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THE LANGUAGE OF RIGHTS AND EUROPEAN INTEGRATION
Gráinne de Búrca
(Forthcoming in G. More and J. Shaw, Eds., New Legal Dynamics of European Union, Oxford University Press 1996).
- Introduction:
Dissatisfaction with the concept of rights, and in particular the critique which has been developed over the last few decades, has not had much effect on the debate about the role of rights in European Community law. This critique of rights emerged largely within the Critical Legal Studies Movement, but has been developed also by feminist, communitarian and postmodernist writers, amongst others (Kennedy, 1979; Hutchinson and Monahan, 1984; Perry, 1984; Tushnet, 1984; Olsen, 1984; Smart, 1989; Kingdom, 1991; Faraday, 1994; Gaete, 1993). One explanation for its absence in EC law is that the lack of critique is not something which is peculiar to the topic of rights within Community law, since, as has been pointed out by various commentators, there has been in the past a notable absence of genuinely "critical" approaches in Community legal scholarship, and little critical scrutiny of the Community project as a whole (Snyder, 1990: Chap. 1; Weiler, 1993: 430-433; Ward, 1994).
However, even accepting the broader context of European Community legal scholarship, it is arguable that the reason why the familiar critique of "rights talk" has not been seriously considered or applied in the context of Community law, is that the legal system established by the EC Treaties in the 1950s was heavily market-driven, and that other moral or social considerations were, at best, of secondary or subsidiary relevance. In the face of the apparently overwhelmingly economic impetus of the Community, the language of fundamental rights offered the potential to articulate and to establish a place for other values.
Perhaps as a result, the emergence of the language of rights within the Community's judicial, legislative and institutional processes was widely welcomed by those commenting on Community law. Criticism has focused, on the whole, on matters such as the "space" given to rights issues being too small, or that legal developments in the area do not go far enough, that a written catalogue of rights is needed, that too few rights are being protected, or that the "wrong" rights are being protected (Weiler, 1986, 1987; Schermers, 1990; Clapham, 1990; Lenaerts, 1991; Coppel and O' Neill, 1992; Phelan, 1992). The deeper critique of rights referred to above, which has generally focused on the individualistic and adversarial nature of rights, and which maintains that rights discourse is empty rhetoric concealing both the exercise of power and the reality of disempowerment, has had little impact in the context of Community law.
What I propose to do here is to examine the language of rights as it appears within Community law, and to look at the varying contexts in which it is used, since different observations may be made about these different contexts. I will focus not only on the "fundamental rights" declared and constituted by the Court of Justice as part of the general principles of Community law, but on the language of rights more widely as used throughout the Community legal system, by the institutions in the legislative process, and in the application of Community law to the Member States. This will include not just those rights which have been declared by the Court to have fundamental or "constitutional" status, but also those rights which are created, conferred or declared by Community legislative and other measures. Indeed, the legislative rights which are created at Community level generally acquire a form of constitutional status at the national level where they take priority over national law. This also entails consideration of those areas of Community law in which the language of rights has, perhaps surprisingly, not figured very largely or at all.
What is particularly of interest is why the language of rights has come to be used so widely within these areas of Community law, and why it continues to be expanded and developed by the judicial and political institutions. Two partial explanations will be suggested, which focus on how that language is perceived as both a legitimating and an integrating force. Finally, I wish to consider what impact that language may have in reality, and whether a more critical or even sceptical approach is called for.
- Different contexts and categories of rights within Community law.
It is important to be specific about what is taken to be meant by rights in Community law, given that the vocabulary of rights is very fluid. Looking at some legislative instruments and at decisions of the ECJ, as well as some of the literature on Community law, it is clear that rights in EC law, and even "fundamental" rights in EC law, can mean many very different things. Set out below is a range of different contexts in which issues of rights have arisen in Community law, or rather at a range of different usages of the language of rights, and mention is also made of a number of areas in which this language has not yet been used. In separating out some of the different usages in this way, consideration of their actual impact, and of the extent to which they perform the suggested functions of legitimation and integration, may be made easier.
The categories are roughly drawn and clearly overlapping in part, but the division may nonetheless be useful for considering in a general way the function, scope and possible impact of these main groups of "rights" which are claimed to be protected within EC law. What is particularly of interest, for present purposes, is the fact that in these different contexts, the language of rights is used, or, in certain cases, that it is not used. The focus will be primarily on the use of that language, considering critically the possible reasons for its use, its meaning and its impact in the context of European integration.
