The operation of basic concepts regarding human rights is
critically examined in this publication in relation to
specific situations. The treatment of the subject has by no
means been exhaustive. Special emphasis has been placed on
aspects of human rights which have tended to be neglected in
current trendy and political academic writings.
There is an important difference between the approach
adopted in this publication and that of a majority of recent
academic works. The difference is that human rights are here
regarded as essentially individual rights as opposed to
collective social rights. The philosophical foundation of
this publication is the premise that the interests of all
persons can be promoted only by securing to each protection
against governmental power and an area of individual
freedom. Implicit in this premise is the rejection of the
notion that there can be a social interest other than the
aggregate of individual interests or a social purpose other
than the aggregate of individual purposes.
Opposed to this view is the belief that human rights cannot
be secured without active enforcement of rules of conduct
for individual members of society, in the larger interest of
the society as a whole. The unavoidable consequence of this
approach is that the interest of society has to be
determined by an authority other than the individual members
themselves. At best these interests are determined by
transient majorities in elected legislatures subject to
pressure from non-representative pressure groups and
ideologically committed bureaucrats. They pursue ideological
goals which rarely coincide with popular wishes.
The commitment to individual as opposed to social rights
does not mean a commitment to absolute individual freedom.
Such a commitment is impossible by the very nature of human
rights. If human rights are to subsist in each individual,
the freedom of each has to be respected by others. For this
reason the freedom of each must be restrained to the extent
necessary to enable the exercise of the freedom by others.
It is important that if individual freedom is to be
effectively maintained, the necessary restraints should
emanate as far as possible from individual moral
responsibility rather than from legal sanction. Where the
concern for the freedom of others declines the need for
legal intrusion increases. Therefore greater self-restraint
will provide greater individual freedom.
In complex modern societies, limited legislative
restrictions on freedom are unavoidable. What is avoidable
are the subjective or arbitrary determinations and
enforcement of restrictions. In this respect an impartial
and independent judiciary becomes indispensable to the
maintenance of human rights. In the absence of
constitutional protections the task of determining
restrictions is left to legislators and unfortunately, in
recent times, the gravest threat to human rights has arisen
from democratically elected legislative bodies conferring
wide powers on bureaucrats and individuals. Legislators
(assisted by academics and bureaucrats) have misconceived
their role by assuming the task of deciding for the people
what is best in their interests. Instead of endeavouring to
give expression to popular opinion, they have arrogated to
themselves the role of moral tutors to the public.
Consequently they have begun to impose their ideological
preferences on the public in the guise of protective
measures.
The only legitimate basis for the legislative restriction of
fundamental rights is the popularly perceived immediacy of
danger to the society. Restrictions based on ideological
conviction or intellectually comprehended needs of society
are totally incompatible with respect for human rights.
To avert the growing threat to human rights, it is necessary
to resist the paternalistic measures of government
engineered by professed guardians of public interests and
public morality. The right to determine what is in the
public interest has to be restored to the members of the
public. This can be done only by widening the scope for
individual choice and individual action. To do so however
requires greater public awareness of human rights and
greater public vigilance against governmental invasion of
those rights.
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