S (p. 207-208)

Security of the person

Security of the person is a phrase occurring in some human rights codes, usually coupled with liberty of the person, as in Article 5 of the European Convention on Human Rights. It means simply that the state may not inflict physical harm on anyone in any way which would be barred to an ordinary citizen, thereby protecting against undue violence by the police in controlling demonstrations or affecting an arrest. Any more intentional or systematic violence would, of course, be covered by the broader bans on any punishment not authorized by due process of law. It has a foreign ring to common law ears simply because the common law has always treated the police, or any other agency of the state, as governed by the laws against offences to the person exactly as such laws govern any citizen. It has to be remembered that even the powers of arrest held by a police officer ultimately stem from the common law right of any citizen to use necessary force to prevent a crime or apprehend a criminal. In such a context there is no logical need to give a separate constitutional protection to security of the person.

Sedition

In the United Kingdom and elsewhere in the Commonwealth sedition is a common law crime, treated as part of the law of criminal libel, and has existed in a statutory form from time to time in the USA. It amounts to an attempt to persuade the population to overthrow the government by unlawful means, or more generally to attack the government or the state in ways likely to cause serious problems of national security. So, for example, people have been convicted of sedition even in the post-Second World War period for offences such as delivering pamphlets urging soldiers to refuse to serve in Northern Ireland. Technically, the range of possible seditious acts in the UK would include attacks on the monarchy and the Church of England, and can best be described as a low grade of treason. Dealing with sedition, when it falls short of actual preparation for revolution, necessarily falls foul of any serious commitment to freedom of speech and, consequently, US law has severely restricted the possibility of acts of sedition, under the clear and present danger interpretation of the First Amendment. The European Convention on Human Rights, however, seems to take a more statist view and certainly allows prosecution for spreading disaffection in the armed services, which has always been a key element of sedition.

Self-defence

The ‘right’ to self-defence is not really a right at all, though some recognition of it exists in most criminal law systems. The need for self-defence is a plea that can be made in defence of a charge of having committed some crime of violence, even, in extreme cases, murder. The idea is a good example of the range of issues covered by the term ‘right’, and has an odd history in political theory. One major political theorist, Thomas Hobbes (1588–1679), included self-defence in the list of natural rights he defended in his Leviathan (1651), which is particularly remarkable as Hobbes did not otherwise believe that a citizen had any rights at all against the state. According to Hobbes, mankind has all the rights most theorists would list as having existed in the state of nature, that is, before the creation of an organized state, but, in order to create a state powerful enough to protect life, mankind gives up all his rights to the sovereign. The only right he does not surrender is that of self-defence, because it would be logically absurd to argue that one should give up the right to protect one’s life if the justification of the state is simply to protect one’s life. Hobbes is the apotheosis of rights theory, and the only thinker to give such prominence to the idea of selfdefence as a right; not only is it not a right in any usual sense, it is a severely circumscribed defence, and one may not use more than minimum necessary force, which must itself be proportional to the end. Thus, very little physical violence will be permitted in defence of one’s property, an understanding that has sometimes been problematic in French law, for example. Even in defending oneself against a potentially deadly attack there are sometimes doctrines, certainly in some US jurisdictions, of a prior duty to flee if possible rather than to stand one’s ground and kill to protect one’s life. The notion of a form of right to self-defence is limited recognition of inevitable human reaction, and a limiting circumstance to another right, the right to life.