The United Kingdom and Human Rights - College of Social ...

112 Values and Civil and Political Liberties
United Kingdom, because of the absence of a written
constitution setting out the major legal human rights
and the untheoretical, ungeneralised historic pattern of
English legal development. Common Law, as judicially
developed, is pragmatic, dealing with problems only
when they arise. Judges do not normally enunciate
broad generalisations or principles in advance of conduct
putting them in issue. Seldom, until it recently
became more fashionable, did they opine about "liberty
of the person," "individual liberties" and "constitutional
liberties," let alone "human rights" and "fundamental
rights." Those judges who do, do so intermittently,
while statutory draftsmen sheer away from such unorthodox
imagery. With the odd striking exception, British
judges currently perceive their judicial task as being
confined to determining whether conduct involves
breach of contract or other specific obligation, commission
of a tort, or breach of a statutory duty or of the
criminal law. If the nature of the conduct is such as to
invade a specific right of another person, or if it
breaches a criminal law prohibition, then and only then
will a remedy be awarded. Such specificity has the
result that persons are free to conduct themselves, so
long as they do not invade the persons or property of
others or transgress any specific restraining provisions.
Since freedom to act is restricted by the rights of others
and by specific legal provisions, it is obvious that
freedom is of necessity "residual." The word "liberty"
aptly expresses these connotations. 5
The residual character of human legal rights also
arises from the fact that until recently there was no
higher law in the United Kingdom, a point to which I
will revert. This was because English 17th century
thinkers imported the doctrine of sovereignty, a concept
first formulated in the 16th century by the French
political theorist, Bodin (15297-1596) who was concerned