through legislation but advocates of human rights have always been suspicious of majorities, which ultimately control democratic legislatures. The idea behind modern international human rights law is that certain fundamental rights should have a higher status than ordinary laws so that they cannot readily be dislodged politically, even with the authority of a democratic legislature. In principle, democracies can enact whatever rights they like. The object of human rights law is to ensure that they get certain rights, whether they like them or not. To achieve that, however, it is necessary to identify some other source of legitimacy for these rights apart, that is, from the wishes of the population. 

在民主制国家中，关于哪些权利必须存在的意见分歧是在立法过程中通过政治运作得到解决的。但是人权的倡导者总是不太相信那些最终掌握民主立法机构的多数派。现代国际人权法背后的思想是，某些基本权利应该比普通法地位更高，从而确保这些权利不会被政治运作轻易地剥夺，有权威的民主立法机关也不行。从原则上讲，只要愿意，民主国家应该可以制定任何法律；而人权法的目标却是，确保每个国家都拥有这些权利，不管他们喜不喜欢。为达到这一目的，就需要从民众意愿之外寻找合法性来源。

In a more religious age than ours this was perfectly straightforward. Rights were part of the moral law or deigned by God. In a totalitarian state it’s equally straightforward. Rights, so far as they exist at all, are ordained by the ruling group in accordance with its ideology. But in a secular democracy, what is it that makes rights legitimate if not the decision of representative bodies? What is the source, independent of popular endorsement, which enables us to identify some rights as so fundamental that they must not be removed or limited by political decision?

在比我们更宗教化的时代，这非常简单。权利要么是道德法的一部分，要么是上帝的意旨。在极权主义国家，事情同样简单，权利如果还存在的话，由统治集团根据其意识形态制定。但在世俗民主制中，如果没有代表机构的决定，是什么让权利具有合法性呢？在大众认可之外，还有什么样的来源能够让我们确定到底有哪些权利是如此基本，以至于不能通过政治运作决定更改或删除？

This is the city of David Hume, the great philosopher of the 18^th century Scottish Enlightenment.  He rejected the whole concept of natural law. It is always dangerous to paraphrase Hume but, essentially, he rejected it because you cannot derive moral principles from abstract reasoning or empirical observation. They derive their legitimacy from collective moral sentiment.

这里是18世纪启蒙运动的大哲学家大卫休谟的出生地。休谟从整体上拒绝自然法的概念。转述休谟是很危险的事情，但从实质上讲，他拒绝自然法因为道德原则不能从抽象推理和经验观察中导出。权利只能从集体道德情感中导出其合法性。

Rights do not exist in a vacuum. They are the creation of law which is a product of social organisation and is therefore, necessarily, a matter of political choice. So, when we speak of some rights as being inherent in our humanity, we are not really saying anything about the nature of humanity. We are making a personal moral judgment that some rights ought to exist because they are so fundamental to our values, and so widely accepted, as to be above legitimate political debate. 

权利不存在于真空之中。权利的法律的创造，而法律是社会组织的产物，因此权利必然政治选择的结果。因此，当我们说某些权利是人类的固有权利，我们并没有在谈论人类的属性，我们只是做出个人的道德判断：我们认为某些权力必须存在，因为他们对于我们的价值观至关重要，而且被广泛接受，以至于无需通过政治运作辩论其合法性。

Almost all of us believe that there are some rights in that category but the idea only works if the rights in question are truly fundamental and generally accepted. If there is room for reasonable people to disagree about them, then we need a political process to resolve that disagreement. In that case, they cannot be above legitimate political debate except in a totalitarian state. There are probably only two categories of right that are truly fundamental and generally accepted. 

几乎我们所有人都认为有些权利属于上述类别，但是，只有当所讨论的权利是真正的基本权利并被普遍接受时，才可以不必辩论其合法性。只要还有合理分歧的余地，就需要通过政治运作解决分歧。在这种情况下，如果不是在极权国家，那些权利就不能超越合法性的政治辩论。可能只有两类权利是真正基本并被普遍接受的。

First, there are rights which are fundamental because without them life is reduced to a crude contest in the deployment of force. So we have rights not to be arbitrarily detained, injured or killed. We have equality before the law and recourse to impartial and independent courts. Secondly, there are rights without which a community cannot function as a democracy, so there must at least be freedom of thought and expression, assembly and association, and the right to participate in fair and regular elections. Of course, democracies should confer many more rights than these but they should confer them by collective political choice and not because they are thought to be inherent in our humanity or derived from some higher law. 

