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Negative governmentality through fundamental rights: The far side of the European Convention on Human Rights
Author(s) -
Nasir Muhammad Ali
Publication year - 2018
Publication title -
european law journal
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.351
H-Index - 54
eISSN - 1468-0386
pISSN - 1351-5993
DOI - 10.1111/eulj.12242
Subject(s) - governmentality , law , human rights , agency (philosophy) , argument (complex analysis) , law and economics , fundamental rights , sociology , political science , reservation of rights , right to property , politics , social science , biochemistry , chemistry
This essay analyses those statements that mention legal norms in negative terms. Specifically, it analyses those statements that define a legal system by mentioning how legal protection does not work and where legal protection ends, and those statements that identify what rights‐holders do not have to with their legally protected free capacities. This essay argues that these statements address a systemic question. It calls such a dynamic as negative governmentality. The argument proceeds in four steps. It introduces the concept of negative governmentality by arguing that the idea of freedom requires both the positive affirmation of moral agency and the constraining of moral agency (Section 2). It then explores how rights constitute freedom by limiting rights or making exceptions to them (Section 3). Later, it analyses how rights‐based norms prevent abuse of rights by holders of rights (Section 4). Finally, it sees how rights‐based norms constrain the legal guarantor of rights, i.e., a state (Section 5). The essay concludes by mentioning the importance of negative governmentality (Section 6).