(a) The first category includes economic, commercial and property rights, such as the right to trade, the right to use land and economic liberty. Examples of these in Community language are mostly to be found in the case law of the Court, in which they are deemed by the Court to be fundamental Community rights. They have arisen generally in the context of challenges to Community policy, such as Nold,1 Hauer,2 Internationale Handelsgesellschaft,3 or to Member State action which is implementing such policy e.g. Wachauf and Bostock.4 As in the case of the next two categories, these have been judicially consituted as EC rights, without necessarily having any other formal political or constitutional Community foundation, although the Court often claims to derive them from other national and international legal sources.
(b) The second category includes what might be called rights of defence, such as the privilege against self-incrimination, the right to a hearing, freedom from search and seizure, confidentiality of information and protection from excessive penalties. Like the first category, these rights have been claimed both against the Community and against the Member States. Claims to such protection as "fundamental rights" have most frequently been made by companies in the context of the exercise by the Commission of its investigative and other powers in competition proceedings: e.g. A.M. & S, Hoechst,6 Dow Benelux,7 Al-Jubail8 etc. Again, these have been declared in the case law of the Court of Justice to be fundamental rights. Such "rights of the defence" have also been invoked by individuals against Member States when those States are implementing or restricting Community rules, e.g. Pecastaing9 and Heylens.10 Recently in Gallagher,11 for example, the English Court of Appeal sought from the Court of Justice a preliminary ruling on whether certain of an individual's rights of the defence had adequately been satisfied in deportation proceedings.
(c) The third category includes traditional civil and political liberties, often drawn from the rights provisions of the European Convention on Human Rights such as human dignity, privacy, freedom of expression, the right to family life. The 1977 Joint Declaration on fundamental rights by the Community institutions,12 the preamble to the Single European Act and the Treaty on European Union, Article F of the Treaty on European Union and the frequent Court of Justice references to the European
in the context of such Association or Cooperation Agreements, even if the Court has taken a less restrictive approach than before to the express rights - e.g. to work and to reside - accorded by such agreements to these "non-Community" workers.
(ii) A second area from which the language of human or fundamental rights used within Community law has been noticeably absent is that of race, and of ethnic and minority rights. There have been various forms of "soft" law, such as declarations on racism and xenophobia, but as yet no developed Community policies on race which are backed up by law.26 The Commission has taken the view that express competence under the Treaty would be required before substantive measures could be introduced, since it stated in its 1994 White Paper on Social Policy that it intends to urge the adoption of special Treaty powers to combat racial discrimination.27 However, it does apparently intend to consult on the adoption of a Code of Employment Practice against racial discrimination, presumably similar to its Code against sexual harassment.28 Similarly the Court of Justice - which has had the most prominent role in deeming various rights to be part of Community law - has not used the language of fundamental rights in the context of race.
(iii) Reference to lesbian and gay rights has rarely been made, other than in an indirect way in the context of other Community legal issues: e.g. the right to privacy or human dignity which has been raised in certain staff cases concerning AIDS testing.30 Substantial arguments have been made to the effect that homosexuality and lesbianism are issues which fall within Community competence, and therefore that gay rights should be recognised and actively promoted within Community law - (Waaldijk and Clapham, 1993) (Tatchell, 1992:53) (Contrast Bamforth, 1995). The European Parliament, weakest amongst the institutions in terms of its legal powers, is the institution which uses the language of rights most widely, and it has done so in the context of gay rights too. In its Report on Equal Rights for Homosexuals and Lesbians in the European Community (A3-28/94), the European Parliament's Committee on Civil Liberties and Internal Affairs included a motion for a resolution on Equal Rights,31 including calling for the setting up of a European Institution to ensure equal treatment without reference to nationality, religion, colour, sex, sexual orientation or other differences. It also called on the Commission to present a draft Directive on combatting discrimination on the basis of sexual orientation.
