important but in doing so formulates abstract criteria for determining the impor-
tance of a right that may be relied upon by citizens in future cases.
12.7.3 Limitations
Sometimes, rights go too far. If complying with rights may cause a great deal of
harm to society, there is a point at which one might consider dishonoring the right to
protect the common good. An even worse scenario is depicted by Jeremy Waldron:
in certain cases, rights can be used to cause harm intentionally.
For example, people have a right to privacy, but governmental authorities may be justified
in restricting that right and invading their personal sphere in a limited fashion in order to
guarantee safety and combat crime. Judicially authorized electronic surveillance is an
example of this invasion of privacy.
Also consider the so-called Jyllands-Posten Muhammad cartoons controversy of 2005.
Certain cartoons depicting the prophet Muhammad provoked ire from the Muslim commu-
nity in Denmark and abroad. In most interpretations, the cartoons were protected by
freedom of expression, yet arguably the use of this right was abusive.
The doctrine of limitations of rights can be seen as an escape clause for these
situations. Under this doctrine, rights are not fully trump cards—they are trump
cards most of the time, but when certain (presumably rigorous) conditions are met,
it can be legitimate not to honor the right.
Conditions on Limitation At the international level, there is significant consensus
on the conditions under which a right can legitimately be limited:
- the nature of the right must allow limitations,
- the right must be limited to a legitimate goal,
- the limitation must be provided by law,
- the limitation must be proportional to the goal, and
- the limitation must be of such nature that it is necessary in a democratic society.
With regard to the first condition, it is generally accepted that some rights are
truly absolute and cannot be limited. The longer lists of these absolute rights usually
include freedom from torture, freedom from slavery, freedom of conscience, and
the right to be recognized as a person.
The “legitimate aim” condition requires that the restriction be brought about by
an actual interest in the common good and not by partial political interests.
The “provided by law” condition demands that the restriction be general and
prospective rather than ad hoc.
The requirement of proportionality is a sort of balancing test; restrictions should
not go beyond what is needed.
The construct of “necessary in a democratic society” represents the broader
philosophical context in which the decision must be taken. Some restrictions of
282 G. Arosemena