The Human Rights Act has seemed to many to be an innocent adaptation of principles already contained within our common law, and indeed affirmed by statute once before, in the Bill of Rights of 1689. Seen in this way, the Act is no more than an affirmation of an ancient principle of our jurisdiction, which is that the law exists to protect the individual from oppression, whether that oppression be exerted by criminals, by neighbours or by those in authority. But this vision of the matter overlooks a profound distinction between common law and civilian jurisdictions, and between the English presumption that you are free until the law forbids you and the Continental presumption that you are free only if the law explicitly says so.
The idea of ‘human rights’ did not originate in the courts. It stepped down there from the exalted realm of philosophy, but only by first putting a foot on to the throne of politics. It arose out of mediaeval speculations about natural justice — the justice that reigns supreme in Heaven and which stands in judgment over human laws. But the idea came into its own with the political philosophers of the Enlightenment, and specifically with Locke’s version of the social contract, according to which all human beings retain a body of ‘inalienable natural rights’ which no political order can override or cancel. The idea of the ‘rights of man’ became thereafter a tool in the political struggles of 18th-century Europe, a weapon in the hands of the people (or, at least, in the hands of those who claimed to represent the people) against allegedly despotic sovereigns.
Hence, when the French revolutionaries faced the problem of forging a new constitution for France, their solution was to issue a ‘Declaration of the Rights of Man and of the Citizen’.