首先，有一些权利属于基本权利，因为离开这些权利，生命就沦为暴力之下的残酷竞争。因此，我们有免遭任意拘留、伤害或杀害的权利；我们在法律面前享有被平等对待的权利，并有权诉诸公正独立的法院。

其次，另外一些权利之所以基本，是因为离开这些权利，社区的民主功能无从开展。因此，我们至少必须有自由思想和言论的权利，有自由集会和结社的权利，有参与公正定期选举的权利。

当然，民主国家的民众应该被赋予远多于此的权利，但这些更多的权利需要经过集体的政治选择赋予民众，而不是因为这些权利是人类固有的，或者从地位更高的法律中派生。

Today, the main source of human rights in Britain is an international treaty, the European Convention on Human Rights. It is a basic constitutional principle that international treaties have no effect on people’s legal rights or duties without an Act of parliament. In theory, this means that parliament always has the last word on the contents of our law, even when it originates in a treaty. There is, however, one category of treaties which largely escapes parliamentary control. I will call them “dynamic treaties”. A dynamic treaty is one which does not just say what our domestic law should be, it also provides a supranational mechanism for altering and developing it in future. 

今天，英国人权法律的主要来源是一项国际条约，即《欧洲人权公约》。一项基本的宪法原则是，未经议会通过，国际条约不会对民众的合法权利或义务产生影响。从理论上讲，这意味着议会总有法令内容上的最终决定权，即使法令来自国际条约。但是，有一类条约在很大程度上没有议会的控制，我们称之为“动态条约”。动态条约不仅说明国内法应该是什么样子，还为之后的修改和发展提供了超越国家的机制。

For those who believe that fundamental rights should exist independently of democratic choice, dynamic treaties have an obvious attraction. They create a source of law which is independent of democratic political choices. The European Convention on Human Rights is a classic dynamic treaty. The Human Rights Act 1998 empowers the British Courts to strike down any rule of common law, regulation or government decision which is found to be incompatible with the Human Rights Convention. Even an Act of parliament can be declared incompatible with the convention, which is a signal to parliament to repeal or amend it. 

对于认为基本权利应该独立于民主选择的人来说，动态条约具有明显的吸引力。它们创造了独立于民主选择的法律来源。《欧洲人权公约》是一部经典的动态条约。《1998年人权法》赋予英国法院废除普通法、政府法规和决定，只要发现它们与《人权公约》不符。甚至议会的立法行为也可以被宣布与该公约不符，而要求议会废除或修改立法。

Crucially, the Human Rights Act requires the British Courts to take account of rulings of the European Court of Human Rights, the International Court set up in Strasbourg to interpret the convention. In theory, the British Courts could reject decisions of the Strasbourg Court. In rare cases they do. Occasionally, Strasbourg modifies its position in response but defiance is really not an option if Strasbourg persists. That would put Britain in breach of international law, something which, by longstanding constitutional principle, the domestic courts should avoid if they possibly can.

至关重要的是，在斯特拉斯堡设立了欧洲人权法院，专门用来解释人权公约，而《人权法》要求英国法院考虑该国际人权法院的裁决。从理论上讲，英国法院可以拒绝斯特拉斯堡法院的裁决。在极少数情况下，他们会这么做。作为回应，斯特拉斯堡有时候会修改其立场，但如果斯特拉斯堡坚持的话，反抗其实并不是一个选项。反抗将使英国违反国际法，而根据长期形成的宪法原则，国内法院应该尽可能避免这种情况。

The Human Rights Convention was not originally designed as a dynamic treaty. It was drafted in the aftermath of the terrible history of the Third Reich and it was conceived as a partial statement of rights universally regarded as fundamental. No torture, no arbitrary killing, no imprisonment, freedom of thought and expression, due process of law and so on. It is the Strasbourg Court which has transformed it into a dynamic treaty. The doctrine of the Strasbourg Court is that the convention is what it calls “a living instrument”. The court develops it by a process of extrapolation or analogy so as to reflect its own view of what additional rights a modern democracy ought to have.

《人权公约》并不是一开始就设计成动态条约。公约在第三帝国的糟糕历史之后起草，设想对那些普遍接受的基本权利做一个不完整的声明。不允许酷刑，不允许任意杀戮，不得侵犯人身自由，思想和言论自由，正当法律程序等等。是斯特拉斯堡法院把它变成了一个动态条约。其背后的学说将人权公约视为“有生命力的工具”，法院可以通过类比和推广来发展它，以反映法院对现代民主应该具有的附加权利的看法。

Now, of course, the court wouldn’t need to do this if the additional rights were already there in the treaty. It only needs to resort to the living instrument doctrine in order to declare rights which are not in the treaty. Now it’s fair to say that some development of the text is unavoidable when applying an abstract statement of principle to concrete facts. In addition, some concepts in the convention, such as the notion of inhuman or degrading treatment, plainly do evolve over the time with changes in our collective values. But the Strasbourg Court has gone much further than that. Article 8 of the convention is probably the most striking example of this kind of mission creep. 

