How (not) to respond to incitement to murder

In yesterday's Sunday Times David Goodhart makes an argument against extending certain basic rights to foreign jihadists who actively foment harm against the citizens of this country. I sympathize with the impulse behind his argument - to close down, as far as possible, the opportunities for soliciting the murder of innocent people. But the particularities of the view he puts forward seem to me wrong. Goodhart writes:

[T]he HRA [Human Rights Act] requires public authorities to respect equally the human rights of all individuals in Britain, whether British citizens, those temporarily here or even those illegally here.

In today's conditions of global migration and cross-national terrorism this requirement to give non-citizens many of the legal protections of citizens is hard to justify, especially in a country as open as Britain (with its 90m arrivals a year). Furthermore, it seems to be connected to a wider fallacy about the origin and nature of rights.

People are not born with rights and many of the world's 6.4 billion people have few or none. Rights are a social construct, a product of history, ideas and of states that are neither too weak nor too strong. Most people in this country have rights because they belong to the political and national community called the United Kingdom, with its infrastructure of laws and institutions.

We would all like the rights enjoyed by people in developed countries extended to the rest of the world. And the West sometimes tries to project its idea of rights through force or through extending the reach of its laws. For example, article 3 of the European convention on human rights states that nobody shall be subject to torture or degrading treatment. Judges have interpreted this in such a way as to stop states that are party to the convention from deporting people to countries where they may be subject to such treatment.

Most of the time extending protection and sustenance to the non-citizens who come within our jurisdiction is uncontroversial, whether it was Soviet dissidents in the 1970s or most of today's legitimate asylum seekers. But should we really have no discretion about extending our protection to jihadists who hate us and may attempt to harm us or to people who have been involved in human rights abuses? Ultimately, in a democracy, rights can only be sustained if a critical mass of the population accepts the corresponding obligations. We should extend our rights to outsiders because of our sympathy with them. But we should be free - through our political representatives - not to extend those rights, especially when doing so may conflict with the wellbeing of British citizens.

I won't dwell here on the non-sequitur that because rights are a social construct, people are not born with them. There's a sense in which all concepts are social constructs, but that doesn't necessarily mean - though it sometimes does mean - that what the concepts refer to are merely a matter of convention, of moral and cultural context, or what have you. It is true that some of the rights a person enjoys are a consequence of belonging to a particular community (your right to a British passport), or are relative to a given status she enjoys (as an old age pensioner), or the result of his past actions (as the party to a contract of sale). But there are other rights which a person possesses simply in virtue of being a human being. This is why we call them basic human rights. The right against being tortured is one of them. Even the most repugnant of individuals and those guilty of grave crimes, equally those merely suspected of some crime, share with everyone else the right not to be tortured. So the policy of not returning people to countries in which they face the danger of being subjected to torture ought to be upheld and defended.

This does not mean, however, that anyone in this category must remain free to encourage lethal violence against others. If the law doesn't already contain means - effective means - of putting a stop to that, then it needs to be changed. A liberal society is not obliged to countenance incitement to murder, all soft-headed pleas about the potentially alienating effects of such protective legislation notwithstanding.