ABSTRACT
The moral and political articulation of the form and content of fundamental rights is a matter for the democratic political process. The principal ground for this contention is that the ~oncretisation of abstract rights is an integral part of the political right to self-determination. We have also noted that democratic dialogue places more emphasis ort humane values and less on the acontextual individualism which characterises court-based legislation. In the last chapter these claims were explored in relation to an example ·in the area of the regulation of political broadcasting. Here we take up a more general discussion of freedom, of speech in order to illustrate .the complex moral and political issues which are at stake in the determination of the rules that are to apply to the processes of communication. This discussion seeks to bring out that the variety and nature of the considerations which have bearing on these issues are such that they are unsuited for judicial determination. More specifically, it is argued that the diverse and incommensurate values and purposes involved. in developing rights and duties governing . freedom of expression make it difficult to· view the articulation of lthe' right to freedom of expression by way of an interpretation of a brief and abstract affirmation of basic rights or an extrapolation from a c~nstitu.tionally enshrined concept such as 'representative government'. The choices which require to be made are substantial, controversial and political and, therefore, in accordance with LEP, require to be expressed in the form of rules which are capable of being applied without recourse to controversial moral and political views. This chapter concentrates on these political choices.1 In the next chapter we consider whether it is feasible to formulate acceptable free speech rules which satisfy positivist criteria. · ·
FreedomofexpressionisamajortestcaseforLEP.Theclaimthat governmentsmustarticulateabasicdemocraticrightoffreespeech comesupagainsttheimmediateobjectionthatgovernmentsarethe primeoffendersagainstsuchfreedoms.Indeed,itistraditionally assumedthatfreedomofspeechisarightwhichisdirectedentirely againstgovernment.Inthedilemmaswhicharisefromtheparadox ofpolitics,freedomofspeechisusuallyportrayedasabulwark againsttheever-powerfulforceswhichpromptthepoliticalLeviathantocurbindividualpoliticalfreedoms.Toleavedemocratic rightsingeneralinthehandsofgovernmentsappearstoresolve theparadoxofpoliticsbyabandoningtheefforttorestrainthe abuseofgovernmentpower.Theproblemmustbeacknowledged. Indeed,consciousnessoftheendemicabusewhichisinherentin theoperationsofallpoliticalauthorityisanessentialingredientin anymaturepoliticalculture.Buttheresponsemustbethatthe involvementofgovernmentisessentialtotheattainmentofmany aspectsoffreedomofexpressionandthatthefurtheranceofrights inthisasinotherareasrequiresworkingwithintheaccountable democraticprocessratherthanseekingtoimposeconstraintsfrom theoutside.
