Western Liberal Democracy
There is no right that is more fiercely guarded than of the Freedom of Speech. The right to be heard and the right to speak freely is an important aspect of every government that is accorded such a primacy in the hierarchy of rights. The reason for this is that every government is primarily established for the benefit of the people and when that government, for one reason or another, fails in its solemn obligation the citizens have the Freedom of Speech to try to rectify the situation.
It is this hallmark of democracy which makes it the ideal form of government. As such, this brief discourse outlines the other constitutional safeguards that have been implemented in order to provide the people with a mechanism to air their grievances effectively and also ensures the protection of citizens against abuses by those in power. Introduction The mechanisms that have been set in place in Europe and much of the world to protect democracy and preserve the freedoms of people are based on the concept of representation.
This is because representation is the key to the success of every democracy. While the rule of the majority definitely follows, this does not mean that the minority is neither heard nor protected. In fact, this system of representation even grants the minority more weight in certain issues as they often exercise veto powers . In order to arrive at a better understanding of this, the importance of the foundations built into the democratic system must be discussed. A democratic system is often mistakenly characterized as the rule of the majority (Davenport 380).
While there is usually a large group of middle class individuals that comprise this democratic system, it does not necessarily mean that the majority rule. This only means that the majority usually elects the representative to office but the hallmark of any democracy is still the protection of the rights of the minority . The minority exercise powers that they can exercise to preserve their rights against the majority. In several democratic models around Europe, democracy soon began to play a larger role in the determination of the new government that was going to replace the absolute monarchy.
The steadily expanding role of democracy in government caused the deterioration of traditional social hierarchies that existed. Instead a new ethic was created within the core of European Political values. Similar to this was the creation of the United States Democracy in that while the United States was arguably not the first democracy to ever exist, the neo-classical model that arose during this time was largely unheard of in other parts of the world, particularly from a British Colony . It was the system of checks and balances to ensure its stability that was the hallmark of this democracy.
An example of this would be the separation of powers in the United States government where the three (3) different bodies, the legislative, the judiciary, and the executive branch, are all considered as co-equals (Davenport 382). As Tocqueville so aptly pointed out, “The nations of our time cannot prevent the conditions of men from becoming equal, but it depends upon themselves whether the principle of equality is to lead them to servitude or freedom, to knowledge or barbarism, to prosperity or wretchedness .
This leads to another important foundation of any democratic system which is the protection of civil rights. The civil rights such as the Bill of Rights or the First ten (10) amendments of the United States Constitution are prime examples of such civil liberties. These are essential in the preservation of the democracy because they act as further checks and balances against the party who is in power . It prevents the democratic government from being used to oppress the rights of the people.
In light of this, the next issue that must be discussed is the manner by which the Democratic models in Europe have evolved in order to protect and preserve the basic freedoms that are also considered by the United Nations Commission on Human Rights as the basic freedoms that each and every person is entitled to. Constitutional Rights The constitution is regarded as the fundamental law of the land. It is a covenant between the government and the people in which sovereignty rests.
It finds its relevance in the fact that it is the highest law of the land and it contains the essential safeguards that are necessary for the protection of the fundamental rights and freedoms . Traditionally, governments existed for the sole purpose of governance so that there would be a common factor that united the people and helped them progress in a singular direction. These governments exhibited a certain structure wherein there was a single ruler or head that gave the decrees and orders and determined what laws were to be established .
There was no separation of powers as is characterized by the more modern forms of government that exist around the world at the present. All powers, executive, legislative and judicial, were more often embodied in a single person or head . As history has shown, this was a bad precedent and has been corrected by the separation of powers to prevent the abuse by the solitary head or ruler. Another peculiar characteristic of early forms of government is the fact that the authority that the ruler or head exercised was said to have been derived from a much higher being or one form of deity or another.
