Dalhousie Law Journal


Fundamental rights, defense, central question, traditional juridical, philophers, John Stuart Mill, John Rawls, ultimate norm, democratic society


The central question dealt with by William E. Conklin inIn Defense of Fundamental Rights is "Why are fundamental rights considered fundamental?" (p. 2). In Part I he looks at traditional juridical answers to this question (all of which he finds unacceptable). In Part II he turns to the answers of philophers, in particular John Stuart Mill and John Rawls, and then goes on to formulate his own view as to what is, in his words, "the ultimate norm in a democratic society" (p.6). Lastly he makes use of this norm to determine which rights are fundamental and when they may be infringed. In the Introduction Conklin discusses what he means by "fundamental". This is the key term in his book and an ambiguous one so that such a discussion is necessary. As Edel has pointed out, when we say rights are fundamental we may mean either that they are axiomatic in the moral system; i.e., that they are the rights from which other rights derive, or that they have greater weight than other rights within the moral system.

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