B
Bear arms
The right to bear arms is found in only one important statement of human rights, the US Constitution, and even in this case the implication of the relevant passage is open to interpretation. The Second Amendment, part of the original US Bill of Rights (see Bill of Rights (USA)) stated: ‘A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.’ This has become the keystone of the campaigns by bodies like the National Rifle Association, one of the richest and most powerful pressure groups in the world, against gun-control legislation in the USA. Although it is interpreted by those who believe in private citizens being entitled to own, and perhaps to carry, firearms, it is by no means clear that this was the intended meaning. Firstly, as the Bill of Rights was not intended originally to apply to the separate states, it would have been possible for any state government to ban the private possession of firearms. Moreover, even if the process of incorporation after the civil war brought the Bill of Rights to apply to the states, it is by no means clear that the Supreme Court would ever give an interpretation that this Amendment had the power to restrict legislation. Although it is capable of interpretation as a personal right, a more plausible interpretation refers to a different sort of right, which is the collective right of political sub-units in a state, here the states within a federation, to be able to raise a military force. For much of its history the USA has not had more than a tiny standing army, and when engaged in armed conflict it has done so either by persuading the states to call up their state militias, or by raising temporary units. The Second Amendment covers precisely the need of a state to be able to keep a part-time militia, and in the primitive war-making conditions of the late 18th century such units were often dependent on the privately-owned weapons of citizen soldiers. A notable constitutional effect of any development whereby the federal government imposed a ban on private arms would be to weaken the separate states against the central power. Although it is in the USA alone where the legality of citizens carrying even concealed weapons can seriously be debated, weaker versions of the problem exist with respect to the often cherished right to hunt in Europe. What the US example really demonstrates is that the standard sociological definition of the State as the sole authorized employer of force does not command complete acceptance there.
Jeremy Bentham (1748–1832) was, along with James Mill, the founder of the philosophical school of utilitarianism, the philosophy under which traditional moral and legal arguments were to be replaced in justification of rules and laws by the principle of utility. This concept of utility holds that human happiness is the only legitimate aim of legislation, and that all laws should serve to maximize the sum of happiness over unhappiness, or pleasure over pain. Thus the greatest good of the greatest number, with good defined as happiness or pleasure, was the main test of validity. He wrote extensively on legal philosophy and was the founder, along with his disciple John Austen (1790–1859), of the school of legal philosophy known as legal positivism, which came to dominate legal thinking in the common law world, until it was challenged by rights jurisprudence late in the 20th century. In the Benthamite tradition the only form of human rights would be statutory rights because natural law would be illusory. The legal positivism of this school recognizes all law simply as the command of someone or something, basically the state, which can achieve its enforcement, and therefore recognized rights as valid only when desired and enforced by a sovereign power. By implication, this philosophy would negate the validity of any form of international law, because it lacked any sovereign power. Bentham was deeply concerned also with the penal system, and was the author of various plans, some of which had real policy influence, for prison design and reform, again based upon the principle of utilitarianism. His main works were A Fragment on Government (1776) which, among other things, amounted to a powerful attack on William Blackstone (1723–80), until then unchallenged as England’s legal philosopher, and The Introduction to the Principles of Morals and Legislation (1789).
Bill of rights
A bill of rights is a document which is usually, but not necessarily, annexed to a written constitution, guaranteeing a country’s citizens certain protection against action by their government. In addition to those documents directly called bills of rights, there are also many declarations in the world’s legal systems which have the equivalent function. The underlying doctrine is that of late 18th-century liberalism, based on the idea of limited government, and often derives from John Locke or one of the other social contract thinkers. The most famous is the Declaration of the Rights of Man and of the Citizen passed by the French Revolutionary Assembly in 1789, much influenced by Thomas Paine’s The Rights of Man, which still has considerable force as a primary document often relied on by the French Conseil constitutionnel. The first Ten Amendments to the US Constitution, ratified in 1791, are also described as a bill of rights (see Bill of Rights (USA)). Many modern constitutions include such a listing of basic restrictions on the government, either as part of a main formal constitution, or with some other legal status. Thus even before Canada incorporated the Canadian Charter of Rights and Freedoms in its 1981 Constitution Act, it had a type of bill of rights existing simply as an act of the Federal Parliament.
