One of the key arguments of Jeremy Bentham against the French Declaration of Rights (the 1789 Declaration of the
Rights of Man and of the Citizen) concerned the syntax of the document. The reader of the Declarationcould easily be
deluded into thinking that the rights enshrined in the text were virtually limitless, because no explicit reference was
made to limits, restrictions and exceptions.
Suppose a declaration to this effect: No man's liberty shall be abridged in any point. This, it is evident, would
be an useless extravagance, which must be contradicted by every law that came to be made.
This is what justified Bentham's characterisation of the Declaration as ‘nonsense upon stilts’:‘This, we see, is
nothing: It leaves the law just as free and unfettered as it found it’.
One need not agree with Bentham's full theory of rights to be of the view that he had a point when he
emphasised the importance of limits and restrictions in the full and proper definition of rights. Quoting Bentham again:
‘No law can be made that does not take something from liberty; those excepted which take away, in the whole or in
part, those laws which take away from liberty’.
In other words, rights have to be set in their socio‐economic and polit-
ical context, something which requires focusing on the formally ‘negative’side of rights, that is, on limitation clauses,
exceptions and anti‐abuse provisions. Limitations and restrictions not only render the definition complete, but also
play a fundamental role in shaping and moulding the very understanding of rights entertained by rights‐holders. It
can thus be argued that fundamental rights play a key role in the governing of European societies, not only by
affirming certain normative standards (and in the process producing normative knowledge) but also by deeply shaping
the way in which the addressees of the law regard themselves and their environment.
In this article, I offer a systematic reconstruction of the ‘negative’clauses of the European Convention on Human
Rights, in particular its limitation and exception clauses (Section 3), its anti‐abuse clause (Article 18, analysed in Sec-
tion 4) and last, but not least, the clause that restricts the extent to which states can limit or except rights (Article 18,
considered in Section 5). The next section is devoted to exploring the role of rights in the governing of European soci-
eties, in what, following Foucauldian terminology, we may refer to as ‘negative governmentality’,or, more precisely, as
One methodological caveat. The article is written across disciplinary and substantive ‘borders’. Quite obviously,
the article speaks to debates in the literature on the European Convention on Human Rights, and more generally,
about the protection of fundamental rights. The key claim in this regard, as already pointed out, is that proper under-
standing of the Convention rights depends on considering not only the ‘positive’definition of rights, but also their
‘negative side’.It is the latter, as just underlined, that provides an understanding of the systemic relationship between
the different Convention rights, or to put it differently, a systemic reconstruction of the content of the Convention. At
the same time, however, the article engages with the politico‐scientific debates on governmentality, that is, with lit-
erature that focuses on the way conduct is governed.
In particular, it seems to me that a legally‐grounded analysis
may contribute to filling a major gap in such (i.e., governmentality) analyses, i.e., the extent to which the shaping of
J. Bowring (ed.), The Works of Jeremy Bentham (William Tait, 1843), at II: 493a.
Bowring, above, n. 3, at II: 493b.
E.g., M. Foucault, Security, Territory, Population: Lectures at the College de France 1977–1978 (Palgrave Macmillan, 2007); M.A. Nasir,
‘Governing (through) Religion: Reflections on Religion as Governmentality’, (2016) 42 Philosophy & Social Criticism, 873; B. Sokhi‐
Bulley, ‘Government(ality) by Experts: Human Rights as Governance’, (2011) 22 Law & Critique, 251; M.A. Nasir, ‘Weighing Words:
On the Governmentality of Free Speech’, (2016) 25 Social & Legal Studies, 69; M.A. Nasir, ‘Between the Metropole and the Postcolony’,
(2015), 34 Environment and Planning D: Society and Space, 1003; N. Rose, P. O’Malley and M. Valverde, ‘Governmentality’, (2006) 2
Annual Review of Law and Social Science, 83; M.A. Nasir, ‘Biopolitics, Thanatopolitics and the Right to Life’, (2017) 34 Theory, Culture,
and Society, 75.