The power to rule over the people was never claimed, until later years, to be from the common will of the masses but rather was authority that was handed down from God and therefore unquestionable. This practice was common in most governments until after the Middle Ages when the European societies gave rise to new religions. This common practice paved the way for the establishment of a fixed form of government that derived its power from a prime source. This is the Constitution of the land which, as previously mentioned, is also the covenant which binds the people of the land.
The relevance of a Constitution is such that it has been argued that a government cannot exist without a constitution but a constitution can exist even in the absence of a government. Freedom of Expression This section shall discuss the Freedom of Expression which can be subdivided into two distinct rights which are the right to public speech and the right to public acts and demonstrations. Right to Public Speech Freedom of Speech has historically been used as a tool of the people to prevent the suppression of their rights by voicing out their opinions.
The Fundamental laws of European States have traditionally held one’s freedom to information in the highest regard (Holmes 198). One will be hard-pressed to find a constitution that does not guarantee this fundamental right. The reason for this is because the Freedom of Speech is a constitutionally guaranteed right . It protects the right of every person to speak his mind with regard to any issue at all even if it is critical of a certain class or even the government.
The only limitation, as previously highlighted, is that it must be exercised within the rights of other people meaning that it is constitutional as long as it does not impair the rights of other people . Everyone, therefore, regardless of creed, color or belief may exercise his or her right to Freedom of Speech (Reeve 206) and no university can be allowed to curtail this constitutionally protected right. One must also be remember at this point that with every right comes a corresponding responsibility. There is no right so absolute that it oppresses the right of other individuals as well (Holmes 198).
In line with this, it must be remembered that the freedom of speech, as a tool against oppression, must be exercised responsibly because of it may also lead to the suppression of the rights of others. There are exceptions to this rule such as the secrecy of military information, national secrets, trade secrets, and certain information offensive to the public. These exceptions constitute the reasonable restraints on one’s freedom and under the last category fall the information that is being suppressed from minors in public libraries.
As such, the means employed is not an undue restraint but rather a reasonable means to maintain one’s constitutional liberties. This means that while there exists the right to speech, there is a need for certain limitations to exist as well. In furthering the Civil Rights movements, the Freedom of Speech has proved to be crucial to its success . Without the Freedom of Speech, it is arguable that most of the social legislation that is in effect today would be present (Holmes 198).
The power of the Freedom of Speech, in the context of protecting one’s civil and constitutional rights, is that it allows people to bring the attention of the public to their grievances in an attempt to provide a solution to the problem (Holmes 197). Right to Public Acts Freedom of expression, as previously mentioned, is comprised of two parts. The first is freedom to speak freely. Closely related to this is the freedom to act freely. Though they are similar in the sense that they are both part of a single freedom, they are also different because one may not involve an external manifestation while the other necessarily involves overt acts .
Simply put, the freedom to speak may be exercised without holding demonstrations whereas the freedom to act must be done through public assembly and demonstration. As an essential part of democracy, the right to act is also fiercely guarded by the Constitution and by the fundamental law of the state. Under the European Union, the member countries have recognized the necessity of allowing this form of freedom. The reason for this is that it has been recognized by several jurists, Sandra Fredman among them, that the right to act publicly is as powerful as the right of speech.
Demonstrations are able to convey a strong message. It is not simply about saying what one feels or thinks but also doing something outwardly to show this, according to Fredman . As such, this freedom is also guaranteed and protected as highly as the freedom of speech . These two freedoms form part and parcel of the Freedom of Expression that is arguably one of the most important liberties guaranteed and protected in most Western Liberal Democracies. These have been enshrined in several other Constitutions of the world and have been staunchly defended by the Courts of law.
Freedom of Association Integral to the right to act publicly and the right to speech is the right to form associations. It must be remembered, however, that similar to the Freedom of Expression, the Freedom of Association is comprised of two correlated rights; the right to join and the right not to join. The Courts have ruled that while a person has the right to join, he also has the right not to join and such decision should be respected. Right to Form and Join Associations It has been long recognized that the right to form associations cannot be frustrated or limited by any group.
