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Introduction to the Legal System II > 10: Fundamental Rights and Freedoms > Flashcards

10: Fundamental Rights and Freedoms Flashcards

1
Q

How did fundamental rights and freedoms develop in the UK?

A

Magna Carta (1215): First attempt at protecting freedom of movement and curb Crown. Some rights included were:

  1. Free movement of Church without government interference
  2. Owning and inheriting property without excessive taxes
  3. Proportional fines for offenses

English Bill of Rights (1689): Foundation of Constitutional Monarchy relying on separation of powers

  1. Limit powers of Crown
  2. Enhance democratic elections
  3. Bolster freedom of speech
  4. Protection of individual rights
  5. Emphasized State’s power to punish
  6. Emphasized State’s power to regulate an army
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2
Q

How did fundamental rights and freedoms develop in the US?

A

US Constitution (1787), American Bill of Rights (1791):

Pushed for the freedom of

  1. Religion
  2. Press
  3. Speech
  4. Assembly
  5. From excessive fines, forfeitures, and double jeopardy
  6. Right to bear arms
  7. Right to due process
  • With this first constitution, the main task of the government was to safeguard these rights
  • The rights in the US Constitution are mainly negative: No references to health, religion etc.
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3
Q

How did the American Bill of Rights and French Declaration of the Rights of Man and the Citizen differ?

A

American: More wordy and philosophical, as Americans had already achieved independence and enjoyed individual rights when the Bill was applied

French: More pragmatic and suited for immediate application as the French had yet to construct a framework of freedom and rights

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4
Q

How did fundamental rights and freedoms develop in France?

A

French Declaration of the Rights of Man and the Citizen (1789):

Right to:

  1. Liberty
  2. Property
  3. Resistance of oppression

To be able to transition from a feudal system to a market-based system:

  1. Need to protect property
  2. Need for a unified commercial code

Also accounted for a:

  1. Singular criminal code
  2. Singular civil code
  • Harm principle is very applicable in this bill where one’s liberty could be limited if it violated someone else’s
  • Thus in theory, the law could only stop what was harmful to society
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5
Q

How did the French constitutional model circulate?

A
  • The French model rapidly circulated
  • Other countries approved Constitutions that were less democratic, but emphasized protection of rights

1848: Official French constitution
1848: Italian bill of rights (least effective at protecting rights)
1849: German bill of rights

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6
Q

How did the shift from liberal to democratic constitutionalism affect fundamental rights and freedoms?

A

The Weimar Constitution (1919) was at the heart of the shift:

  1. Focused on individual rights
  2. State was entrusted with the pursuit of social goals

For Italy, the new Constitution (1948) came into effect post-WW2 and the Fascist Regime

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7
Q

What is the definition of

  1. Positive liberty
  2. Negative liberty
  3. Negative freedom?
A
  1. Positive liberty: Capacity to act on free will
  2. Negative liberty: Freedom from external restraints on one’s actions
  3. Negative freedoms: Prevent inference and interventions from the State
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8
Q

What are first generation rights?

A
  • Also called negative freedoms
  • Embodied in the flexible constitutions of the liberal state
  1. Civil rights: Focus on sphere of personal freedom, protecting each man’s integrity
  2. Political rights: Protection of social sphere, and through that, individuals
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9
Q

What are second generation rights?

A
  • Pertain more to positive rights
  • Found mostly in the rigid constitutions of the democratic state
  1. Social rights: May only exist after the State removes any obstacles to social inequality
  2. Economic rights

e.g. Italian Constitution: Provides for rights to private and social assistance; unemployment and disability privileges

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10
Q

What are third generation rights?

A
  • Developed in the 70s
  • Reflect the idea that rights are not abstract and the list of rights which need to be protected can evolve over time
  1. Rights of private nature
  2. Collective rights

e.g. Portuguese Constitution: Provides for rights regarding the use of data processing

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11
Q

What are fourth generation rights?

A
  • Intergenerational
  • Developed in the 90s
  • Promote solidarity in the use of resources to protect the needs of generations to come

Includes:

  1. Right of sustainable development
  2. Rights concerning new biotechnology research

e.g. Argentinian Constitution: Right of everyone to enjoy a balanced environment fit for human development without endangering the needs of generations to come

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12
Q

What are the 5 types of basic rights?

A
  1. Individual rights
  2. Rights of the public sphere
  3. Social rights
  4. Economic rights
  5. Political rights
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13
Q

What are individual rights?

A
  • Instruments to protect the individual

Rights to:

  1. Personal freedom
  2. Personal domicile
  3. Freedom of correspondence and information
  4. Freedom of movement, residence, and expatriation
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14
Q

What are rights of the public sphere?

A
  • Freedoms that include those that allow individuals to freely take part in civil society and the political arena

Rights to:

  1. Freedom of assembly
  2. Freedom of association
  3. Freedom of religion and creed
  4. Freedom of expression
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15
Q

What are social rights?

A
  • Provide a foundation for the state to intervene in the social sector and to limit all economic and social obstacles in achieving freedom and equality

Rights to:

  1. Education
  2. Healthcare
  3. Welfare
  4. Housing
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16
Q

What are economic rights in the Italian Constitution?

A
  • Safeguards competition and freedom of market

Rights to:

  1. Property
  2. Freedom of enterprise
  3. Freedom of market and competition
  4. Trade Union rights
17
Q

What are political rights?

A
  • Allow individuals to participate in the civil, political and public life of a country
  1. All citizens having reached the age of majority are entitled to vote
  2. Citizens may associate freely in any political party in order to contribute to the determination of national policy
  3. Equal opportunity to access public offices and elective positions

Introduction to the Legal System II (11 decks)

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