DR.

RAM MAHOHAR LOHIYA NATIONAL LAW UNIVERSITY,

LUCKNOW

ACADEMIC SESSION: 2017-2018

JURISPRUDENCE
ANALYSIS OF THE ARTICLE ENTITLED-

“THE IDEA OF HUMAN RIGHTS ”

BY JAMES F.P. ALLEN

SUBMITTED BY: UNDER THE GUIDANCE OF:

Qamar Ali Jafri Mr. Manwendra Kumar Tiwari

Enrolment No. - 150101103 Assistant Professor (Law)

B.A.LL. B (Hons.), Semester V Dr. RMLNLU, Lucknow

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 ACKNOWLEDGEMENT
On the very outset of this project, I would like to extend my sincere and heartfelt obligations
towards all people that have helped me in this endeavor. I am forever indebted to
my professor Mr. Manwendra Kumar Tiwari for his continuous guidance and for being such a
great mentor to me.

I am extremely thankful to the Librarian and the faculty present at the library who have enabled
me to pursue my research efficiently.

I also acknowledge with a great sense of reverence my gratitude towards my parents who have
supported me both morally as well as economically.

And last but not the least, my gratitude goes to all my friends and seniors who have directly or
indirectly contributed in helping me finish this project.

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 SUMMARY

This article mainly talks about two things. The first thing that it talks about is whether the
existence of rights in a statutory form or in a legal form on which the judiciary can comment
upon is important and secondly what happens in that scenario, who should have the right and
how this right should work in a democracy per se. Regarding the first aspect, professor Allen
talks about how concepts like democracy, human rights, etc. work in this paradigm of post liberal
democracy. He goes on to say that these are essentially contested concepts. Democracy from
merely being as to how something should be done has also reached to a point as to what and
which things should be done.

For instance if you’re a closeted aristocrat you don’t believe in the rights and equality of the
people so how do you project this and say that only your will should prevail in that paradigm.
Now, we need to understand that one requires power or a higher moral pedestal to do so. What
happens in this era of post liberal democracy is that irrespective of what the legislature says, the
judges that sit on the higher pedestals and the UN agencies, they guide what the majoritarian
policies should be which at some time undermines the will of the elected people. So here in this
context professor Allen says, which brings us to the latter part of the article where he tals about
how rights work in a society and how this topic of human rights intrinsically relates to the first
part as well. He questions our understanding of morality and who should be and who the judge of
morality is. Is it the legislature or the judiciary?

He also goes on to define what rights are. He says right is what others are ‘ought not to do’. So if
I have a right to freedom of speech, others are ought not to restrict that right. In the similar
paradigm he goes on to say that in democracy we often have to take decisions that are highly
controversial in nature and both the sides have some merits.

He goes on to give the example that in UK, the legislature passed a law that in a rape trial, the
defense attorney can’t question the past sexual activity of the victim. The UK court went against
the law saying that it compromises the right to fair trial of the defendant. We need to understand
that this is a highly controversial issue as well. So now, as to deciding what right to free trial is,
who should be given the higher morality in this sense. Shouldn’t we go after a larger majoritarian

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aspect so as to analyse what morality is or those 9 people who by majority of 5:4 decide the
judgements where only one could change the entire paradigm.

We ca regulate legislature at a greater aspect, we have given them that power to be regulated,
they owe us an explanation. They are more accountable that anyone in the judicial hierarchy.

Now we need to understand that if you are a closeted aristocrat, you in order to impose your will
on others you should lay on a higher pedestal of morality than the normal public who makes any
decisions and thus guide every decision that is being taken and you gauge it on that paradigm.

For instance, the right to freedom of speech and expression is not defined it is up to the judges to
interpret that. So on defining that they create that right and the creation of these rights if it has to
happen should only be from the end of someone who has been given the power to do so in the
essence of democracy. So the least problematic and the most democratic way to go about it
would be letting the legislature take the call on these controversial questions.

Professor Allen, goes around and says that there will always be disagreements in the society.
Using words like ‘democracy ‘and sentences like “Don’t you want your rights to be protected?”
in your arguments would be a rhetoric way to go about it.

He goes on to say that democracy in its recent trends has given the right to the judiciary to
second guess the majority and this where aristocracy steps in. He draws parallels between the
existence of such rights in the form of black letter law and their nature. For instance, there can be
many gag orders in a country where right to freedom of speech and expression is statutory right
than in a paradigm where there existed no right in the first place in a statutory form.

When it’s a very debatable call to take the question arises as to who should take the call. The
legislature should or rather the people should because the judiciary is of a very thin majority to
guide such policy makings because the democracies today have become more than just as to how
things should be done to what and which things should be done. He goes on to say that such
debatable issues of human rights shall always have a moral connotations attached to it and a
mere legal superiority is not the answer for the same.

For instance supreme court deciding one the morality of triple talaq is not a question for the
supreme court to decide and at the same time I also understand the problems that the democracy

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has as well. Since it a debatable issue, the legislature avoids taking a call because it affects the
vote banks. Still, at the end of the day if anyone has to take a call on it should be the legislature.

He goes on to criticize the bills of rights where it states all men are equals. He disagrees and says
how all men can be equal. Understand that men are always situated at different pedestals. He
goes on to give an example of a bastard child and how the rights are different and we don’t have
any other answer. What we can do is only provide them with equal opportunities in the future
which make the existing rights immaterial.

On criticizing the judgment law, the author further says that the decision taken by a maximum
possible majority will lead to a moral consensus as well. It takes time but the decision has to be
in the sphere of moral consensus because if this doesn’t happen there is fear of foreign law being
imposed on the people. For example, the recent ban on fire cracker judgment. Now when the
court ushers such judgements to the people, someone who is the protector of rights comes out as
a devil.

The job of the legislature is to ignite certain dialogues in the society and to facilitate the same.
Going out in the open and stating that one side is wrong, which is what judiciary does by a thin
majority, is not the right way to go about it.

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