In the interests of preserving this right, several groups over the course of the history of the European Union have lobbied for change just to ensure that this right is not abridged. One such example is the Declaration made by the National Assembly in France pursuant to their transition to a Constitutional Monarchy . From a historical perspective, it must be remembered that the French Revolution was major turning point in European History as it signaled the end of aristocracy and marked the age of western Democracy .
The citizens of a nation were no longer to be regarded as servants but as a dominant political force in determining policies of a nation (Doyle, 2002). There are many interrelated causes for the French Revolution. Perhaps the single most obvious cause was the rising ambition of bourgeoisie class who were allied with the lower class folk in their attempt to overthrow what was then perceived as an oppressive monarchy in France during that period (McPhee, 2002). With the hardships that the peasant class experienced during those times, the bourgeoisie was easily able to manipulate them and gain their support .
The fiscal crises that ensued due to the insolvency of the French monarchy led to massive poverty and hunger in France and further attempts to remedy the situation by imposing higher taxes finally caused the lower classes to overthrow the rulers of France (Doyle, 2002). The French experience clearly outlines the importance of the Freedom of Association. As a democracy, everyone is ideally offered the right to be heard. A pragmatic assessment of this right, however, shows that sometimes there is a need to have other voices pitches in so that one can be heard.
This is where the Freedom of Association becomes relevant because it pools together people with similar interests and makes them a block that is more effective in lobbying for and protecting their interests. While an individual is protected by the law, an association has more political clout. There is more influence that a group is able to exert on the policy making functions of a government. As such, abridging one’s right to associate is detrimental to the success of a democracy and also detrimental to the rights of a group. Right to Not Join Associations
“The right to join includes the correlative right not to join,” according to the rulings of the International Labor Organization. It is often overlooked that this right is just as important for the protection of the freedom of association as the right to form and join associations . The reason for this is that this also involves the right of a person to be protected from the rule of the majority or those in associations. They cannot be prejudiced by their decision not to take advantage or utilize the right to join or form associations that others make.
While this can be viewed as an expansion of the right of equal protection and due process in that a person cannot be prejudiced for acts that the individual chooses not to take advantage of, it must also be pointed out that not joining is an important right that must be respected. In cases wherein certain establishments have labor unions, cooperatives and associations, those who choose not to join cannot be forced to give up employment or certain benefits because of their decision not to join . As pointed out by Fredman in her discussion on this right, the essence of the freedom is the right to choose .
People have the right to select the groups that they choose to associate themselves with. By prejudicing them and depriving them of certain benefits when they choose a different association or a different group, the individual is deprived of his freedom to form and join associations of his choice. Curtailing the right to join can be done in the negative. This can be accomplished by mandating a person to join an organization that is not in line with an individual’s personal beliefs. It is therefore important that this right also be protected because it is essential to the full exercise of the right to form and join associations .
The hallmark of freedom and of democracy is the right to fully exercise one’s rights. Being able to join an association does not mean that one necessarily needs to join an association . Instead, the Freedom of Association involves the right to choose which association to join and if ever to join that organization . This is something that cannot be abridged, not by any government, not by any individual, without legal consequences under the fundamental laws of their countries. Equality The terms color blind and diversity are widely used in discussions concerning equality but they are not synonymous.
Applied properly, color blind should be taken to mean without distinction to color. This means that the policies such as affirmative action should neither advance nor protect the interests of any race. As compared to diversity, this is understood to provide the necessary preferential treatment in order to advance the interests of all races, being color blind is not related to racial relations but instead advocates the lack of any racial undertones. As such, equality in the concept of western liberal democracy is more pervasive than just simply being color blind or diverse.
