Thus far, I have reviewed the first six chapters of Rule of Law by Tom Bingham and have identified a host of problems–logical fallacies, omissions, and blind spots–with Judge Bingham’s work. The next chapter, Chapter 7, which is devoted to “human rights” and which forms the longest part of Bingham’s book, will be no exception. Judge Bingham begins this chapter by stating that “the law must afford adequate protection of fundamental human rights”, while the rest of this chapter then surveys a series of such rights, but there are three fatal flaws with Bingham’s analysis.
The first is “the level of generality” problem, a complication that often bedevils legal reasoning (see here, for example). No one is opposed to “fundamental human rights”, but what counts as a human right and how should such rights be defined? By way of example, do fundamental human rights include a right to housing, or a right to health care, or a right to a universal basic income? And if so, who will be required to pay for the provision of these rights, and how much income or what level of housing or health care must be provided to all?
The next problem, however, is even more fundamental (pun intended!). Even if we could agree on what rights counts as “fundamental human rights”, what happens when these rights come into conflict with each other. Consider, for example, the right to life and the right to liberty, two of the fundamental rights on Bingham’s laundry list of human rights. What happens when the right to liberty conflicts with the right to life? Doesn’t a woman’s right to choose an abortion violate the right to life of unborn children? Or vice versa, doesn’t an unborn child’s right to life interfere with abortion rights? Either way, which right should prevail?
But the biggest problem with Bingham’s analysis of human rights is that our erudite author makes no mention of the natural law tradition, which might be able to help us address the first two problems described above. For my part, instead of having to trudge through Bingham’s rather pedestrian survey of human rights, I would have preferred a survey of, say, the Hart-Fuller debate or an in-depth discussion of “The Grudge Informer Case” from post-WWII Germany (see, here, for example). Next time, I will assign my students the 1/2 hour video below instead of Bingham’s laundry list of human rights:
prior probability 
Excellent video, I will look out for more of her content.
The debate between natural laws and legal positivism is a difficult one. Both can easily be abused in the absence of institutional constraints (preferably informal ones).
While difference to common law and natural law is appealing ( as a libertarian ) , nothing is worse than “..law from the bench..”. I remember listening to a Fedsoc Teleforum podcast a few years ago and one of the participants said “.. I certainly don’t want a philosopher-King on the bench..”. A sentiment I have a lot of sympathy for!!!
I could easily see either being used to achieve unjust ends.
Also, I don’t believe that the American legal system or any legal system for that matter; fully fulfills Fuller’s eight principles. The criteria of clarity alone is nearly impossible to achieve. How statutes and case law interact with legal procedures, application, and adjudication is a muddy process. Law i the form of codified statutes and legal doctrines are analogous to static economic models. They appear to be clear and concise on paper, but this doesn’t hold true in practice.
Excellent observations. Judges are at their best when they are resolving private disputes (e.g. the common law); judges are at their worst when they are deciding political cases (e.g. constitutional “law”).
That makes sense, most constitutional matters are politicized.