Fundamental Rights

...On the other hand, the British do not have as strict formal rules as we do for the interrogation of arrested persons and exclusion of evidence...

...Increasingly, the wishes of the parents regarding custody and access to the child (previously considered their "rights") are giving way to judicial judgments about what the welfare of the child requires...

...Particularly interesting are the provisions for the humane treatment of prisoners in the English penal system...

...While the authors certainly do not philosophize about the rights under consideration, a perceptive reader can find in a number of the contributions material to assist his reflection about the larger questions of the law...

...the specifics of legal proceedings and judgments are emphasized considerably more than the moral, political, and philosophic issues...

...According to this approach, a fundamental legal right is either a right derivable from a basic, or constitutional, rule of a legal system or it is a right believed to be fundamental in light of some moral system or code...

...Recently the power to impose corporal punishment was abolished...

...Perrott examines "The Logic of Fundamental Rights...

...In addition, there are many essays on the right to know the reasons for decisions of magistrates courts, preventative detention in view of the European Convention on Human Rights, the controversies over the provisions of the European Social Charter, and other topics...

...Unlike their eminent predecessor, Edmund Burke, the British authors in this volume seem to be operating, more or less, under the influence of this outlook...

...What are the presuppositions and implications of the demand for children's rights as against the prevailing ("paternalistic") emphasis on their welfare...

...It may well have been inexpedient for the editors to impose their determination of what is "fundamental," but the book would be more coherent than it is if the authors had made more effort to justify as fundamental the rights they discuss...

...English law provides (and has long provided (that prisons shall be regularly inspected by Boards of Visitors who are empowered to hear complaints of ill-treatment or violations of prisoners' rights...

...Thus far the British press and broadcasting industry have successfully opposed enactment of any such right of privacy as dangerous to freedom of the press...

...J.C.F...

...Itwould seem to follow that all rights so situated in the English, American, Soviet, and South African (or any other) legal systems are equally to be regarded as fundamental rights...

...claim to these things regardless of what others regard as good or needful for him...

...Perhaps we need, more than we need analytic legal theory, a renewed articulation of the principles and limitations inherent in the concept of ordered liberty...

...These twenty-one essays cover an extraordinary variety of topics...

...As a third possibility, legal rights can be called fundamental when related to "natural areas of legal concern," which are those "specific areas of human behavior which are too important to the survival of the society and of individuals in that society to be left to the...

...It is concerned only with the conditions of "survival...

...When it is said that "anyone without adequate resources has the right to social and medical assistance" (in the European Social Charter), is it meant that this is desirable and humane social policy which, along with other goals, nations should strive to achieve...

...This is a somewhat more libertarian position than the U.S...

...In the United States, such bare assertions are protected as long as the assertion does not constitute extremely reckless disregard of the truth...

...And it yields no universal principles for evalu- ation of the many and widely differing rights that might be related to survival...

...This movement from "parental rights" to "welfare of the child" and finally, perhaps, to "rights of the child" can provide much food for thought about the law as it touches upon primary human relationships...

...In her interesting essay on children's rights, Christina Sachs describes the development in English law from its early emphasis on "parental rights" to the newer doctrine which makes "the welfare of the child" the central consideration in adoption and custody proceedings...

...The procedure typical of the essays is an opening paragraph which asserts the importance of the right under consideration, followed by a detailed analysis of its enforcement and the interpretations of its scope in English judicial decisions and statutes...

...Yet, paradoxically, English law provides protection against defamation of public officials and public figures to a greater extent than American law...

...Or is it meant that everyone has an irrefutable claim to such services regardless of circumstances, causes, or competing public interests...

...Moreover, a recent movement "voices a minority but growing view that problems relating to children should develop from mere consideration of their welfare into an admission that they have rights...without the paternalistic, 'authoritarian' attitude evidenced at present...

...there appears in most of them a greater willingness to recognize limits, to weigh and balance, than one would expect to find in an American book with the same title...

...The principle that it is only reasoned allegation ;hat takes priority over the right to reputation is thought to achieve the fairest balance of the competing interests...

...What do we mean by this language of rights which we are inclined to apply to so many moral and social issues...