(iv) The claims and interests of people with disabilities do not seem to have attained the same status of "fundamental rights" which are protected within Community law, although the Community has asserted competence in the field of disability. In the context of vocational training policy under Article 127 (previously 128) of the EC Treaty, the Council has established three action programmes for disabled people, the most recent - which refers in its preamble to the Community Charter of Fundamental Social Rights for Workers - having been adopted in 1993.32 However, although the Council adopted a recommendation in 1986 on the employment of disabled people in the Community, recommending the elimination of negative discrimination and suggesting certain positive action, a recommendation is a relatively weak form of Community soft law which, apart from its indirect interpretive effect, has not been not backed up by other measures binding on the Member States. Further, the Court of Justice has touched only indirectly on disability in its case law, principally in the context of social benefits for workers under Regulations 1612/68 and 1408/71. Indeed, one possible reading of the Court's ruling in the case of Bettray is that disabled people who are in rehabilitative sheltered employment, which is tailored to their needs rather than to the needs of the market, might not constitute "workers" within the meaning of Article 48 of the EC Treaty, and consequently would share none of the rights granted to workers under Community law.
(v) Other issues which have emerged as issues of importance within general human rights discourse have not acquired that status or been discussed in those terms in Community legal vocabulary and instruments, even where those issues fall within Community competence. An example is that of cultural and language rights, which are generally conceived of as group rights rather than individual rights. The language of "protection" rather than the language of rights has been used here - see for example the mention of protection for minority languages by the Court in Groener.35 Article 128 of the Treaty similarly refers to "respect" for regional diversity rather than the rights of regions;
Article 130R uses "protecting the quality of the environment" rather than the language of environmental rights, and Article 129 refers to "human health protection" rather than to rights.
The mention of "excluded categories" such as these is not necessarily an argument that they should be considered as fundamental rights within Community law. It is simply to note that these issues have not achieved the same status within Community law, either in legal instruments or in the language of the Court of Justice, as have the "Community rights" set out in the first five categories. Whether the Community's field of action should encompass an explicit programme of human rights protection in areas such as race, sexual orientation, disability, the environment or culture is another question altogether. The answer to that question depends on broader and more fundamental political and ideological questions about the reason for the Community's existence, what its legitimate aims are, what its role should be, and what the relationship between state or local powers and Community central powers should be. But it is worth noting that since the Community asserts competence in the field of human rights in areas such as those set out in the first five categories above, this raises questions about why other issues and areas which are more widely considered to be "human rights" concerns are not discussed in those terms within Community law and policy.
- Two explanations for the expansion of rights in Community law.
Consideration of the role of rights in Community law generally begins by examining how the terminology of rights, which was not to be found in the original three Treaties, was introduced into Community law. As a result, the focus of discussion is usually on the challenge to the supremacy of Community law which first came from the German legal system, in which constitutionally recognised rights were allegedly infringed by Community measures. However, the specific historical trigger for the emergence of a vocabulary of rights in Community law is only one part of the picture. It does not fully account for the continuance and expansion of the role of rights within Community law, and for the fact the judicial and the political institutions have increasingly brought the language of rights into their decision-making and formalised it in legal instruments. This expansion can be seen in the case law of the Court, in declarations and recommendations issued by the Council, the Parliament and the institutions jointly, in the preamble to the Single European Act and Article F of the common introductory provisions to the Treaty on European Union, as well as in the request by the European Council - acted on subsequently by the Council of Ministers - to refer the compatiblity of accession by the Community to the European Convention on Human Rights to the Court of Justice under Article
Bearing in mind the various usages of the language of rights in Community law set out in the categories above, two general reasons for the prevalence of the language of rights within Community legal discourse will now be considered. These two explanations relate to what may be seen as the legitimating force and the integrating force of that language.
(a) Legitimation.
In tracing the emergence of fundamental rights as a subject within Community law, it has been suggested that the failure in the early 1950's of the European Political Community, with its express adoption of the rights provisions of the European Convention on Human Rights, led to the pursuit instead of a less ambitious European project (Dauses, 1985). The explicit federalist approach of the early 1950s was replaced by a functionalist and subsequently a neo-functionalist approach, in other words by a more gradual sector-by-sector approach to European integration. In this way, the existing Coal and Steel Treaty was followed by the Atomic Energy Treaty and the expressly Economic Treaty in 1957.