注意，如果这些附加的权利已经包含在条约中，那么法院当然无需再这么做。它只需要诉诸有生命力的文本原则就可以宣布条约中没有的权利。应该公平地说，将抽象原则应用于具体现实时，对条约文本进行一些改进是不可避免的。此外，公约中的某些概念，比如“不人道”和“人格侮辱”，其涵义确实会随着我们集体价值的变化而发展。但是斯特拉斯堡法院所做的蔓延扩展远过于此。公约第8条可能是这种蔓延的最引人注目的例子。

Article 8 protects the human right to private and family life, the privacy of the home and personal correspondence. It was designed as a protection against the surveillance state in totalitarian regimes. But the Strasbourg Court has developed it into what it calls a principle of personal autonomy. Acting on this principle, it has extended Article 8 so that it potentially covers anything that intrudes upon a person’s autonomy unless the Court considers it to be justified.

第8条保护个人和家庭生活权利，包括家庭隐私和个人通信隐私。它被设计用来保护极权政权下免受监控的侵害。但是斯特拉斯堡法院将其发展为所谓个人自治原则。根据这一原则，第8条的范围被扩展到可能涵盖任何对个人自治的侵犯，除非有法院为此侵害提供合理性。

Now, it will be obvious that most laws seek, to some degree, to intrude on personal autonomy. They impose standards of behaviour which would not necessarily be accepted voluntarily. This may be illustrated by the vast range of issues which the Strasbourg Court has held to be covered by Article 8. They include the legal status of illegitimate children, immigration and deportation, extradition, criminal sentencing, the recording of crime, abortion, artificial insemination, homosexuality and same sex unions, child abduction, the policing of public demonstrations, employment and social security rights, environmental and planning law, noise abatement, eviction for non-payment of rent and a great deal else besides. All of these things have been held to be encompassed in the protection of private and family life.

但是，很明显，绝大多数法律都在某种程度上试图侵犯个人自主权，因为法律会把那些不一定会被主动接受的行为规范强加于人。斯特拉斯堡认为第8条所涉及的范围之广，恰好可以说明这一点。这些问题包括非婚生子女的法律地位，移民与驱逐，引渡，刑事裁决，犯罪记录，堕胎，人工授精，同性恋与同性婚姻，儿童绑架，公开游行的秩序维持，就业和社会保障，环境与规划，噪音减少，欠租房客的驱逐和其它种种事务，所有这些都被认为包含在对私人和家庭生活的保障中。

None of them is to be found in the language of the convention. None of them is a natural implication from its terms. None of them has been agreed by the signatory states. They are all extensions of the text which rest on the sole authority of the Judges of the Strasbourg Court. This is, in reality, a form of non-consensual legislation.

而所有这些都无法在公约的原文中找到，也都不是公约的自然暗含意思，签约国也从未同意过这些。这些都是对原条约的拓展，而只有斯特拉斯堡法院的法官有权进行这样的拓展。本质上，这是一种未经许可的立法行为。

Now, I’m not complacent about our human rights record in the United Kingdom. We have a strong libertarian tradition but we have done some things which are contrary to our own traditions and morally and politically indefensible. In my lifetime, parliament has twice responded to political violence by authorising internment without trial in peacetime. So I have no problem with the idea of an international court to act as an external check. But most of the rights which the Strasbourg Court has added to our law are quite unsuitable for inclusion in any human rights instrument. They are contentious and they are very far from fundamental. 

当然，我并不为英国的人权纪录感到自满。虽然我们拥有强大的自由主义传统，但我们也做了一些违背我们自己传统，并且在道义和政治上都无法辩护的事情。在我的一生中，为了应对政治暴力，国会两次在和平时期批准未经审判的拘禁。因此，对于由国际法院对我们的人权进行外部核查的想法我不持异议。但是斯特拉斯堡法院给我们增加的大多数权利非常不适合纳入任何人权法律文本。他们存在争议，同时谈不上基本。

This has transformed the convention from an expression of noble values, almost universally shared, into something meaner. It has become a template against which to assess most aspects of the ordinary domestic legal order, including some highly disputable ones, and the result has been to devalue the whole notion of universal human rights. Many people will feel that some, at least, of the additional rights invented by the Strasbourg Court ought to exist. I think so myself. But the real question is whether the decision to create them ought to be made by judges. 

这种做法把公约从几乎被普遍接受的崇高价值观的表达，变成了某种平庸的东西。公约变成了评估国内法律秩序的方方面面（包括一些极富争议的方面）的模板，其结果是整体贬低了普遍人权的概念。许多人会认为，在斯特拉斯堡法院所发明的权利中，至少某些是确实应该有的。我也这么认为。但真正的问题在于，是不是应该由一群法官来决定这些权利的创设？

Judges exist to apply the law. It is the business of citizens and their representatives to decide what the law ought to be. Many of the issues thrown up by the convention are not even issues between the state and the individual. They are really issues between different groups of citizens. This applies particularly to major social or moral issues, such as abortion, fetal tissue research or medically assisted suicide, about which opinion is often deeply divided.

