CH 15 JOBBY Flashcards
CHOBBY
2 sides to liberal democracy
Popular sovereinty- democracy side
Respect for freedoms and entitlements- liberal side
How does tyranny of majority occur and what is it
No respect for rights
A pure democratic system with few checks on the power of the elected government
How does a Democratic Tyranny occur
When a majority of the population agrees with discrimination against an unpopular minority
Visible vs invisible minorities
Those whose physical features, language or features make them easy to identify and subject to discrimination more often then invisible minorities
What is the risk of majority rule and popular sovereignty
Discrimination against minority groups
Human Rights
are universal claims to certain freedoms and to certain entitlements which ensure dignity, equality, respect and the ability to make genuine choices about ones own life
How were negative rights created
During the enlightenement period liberal thinkers thought of rights as an individual freedom from interference by the state or government.
Creation of personal sphere
the rights liberal thinkers considered natural to all human beings were those that created a personal sphere
What happens in a personal sphere
citizens freedoms would be guaranteed against their own government and own people
Liberalism
The notion that thr public sphere should be as small as possible to ensure the private sphere is maximized
Negative rights
Rights that oblidge a government and everyone else to take no action against another person that takes away their life, liberty or quest to live their life their way
eg of negative rights
Right to life: Ensures freedom from anyone including government killing or injuring you
Limit to negative rights
The only limit to these rights is the point at which one person’s enjoyment of his freedoms interferes with another persons enjoyment of theirs
How to identify this limit
Through the HARM principle
Harm principle
you can live your life as you please as long as you dont harm anyones life, liberty or pursuit of happiness
Pure liberalism and government
Sees the role of government limited to creating laws that prevent people harming each others rights and create conditions to see these rights flourish
Small government (i.e liberalism)
Apart from maintaining defence forces, setting up a court system and making laws the government should basically stay out of everyones way
Modern societies and negative rights
Regard negative rights to be insuffecient by themselves and people need access to things like education
Positive rights
Oblidge a government to take action so that everyones entitlement rights are met
Eg of positive rights
Health, oblidges the government to provide a minimum standard of universal health care
Liberalism in modern society
Provision of positve rights cannot rely on a take no action approach as government is the only body with enough law making power to provide these rights
Bigger government (i.e progressive)
Parties like the greens attitudes to rights are based on positive rights which they argue are needed for societal progress and thus require bigger government
3 types of rights (chronologically)
First second and third generation
First
emerged during the enlightenment period and are identical to negative rights
second
emerged in the 20th century as western societies became wealthier and are identical to positve rights
3rd
Have only recently emerged and include thing suchg as native title rights
Conflicting rights
3rd generational rights are contraversial because they conflict with other rights
Eg of conflicting rights
Some cultural practcies such as female genital mutilation are in strong conflict with the first generation rights of the girls
6 classifications of human rights
Civil, political, legal, economic, cultural, social
Civil rights
Aimed at protecting people from discrimination and empowering them to live full lives within their communities
eg of 2 civil rights
freedom speech and association
Political rights
Pol rights empower people to participate in the government of their country
eg of 2 pol rights
right to vote and right to run for political office
Economic rights
Are entitlements to a minimum standard of living that ensure a persons material needs are met
eg of 2 economic rights
rights to own property and work
Social rights
Are those which enable a person to develop and live their life in the way of their choosing
2 eg of social rights
freedom to choose marriage partner and have a family
Cultural rights
Apply to specific cultural groups based on ethnicity, religion or status designed to allow people to practice their cultural traditions
Legal rights + eg
Apply to those accused to those accused of wrongdoing and subject to civil or criminal proceeding eg: right to silence
4 principles of human rights
Universal
Interdependent
Indivisble
Inalienable
Universal
They apply to all regardlemss of race ethnicity, religion, wealth etc
Interdependent
Refers to the fact that you cant have some without the others
Indivisible
Rights cannot be ranked in order of importance
Inalienable
You cannot separate a person from his or her human rights
4 different types of rights protection
Superior law
Ordianry law
International law
Bill of rights
Where and what types of rights are protected in superior law
Constitutions- contain civil and pol rights
Rights in superior law
Are very safe because of their alteration method making it hard to change
Another classification of rights in superior law
Implied: Rights created through HC interpreting the constitution
Express: Rights codified in written law
3 advs of superior law protection
Alteration method
Judicary
Implied rights
Alteration method adv superior
Difficulty to change con makes rights in the constitution very safe, which means gov policy cannot infringe on con rights
Judiciary adv superior
The judiciary is empowered to interpret the constitution which means the judiciary can abolish laws which conflict with con rights.
Why does the judiciary protect rights
because of their independence and history of protecting rights
Implied rights superior adv
Judges can also discover implied rights thus keeping them up to date with social values
discovering implied rights
requires an activist approach which is often contraversial
3 disadvs to superior law protection
Need to evolve
Listing
Judicial supremisism
Need to evolve disadv superior
The fact the rights are evolving and adapting means that they often need to be changed, which cannot easily be done in constitutional law.
Listing disadv superior
Rights that are placed in a constitution are often listed, and lists by their nature exhaustive. Rights that are left out are thus deemed less important and are less protected.
Judicial suprem disad superior
Judicial supremacism is also a concern of some, that constitutional law gives too much power to unelected judges when striking down legislation
Why is statute law good in terms of rights protection
Created by elected parliament that is sovereign and represents the will of the people
Laws based on parliamentarian principle
Are designed to create a dialogue between parliament and the court and not put judges in the drivers seat for human rights
Who is bound by statute law
Statute law binds governments and courts
3 advs of statute law protection
Conform
Flexibility
Interpretation
Conform statute adv
Statute law compels the judiciary and the public service to conform with selected rights
Flexibility statute adv
A parliament can pass and amend statutes at will, which allows them to be flexible and alter rights as they seem fit to meet changing standards
Interpretaion statute adv
Statutes are interpreted by the independent courts, which ensures that they are applied fairly to a range of different situations.