Partly in keeping with the strategy of the neo-functionalist approach, a limited spill-over effect occurred so that, even without formal Treaty amendments, some expansion of the powers and competence of the Community into other areas followed. Community activity moved beyond specific
purpose...was to strengthen national unity by providing constitutional support to a new definition of Canadians as a rights-bearing citizenry regardless of location" (Cairns, 1992: 49). Although the comparison between the European Union and Canada clearly has its limits, given the differences between a single federal nation (albeit one with distinct cultural and linguistic traditions and under the perennial threat of disintegration) and the European Union, there are useful similarities to be observed in considering the role of rights in contributing to the creation of an identity across national or provincial barriers. The language of European "citizenship" has entered official Community vocabulary with the introduction by the Treaty on European Union of Articles 8-8e into the EC Treaty, and if the formal rights conferred on that citizenry are as yet extremely thin, its rhetoric may have considerable force.37 This formal incorporation into Community law of the language of citizenship, which is currently in vogue on account of its ability to capture the idea of the individual as part of a broader political community involving reciprocal rights and duties, was evidently a significant ideological move.
So the concept of human and fundamental rights may be seen to have the potential to give a moral grounding to a legal order which on its face was established principally to support the pursuit of economic goals, and also to forge an identity which could simultaneously (i) have a cross-national appeal to individuals and to groups within the Community and (ii) emphasise shared or common values already existing within the Member States.
This use of rights as an integrating tool can be seen both in the Court's stressing of the "common constitutional traditions" of the Member States, as well as in the adoption by the political institutions of this language in their declarations and by the Member States in later Treaties such as the Single European Act and the Treaty on European Union. The emphasis on shared or common values can be seen in the fact that many of the provisions and principles which are invoked are drawn from those agreements which all Member States have signed, such as the European Convention on Human Rights and the Council of Europe's European Social Charter. The European Parliament too - being the institution most vocal in its call for greater legitimation of the Community's legal and political system, especially since, as the democratically elected institution, an increase in parliamentary powers is likely to be a part of any such reform - frequently calls for accession to the E.C.H.R., and in 1989 adopted its own Declaration of Human Rights.
The use of the idea of common constitutional traditions has been variously described as a "comparative phenomonological approach" (Cappelletti, 1989, xiv) or a "ius gentium" approach (Barrington, 1992: 259), and it can be seen to have both a descriptive and a prescriptive function: it claims to draw on rights and principles which exist and which are recognised in constitutional traditions, and on the other hand it elevates these into general principles of Community law and in so doing, aims to forge a "common law" or perhaps a "common bill of rights" for the European Community and, in turn, for its Member States.
- Assessing the reality: the impact of the language of rights on European integration.
The themes of integration and legitimation are connected, in that the idea of fundamental rights is likely to have little success in contributing to the creation of a political allegiance and a sense of identity across the Community, unless it is seen to be of some real value. In considering whether the creation of a vocabulary of rights has in fact had a practical, beneficial impact within the Community, it is necessary to think about what it means to say that rights are protected. In a legal context, this generally means that instruments exist which declare that certain values are recognised by law as "rights" which are to be protected or advanced, with the result that those who feel aggrieved may pursue a claim through legal processes by relying upon the notional right. It would be difficult, if not impossible, to assess whether the lives of those whose rights are said to be protected is improved, but perhaps the important practical question in so far as Community law is concerned is whether the values which these fundamental rights purport to represent are actually reflected in the course and in the
results of the Community's political and judicial processes, and whether they prevail over other very different values (usually "market" values) which are also central to Community policy.
Given that the express concerns of the original three Treaties were largely economic, the enunciation of a broad range of fundamental rights within Community law, drawn from various constitutional sources and human rights treaties, certainly holds out the promise that the pursuit of economic and other powerful interests will not always prevail over other fundamental human concerns. But although this promise may create for the Community, as an aspiring political and international actor, a better ethical and constitutional profile, the success of the Community project depends not just upon its external and international stature, but upon a substantial degree of internal commitment from its participant states and populations. It is from this point of view that the integrating influence of the concept and language of fundamental rights is crucial.
One of the familiar claims of the developed critique of rights to which reference was made at the beginning of this paper, is that whilst the language of rights lends legitimacy to power and to law, it is purely rhetorical and has little real impact. The question which this claim raises in the Community context is whether the appeal to common Community fundamental rights is empty rhetoric with little substantive impact, so that rather than creating "an integrationist culture of rights" or "bestowing identity on Community citizens", its effect is negligible and may even be disintegrating. A related aspect of the critique is that whilst the rhetoric of rights may have symbolic force, such language often conceals the unfairness of the status quo. Further, it is argued that what purport to be universal rights may benefit principally the powerful rather than the disempowered. Whether these criticisms are borne out in the Community context cannot be precisely answered, but only in a broadly impressionistic manner. However, a general consideration of the issues arising from the various groups or categories of rights set out above might suggest some tentative answers.