...The approach is that of recent analytic legal theory and is heavily influenced by the work of H.L.A...

...The editors acknowledge that they "have attempted to refrain from that exercise of value judgment which is necessary to admit or reject the contributor's claim that the subject of his essay forms part of a body of fundamental rights...

...Supreme Court has . taken...

...But we need more guidance than it provides to judge what claims of right are truly fundamental...

...Certain other rights are treated in such a way as to imply the belief that they really are "human rights" in the old-fashioned sense, e.g., freedom from arbitrary and excessive punishments, servitude, degrading treatment, and retrospective criminal law...

...Other contributions to the collection afford an opportunity for comparison of English and American principles in important areas of tort and criminal law or procedure...

...control of merely moral rules and sanctions...

...But most of these essays reflect a relatively moderate libertarianism...

...Constitutions are said to exist to preserve certain human or individual rights, and, by many, it is supposed that social problems are to be resolved and the public good achieved largely by affirming, extending, or multiplying personal rights...

...Jaffe cites the famous announcement in New York Times v. Sullivan "of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open...

...No serious punishments may be imposed without a hearing conducted by these Visitors in which the prisoner is given the opportunity to state his case...

...Although theauthors often adopt critical positions and propose modifications in the law on specific points, the overall approach gives these essays a rather technical character...

...This concept can be distinguished from classical natural law in two respects...

...Kidd complains that, unlike American law, English law recognizes no general right of privacy or freedom from unwanted publicity...

...Jaffe states, when freedom of the press is ranged against the right to reputation, "what English law protects is reasoned discussion...

...In the preliminary essay of this volume, D.L...

...Regarding criminal law procedure and personal liberties, one learns in this book that a British constable is not entitled to detain and interrogate an unwilling individual apart from an arrest...

...the right to reputation, property rights, property rights in marital disputes and divorce proceedings, rights of access to outdoor recreation, the limits on police powers of interrogation, search and seizure, the concept of a public trial, and the rights of convicted prisoners...

...Or is it meant that a childhas, somehow, a compelling (natural...

...Edmund Burke reminded us long ago, in his Reflections on the Revolution in France, that the whole of the public good cannot be adequately formulated in terms of rights and that it suffers from the effort to do so...

...When it is asserted that children have the right to a new democracy in education and to sex education and sexual freedom (by the British National Council for Civil Liberties), is it meant simply that these things have been found to be good for children's development...

...Powers of detention and interrogation are derivable only from specific powers of arrest...

...There is little such effort in any of the contributions...

...He observes' that in England "the commitment to that principle is less absolute...

...In view of the character of much of our "uninhibited, robust, and wide open" national debate in the past decade, thoughtful Americans may question the balance the Supreme Court has struck for us...

...Yet it could have a somewhat larger audience...

...And, like Burke, the majority of these authors are more concerned with "the rights of Englishmen" than with "the rights of man...

...Some of the rights discussed in this volume are unlikely candidates for meeting any of Perrott's three tests for what is fundamental...

...As A.J.E...

...After the initial piece, "The Logic of Fundamental Rights," one finds essays on the rights of the unborn, children's rights, privacy, freedom of expression vs...

...Bare assertion, without giving reasons, is not deemed worthy of protection if it is defamatory...

...The authors do not explore the grounds for this belief, and it may be doubted that the analytic approach adopted by Perrott adequately covers these grounds...

...Hart...

...In this reviewer's judgment, they have wholly succeeded in refraining from such evaluation...

...This craftsmanlike volume of essays can provide us with starting points for thinking about the question...

...Yet the Organization for Preservation of the Rights of Prisoners (PROP) is demanding additional rights, including the right to trade union membership, the right to legal representation in disciplinary hearings, and the rights to marry and to vote Increasing demands for the extension of rights and creation of new ones render all the more important a serious inquiry into the nature of fundamental rights...

...In most American states, damages are allowed for invasion of privacy in cases where the unwanted publicity does not constitute discussion of "matters of legitimate public interest and concern...

...Therefore, the book will be of primary interest to persons specifically concerned with the law—lawyers, legal scholars, political scientists, civil rights organizations...

...The authors are lawyers and legal scholars who have been associated with the Faculty of Law at the University of Exeter...