Security of the person
Security of the person is a phrase occurring in some human rights codes, usually coupled with liberty of the person, as in Article 5 of the European Convention on Human Rights. It means simply that the state may not inflict physical harm on anyone in any way which would be barred to an ordinary citizen, thereby protecting against undue violence by the police in controlling demonstrations or affecting an arrest. Any more intentional or systematic violence would, of course, be covered by the broader bans on any punishment not authorized by due process of law. It has a foreign ring to common law ears simply because the common law has always treated the police, or any other agency of the state, as governed by the laws against offences to the person exactly as such laws govern any citizen. It has to be remembered that even the powers of arrest held by a police officer ultimately stem from the common law right of any citizen to use necessary force to prevent a crime or apprehend a criminal. In such a context there is no logical need to give a separate constitutional protection to security of the person.
In the United Kingdom and elsewhere in the Commonwealth sedition is a common law crime, treated as part of the law of criminal libel, and has existed in a statutory form from time to time in the USA. It amounts to an attempt to persuade the population to overthrow the government by unlawful means, or more generally to attack the government or the state in ways likely to cause serious problems of national security. So, for example, people have been convicted of sedition even in the post-Second World War period for offences such as delivering pamphlets urging soldiers to refuse to serve in Northern Ireland. Technically, the range of possible seditious acts in the UK would include attacks on the monarchy and the Church of England, and can best be described as a low grade of treason. Dealing with sedition, when it falls short of actual preparation for revolution, necessarily falls foul of any serious commitment to freedom of speech and, consequently, US law has severely restricted the possibility of acts of sedition, under the clear and present danger interpretation of the First Amendment. The European Convention on Human Rights, however, seems to take a more statist view and certainly allows prosecution for spreading disaffection in the armed services, which has always been a key element of sedition.
The ‘right’ to self-defence is not really a right at all, though some recognition of it exists in most criminal law systems. The need for self-defence is a plea that can be made in defence of a charge of having committed some crime of violence, even, in extreme cases, murder. The idea is a good example of the range of issues covered by the term ‘right’, and has an odd history in political theory. One major political theorist, Thomas Hobbes (1588–1679), included self-defence in the list of natural rights he defended in his Leviathan (1651), which is particularly remarkable as Hobbes did not otherwise believe that a citizen had any rights at all against the state. According to Hobbes, mankind has all the rights most theorists would list as having existed in the state of nature, that is, before the creation of an organized state, but, in order to create a state powerful enough to protect life, mankind gives up all his rights to the sovereign. The only right he does not surrender is that of self-defence, because it would be logically absurd to argue that one should give up the right to protect one’s life if the justification of the state is simply to protect one’s life. Hobbes is the apotheosis of rights theory, and the only thinker to give such prominence to the idea of self-defence as a right; not only is it not a right in any usual sense, it is a severely circumscribed defence, and one may not use more than minimum. necessary force, which must itself be proportional to the end. Thus, very little physical violence will be permitted in defence of one’s property, an understanding that has sometimes been problematic in French law, for example. Even in defending oneself against a potentially deadly attack there are sometimes doctrines, certainly in some US jurisdictions, of a prior duty to flee if possible rather than to stand one’s ground and kill to protect one’s life. The notion of a form of right to self-defence is limited recognition of inevitable human reaction, and a limiting circumstance to another right, the right to life.
The right against self-incrimination is basic to ensuring a fair trial in the accusatorial system of the common law world, but essentially unknown and irrelevant in a European inquisitorial system. The right is enshrined in various doctrines and dogmas, such as the idea of a right to silence, and the importance given to caution on arrest. The standard source for the right is the Fifth Amendment to the US Constitution. Like all such rights in the United Kingdom it rests only on statute and common law, and the original common law basis set out in the judge’s rules has been superseded by statute, with the Criminal Justice Act of 1994 making considerable inroads on a previously well-protected right. It is now possible for the prosecution to comment to the jury on an accused’s failure to testify and to answer questions. Thus, while there is no actual legal duty to answer a question where the answer may be self-incriminatory, extremely dangerous inferences may be drawn. Even before this change in the law, statutes had largely undone the right in particular contexts, such as some investigations into fraud where it has become an offence not to answer questions put by the Serious Fraud Office. It is a theoretically difficult right, because on the one hand it seems wrong in a sense that a guilty person should go unpunished when an honest answer to a question might prove his guilt, but on the other hand the general approach in criminal law has been to see that the state is so favoured in the general proceedings that, in the interests of overall justice, the state should not get any extra help. In practice, changing the rules may make little difference; the oppressive atmosphere of a police interrogation will still intimidate some innocent people, and professional criminals may have little difficulty in getting round the new rules. Although at one time it might have been thought that the right was one little recognized in European systems, the European Court of Human Rights has interpreted Article 6 of the European Convention on Human Rights to include a rather powerful version of this right. The UK has, in fact, lost a case before the Court for its requirement that certain fraud suspects answer questions under threat of prison if they fail to do so.
Separation of church and state
In many, though by no means all, liberal societies the right to religious freedom has been seen as requiring, above all else, a separation between the state and any religious body. While societies since the 18th century have varied in the extent to which religious belief and practice have been supported, tolerated or even opposed by secular powers, an overt and de jure identification of the state with one particular faith has been seen as incompatible with religious freedom, or, more properly, the freedom of belief and creed. As in so many other areas, the two leaders on this position have been, since their nearly coincident revolutions, France and the USA. Although neither the 1789 Declaration of the Rights of Man and of the Citizen nor the preamble to the Constitution of the French Fourth Republic specifically demands such a state/church separation, the whole tenor of French anti-clericalism, particularly from the Third Republic onwards, combined with the stress placed by these documents on the illegality of discrimination based on religious preference, would make any such combination politically so impossible that a constitutional prohibition is hardly necessary. Where it might matter, in the area of educational policy, statements demanding a secular education system in the preamble, and the definition of the country as a secular state in the Fifth Republic’s Constitution, have been enough to make it very hard for any French government to be seen to help organized religion. However, it must be noted that the Conseil constitutionnel has tried to interpret these documents, against parliamentary feeling, to allow limited state financial aid to religious schools. Recent legislative moves to ban all religious symbolism from schools, albeit motivated by a desire to prevent racial violence, have moved the state and church even further towards a legal separation.
The US Bill of Rights (see Bill of Rights (USA)), in the first sentence of the First Amendment