Friday, October 21, 2011

Editorial, "RIGHTS END WHERE HARM BEGINS," in the 15 October 2011 (Vol. 7, Pt. 2, No. 19) issue of LAW ANIMATED WORLD

Truly, as attributed to the ‘Great Dissenter’ Justice Oliver Wendell Holmes, Jr., “the right to swing my fist ends where the other man’s nose begins.” Holmes was indeed greatly influenced by Zechariah Chafee, who in his “Freedom of Speech in war time(1919) had earlier clarified: “It is useless to define free speech by talk about rights. The agitator asserts his constitutional right to speak, the government asserts its constitutional right to wage war. The result is a deadlock. Each side takes the position of the man who was arrested for swinging his arms and hitting another in the nose, and asked the judge if he did not have a right to swing his arms in a free country. ‘Your right to swing your arms ends just where the other man’s nose begins’. To find the boundary line of any right, we must get behind rules of law to human facts…” Also, “Liberty consists in being able to do everything which does not harm others(Declaration of Rights of Man, 1789). And even when Marx was criticizing it as a bourgeois negative right, he was not opting for absolute, uncontrollable rights but only indicating the greater importance of social obligations. So, beyond that ‘Lakshman Rekha’ we think freedom degenerates into license and calls for collective/state action to curb it. Of course when dealing with sensitive, sentimental mass movements the State and other groups have, no doubt, to mind caution and wisdom too, but that does not mean inaction and surrender to anarchy. It only indicates the need for all necessary measures to be taken step by step – sama, dana, bheda, dandopaya – force being the last resort. But force cannot be abjured altogether as there is also much worth in the axiom: “Dandam Dasagunam Bhavet.” We are very much concerned, and sad, at the various undesirable social conflicts raging in our country adversely affecting the basic rights of various sections of the society, and at times even amounting to the stupidity of “lifting the rock, only to drop it on one’s own feet.” Strikes, Bandhs, Hartals, etc. when conducted by the people voluntarily for just causes, and with due regard to the emergent needs, and also with due respect to the rights of dissenters to freely express their opinions, may be legitimate but not so are most of such phenomena in our country which are usually nothing but the result of ‘stone pelting by a few intimidating groups’. §§§

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