Jurisprudence-II

Is it ever Justifiable to sacrifice Individual

Rights for Collective Security
The Following document would discuss in detail the concept of rights . The first
segment of the Document would deal with the basic introduction of the topic
which would then lead us towards definition of Jurisprudence. The second
segment of this Document would deal with the concept of rights and a basic
analysis of this concept and from there onwards we would move on towards the
our original topic of sacrificing individual rights for collective rights and the last
segment of this Document will have case laws and acts which are in reference to
our topic.

Syeda Masooma Imam, Asad Abbas Raja

Table of Contents:

 Introduction
 What is Jurisprudence?
 Right
 Creation of Right.
 Analysis of a Right.
 Sacrificing Individual Rights for Collective Security.
 Anti-Terrorist Act and the Protection of Pakistan Act
 Case Laws
 Conclusion.

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 Man is born free, but everywhere he is in chains.

Introduction:

Every Legal System of this world is based upon Philosophies, theories and their
interpretations. The laws we have today in codified form were nothing else than a theory
or an idea once but they have evolved themselves over the period of time. It is important
for us to note that for the development of legal system theories and ideas hold their place
as a foundation stone and for the development of a legal system in our opinion a theory
like grundnorm is required1. The following discussion of ours would debate upon the
basic ideas such as what is Jurisprudence then we would move on towards the towards
the concept of right that actually what a right is and we would also see the creation of
right and will analyze it in the light of our discussion. Then would move on to the basic
part of our assignment which will discuss in detail the sacrificing of individual rights for
collective security we would also see the examples of this concept in the light of Acts and
case Laws. While concluding our discussion we would also give our point of view upon
the discussion.

What is Jurisprudence?

The word jurisprudence is derived from a Latin word jurisprudenica which means the
knowledge of Law or the skill of law2. It is difficult for us to give a concert and
unanimous definition of Jurisprudence because every jurist has tried to define this term in
his own way. Salmond defines Jurisprudence as an investigation into the concepts,
abstracts and philosophies of law which lay down the principles of law and then tell us
about the legal system3. So define it in a broader sense we can say that Jurisprudence is
actually a foundation stone of a legal system. The word jurisprudence in itself contains
theories from the time of Plato to HLA Hart. In England the word Jurisprudence is used
for formative period of law whereas in France it is used for the case laws4. So as per now
we have the idea of Jurisprudence now we will move on towards the concept of Right, its
creation and its analysis.

Right:

1
Pure theory of law By Kelsen, Published By the Law book exchange Limited 2005.
2
Jurisprudence By Dr. V.D.Mahajan, Page Number 1, Published By Mansoor Book House Lahore.
3
Salmond on Jurisprudence By P.J.Fitzgerald, Page 1, Published By London Sweet and Maxwell 1966.
4
Jurisprudence By V.D. Mahajan, Page Number 1, Published By Mansoor Book House Lahore.

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As per Jurisprudence it is also difficult for us to give a unanimous definition of a right.
Every legal jurist has tried to define right in his own way, Salmond defines right as an
interest safeguarded and implemented by law5. As per salmond where there is a right
there is a duty too which is also imposed by law and diverging away from that duty is a
wrong. Salmond says that both rights and duties correspond with each other. Moving on
towards the other jurists Pollock says that right is nothing else but the freedom allowed
and the power which is conferred by law6. Austin on the other hand says that law is a
command of sovereign backed by a sanction and who that command benefits is said to be
entrusted with a right7. Austin, Holland, Pollock and a number of other jurists have given
their theories upon the concept of Right. In order to understand this concept more clearly
we can divide rights into 2 main categories namely moral rights and legal rights. Moral
rights are those which exist under a moral system whereas legal rights are those which
exist under a legal system and here in the upcoming discussion we would have our focus
upon the legal rights. Now in the upcoming discussion we would see that how a right is
created.

Creation of a Right:

It is important to know here that how a right is created. Everything in this world is
created by its characteristics and so is a right. The Naturalists believe that there are
certain natural interests and rights that belong to man due to his original freedom granted
to him nature8 so the rights are created and recognized by this way. Bentham on the other
hand rejected this idea and said that all rights are legal rights and are the creation of law9.
Characteristic are there to complete a legal rights some of the characteristics are as
follows10:

 An owner of the Right: There must be a person alive in whom the right is vested.
 There must be a person of incidence: Meaning a person against whom the right is
vested.
 There must be an obligation to do or not to do something.
 There must be an object of the right.
 Every Legal Right has a title

Analysis of a Right:
5
Salmond On Jurisprudence By P.J.Fitzgerald, Page Number 217, Published By London Sweet and Maxwell 1966
6
Jurisprudence By V.D.Mahajan, Page Number 288, Published By Mansoor Book House Lahore.
7
Jurisprudence By V.D.Mahajan, Page Number 288, Published By Mansoor Book House Lahore.
8
Jurisprudence By Imran Ahsan Khan Nyazee, Page 228, Published By Federal Law House Rawalpindi.
9
Jurisprudence By Imran Ahsan Khan Nyazee, Page 229, Published By Federal Law House Rawalpindi.
10
50 Lectures on English Jurisprudence By R.Mehta Page No. 152-154 Published By Irfan Law Book House Lahore.