法官是用来执行法律的。法律内容的确定是公民及其代表的责任所在。公约引发的许多问题甚至不是国家和个体之间的问题，而是不同公民群体之间的问题，尤其是在重大的社会和道德问题上，比如堕胎，胎儿组织研究，医学辅助自杀。在这些问题上通常人们的意见分歧很大。

In a democracy, the appropriate way of resolving such disagreements is through the political process. If I say that we should recognise a human right, in appropriate cases, not to be evicted from a council house for non-payment of rent and you say that somebody who hasn’t performed his side of the bargain should have no such right, then the only alternative to a political resolution of our difference is to invite the judges to legislate. The main problem about human rights law is that it does this too readily. It transforms controversial political issues into questions of law for the Courts. In this way it takes critical decisionmaking powers out of the political process. Since that process is the only method by which the population at large is able to engage, however indirectly, in the shaping of law, this is, I think, a problem. 

在民主国家中，解决此类分歧的正当方法是政治运作。如果我认为我们应该确认一项人权，允许欠租的房客在适当的情况下免遭市政厅驱逐，而你认为没有履行自己租金义务的人当然不应该享有这种权利。在政治运作之外，解决分歧的唯一办法就是请法官立法。人权法的主要问题就是，我们太轻易地请法官立法了。这种做法将有争议的政治问题转化为法院的法律问题，就把关键的决策权从政治运作中拿走了。考虑到政治运作是可以让整个民众能够参与法律制定的唯一方法，无论其参与如何间接。因此，我认为这种做法是有问题的。

If we are going to deal with fundamental human rights in a way which has radical implications of this sort, then we need to have a very clear idea of what a fundamental human right really is. In particular, we have to distinguish a fundamental human right from something which is merely a good idea. It is often pointed out that parliament has authorised this way of making law by passing the Human Rights Act and, of course, so it has. What is more, in 1998 when it did this the expansive tendencies of the Strasbourg Court were already apparent but not everything that a democratic parliament does is consistent with a democratic constitution. Parliament could abolish elections. It could ban opposition parties. It could forbid criticism of official policy. It could transfer its powers to a dictator, as the German parliament did in 1933 and the French one in 1940. 

如果我们打算采取这种在根本上不同的思路来对待基本人权，那就需要对基本人权有一个非常清晰的认识。尤其是，必须将基本人权与锦上添花的好主意区分开来。人们经常说，但是议会不是已经通过了人权法，这就是议会授权了这种立法方式啊。事实的确如此。不仅如此，在1998年通过人权法的时候，斯特拉斯堡法院的扩张趋势已经显而易见了。但是，并不是民主议会通过的一切都符合民主宪法。议会可以废除选举，可以禁止反对党，可以禁止批评官方政策，甚至可以像1933年德国议会和1940年法国议会所作的那样，将权力完全移交给独裁者。

Decisions of this kind would have the authority of a democratic parliament but they would hardly be democratic. So, the fact that parliament has incorporated the convention into our law does not relieve us from the need to look at its implications for the working of our democracy. The problem can be most clearly seen in decisions about qualified convention rights. Most convention rights are qualified. They are subject to exceptions for cases where an interference with the right in question is judged, as the phrase goes, to be necessary in a democratic society for some legitimate purpose. 

这种立法决定具有民主议会的权威，本身却不见得民主。因此，议会已经将公约纳入我们的法律这一事实不能使我们放弃关注公约如何影响我们的民主机制。从限定性公约权利的判定可以最清楚地看到问题。大多数公约权利是限定性的。在民主社会，限定性公约权利在遇到干涉时需要做出例外安排，如果干涉被认定来自合法目的而且是必要的。

According to the convention, legitimate purposes include the prevention of crime, the protection of public health or the economic wellbeing of society. If a national measure interferes with a protected right, the Courts ask whether the interference has a legitimate purpose and, if so, whether that purpose is important enough to justify the interference in question. Ultimately, as the Appellate Committee of the House of Lords held in 2007, the convention requires them to strike a fair balance between the rights of the individual and the interests of the community. 

根据公约，合法目的包括犯罪预防，公共健康和社会福祉保护。如果一项国家措施干涉了一项受保护的限定性权利，法院将询问该干涉是否具有合法目的，如果存在合法目的，再判断此目的是否足够重要以证明干涉是合理的。最终，如2007年上议院上诉委员会所坚持的那样，该公约要求他们在个人权利与社区利益之间取得平衡。

In the Courts, most arguments about human rights are not about the existence of the rights but about the scope of these exceptions and qualifications. The Strasbourg Court tends to give a wide scope to the rights protected by the convention, as we have seen with Article 8. It does this precisely in order to enable more and more legislative and governmental measures to be justified in Court. This poses, in an acute form, the role of judges in a democracy. Who is to decide what is necessary in a democratic society, or what purposes are legitimate, or what the prevention of crime, or public health, or the economic wellbeing of society requires, or what is a fair balance between the individual and the community? These are all intensely political questions. Yet, the convention reclassifies them as questions of law, thus reforming them from the realm of democratic decision making and referring them instead to national and international courts. 