3 disads of statute law protection
Ammended
Listing
Judiciary
Ammended disadv statute
Statutory laws can be changed or removed by different Parliaments, which means that rights can easily be suspended or diminishe
Listing disadv statute
Rights in statutory laws are listed, which encounters problems with exhaustive lists
Judiciary disadv statute
Interpreted by an unelected judicary
Common law
Is judge-made law. It is made in courts via the doctrine of precedent and is inferior to statute law
Laws in common law and eg
Legal rights eg right to silence
Who is bound by common law
Bind all lower courts, does not bind parliaments and only bind government if they are a party to a particular case
2 ADVS OF COMMON LAW PROTECTION
Flexibility
History of judicary
Flexibility adv common law
the most flexible way to protect rights as they can evolve on a case by case basis and can be overridden by Parliament at any time
History of judicary advo common law
Common law rights are engrained in the history of the judiciary, they evolved over time to protect those within the legal system and the judiciary has a strong history of developing and upholding these rights.
1 disadvantage of common law
Vulnerability of common law rights to parliament
Executive dominated parliaments and common law rights
Are particularly prone to temptations to override common law rights in populist pressure for tough on crime policies
Effect of exec dominance on common law rights
Suspend or infringe upon certain rights in order to better deal with criminals or terrorists
International Law
Is law made between nations or international organisations
Who is bound by international law
Can influence domestic law only if aus parliament agree to adopt it
1 adv of international law protection
International rights promote the adoption of uniform rights across the whole world, and allow Australia to boost its international standing as a protector and promoter of rights
1 disadv of international law protection
International law is by itself weightless, since it cannot be enforced. When it is ratified in Parliament it is introduced as part of statutory law
what can ratification sometimes mean
only parts of a specific right or sets of rights are made law
Security council
Body of 15 nation 5 of whom are permenant with the other 10 on 2 year rotations
5 permenant members of SC
USA, Russia, China, France and Britain
What can the SC do
Make resolutions authorising the UN to take action to prevent human rights abuses and end conflicts
UN Human Rights council
membership of 47 countries and is a forum for promoting human rights
Office of the High Commissioner of Human rights
appoints expert investigators to travel to places where human rights abuses may be occurring and investigate them
What does the OHCHR do
Allows the UN to highlight human rights abuses and bring pressure to bear on those nations committing them
Flaw on UN and its agencies
Cannot directly intervene in the affairs of soveriegn nation states
2 interbational courts which have a role in HR
International court of justice
International Criminal court
International Criminal Court
Has a focus on human rights and has achieved convictions of national leaders found guilty of human rights abuses and crimes against humanity
4 Steps to becoming domestic law
Agreements
Nations sign up
Ratify Agreement
Adminstrate and enforce statute lae
Agreements
UN member states negotiate agreements on human rights
Nations sign up
Executive arm of gov signs these laws and are international law but not domestic law yet
eg of aus signing agreement
1965 The convention on the elimination of all forms of racial discrimination
Ratification
The rights in the international law must be codified into the statutes of the signatory country
Explain ratification process
Statutes go through normal legislative process and external affairs power gives CMWTH power to make these laws
Administering and enforcing
Parliament may set up a special agency to adminster the law who investigate human rights violations
EG of AUS Process
CERD created by member nations
CERD Signed
CERD ratifed through RDA 1975
RDA administered by Aus HR commission
Expanding powers through ratifying
Through ratifying an agreement in an area not already covered by a exclusive or concurrent power it gives CMWTH more law making power
Bill of rights
focus exclusively and specifically on rights helping to raise awareness
Types of BOR
can be statutory or constitutional
Australia and BOR
Only true liberal democracy not to have a BOR at a national level
Principles that affect the type Of BOR
Parliamentarianism
Judicial Supremacism
Judicial Suprem and BOR
A bill of rights ca grant the judiciary the power to strike down laws which are incompatible with it, putting the judicary in the ultimate position of power
Con BOR and Jud Suprem
Will always empower a countrys con court with the power to strike down inconsistent laws eg USA BOR
Statutory BOR and Jud Suprem
Can also empower the judicary to strike down laws if the bor is constructed to give this power to the courts
Parliamentary gov based countries
Take the view that the parliament must remain sovereign and aupreme and never be subject to to the will of the judges
What is Parliamentarism based around
The peoples own parliament is the best protector of the peoples rights because the people would not allow their own legislature to abuse them
Constrained parliamentarianism
is the result of the rise of exec dominance weakening the power of the legislature
What is CP
solution to being able to keep the exec in check while preserving the leading role of parliament as guarantor of rights
How to constrain parliaments
achieved by a declaratory bill of rights to highlight other laws in breach of human rights
what does a declaratory do
creates a public dialogue through judicial review between parliament and judiciary which helps to constrain parliament
Parliamentarinism
Assigning the ultimate power over tights to the legislature. Based on the principle that the people would not suppress their own rights
who uses parliamentarian ism
Britain and AUS
Judicial Supremacism
Assigning the ultimate power over rights to the judicary as it is immune from influence by leg and exec
Why choose JS
impartiality and independence makes it the best guarantor of rights
Acting as an alternative to Parliamentarinism
Legislature represents a majority of the will of the people but what if a majority chooses to supress the rights of certain minorities
