At 22.09 30/07/99 -0400, Patricia wrote:
> > the judge has more power: which is the best???
>
>Your questions are really good. I want to think a little more about
>them before trying to answer, but you have certainly framed an important
>question.
Thanks, Patricia.
In 1987 a very important Italian review on legal science edited one of my
papers.
In that paper I discussed a question.
Freedoms were born as freedoms from the power, as freedoms from the state.
That is, for example, if I want to discuss the works of the government, and
if it is legal that I discuss it, none may prohibit it to me. If someone
try to prohibit it to me, I may go in front of the judge. It takes time (in
Italy at least), but it works. In Italy we call it "the negative concept of
freedoms" (it is difficult to translate). It is essential that this
"negative concept of freedoms" will survive; if it should die, any freedoms
would die.
The question is that some basic freedoms are so important that to deny them
is not very different from denying life.
Therefore "the negative concept of freedoms" is not enough. It must go
together with "the positive concept of freedoms". That is, for example,
during holidays everybody is free to go out for a walk (this is "the
negative concept of freedoms"). But, for example, if he/she is unable to
walk, he/she must have a suitable wheelchair for the walk ("the positive
concept of freedoms").
The first legal issue is that, for example, the suitable wheelchair for the
walk is not a matter of welfare, it is a matter of basic freedoms.
The second legal issue is that, as regards "the negative concept of
freedoms", if you go in front of the court, it usually works, it takes
time, but it works. On the contrary (in countries with Roman law at least),
as regards "the positive concept of freedoms", in most cases, if you go in
front of the court, it does not work. It is not easy to explain reasons
because it does not work. However one of the main reasons is that, if the
court agrees with your request it increase the public budget. But the
increasing of the public budget should be a duty of the parliament, it
means it should not be a duty of the judge.
Legally speaking the problem is very big.
Raffaello Belli
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