在法院，大多数争论无关权利存在与否，而是关于例外和限制的范围。正如我们在第8条所看到的，斯特拉斯堡法院倾向于对公约所保护的权利给予广泛的范围。其目的正是为了让需要在法院进行论证的立法和政府措施越来越多。这就引出了民主社会中法官角色的尖锐问题。在民主社会中，谁来决定怎么才算必要，哪些目的合法，预防犯罪、公共卫生和社会经济需要什么，个人权利和社区利益的平衡点又在哪里？这些都是强烈的政治问题，而公约将他们重新归类为法律问题，从而将他们从民主决策领域改造，转交给国内和国际法院。

Our domestic courts have occasionally expressed surprise and dismay at decisions emanating from Strasbourg, but their own legislative instincts are at least as strong. Five years ago the Supreme Court had to deal with one of the most sensitive and controversial moral issues of our time, assisted suicide for terminally ill patients. Our society is divided about this. What is life worth when one’s ability to enjoy it has gone? What do we say about human autonomy? Does it entitle an individual to assistance in killing himself always or only sometimes? Are these just questions for the patient or does society have an interest of its own?

我们的国内法院偶尔对斯特拉斯堡的判决表示惊讶和沮丧，但他们自己的立法本能至少同样强大。五年前最高法院需要处理为绝症患者提供自杀协助的案例，这是我们这个时代最敏感最具争议的道德问题之一。我们的社会对此有分歧。如果失去了享受生活的能力，生活的意义是什么？关于个人自治又怎么说？个人自治意味着人总是有权自杀还是只有在某些情况下可以自杀？这些问题只需要考虑患者还是还有社会整体利益需要考虑？

The Strasbourg Court had previously held that the whole issue was culturally and politically too sensitive to permit of a single pan-European answer. Each convention state would therefore have to decide it in accordance with its own values. The essential question for the Supreme Court was who should give Britain’s answer, parliament or the courts? Parliament had already given Britain’s answer. The Suicide Act 1961 says that assisting somebody to kill himself is a crime. Over the years, parliament has considered proposals to change the law but has always decided against it. Yet, five of the nine judges who sat on this appeal thought that the question was ultimately one for the courts. Two of the five would have declared the Suicide Act to be incompatible with the convention. The other three decided not to do that but only because it would be premature until after parliament had had an opportunity to consider the matter. One of the three even threatened that unless this was satisfactorily addressed, the courts would do it for them.

斯特拉斯堡法院先前持有的立场是，整个问题在文化和政治上过于敏感，无法给出一个泛欧洲单一回答。因此，每个签约国都必须根据自己的价值观来决定如何回答。对于最高法院而言，最终的问题是，应该由谁来给出英国的答案，议会还是法院？议会早已给出了英国的答案。自杀法案1961规定，协助他人自杀是犯罪。多年来，议会考虑过不同的修改建议，但都不能获得通过。然而，在参与上诉判决的九名法官中，有五人认为该问题最终该由法院回答。其中两人会宣布自杀法案与人权公约冲突，另外三人决定不这么做，但仅仅是因为在议会重新审议此事之前这么做为时过早。三人中的一人甚至威胁说，如果议会不能圆满处理此事，法院就应该代劳。

Now, if that threat meant anything, it meant that the courts should be prepared to exercise legislative powers in place of the legislature. I am not alone in questioning the constitutional proprietary of all of this. The meaning of the Suicide Act is a question of law. The question whether the Suicide Act is a good thing is not a question of law, it’s a question of moral and political opinion. I was one of the minority who considered that this was entirely a matter for parliament. I thought that on such an issue as this, my own opinion had no greater weight, by virtue of my judicial office, than that of any other citizen. I still think that. 

如果说这种威胁意味着什么，它意味着法院应该随时准备代替立法机关行使立法权。不止我一个人质疑这些说法的合宪性的。自杀法案的具体含义是一个法律问题，而自杀法案是否应该被保留就不是一个法律问题，而是一个道德和政治意见问题。我是认为此事该完全交由议会处置的少数人之一。我认为在这样的问题上我的意见不能因为我的司法职务，而比其他任何公民的意见更重要。我现在仍然这么认为。

The implicit message of cases like this is that even in a democracy such issues are not in the last analysis to be left to the general body of citizens. Certainly the views of parliament are a factor but how much attention the courts should pay to them is a matter of judicial value judgment. From time to time the Strasbourg Court has said this out loud. It has twice held that the statutory rule in Britain that serving prisoners cannot vote is incompatible with the convention. What was interesting about these decisions was the way in which the Strasbourg Court dealt with the fact that parliament had approved this rule. 