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Salmond’s analyses of a right is that in every branch of law whether it be contract, trot,
crime or etc. consists of rules and that rules create a rights and duties. The administration
of justice must enforce these rights. Analyzing rights Salmond says that the concept of
right cannot be under stood in isolation its understanding depends upon 2 concepts and
those concepts are rights and duties. He says that it is only an examination of the
interaction of these three concepts that give us or brings out the original meaning of a
right11.

Sacrificing Individual Rights for collective security:

Now comes the most important part of our assignment and that is that is it ever justifiable
to sacrifice individual rights for collective security before going in towards the deep
discussion it important for us to know the concept of collective security. The theory of
collective security directly deals with issue of how to cause peace12. So that means that
can we sacrifice individual rights for the prevalence of peace and order in the society. We
may in take in account Bentham’s principle of maximum happiness in which he says that
the government shall make laws on the basis of maximum happiness rule. The rules state
greatest happiness for the greatest number of people13. The principal of Bentham can be
extended in the light of topic as if there is happiness or peace and security for the greater
number of people than we can over look the arguments and grievances of minorities. So
here we have extended the principal of Bentham. Now moving onwards we would see
some other important concepts in this regard such as Is National security important than
civil rights, The common good vs. individualism and collectivism vs. individualism but
before going on to these concepts it is important for us to know here that what is a
security state and after that we will understand the concept of national security versus
civil rights. A security state can be defined as who can violate international law or any
law by the justification of their national security US is an example to that14. So this
means that a security state can violate any law given or a right conferred upon the
justification of threat or their security. It is important to note here that both the sides have
their own argument as in upcoming discussion we would discuss upon the fact that is
national security more important than civil rights. Those in favor of this concept say15
that saving lives of a number of people is more important than. On the second count they

11
Jurisprudence By Imran Ahsan Khan Nyazee, Page Number 226-2227, Published By Federal Law House
Rawalpindi.
12
Article: The theory of collective security and its limitations in explaining international organizations by Lawrence
Mwagwabi.
13
Jurisprudence By Imran Ahsan Khan Nyazee, Page 108, Published By Federal law House Rawalpindi.
14
Article: Human Rights Watch.
15
Article: Home Land Security is more Important than protection of Civil Liberties.

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say that for the protection of civil liberties a secure government is required and that
would be only possible when the government focus is upon nothing else but homeland
security.

Moving on those in favor of the homeland security say that civil liberties cannot be
exercised if citizen are threatened by breach of securities so in order to provide those
rights and liberties it is important that a state shall firstly secure itself whereas civil
liberties can be reinstated after the state becomes secure but the lives which were lost as a
result of insecurity cannot be brought back. Now from here onwards we will move
towards the concept which states common good vs. individualism. Today we live in a
society where the people accept modest sacrifices for a common good on the other hand
we also see societies where people peruse and protect their own interest than a common
good16 but before going into the debate deeply it is important for us to know that what is
common good. The common good is nothing else but a notion which finds its origin over
two thousand years ago in the writings of Plato and etc. whereas this concept can also be
seen in the writing of Rowels. Rowels define common good as certain conditions that are
equally to everyone’s advantage17 whereas the catholic religious tradition also identifies
common good. So this means that common good consist of social system, institutions and
etc. in which we all depend and work in a manner that benefits all people. Examples
among the nations of the world can be seen as of a just legal and political system or a
well off economic system which has its impact upon the individuals but this does not
means that common good is established by itself but establishing and maintaining
common good requires the cooperative effort of some or often many people and when the
efforts pay off no one can be easily excluded from that and those in favor argue that
individualism would not lead us to this situation as it is impossible for all to agree upon a
particular social, political system and even if they agree upon one they all may differ on
the values in a pluralistic society and this thing would harm common good and such
disagreements would undermine the ability to evoke a sustained and widespread system
commitment to common good18. The promotion of Common good may face another
problem named as individualism. Our historical traditional values places a huge
importance on individual freedom and as a diverse society is comprised of separate
independent individuals who are free to peruse their own goals and in such a society is
difficult, perhaps impossible that people would sacrifice some of their freedom for the
sake of common good. So individualism in this sense harms the prosperity of a society.

16
Article: The Common good by Claire Andre and Manuel Valsequaz Published By Santa Clara University.
17
Article: The Common good by Claire Andre and Manuel Valsequaz Published By Santa Clara University.
18
Article: The Common good by Claire Andre and Manuel Valsequaz Published By Santa Clara University.

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Now we will move on towards one of the most important concept of this assignment
meaning collectivism vs. Individualism.