(a) Rights as an integrating or a divisive force?
Consider, initially, the invocation of those rights categorised in the first three groups above, when claims are being made against the operation of Community policies. These groups included commercial and property rights, rights of the defence, and traditional substantive civil rights. The methodology used by the Court of Justice in the case of Hauer,40 in which reference was made to property rights derived from a comparative analysis of Member State constitutions and the E.C.H.R., shows the integrating potential of the language and the concepts used. The reference to "common constitutional traditions" emphasises the Member States as the source of these rights, and the reference to the E.C.H.R. and to other international agreements signed by all Member States in cases such as Nold,41 Handelsgesellschaft,42 Al-Jubail,43 and Dow Benelux,44 invokes an image of consensus and of shared values. Further, the context in which these concepts are being invoked is that of a challenge to Community action, with the result that Community policies appear to be required to conform to the rights and common traditions of the Member States. The same is particularly evident of the "rights of the defence" in group two, when pleaded against the actions of a powerful and unelected Commission. The use of the language of procedural rights and the derivation of these concepts from "the legal interpenetration of the Member States", to quote the terminology of the Court of Justice in A. M. & S,45 clearly expresses the ideal of integration. The context in which this ideal is expressed is attractive to the Member States and to the interests which are affected by Community law, since it appears to curb Community powers by reference to rights deriving from national sources.
When the same language of rights described in those three groups is used in the context of challenges to Member State action, on the other hand, the methodology becomes more problematic. In this context, the rhetorical appeal to common constitutional traditions may lose its force, if the State in question does not share the particular conception of the right in issue. Such problems have arisen in diluted form in situations like Pecastaing,46 in the German Housing47 case and in Wachauf48, in which the right in issue is not contested but there are some differences amongst States as to what its particular requirements in a specific context is. More serious tensions may arise where the flexibility of the language of rights used by the Court conceals very stark differences amongst Member States as to the concrete realisation of a constitutional right or principle "common to the Member States".
On a Durkheimian analysis of law, law exists largely as the expression or the visual symbol of an underlying organic social solidarity. Organic solidarity existed, in Durkheim's view, in a society which was interdependent and where the society shared the values reflected in the law (Durkheim, 1893). The process in the Community sometimes appears as the reverse, in which an attempt is being made to create solidarity through law, by declaring common principles and rights in the hope that these will influence the legal systems of the Member States as an integrating force. In creating by law the concept of European citizenship, it is hoped to encourage the people of one Member State to feel a sense of common cause with those in another state. Clearly, however, there may be a danger in the attempt to express and create uniform rights and values where there is diversity. Pahl has criticised the Community's concern with social cohesion, and has argued that its desire to ensure the same social rights across the Member States as a means to European integration is based on the assumption that social consensus is self-evidently a good thing, as well as "on the further assumption that such cohesion and consensus already exists at the nation state level" (Pahl, 1991: 358). However, it is possible that the Community's appeal to common values and to uniform rights does not necessarily assume or rely on the existence of cohesion at a national or local level, since the appeal of rights to specific groups (women, workers etc.) across national boundaries may have a certain integrating effect Community-wide without there being a consensus nation-wide on any given issue. Equally, for example, people living in Northern Ireland might seek to identify themselves through the idea of European citizenship as a way of transcending the conflict of national identities.
It is true that the exposure of national divisions and fractures does not necessarily undermine the overall degree of cohesiveness or commitment to a measure of integration within the European Community. Indeed it has been argued in the U.S. context that "the very act of summoning "community" through a language of rights may expose the divisions within the community ... rights then can be understood as a kind of language that reconfirms the difficult commitment to live together even as it enables the expression of conflicts and struggles" (Minow, 1990:309). However, despite the undoubted force of the economic interdependence of the European Community's Member States, the degree of political commitment to a European society - as compared with that within the United States, for example - remains rather weak. It may be that if too great a gulf opens up between the values expressed in Community law and policy and those which underpin the different cultural, legal and political systems of the different Member States, a crisis point may be reached and the "commitment" to a European society undermined.
(b) The social impact of rights.
Connected with this question of whether the Community's uses of the language of rights is more divisive than integrating is the question of the social impact of these uses. It has been suggested already that the themes of integration and legitimation are connected, in that rights discourse may lose some of its appeal if it is not seen to be of some benefit to those it purports to protect.