这些事例暗含如下启示，即使在民主国家中，这一类问题也没有最终留给公民整体去探讨。议会的看法当然是很重要的因素，但是法院应该多关注这些案例，则纯粹是一个司法价值判断。斯特拉斯堡法院不时大声说出这一点。它两次坚称，在英国服刑囚犯不能投票的法规不合人权公约。在这两次判断中，令人感兴趣的是斯特拉斯堡法院对议会已然批准该法规这一事实的处理方式。

In its first decision in 2005 Strasbourg said that parliament cannot have thought properly about the human rights implications. In its second decision in 2008 it couldn’t say that because the House of Commons had by then debated the 2005 decision and reaffirmed its original view. So Strasbourg simply said, “Well, it was a question of law and not one for parliament at all.” There is an obvious irony in the Strasbourg Court’s rejection of parliamentary authority in the name of democracy and yet, that irony brings us close to the heart of the present issue.

在2005年斯特拉斯堡做出第一个判断时，它称议会（在批准法规时）肯定没有对人权问题进行适当考虑。在2008年第二次决定时，斯特拉斯堡不能再这样说了，因为自2005年以来，议会已经对2005年的情况进行了辩论并重申了其最初的观点。因此斯特拉斯堡只是说，“嗯，这是一个法律问题，跟议会没有关系。”斯特拉斯堡以民主之名否定议会的权威显然很讽刺。然而，正是这讽刺之处是我们接近当前问题的核心。

What we are seeing here are two rival conceptions of democracy. One is that democracy is a constitutional mechanism for arriving at collective decisions and accommodating dissent. The other is that it is a system of values. After the end of the Second World War the democratic label was claimed by the autocratic communist states more or less forcibly established by the Soviet Union in Eastern Europe, such as the German Democratic Republic. What they meant by democracy was a value-based system in which communism was treated as inherently democratic, although not chosen or necessarily supported by the people or even open to meaningful discussion among them. 

我们在这里看到的，时两种对立的民主概念。一种认为民主是一种容纳异议，达成集体决定的宪政机制。另一种认为民主时一个价值体系。二战结束后，民主标签被那些由苏联半强制建立的东欧国家争抢，比如德意志民主共和国。这里的民主就是一种价值观体系，在其中共产主义被认为是天然民主的，尽管它未经选择也未必得到支持，甚至不允许对此进行任何有意义的讨论。

The values of the Strasbourg Court are, of course, very different from those of the post-war dictatorships of Eastern Europe but they do have this much in common. They both employ the concept of democracy as a generalised term of approval for a set of political values. The choice of elected representatives are, on that view, only legitimate within the limits allowed by these values. Democracy is a word with strong emotional resonance. Everyone wants to appropriate it as a label for their own preferred positions. So we distort the language, not in order to deceive, but to avoid confronting awkward dilemmas. This is not just a question of vocabulary. 

当然，斯特拉斯堡法院的价值观与东欧战后的独裁国家价值观大不相同，但两者的确有共同点。他们都将民主的概念视为对一些列政治价值观的普遍认可。据此，民选代表的选择仅在这些价值观所允许的范围内才是合法的。民主是一个容易引发强烈情感共鸣的词，每个人都想把它抢过来在喜欢的地方贴上这个标签，因此，我们扭曲了语言，不是为了欺骗，而是为了避免窘迫的道德困境。这不仅仅是词汇问题。

Democracy, in its traditional sense, is a fragile construct. It is extremely vulnerable to the idea that one’s own values are so obviously urgent and right that the means by which one gets them adopted don’t matter. That is one reason why it exists in only a minority of states. Even in those states it is of relatively recent origin and its basic premises are under challenge by the advocates of various value-based systems. One of these is a system of lawbased decision making which would entrench a broad range of liberal principles as the constitutional basis of the state. Democratic choice would be impotent to remove or limit them without the authority of courts of law. 

民主在传统上就是一个脆弱的建构。对个体而言，每个人自己的价值观显然如此正确而紧迫，采用什么方法使这种价值观得到采纳就无关紧要了。民主对这种观念毫无抵抗力。这也是为什么只有少数国家实现了民主。即使在这些国家，民主的起源也比较晚，而其基本前提仍然受到挑战——来自于认为民主应该基于各种价值观的人的挑战。其中之一就是基于法律的决策系统，它将确立广泛的自由主义原则，作为国家的宪政基础。这些原则非经法院授权，民主抉择无权消除或限制。

Now, this is a model in which many lawyers ardently believe. The essential objection to it is that it is conceptually no different from the claim of communism, fascism, monarchism, Catholicism, Islamism and all the other great isms that have historically claimed a monopoly of legitimate political discourse on the ground that its advocates considered themselves to be obviously right. But other models are possible. One can believe in rights without wanting to remove them from the democratic arena by placing them under the exclusive jurisdiction of a priestly caste of judges. One can believe that one’s fellow citizens ought to choose liberal values without wanting to impose them.