Collectivism is defined as a theory or a group that makes some sort of group rather than
the individual fundamental unit of political social and economic concern. This theory
states that the claims of groups and etc. shall supersede the claims of an individual
whereas on the other hand individualism says that human being should judge and think
independently, respecting nothing more than a sovereignty of his mind, it is ultimately
related with the concept of autonomy and individualism holds up the supremacy of
individual rights. Ayn Rand said a majority has no right to vote away the rights of
minorities19. Collectivism means subjugation of a person to group whether it is to a race
class or a state. Whereas rand on the other hand says that individual rights means
subordinating society to the moral law which gives us freedom and not subjugation.
Collectivism requires self sacrifice, and one subordinating his interest for another
whereas politically true individualism means that one has a right to his own life and his
own happiness but true individualism also means uniting with other citizens to preserve
and defend the protect the institutions that protect a right20. As per now we are familiar
with the concept of Individualism and collectivism so let us examine these concepts in
detail.

As we have seen from the above discussion that collectivism and individualism are both
opposite to each other as individualism’s focus is upon the autonomy of an individual in a
society. The concept of Individualism strengths an individual in a society but on the other
hand collectivism’s focus is upon subjugation of an individual to a group or a race or etc.
Whereas on the other hand collectivism does not considers an individual the prime mover
of the society but instead of that they consider institutions, organizations and etc. Both of
these concepts came into to our discussion because collectivism more focuses upon the
nationhood being more important than an individual whereas individualism’s focus is
upon the rights granted to an individual.

Anti-Terrorist Act and the Protection of Pakistan Act:

The concept of sacrificing individual rights for collective security has been extended in
Pakistan to a wider scope. Acts like Anti-Terrorist Act, Protection of Pakistan Acts and
others have been established not only against the fundamental rights in the constitution of
Pakistan but also against the Principles of natural justice an example can be seen in the
Protection of Pakistan act where an person accused has to prove his innocence which not

19
Article: Definition, Collectivism vs. Individualism
20
Article: Definition, Collectivism Vs. Individualism

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only against the basic criminal jurisprudence but is also a violation of Article 10-A of the
constitution of Pakistan which talks about fair trial. The concept has also been upheld by
the courts in Pakistan as in recent petitions against the Pakistan protection ordinances
were disposed off.

Case Law’s:

Sinclair versus HM Advocate 2005 UKPC D21:

In this case the court of law held that fair trial is a fundamental right of the accused and
for that there should be an equal arm of adversarial system which means that there should
be equality between prosecution and defense. Prosecution is under duty to present
evidence which may undermine their case and that evidence may be taken as material
evidence.

Taylor Vs Kentucky 436 US 47822:

The honorable court of law in this case held and discussed about the right to fair trial
with the innocence of the accused. It was held in this case that the presumption of
innocence in favor of the accused is undoubted law axiomatic and elementary and its
enforcement lies at the foundation of the administration of our criminal law. This was
held Because another judgment was also relevant to it.

So both of the above mentioned cases tell us that whatever the circumstance may be the
individual rights must be there and no one has the right to snatch them because these
rights which are granted to an individual are the elements and the basis of the law or the
foundations upon which the law is standing.

Conclusion:

It feels important to us to conclude our discussing while inculcating our point of view. In
our opinion the rights of individuals can never be sacrificed on the name of collective
security.

 Previously Democratic governments have been over thrown by Military dictators

on the name of national security so democracy could not flourish in such
conditions whereas democracy is from the people and for the people.

21
Sinclair versus HM Advocate 2005 UKPC D
22
Taylor Vs Kentucky 436 US 478

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  Civil liberties are also cruel protections against the government such as freedom
to speech and during its exercise one can criticize on the government policies. So a
person can exercise his right to fair trial.
 A law against the principles of Natural justice is a bad law as per the Naturalist
and its objective can never be achieved. So in our opinion such laws will become
nothing else but a purposeless law.
 Citizens of a state often do not have access to information about security threats so
a government can over react in absence of individual rights such as the right to
information to meet its own goals.
 An autocrat government will come into being on the name of nation security
which may persecute its political opponents.
 Self contradictory theories are preferred over the constitutional apparatus.
 Might is right becomes the rule and legal remedies are curtailed.

So concluding our discussing we can say that a number of counties including Pakistan
has inculcated this system of law where an individual rights are sacrificed on the name of
National security but this system has never performed in the past and we even don’t hope
that it will perform in future.

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Bibliography:

 Pure theory of law By Kelsen, Published By the Law book exchange Limited
2005.
 Jurisprudence by Dr. V.D.Mahajan Published By Mansoor Book House Lahore.
 Salmond on Jurisprudence By P.J.Fitzgerald Published By London Sweet and
Maxwell 1966.
 Jurisprudence by Imran Ahsan Khan Nyazee Published By Federal Law House
Rawalpindi.
 50 Lectures on English Jurisprudence By R.Mehta Published By Irfan Law Book
House Lahore.
 Article: The theory of collective security and its limitations in explaining
international organizations by Lawrence Mwagwabi.
 Article: Home Land Security is more Important than protection of Civil Liberties.
 Article: Human Rights Watch.
 Article: The Common good by Claire Andre and Manuel Valsequaz Published By
Santa Clara University
 Article: Definition, Collectivism Vs. Individualism.
 Taylor Vs Kentucky 436 US 478
 Sinclair versus HM Advocate 2005 UKPC D.

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