Under the teachings of Fredman, it can be gleaned that Equality as a concept can be applied in the field of Justice as non discrimination and under equal protection as protecting the interests of everyone, especially the minority . Lady Justice The image of Lady Justice is a striking one that fully captures the essence of justice and equality. Blindfolded so that she may not see the people before her, Lady Justice brings equality. Allowing everyone to be judged equally and not by race or the color of their skin. It is this concept of equality that democratic countries have tried to implement and to protect.
This is all the more evident in the French model as the uprising was caused by the clamor for equality and the resulting government made sure that this creed was enshrined in their most important political documents, the Declaration on the Rights of Man and Citizen and the French Constitution . Drawing on several political philosophies, the Declaration of the rights of man and citizen, was influenced by the philosophical and political principles that were prevalent during the Age of Enlightenment, more particularly individualism and the social contract of John Locke.
This radical re-ordering of society was necessary according to the National Assembly. The Doctrine of Popular Sovereignty and Equal Opportunity had struck a pleasing chord among the masses and the National Assembly realized that for any change to take place it had to have overwhelming public support. It can be seen from this that equality is something that was not traditional practiced and accepted especially in most of the monarchies that existed in Europe. Historically, the lower class of French society had few rights, if any. They did not have the same privileges as the upper classes and were frequently the victims of abuse.
In order to institute the reform that was needed, the National Assembly had to provide this class of society with a sense of identity . As such, the declaration made sure that these individuals could no longer be trampled on or taken advantage of by those of the First and Second Estates. The abolition of any distinction and the establishment of sovereignty as being inherent in the members of the States provided the former members of the Third Estate with the identity to participate in the determination of the their nation’s political identity.
In relation to the administration of justice, equality means that everyone should be entitled to justice. No person should be deprived of the right to justice just because of certain characteristics they possess that are inherent in them. Just because a person belongs to a certain economic class or that a person belongs to a certain racial class does not mean that they are entitled to more under the law . Equality as espoused and enshrined in the law contemplates being able to provide everyone with an equal opportunity under the law.
As it has been said, everyone is equal under the eyes of the law. Equal Protection The concept of Equality in the context of Justice can be best understood in line with the concept of equal protection. Equal protection has been deemed as a derivative of sovereignty. As recognized by the United Nations Council on Human Rights, equal protection contemplates a situation wherein every class in society can avail of the certain basic rights under the law . There is no class that is better than another. There is no class that has more privileges than the other.
As far as the law is concerned, there is no distinction under the law that can be used as a basis for depriving one of his or her rights without just cause or due process. A perfect example of this would be the acts of the National Assembly during the French Revolution when they outlined the need for Equal Protection in the acts preparatory to the establishment of the French Democracy. As such, the declaration clearly set out to define the principle of sovereignty. It was crucial that the principle of sovereignty was defined as being inherent in the Nation.
To prevent further abuses of power, the declaration made provisions to ensure that nobody was deprived of their sovereign rights. Being inherent, it recognized that everyone was equal. This was in stark contrast to the previous assertions concerning the divine right of kings . The French Monarchy claimed that the authority that the ruler or head exercised was said to have been derived from a much higher being or one form of deity or another. The power to rule over the people was never claimed, until later years, to be from the common will of the masses but rather was authority that was handed down from God and therefore unquestionable.
This practice was common in most governments until after the Middle Ages when the European societies gave rise to new religions and the birth of the American civilization. As such, this provision was included in order to prevent further abuses. By arguing that power lay with the people and was not bestowed upon a certain class, it protected the masses from future abuses by those in power. Equal protection was clear in this model because Rights such as Fair Hearing and Due Process were no longer reserved for the privileged few but were inalienable rights inherent in every citizen.
In cases wherein they would not be properly represented, the National Assembly provided the declaration to ensure that they would be able to freely exercise their right to be heard . Regarding the issue of taxation, the Third Estate was also protected so that everyone was subject to such tax equally. As laborers, the Third Estate was also granted protections under law to prevent them from being abused. This is the essence of Equal protection; the grant of rights to those who have none and the protection of the minority or the under-represented.Sample Essay of Eduzaurus.com