这正是很多律师所热衷相信的模型。对此的核心反对意见是，其观念与共产主义，法西斯主义，君主主义，天主教主义，伊斯兰主义和历史上那些因为拥护者认为他们显然正确，因此理应垄断关于合法性的政治论述的种种主义并无不同。但是其他模型是完全可能的。人们完全可以相信权利而不必将权利从民主场所移走，置于神圣法官的专属管辖之下。人们完全可以相信自己的同胞一定会选择自由价值观而不待强加。

In the next lecture in this series I want to turn to the experience of the country which has confronted these dilemmas for longer than any other democracy, namely the United States of America. Thank you. 

在下一篇演讲中，我想谈谈美国的经验。相比其它任何民主国家，美国面对上述种种两难境地的时间更长。谢谢！

(AUDIENCE APPLAUSE)

（听众掌声）

ANITA ANAND: Jonathan, thank you very much. Clearly there are failings in the ECHR in your mind. Would you go as far as say, “Right, we should leave. Pack our bags, we’re off.”

 Jonathan，非常感谢！在你看来，ECHR显然有很多问题。那你会不会因此觉得，“好了，我们应该离开ECHR。打好包裹，我们走了。”

JONATHAN SUMPTION: I think a much better solution would be a change of heart among both the domestic judiciary and the Strasbourg judiciary about how far it is legitimate to go in differing from democratic institutions. So, that is the solution that I would like to see, and there are some signs that this may be beginning but, ultimately, if there is no significant change, yes, I would withdraw from the Human Rights Convention. I hope that won’t be necessary.

 我认为一个更好的方案是，国内和斯特拉斯堡司法都能改变想法——与国内民主机制不一致有多么正当？这才是我希望看到的结果，也有一些迹象表明变化已经开始。但是最终，如果没有显著变化，是的，我会退出人权公约。我希望不必走到那一步。

ANITA ANAND: Okay, but what – what is the thing that would push you over the line?

 明白了。但是，发生什么事情会让你超过容忍限度呢？

JONATHAN SUMPTION: I can’t say what would happen in future that might persuade me that we should leave, I’ve given a general description, but it isn’t true that there are established positions. Judges, whether in Strasbourg or here, do not usually dig trenches around their positions. They are sensitive to mood, they are sensitive to values. I think that there has been a noticeable change of approach in some Strasbourg decisions in the last five or six years. I also think that there are indications that a younger generation of judges is less enthusiastic about the new toy placed in their hands by the Human Rights Act than some of those who were already judges when it was enacted.

 我没法说具体发生什么会使我相信我们必须离开，我已经给出了一般性的描述。但是，这里并没有固定不变的立场。无论是国内还是斯特拉斯堡的法官们，通常不会固化其立场。他们对于氛围和价值变化是有感知的。我认为，在过去五六年，斯特拉斯堡的某些决策方法已经有了明显变化。我还认为，有迹象表明年轻一代的法官对于人权法案给与他们的新玩具不再像一些在法案通过时已经是法官的人那么热心了。

ANITA ANAND: So – so even with the backdrop of Brexit, as we are seeing it unfurl around us and some of the intransigencies that that has – has laid bare, you are still helpful that there will be, at least, give in this monumental decision about human rights?

 所以，即使在脱欧背景下，

JONATHAN SUMPTION: The intransigencies that you refer to about Brexit have not come from judges. 

ANITA ANAND: Let’s take some questions from the floor. Can we get… one over here?

CATHERINE SMITH: Thank you. Catherine Smith, Chair of the John Smith Centre which promotes trust in politics and public service. You suggest we need a political process rather than the courts to resolve human rights issues that are not truly fundamental. If that were to happen, would we not need a different type of discourse from and between our politicians to allow the very real tensions that you describe between individuals’ rights and those of society to be properly weighed in the way that the courts currently do? And separately from that kind of capability question, I wondered who you thought the public would trust more to make these careful judgments, politicians or judges?

JONATHAN SUMPTION: Well, do we need a different kind of political forum to address them? I don’t think so. What is quite striking is that some of the most impressive and informative debates that have happened within our lifetimes in the House of Commons have been directed to just such an issue. For example, the abortion debates surrounding the 1967 Abortion Act were very remarkable in the extent to which MPs debated in an informed and enlightened way the issues involved, and I think that that was one reason why in this country, as in most of Europe, abortion has now become relatively uncontroversial, whereas in the United States, where it was a matter of judicial decision, it remains extremely controversial. Partly, I think, because the decision there was made in a way which marginalised the contribution of the electorate at large. 

As to which the public would trust? There’s no doubt that the public generally, at the moment, are saying in all the polls that politicians are somewhere down the bottom of their trust list and judges somewhere up the top. I think the problem about this is that when presented with a judicial decision, the great majority of people tend to ask themselves, “Do I like the result?” rather than, “Is this a way that we ought to be making decisions?” and the reason that that’s a problem is that if you have a method of making decisions which consigns to irrelevance the views of the public at large, you may get a result next time round where you don’t like the result and don’t like the method either.

