Database Reference
In-Depth Information
political actors, but it also constitutionally enforces it. By shielding individuals
from abuses of power through human rights, and by controlling this power with
checks and balances, transparency and accountability, this architecture has
contributed to the constitutional creation of the political private sphere. By
comparison, the political public sphere is the political space where government
and State intervention are legitimate (Gutwirth 1998; De Hert and Gutwirth 2006).
In other words, the political private sphere is the political space wherein
individuals can exercise their liberty/self-determination. Moreover, it can be
argued that each different human right is the legal materialisation (or translation)
of a given aspect of the political private sphere.
So far, we have purported that the project of the democratic constitutional state
is built upon the idea of individual liberty, and it is to this end that it has instituted
a so-called “political private sphere”, which is the locus of political liberty, and
which is shielded by human rights. The entire spectrum of human rights is
mobilised for the protection of the political private sphere, including such
different rights as the prohibition of torture, freedom of assembly, data protection
(assuming it is a fundamental right, which we do), and anti-discrimination.
Since liberty seems to be at the core of the raison d'être of human rights, it
seems to us that exploring different meanings and conceptions of liberty might
give us some indications as to the mode of operation of the two legal regimes that
we have evidenced supra , in section 4.5.
In this respect, the seminal work of Berlin appears as crucial. In his essay on the
two concepts of liberty (1969), Berlin makes the distinction between “positive” and
“negative” freedom. Negative freedom answers to the question “What is the area
within which the subject is or should be left to do or be, without interference by
other persons?” (p. 121-122). Negative freedom is thus the freedom not to be
interfered with by others (p. 123), that is, ultimately, “freedom from” (p. 131).
Positive freedom, on the contrary, “derives from the wish on the part of the
individual to be his own master” (p. 131), or “freedom as self-mastery” (p. 134).
Ultimately, this is a freedom to (to lead one's preferred way of life) (p. 131).
Accordingly, negative freedom is about the determination of the boundaries of
individual freedom, whereas positive freedom is about the substantiation of this
very freedom. This entails that negative freedom needs to take into account the
behaviour of others, since the subject must be free from them in his area of
freedom that has been deemed as legitimate. However, freedom in the positive
sense is not concerned about the actions of others, but solely with that of the
individual, as it is concerned with the “empowerment” of the latter.
Keeping in mind that human rights are the legal translation of the political
private sphere of individual liberty, the foregoing dichotomy between negative
and positive freedom can be of use as far as human rights are concerned. Indeed, it
seems to us that a distinction can be made between human rights that literally
empower the subject by granting him/her a prerogative (such as freedom of
assembly, freedom of opinion, which Berlin refers to as a “catalogue of individual
liberties”, p. 126), and human rights that aim precisely at guaranteeing this
Search WWH ::




Custom Search