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RIO-Real Income Objective
Rights and expectations - a note

Hector McNeill1

The subject of human rights is an important topic but advocates and their opposition often confuse the analysis by confusing law with the expectations of community conscience. These distinctions are important in rationalizing economic analyses of human rights.

The emergence of the concept of human rights

In many cases, so-called human rights, such as freedom of assembly, freedom of religion and others, were not established as a result of some crusading politician.
A jury trial 1670

In England, during the seventeenth century, Quakers, a Christian sect, were perceived to be close to heretical. Their approach which based the logic of their arguments on self-evident truths concerning human nature; such statements were therefore difficult to refute. Quakers do not have clerics as part of their religion. The Quakers initiated a widespread questioning of orthodox state religious beliefs by pointing to a more direct, simpler and practical interpretation of human behaviour, which they considered to be more attuned to the essence of the teaching of Jesus. Such messages were spread in public gatherings.

A jury resists

In 1670, the Church finally reacted, and accordingly the State, by arresting William Penn who had addressed a Quaker congregation in Gracechurch Street in London because soldiers had prevented them entering their own meeting house. He was accused of causing a riot and placed on trial for having violated the Conventicle Act. This forbade public religious meetings not managed by Church of England clerics. But the jury acquitted Penn. The jurors were put in prison. They were refused food for several days and for as long as they returned the not guilty verdict. One juror, Edward Bushell, identified as the individual not agreeing with the guilty verdict, was a wealthy businessman, said that his liberty was not for sale. On appeal, another English court, the Court of Common Pleas, issued the first ever writ of habeas corpus to free Edward Bushell. Habeas corpus is a legal right of anyone who has been imprisoned to be brought before a judge to determine whether or not there is justification for that person being held. This appeal resulted in all jurors being set free. Had Bushell and his fellow jurors not acted in such a steadfast manner it is likely that William Penn could have been heavily fined or transported (banished to work as a slave).
These, at least in the United Kingdom, came into being as a result of a jury declaring a defendant "not guilty" of transgressing existing law or practice that forbade unauthorized assemblies and imposed a state religion. In the case of William Pen in 1670 (see box right). The outcome of the case was that William Pen was declared not guilty.

The outcome of this single case set several important precedents

No wrong verdict - A fundamental precedent created by this outcome was that juries cannot be considered to bring a wrong verdict.

Nullification of law - religious freedom - The not guilty verdict established the fact that jurors can nullify laws. In this case they effectively destroyed the Act making the Church of England the only legal religion and thereby gave a significant impulse to increased religious freedom in England.

Trial subject to community conscience - This trial also served to underwrite the importance of trial by jury involving the community conscience as opposed to trial by a tribunal of judges since they would have upheld the unfair and arbitrary law.

Finding of no malicious intent a basis for nullification - Since the jurors considered the law to be unfair and that there was no malicious intent on the part of Penn, that is he had not set out to harm anyone, then they nullified the law.

No arbitrary arrest & imprisonmentt - This case involved the example of people not being imprisoned, without good cause, through arbitrary arrest. All had the right appear before a judge to determine if there is justification, under the law, for their arrest (habeas corpus). This case was concluded more rapidly through the application of habeas corpus so the jurors did not just remain in prison to be forgotten but all were justifiably released. This terminated the suspension of application of Penn's acquittal by the first court. This successful conclusion, of course, depended upon the impartial and sound decision by the judge at the habeas corpus hearing at the Court of Common Pleas.

Equality of all before the law - This case was an important demonstration that all are equal before the law. The King and the interests of the Church had no privileged status or power over the defendant before the law.

Equality guaranteed by jury - This case provided a vitally important example that the equality of all before the law was guaranteed not by the judge in the case, who favoured a guilty verdict, but by the presence and conduct of the community conscience in the form of a jury.

Free speech & peaceful assembly - The case also re-established freedom of speech and the right to peaceful assembly.

Juries continue in England & begin to travel - William Penn, who later established the Quaker colony of Pennsylvania, introduced trial by jury to that colony's legal system long before American independence or the drawing up of the American Constitution.

Today many question human rights on the basis of obligations or a zero-sum game. Thus the argument that tax payers demand representation can be turned on its head to say no human right to representation unless a person pays tax. The fact that "human rights" have now entered a list in human rights acts should not detract from the nature of "discovery" of human rights. They were uncovered as a result of a lack of correspondence between what people expected of the law under circumstances when the accused acted within a range of normal expectations of human conduct. Therefore, the right that is expected to be afforded by any state, or legislature, is behaviour on the part of the state as well as constituents that accord with what is considered to be reasonable and expected behaviour. Reasonable and expected behaviour cannot include discrimination on the part of state policies and yet many policies and legal and regulatory frameworks do impose conditions that discriminate against segments of the constituency and in some cases this affects the majority. Examples of this particular problem are set out in the article, "RIO and Locational State Theory - Rational laws and regulations".

1 Hector McNeill is the Director of SEEL-Systems Engineering Economics Lab.
2 Cited in McNeill, H. W., "The Briton's Quest for Freedom .. Our unfinished journey", Chapter 5, "A Trial by Jury - 1670", pp.41-45, 418 pp., HPC, 2007, ISBN:978-0-907833-01-7.

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