ALAN PATERSON: My name is Alan Paterson. I’m a Professor of Law,Strathclyde University. The standard answer to judicial accountability over human rights is, well, parliament enacted the Human Rights Act but you’ve kind of taken the ground from under their feet by saying, “Yes, but a democratic parliament can behave in an undemocratic way”… 

JONATHAN SUMPTION: The Human Rights Act is a sufficient explanation of why the courts review governmental and legislative decisions in the way they do and the jurisdiction of the Strasbourg Court, which the Human Rights Act requires them to have regard to, is a sufficient explanation of most of the decisions which I would criticise as going too far. But it is one thing to say that these decisions of the courts are in accordance with the law. It’s another thing to say that they are legitimate. A large part of the theme of all of these lectures has been to examine the concept of what makes law legitimate and my complaint is not that there is a breach of the statute, my complaint is that this is not legitimate.

ANITA ANAND: So you are saying categorically these are not legitimate?

JONATHAN SUMPTION: I think that some decisions go beyond what is legitimate in a democracy.

FIONA GARWOOD: I’m Fiona Garwood, I’m not a lawyer but I’m interested to know what you think about – you mentioned the rights of access to the courts and how that’s reconciled with the restrictions and limitations now in legal aid for people to use that right to access the courts?

JONATHAN SUMPTION: The Strasbourg Court has never held that there is, as part of the right of access to the courts, a right to legal aid. But, if you ask me from my own view about that, in criminal cases a more generous attitude to legal aid is absolutely indispensable. If the state, with its great armoury of lawyers and money, has set itself against the citizen who is accused of a crime, I think that the citizen is entitled to legal aid and I think that the recent changes in the legal aid regime under which if you are acquitted you cannot recover more than a very modest part of your costs are, frankly, disgraceful. 

As to civil legal aid, I would take a rather different view. There are some areas in which litigation is a wholly involuntary process. A lot of matrimonial breakup, for example, where I would apply a similar principle to the one which I think should apply in criminal law, but in many others I would say that the state does not have a moral, and should not have a legal obligation to fund litigation.

DREW WALDY: Hello. My name’s Drew Waldy. I’m just your basic man in the street. The young girl who went to Syria, who’s been on the news, do you think that her basic human rights have changed during this episode, should they have changed during this episode and, if so, at which point did they change?

JONATHAN SUMPTION: Well, when you say “changed during this episode,” do I think that her human rights have changed as a result of her being deprived of British citizenship?

ANITA ANAND: You’re talking about Shamima Begum here?

DREW WALDY: It’s just the media would portray her as having no rights whatsoever—–

JONATHAN SUMPTION: Well, I doubt that that’s right.

DREW WALDY: —–based on the decision that she’s making so I’m not sure—–

JONATHAN SUMPTION: I don’t think that human rights is actually – has any direct bearing on her situation, either before or after she was deprived of her citizenship. Essentially, the deprivation of her citizenship, the legality of that is going to depend on whether she had Bangladeshi citizenship because if she didn’t, then the government was not entitled to deprive her of British citizenship, thereby rendering her stateless. If she was lawfully deprived of her British citizenship, then she has no right to come here. The Human Rights Act would not help her. It might have helped her if she was resident in this country because the right to deport her would have engaged her Article 8 rights but she’s not in this country and it’s very difficult to see that Article 8 is going to help her where she is. I’m frankly surprised at the suggestion that she could be regarded as the citizen of a country with which she has never had anything to do but that’s the government’s position and I have no doubt that it will be tested in the courts in due course.

ANITA ANAND: Can – but just on – on the, sort of, the kernel of the question there, if somebody chooses to go to a state that is waging war against your country, do they, should they, ought they to lose their standing when it comes to human rights?

JONATHAN SUMPTION: Well, what they lose is their citizenship. That doesn’t necessarily deprive them of their standing when it comes to human rights. I have no problem about the notion of depriving people of their citizenship who have gone abroad to fight in foreign wars save this: it is an established principle of international law that you cannot deprive somebody of his – his or her citizenship if the result would be to render them stateless, and whatever they may have done, in Syria or anywhere else, that rule has always been applied and I have no doubt will be applied in this case.

ANITA ANAND: And should be.

JONATHAN SUMPTION: And should be, yeah, absolutely.

ANITA ANAND: I mean, the thing – the wonderful thing about – should be. Okay, I just wanted to know where you were coming from.

JONATHAN SUMPTION: Yes, absolutely.

ANITA ANAND: Okay. Seems like an excellent place to leave it. Thank you all very much indeed. We’re going to have to end it there. 

Next time we’re going to be in Washington DC where Jonathan will be defending Britain’s unwritten constitution but for now, a big thanks to our hosts here at Parliament House in Edinburgh, to our audience and to Jonathan Sumption, the BBC’s Reith Lecturer.

(AUDIENCE APPLAUSE)