Any bill of rights sets up limits to what a state may legitimately do to its citizens, either as an intentional end, or as the means to attain an end which in itself would not be banned. The bills may not only forbid, for example, torture or censorship, but may also restrict police powers of detention, even when the latter are aimed at preventing ordinary crime. Some such constitutional restraints go further and limit forms of action between one citizen and another which might otherwise be illegal. So while property laws usually allow a landowner freedom to sell or refuse to sell as he wishes, there may be restrictions on discrimination such that someone wanting to sell a house cannot refuse to sell it to a legitimate would-be-purchaser because of, for example, the colour of his or her skin. This, technically known as horizontal effect, is one of the more controversial issues in modern constitutional thought, and is central to the whole question of how pervasively rights doctrines may be allowed to affect relations between citizens and between the state and its citizens.
One of the most effective of modern bills of rights is contained in the first 20 articles of the German Constitution. This is more far-reaching than the older model of a bill of rights in that it enjoins some positive duties on the government, rather than just forbidding it to carry out certain actions. For example, Article 7, on Education, not only forbids the German government from discriminating in the provision of its educational resources, but is also seen as imposing a duty on the government in the provision of those resources. Such positive rights, more commonly found in supranational rights documents like the UN Universal Declaration of Human Rights of 1948, raise major theoretical problems, and seem to make those parts of such a bill non-justiciable. A constitutional court cannot rule that a government has failed in its duty to provide employment, for example, if the government maintains that such provision is economically unviable. It is also arguably the leading example of a system where a version of horizontal effect applies through the idea that constitutional norms have a radiating effect throughout the legal system.
Since the beginning of the 1990s bills of rights have become more widely important because of the wave of democratization in South Africa and Central and Eastern Europe. All these new democracies have produced constitutions with constitutional courts authorized to apply bills of rights which are often very far reaching.
Even where a legal system has no apparent equivalent to a bill of rights in terms of a particular document, the courts in liberal democracies increasingly use techniques of legal interpretation to grant the sorts of protections that a typical bill of rights would have. Many European countries rely more heavily on the fact that the European Convention on Human Rights is incorporated into their domestic law than on any formal protections within that constitutional domestic law. Courts have sometimes managed to produce powerful rights-protection from within the logic of their constitution or law without an explicit document. The Australian High Court, for example, has held that the very structure of the Australian Constitution guarantees some of the traditional content of a bill of rights, like freedom of speech and broadcasting, even though there is no explicit statement to that effect in the Constitution. Conversely the presence of a document called a bill of rights may guarantee none of what is usually contained in one. Thus in the United Kingdom the courts have developed common-law powers to protect human rights fairly adequately, but these are not, on the whole, derived from the British Bill of Rights (see Bill of Rights (UK)). Judges in the UK have often argued that traditional English common law provides better protection for basic rights, via judicial interpretation, than any formal document could. This era has now largely passed with the enactment of the Human Rights Act (1998), making the UK, like most of the EU, covered by incorporation into the European Convention. The problem arising from the form of rights-protection relying on judicial interpretation is that if the rights are contained in a document of lower legal status than a written constitution, then a subsequently-elected parliament may constitutionally repeal them.
Bill of Rights (UK)
The full name for the British Bill of Rights is the ‘Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown’, which was passed by Parliament in 1689. It was the formal basis by which legitimate authority was passed to William and Mary after the peaceful revolution which unseated James II, and its prime political significance was in establishing a permanent Protestant succession to the English crown. Despite its common name it did not delineate any new civil rights (see bills of rights), and still less did it attempt to impose revolutionary ideas. Its purpose was to protect the rights of Parliament, by preventing the monarch from exercising ‘the pretended power of suspending the laws’ or ‘the pretended power of dispensing with laws …’ The language of the Act is retrospective, attempting to re-establish the relationship between monarch and Parliament held to have existed before James’ accession. (The relevant section of the Bill of Rights is given in the Appendix.) In specific terms the monarch was obliged to call parliaments frequently, and to abide by parliamentary control over powers of taxation, and was prohibited from keeping a standing army without parliamentary approval, from interfering with the election of members of parliament, and from restricting parliamentary freedom of speech. Within the Act demands for individual freedoms were largely restricted to protecting the fairness of the judicial system, including, for example, a ban on cruel and unusual punishments which was to be echoed in Article 8 of the US Bill of Rights (see Bill of Rights (USA)). In the accompanying Toleration Act the penalties levied on dissenters for failure to attend church were lifted, but the bans on dissenters and Catholics from holding public office were reaffirmed. The Bill of Rights is seldom referred to in British legal and political debate over civil liberties, because most of what it covers is the subject of later and more detailed legislation. Nor can it have the sort of crucial role that the US Bill of Rights has played constitutionally, because it is not an entrenched code of rights; providing the necessary will and majority existed, there would be nothing to prevent Parliament from repealing it. The Bill has become, if anything, even less important since 1998, with the passing of the Human Rights Act, which incorporates the European Convention on Human Rights.
Bill of Rights (USA)