What is immediately apparent from considering some of the cases categorised above, is that rights in Community law are very often invoked not by individuals, but by corporate applicants and other powerful entities. This is certainly clear in the case of the rights classified in the first and second groups - economic and property rights and rights of the defence. These cases do not provide examples of the invocation of rights to protect the human interests of the disempowered. On the other hand, even though the language of rights was adopted in such cases by the Court of Justice, this did not often deliver the desired outcome, since the economic and property rights were said not to be absolute or unconditional (see Nold, Handelsgesellschaft and Hauer, above). This observation might reinforce one of the central claims of rights critics, which is that the invocation of rights tends to be of rhetorical value rather than of practical benefit. By contrast, however, in several of the cases involving rights of the defence, although these were generally pleaded on behalf of large companies suspected of engaging in anti-competitive practices, some of the Court's rulings did involve curtailment of excessive or oppressive investigatory powers of the Commission.
In the context in which they have been used not against the Community, but against Member States which have acted to restrict the exercise of a Community rule or policy, the "rights of the defence" in
the second category do sometimes appear to have afforded a measure of concrete benefit and protection for individuals rather than for corporate interests, in the face of inadequate processes for challenging restrictive state action - e.g. Pecastaing,54 Johnston v. CC of the RUC55, Heylens56 and more recently possibly Adams57 and Gallagher.58 However, even in the context of the rights in the third category (traditional civil and political liberties such as in the E.C.H.R.) which are generally considered to be "human rights", it is apparent that those invoking the language of rights are often not the oppressed minorities or individuals which might be expected. This can be seen from the various cases which have involved freedom of expression for advertising or commercial television companies, or pleas invoking the "privacy of the dwelling" for businesses resisting investigation into anti- competitive practices. On the other hand, the vocabulary of rights has proved advantageous to the relatively disempowered in contexts such as the German housing case59 or Stauder.60 There has also been a measure of success where individual administrative acts (rather than general legislative measures) of the Community have been challenged for infringing such rights, for example in the staff cases involving the right to privacy in the context of HIV testing,61 or freedom of expression in the context of journalists posts.
Similarly mixed conclusions can be drawn from observing the results of claims to Treaty-given rights such as freedom of movement, set out in the fourth category. Although it is obvious that these are essentially aimed at market integration, and thus the language - in particular that relating to the free movement of goods and services - is most often invoked to the advantage of commercial organisations, this is also a context in which the language has been of benefit to the less advantaged. In particular in the context of workers in Article 48 of the EC Treaty, the self-employed in Articles 52 and 59, and prospective students under Article 127, the translation of Community economic freedoms into the language of individual human rights has yielded certain benefits. And, as has been suggested above, the language of citizenship in Article 8a may prove to be of more than symbolic effect in the future.
Finally, with regard to the social rights categorised in group 5, this has perhaps been the area in which the language of rights has yielded most substantive benefit for the relatively disadvantaged, and where its rhetorical force has been accompanied by certain practical gains. Paradoxically, of course, these rights are said to be less "fundamental" (apart from the equal treatment principle in employment matters between men and women, which has been accorded symbolic status as a fundamental right) and since they are created by legislation or are expressed in instruments such as the 1989 Social Charter, they are not accorded constitutional status at Community level, and are vulnerable to easy alteration.
- Conclusion
It seems even from this brief glance at the range of contexts in which rights appear in Community law that very mixed conclusions emerge. The language of rights affords a means of introducing a range of different values - other than predominantly market values - into the Community's legal and policy- making processes. It offers the potential for developing a moral and ethical foundation for the Community, and for contributing to the development of a sense of European identity and a commitment to a European society, in a way which may further the process of political integration. Equally, however, it is possible for the language of rights in Community law to paper over deep national divisions and cultural differences, to suggest a moral content to Community policies which in reality are furthering what are essentially market goals, and to hold out the promise of protection for human rights whilst actually delivering little of practical benefit to human persons as opposed to corporations and legal persons.
A more fundamental criticism of the language of rights, however, which cannot be answered merely by pointing to the positive or beneficial effects which the invocation of rights has had in specific contexts, has been that the language and the nature of rights is adversarial and uncompromising, forcing interests to be pitted against each other in a competitive way in which the winning right will "trump" the loser. On the other hand, it may be said in partial response to this criticism, that whilst the language of rights
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