Friday, December 14, 2012

On Freedom Again (Part 2)

We assume that the law is based on principles that do not exist, in the sense that they are not generally accepted by society as the basis of law, and are rarely if ever directly acknowledged in law (the first amendment to the US Constitution is unusual not only because it exists, but also because it is still interpreted by courts to mean what it appears to say. Perhaps because this is so well known in the free world, people in other countries tend to assume that their governments recognise and respect that right, and that the law in these areas takes it into account as a basic principle. Most do no such thing. In Britain there is no such principle governing the law, and no such principle has ever existed socially or culturally.

The Lisbon Treaty (The EU Constitution forced upon us to replace the one they couldn’t make us swallow) incorporates the Charter of Rights of the EU, which says this:

Article 11
Freedom of expression and information
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

Which seems clear-except the last part- but is routinely ignored, and is no guarantee of anything.

The Spanish Constitution says:

Art. 20. 1. Se reconocen y protegen los derechos:
a) A expresar y difundir libremente los pensamientos, ideas y opiniones
mediante la palabra, el escrito o cualquier otro medio de reproducción.
b) A la producción y creación literaria, artística, científica y técnica.
c) A la libertad de cátedra.
d) A comunicar o recibir libremente información veraz por cualquier
medio de difusión. La ley regulará el derecho a la cláusula de
conciencia y al secreto profesional en el ejercicio de estas libertades.
2. El ejercicio de estos derechos no puede restringirse mediante ningún
tipo de censura previa.

4. Estas libertades tienen su límite en el respeto a los derechos
reconocidos en este Título, en los preceptos de las leyes que lo
desarrollen y, especialmente, en el derecho al honor, a la intimidad, a
la propia imagen y a la protección de la juventud y de la infancia.

Which is fine, but has it ever been truly tested? In fact, I can’t think- offhand- of any case here like those which are regularly highlighted in England, where people are jailed for making tasteless jokes or wearing t-shirts or unfashionable opinion on facebook.

The point is that in Spain the principle is recognised in the Constitution, and is respected by the courts and governments (yes, Lord Copper, your friend’s qualification is appropriate). While in Britain there is no law and no social agreement on the matter, and the EU despises freedom and ignores its own rules on the subject.

Having said that, one of the things I often argue about with people here is the illegalization of the Basque separatist party Herri Batasuna/Euskal Herritarok/Batasuna. They are, more or less, the Sinn Fein of the Basque Country (except that it has always seemed to me that Adams and co. are the dog, whereas Batasuna are the tail). This group is, among other things, the voice of Eta, and most of its leaders, and quite a few of its supporters, clearly take pleasure in the murder of innocent people that is done in the name of their ideas. But it is the murderers you lock up, and possibly those who deliberately make the murders possible, but not those who support their ideas without committing crimes. Left-wing supporters of Basque independence, even those who treat the lives of their opponents with contempt, are entitled to hold, express and defend their opinions, to associate with others who share them, vote for representatives who share them and attempt to persuade others to share them, as is anyone else.

When I am supreme ruler and universal tyrant, there will be no freedom but mine, because I shan't need other people's freedom. Until that moment arrives, I will defend their freedom as I defend my own, because their freedom is my freedom.


James Higham said...

But it is the murderers you lock up, and possibly those who deliberately make the murders possible, but not those who support their ideas without committing crimes.

Ah but that's the nub of the matter - to be able to do that. What if a movement always produces murderers?

Ian Hills said...

Article 50 of that charter you mention allows ALL your rights to be suspended.

Mark In Mayenne said...

If everyone in a movement is a murderer, or conspires to murder, you can lock up all its members because they are all murderers.

If a movement advocates murder it is commiting a crime and can therefore be outlawed.

If some members of a movement are murdeters despite the movement not advocating this approach, you lock up the murderers.

The only reason to outlaw a movement is if it incites to crime.

CIngram said...

It isn't easy to tell where opinion ends and incitement begins, but the principle should be recognised and justice requires that every effort be made do it. Some groups are indeed intended only to produce murderers, and they should be treated in accordance with that principle.

In the end, as I said, it isn't the freedom of Batasuna that concerns me especially, but I know that my freedom depends on theirs.

CIngram said...

(My previous comment was in answer to James Higham. I hadn't refreshed to see the other comments when I published it.)

@Ian Hills

Yes, hidden anywhere in any modern constitution or bill of rights is a piece of fluff which will allow the whole thing to be ignored if it becomes an inconvenience. Don't you mean Article 52, btw?

@Mark In Mayenne

Taht is about my position, yes. The difficulties involved in identifying separating the murderers and their cheeleaders from those who merely share their opinions is the excuse often used to lock up the latter with the former. In any case, forbidding organizations or ideas is always* a bad idea. It is, as you say, people who commit crimes, and people who should be punished for it.